1.3. APPLICABILITY OF HUMAN RIGHTS TO
NON-CITIZENS69
The United Nations has defined a non-citizen as
“any individual who is not a national of a State
in which he or she is present.”70 Non-citizens
include migrant workers and their families
as well as refugees and asylum-seekers and
trafficked persons. The term “non-citizen” also
applies to stateless persons, that is, individuals
who have never formally acquired citizenship
of the country in which they were born or who
have somehow lost their citizenship without
gaining another.71
The position of non-citizens under international
human rights law is of particular relevance
to an assessment of the rights of trafficked
persons and the duties owed to them by
States. Except in cases of internal trafficking,
the most serious violations committed against
a trafficked person will almost invariably take
place outside the victim’s country of residence or
citizenship, including in transit and, particularly,
in destination countries. This is not to deny the
reality of substantive violations occurring during
the recruitment and initial transport phases.
However, the purpose of that recruitment and
transport is exploitation, and it is for this reason
that the country of destination is an especially
For more on the issue of trafficked persons as noncitizens (including trafficked persons as migrant workers),
see Gallagher, International Law of Human Trafficking,
chap. 3. Generally on the issue of the rights of noncitizens, see The Rights of Non-citizens (United Nations
publication, Sales No. E.07.XIV.2), especially pages
15-26.
dangerous one for trafficked persons and
their rights. There is also a clear link between
statelessness and trafficking. First, statelessness
increases vulnerability to trafficking. Second,
stateless people who are trafficked face
unique difficulties, for example with regard
to establishing their identity and accessing
protection and support. Third, trafficking can
sometimes result in statelessness, for example
when individuals are trafficked abroad for
marriage and lose their nationality in the
process.72 The rights and obligations identified
below apply, as minimum standards, to stateless
persons. Such persons may also, under certain
circumstances, be entitled to additional or
special rights.
Can trafficked persons benefit from the
protections of international human rights law
when they are outside their own country, either
physically or legally? In principle, the answer
to this critical question will almost always be
yes. International law generally accepts that
treaties apply to all individuals within a State’s
jurisdiction.73 By extension, international human
rights law will apply to everyone within a State’s
territory or jurisdiction, regardless of nationality
or citizenship and of how they came to be within
the territory. Both the Charter of the United
Nations and the Universal Declaration of Human
69
Declaration on the Human Rights of Individuals Who are
not Nationals of the Countries in which They Live, General
Assembly resolution 40/144, annex, article 1.
70
David Weissbrodt, “The protection of non-citizens in
international rights law” in Ryszard Cholewinski, Richard
Perruchoud and Euan MacDonald (eds.), International
Migration Law: Developing Paradigms and Key Challenges
(2007), pp. 221-222.
71
See further United States Department of State,
Trafficking in Persons Report (2009); Vital Voices, Stateless
and Vulnerable to Human Trafficking in Thailand (2007).
72
See Treatment of Polish Nationals and Other Persons of
Polish Origin or Speech in the Danzig Territory (Advisory
Opinion) [1932] PCIJ (Ser. A/B) No. 44 (identifying a
difference between a State’s right to control the admission
of foreigners versus the right of individuals found within the
State); Vienna Convention on the Law of Treaties, article
29 (indicating that treaties apply to all individuals within
the jurisdiction of the State party: “Territorial scope of
treaties: Unless a different intention appears from the treaty
or is otherwise established, a treaty is binding upon each
party in respect of its entire territory”).
73
COMMENTARY
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