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...was refused permission to register her birth or to obtain recognition of her le gal personality. (1) Government officials said they had orders not to register or issue birth certificates to children of Haitian descent. The official in charge of the Civil Registry explained that, as Yean had been born to Haitian parents who were in the country illegally, she had no right to Dominican citizenship. Underlying these explanations was a virulent and pervasive prejudice against ethnic Haitians. As an undocumented person, Yean was refused permission to enroll in school and remained vulnerable to expulsion from her own country. (2)
Yean's case illustrates the vital importance of citizenship in making effective the promise of fundamental human rights protection. Citizenship is a legal status that serves, in practice, as a precondition to the enjoyment of many rights, including voting, property ownership, health care, education, and travel outside one's own country. Yean is one of millions worldwide who have suffered abuse because of their noncitizen status and/or the inability to obtain citizenship. And, like so many others, Yean has been denied these rights largely because of her ethnicity.
Across broad swaths of the globe, the treatment of noncitizens--so-called foreigners and aliens, migrants, refugees, asylum seekers, stateless persons, and others who, by virtue of their exclusion from the political community, enjoy some formal legal protection but little influence--is worsening precisely as states are increasingly bestowing, denying, or retracting citizenship as a political weapon. In countries with high rates of immigration, problems of access are common; in postcolonial countries, deprivation is often the main concern. Racial and ethnic discrimination commonly worsen the problems faced by noncitizens, many of whom are members of minority groups.
In recent years, while globalization has resulted in increased migration across national borders, the primary avenues for obtaining citizenship--birth on a country's territory (jus soli), descent from a citizen (jus sanguinis), and naturalization--have not changed. As a result, growing numbers of persons--as many as 175 million worldwide--are not citizens of the countries in which they reside. The challenge is to use human rights law to combat the worst effects of citizenship denial and the ill-treatment of noncitizens. In this essay, I will explore some of the ways in which racial discrimination and citizenship intersect, and how anti-discrimination law is relevant to the human rights consequences of citizenship denial and the mistreatment of noncitizens. I argue that the growing divide between citizens and noncitizens is primarily a problem of lapsed enforcement of existing norms. By contrast, combating citizenship deprivation and denial requires clarification and articulation of new legal norms that narrow the boundaries of state prerogative. With respect to both problems (i.e., citizenship denial or deprivation and the mistreatment of noncitizens), even as longer-term objectives are pursued, advocates should intensify their use of existing legal tools on behalf of noncitizens. The most comprehensive, well known, and generally accepted of these are the jus cogens rules of international law that prohibit discrimination on the basis of race.
WHY CITIZENSHIP MATTERS: LOOPHOLES IN THE INTERNATIONAL HUMAN RIGHTS FRAMEWORK
"The architecture of international human rights law is built on the premise that all persons ... should enjoy all human rights unless exceptional distinctions serve a legitimate State objective and are proportional to the achievement of that objective." (3) Thus, international law grants noncitizens virtually all rights to which citizens are entitled, except the rights to vote, hold public office, and exit and enter at will. (4) The Universal Declaration of Human Rights affirms that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world" (Preamble). Thus, noncitizens should enjoy equal rights to, inter alia, life; freedoms of religion, assembly, expression, and movement; and freedom from torture and inhuman treatment, arbitrary arrest, unfair trial, and invasion of privacy and family life. Similarly, so-called minority rights to enjoy and practice one's culture, language, or religion ought not to be dependent on citizenship status. (5)
These commitments are reflected in national law in some countries. In the United States, the Supreme Court as long ago as 1886 held that the equal protection clause of the U.S. Constitution's Fourteenth Amendment was "not confined to the protection of citizens," but was "universal in application ... to all persons within the territorial jurisdiction." (6) Thus, in principle, the consequences of being a noncitizen resident of a given state ought not be dire.
In reality, however, noncitizens remain among the most vulnerable segments of humanity. Increasingly, states have improperly deployed the concept of citizenship to carve out significant exceptions to the universality of human rights protection. This happens primarily in two ways: through deprivation of, and/or restrictions on access to, citizenship, and through the imposition of distinctions between citizens and noncitizens. On the one hand, determining membership in a territorially circumscribed political community remains one of the core attributes of state sovereignty. (7) International law traditionally affords states broad discretion to define the contours of, and delimit access to, citizenship. On the other hand, since the Second World War, states' power over residents who are not citizens has been increasingly limited on paper, but not in practice. When taken together, the powers to deny citizenship and treat noncitizens differently can--particularly when employed arbitrarily--result in the denial of fundamental human rights: entire groups of native-born residents may be excluded from access to public benefits; citizens suddenly stripped of their status may be physically expelled; long-term residents may be fearful of deportation and denied the vote; and acts of violence and discrimination against noncitizens may be abetted or allowed to go unpunished.
At a conceptual level, citizenship's very contribution to cohesion for those who belong to a political community may simultaneously engender division and even hostility toward those left outside. (8) The normal empathy that human suffering engenders can be diminished when the victims at issue are noncitizens. Governments often manipulate citizenship access and mistreat noncitizens without incurring political costs from other states or their own citizens. As a result, citizenship creates a giant loophole in the international human rights framework.
Abuse of Noncitizens' Human Rights
Human rights law has made great strides in constraining states' conduct with respect to their own citizens. But, in many ways, the "protection of noncitizens by international human rights instruments represents an even greater challenge to national sovereignty." (9) The treatment of noncitizens compellingly tests societies' commitment to the rule of law. (10)
In some states, the abuse of citizenship status occurs as a matter of legal or constitutional mandate. For example, the Croatian constitution has been found improperly to limit certain of its rights to "citizens." The government of Qatar has been questioned about a requirement that marriages between Qatari nationals and foreigners are subject to prior approval by the interior minister. Czech legislation that reserved to citizens the right to recover compensation for confiscated property was found to be in breach of international law. (11)
More often, noncitizens suffer discrimination as a matter of practice throughout public life, from access to education, housing, and health care to police protection from acts of violence. UN committee and press reports in recent years have documented xenophobic attitudes toward noncitizens on the part of others, employment discrimination against noncitizens with respect to working conditions and language requirements, segregated schooling, forcible eviction and mass deportation, disproportionate numbers of noncitizens subjected to capital punishment, discrimination in access to public accommodations and real estate and the right to run businesses, and patterns of discriminatory treatment of noncitizen domestic workers, including sexual and other physical abuse. (12)
Since 2001, growing public concern with security against acts of terrorism--particularly in Europe and North America--has resulted in heightened restrictions on noncitizens. (13) After the September 11 attacks, many noncitizens in the United States were subjected to indefinite detention, summary deportation, heightened surveillance, and blanket registration programs. (14) The United Kingdom enacted legislation that authorized indefinite detention without trial of noncitizens--but not of British nationals--detained on grounds of national security. In December 2004, Britain's highest judicial authority overturned the legislation. The ruling found that the singling out of noncitizens for differential treatment in the application of detention rules amounted to unlawful discrimination on the grounds of citizenship. (15) A month after the July 2005 terrorist bombings in London, the British government broadened the grounds for deportation to enable it to remove persons who "justify or glorify" terrorism.
Italy has expelled at least five imams since 2003, and an antiterrorism law adopted on July 31, zoos, makes it easier to do so. Authorities in France have also pledged to expel "radical preachers" and to consider withdrawing their citizenship. A change in French law in 2004 allows the authorities to expel foreigners who incite "discrimination, hate or violence against a specific person or group of persons." France has expelled at least six imams since the law entered into force in July 2004. New legislation in Germany has aimed to facilitate the deportation of noncitizen imams. German states such as Bavaria are making use of a January 1, 2005, federal law that allows them to expel legal foreign residents who "endorse or promote terrorist acts," or incite hatred against sections of the population. In June 2005, the Dutch Ministry of Justice ordered three foreign-born imams to leave the country for "contributing to the radicalization of Muslims in the Netherlands." (16)
Denial of Access to Citizenship...
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More articles from Ethics & International Affairs
Ending impunity.(RESPONSE TO CRIMES AGAINST HUMANITY), December 01, 2006
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