Differentiation between citizens and non-citizens is legitimate under article 1 of the Convention, as long as it does not discriminate against any particular nationality, and as long as it does not, "detract in any way from the rights and freedoms recognized and enunciated in other instruments, especially the Universal Declaration of Human Rights, the International Covenant on Economic social and Cultural Rights and the International Covenant on Civil and Political rights", as this Committee has clearly noted in General Recommendation XI.
On the basis of our findings, we have noted an increasing tendency by States to create more and more types of non-citizens with an array of differentiated rights within their own territory. The FIDH is particularly concerned about the gravity of the situation regarding discrimination towards the categories of migrant workers, migrant women, persons affected by anti-terrorist legislation, refugees, asylum-seekers and travelling communities. Discrimination, in most of these cases, is double, as persons discriminated against as non-citizens often belong to the most vulnerable categories of the population (such as refugees, women, children and elderly persons).To this we wish to add the cases that we identify as "assimilated non-citizenship", that is, the cases of entire communities which, although nationals of a given State, are deprived of their fundamental rights of citizenship and whose situation is, thus, assimilated - or in some cases, worse- to that of non-citizens.
The Committee’s jurisdiction over non-citizens covers the whole range of possible human rights violations, as has been acknowledged by the Committee itself in General Recommendation XX, according to which "many of the rights and freedoms mentioned in article 5 are to be enjoyed by all persons living in a given State", and that the Convention must not be interpreted to "detract in any way from the rights and freedoms recognized and enunciated in other instruments" (as emphasized in its Recommendation XI).
The FIDH notes with concern that, in situations of public emergency or exception, certain categories of non-citizens are the most vulnerable and susceptible to human rights violations. Particularly in the framework of the anti-terrorism struggle, judicial and procedural rights are being systematically violated against specific nationalities under the guise of being measures necessary for national security. Notwithstanding the fact that judicial and procedural guarantees are not expressly included among the non-derogable rights stated in article 4 of the ICCPR, it has been acknowledged by the Human Rights Committee that non-derogable rights must be secured by procedural guarantees, and that "the principles of legality and the rule of law require that fundamental requirements of a fair trial must be respected during a state of emergency" (General Comment 29). Moreover, the discriminatory character of these violations is a manifest breach to articles 26 and 4.1 of the ICCPR, as interpreted by the Human Rights Committee, which has recognized that "there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances", and that "one of the conditions for the justifiability of any derogation from the Covenant is that the measures taken do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin", which provision "must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant".
Many of the rights that are object of discriminatory application regarding non-citizens are those within the sphere of economic, social and cultural rights, particularly regarding labor, education, housing and health. For the latter, the Committee on Economic Social and Cultural Rights, in its General Comment number 14 (2000), has emphasized the obligation of States party to refrain "from denying or limiting equal access for all persons, including(...) minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy [...]". That the other economic, social and cultural rights are applicable to all persons, including non-citizens, is unquestionable.
Furthermore, the parameter of rights of citizenship varies from country to country. This Committee has already clarified (in General Recommendation XX) that, among others "the right to participate in elections, to vote and to stand for election are the rights of citizens", thus providing an international minimum standard. However, this standard is not, in fact, respected in some countries (we mention the particular case of the Bahá’ís in Iran), where States purposely deprive certain groups from these particular rights, thus granting them no standing or representation in their government, making them non-citizens de facto.
The increasing discrimination regarding non-citizens demonstrates the need of legal clarification of article 1 of the Convention by means of a General Recommendation to complement that already adopted. We deem that three issues should be particularly emphasized:
1.A particular definition of the term "non-citizens" might be desirable in order to clarify the scope of the obligations, however it is our view that the definition should not include an exhaustive list of categories but only an illustrative one, given the fact that new categories of non-citizens are being increasingly created by States to circumvent their legal obligations regarding these persons. Particularly, it must take into account the situations of arbitrary deprivation by States of the rights of citizenship, in order to avoid leaving unprotected groups within their territory.
2.The General Recommendation should stress the criteria under which distinctions between citizens and non-citizens may be made, which must be objective, rational, necessary and justified, in order to avoid the arbitrary misuse of this provision by States.
3.The Recommendation should, overall, serve as a legal basis to increase the protection of the fundamental rights of non-citizens (economic, social and cultural rights as well as civil and political rights) condemning any discriminatory acts carried out by States against them.