It is true that the scope of the CERD, does not cover the distinctions, exclusions, restrictions or preferences made by States Parties on the ground of the “non-citizenship” (strictu sensu) of the persons concerned1. However, the scope of this instrument covers the cases of discrimination toward non-citizens which would be based on other grounds.
In particular, the Committee is competent to determine whether the provisions concerning nationality, citizenship or naturalization, discriminate against any particular nationality2. In this sense, and as the Committee affirmed in its General Recommendation XI, States parties are required “to report fully upon legislation on foreigners and its implementation” 3.
However, the jurisdiction of the Committee as far as non-citizens are concerned, is not limited to these cases. In fact, although States are not forbidden to apply distinctions, exclusions, restrictions or preferences between citizens and non-citizens, the Committee has recognized that “many of the rights and freedoms mentioned in article 5, are to be enjoyed by all persons living in a given State” (the underlining is ours)4. Furthermore, besides the rights and freedoms mentioned by CERD in Article 5, and as emphasized by the Committee in its Recommendation XI, “States must not be detracted from their obligations under other covenants regarding the situation of the rights and freedoms enunciated in other instruments”5. This means that the Committee’s jurisdiction over non-citizens covers the whole range of possible human rights violations.
On the basis of these preliminary considerations, the FIDH wishes to bring to the attention of the members of the Committee the situation of non-citizens who have been victims of discriminatory treatment in the territory of certain States parties to the CERD.
Our compilation is principally based on reports from fact-finding missions carried out by the FIDH or on information received by our affiliated Leagues. In some cases, these sources have been enriched by United Nations documents or international jurisprudence. The cases raised below, does not intend to be a complete list of the possible situations of discrimination of non-citizens. They should be considered much more, as evidence of the existence of analogue situations in different countries. In particular, regarding migrant workers, migrant women, persons affected by anti-terrorism legislation, refugees, asylum seekers and traveling communities. In a “didactic" aim, we present the cases, by situations (“categories of non-citizens”) and by countries. We have also included cases of non-citizens who could not be classified under any specific situation. Finally, we mentioned the case of an entire community that, since deprived of the fundamental rights of citizenship, it can be assimilated to the situation of non-citizens.