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  • UNHCHR CERD Recommendation 30 (2004): UN says Non-citizens equally protected under treaty and domestic law as citizens

    Posted by arudou debito on March 9th, 2010

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    Hi Blog.  Here’s a valuable document I unearthed when doing research yesterday.  One of the major arguments put forth by nativists seeking to justify discrimination against minorities (or rather, against foreigners in any society) is the argument that foreigners, since they are not citizens, ipso facto don’t have the same rights as citizens, including domestic protections against discrimination.  The GOJ has specifically argued this to the United Nations in the past, repeatedly (see for example GOJ 1999, page down to Introduction, section 3).  However, the UN, in a clarification of the Convention on the Elimination of Racial Discrimination, has made it clear that non-citizens are supposed to be afforded the same protections under the CERD as citizens.  To quote the most clear and concise bit:

    II. Measures of a general nature

    7. Ensure that legislative guarantees against racial discrimination apply to non-citizens regardless of their immigration status, and that the implementation of legislation does not have a discriminatory effect on non-citizens;

    This was issued way back in 2004.  I’m reading a transcript of the discussions between the GOJ and the CERD Committee review during their review Feb 24-25 2010 (in which it was referred, and even mentioned granting foreigners suffrage not beyond the pale of rights to be granted).  I’ll have the full text of that up on Debito.org tomorrow with some highlighting.  Meanwhile, enjoy this gem.  Something else for the GOJ to ignore.  Arudou Debito in Sapporo

    ///////////////////////////////////////////

    UNITED NATIONS

    General Recommendation No.30: Discrimination Against Non Citizens : . 01/10/2004.
    Gen. Rec. No. 30. (General Comments)

    Convention Abbreviation: CERD
    General Recommendation XXX
    Discrimination Against Non Citizens

    http://www.unhchr.ch/tbs/doc.nsf/0/e3980a673769e229c1256f8d0057cd3d?Opendocument

    The Committee on the Elimination of Racial Discrimination,

    Recalling the Charter of the United Nations and the Universal Declaration of Human Rights, according to which all human beings are born free and equal in dignity and rights and are entitled to the rights and freedoms enshrined therein without distinction of any kind, and the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination,

    Recalling the Durban Declaration in which the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, recognized that xenophobia against non-nationals, particularly migrants, refugees and asylum-seekers, constitutes one of the main sources of contemporary racism and that human rights violations against members of such groups occur widely in the context of discriminatory, xenophobic and racist practices,

    Noting that, based on the International Convention on the Elimination of All Forms of Racial Discrimination and general recommendations XI and XX, it has become evident from the examination of the reports of States parties to the Convention that groups other than migrants, refugees and asylum-seekers are also of concern, including undocumented non-citizens and persons who cannot establish the nationality of the State on whose territory they live, even where such persons have lived all their lives on the same territory,

    Having organized a thematic discussion on the issue of discrimination against non-citizens and received the contributions of members of the Committee and States parties, as well as contributions from experts of other United Nations organs and specialized agencies and from non-governmental organizations,

    Recognizing the need to clarify the responsibilities of States parties to the International Convention on the Elimination of All Forms of Racial Discrimination with regard to non-citizens,

    Basing its action on the provisions of the Convention, in particular article 5, which requires States parties to prohibit and eliminate discrimination based on race, colour, descent, and national or ethnic origin in the enjoyment by all persons of civil, political, economic, social and cultural rights and freedoms,

    Affirms that:

    I. Responsibilities of States parties to the Convention

    1. Article 1, paragraph 1, of the Convention defines racial discrimination. Article 1, paragraph 2 provides for the possibility of differentiating between citizens and non-citizens. Article 1, paragraph 3 declares that, concerning nationality, citizenship or naturalization, the legal provisions of States parties must not discriminate against any particular nationality;

    2. Article 1, paragraph 2, must be construed so as to avoid undermining the basic prohibition of discrimination; hence, it should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights;

    3. Article 5 of the Convention incorporates the obligation of States parties to prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights. Although some of these rights, such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law;

    4. Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim. Differentiation within the scope of article 1, paragraph 4, of the Convention relating to special measures is not considered discriminatory;

    5. States parties are under an obligation to report fully upon legislation on non-citizens and its implementation. Furthermore, States parties should include in their periodic reports, in an appropriate form, socio-economic data on the non-citizen population within their jurisdiction, including data disaggregated by gender and national or ethnic origin;

    Recommends,

    Based on these general principles, that the States parties to the Convention, as appropriate to their specific circumstances, adopt the following measures:

    II. Measures of a general nature

    6. Review and revise legislation, as appropriate, in order to guarantee that such legislation is in full compliance with the Convention, in particular regarding the effective enjoyment of the rights mentioned in article 5, without discrimination;

    7. Ensure that legislative guarantees against racial discrimination apply to non-citizens regardless of their immigration status, and that the implementation of legislation does not have a discriminatory effect on non-citizens;

    8. Pay greater attention to the issue of multiple discrimination faced by non-citizens, in particular concerning the children and spouses of non-citizen workers, to refrain from applying different standards of treatment to female non-citizen spouses of citizens and male non-citizen spouses of citizens, to report on any such practices and to take all necessary steps to address them;

    9. Ensure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin;

    10. Ensure that any measures taken in the fight against terrorism do not discriminate, in purpose or effect, on the grounds of race, colour, descent, or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping;

    III. Protection against hate speech and racial violence

    11. Take steps to address xenophobic attitudes and behaviour towards non-citizens, in particular hate speech and racial violence, and to promote a better understanding of the principle of non-discrimination in respect of the situation of non-citizens;

    12. Take resolute action to counter any tendency to target, stigmatize, stereotype or profile, on the basis of race, colour, descent, and national or ethnic origin, members of “non-citizen” population groups, especially by politicians, officials, educators and the media, on the Internet and other electronic communications networks and in society at large;

    IV. Access to citizenship

    13. Ensure that particular groups of non-citizens are not discriminated against with regard to access to citizenship or naturalization, and to pay due attention to possible barriers to naturalization that may exist for long-term or permanent residents;

    14. Recognize that deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States parties’ obligations to ensure non-discriminatory enjoyment of the right to nationality;

    15. Take into consideration that in some cases denial of citizenship for long-term or permanent residents could result in creating disadvantage for them in access to employment and social benefits, in violation of the Convention’s anti-discrimination principles;

    16. Reduce statelessness, in particular statelessness among children, by, for example, encouraging their parents to apply for citizenship on their behalf and allowing both parents to transmit their citizenship to their children;

    17. Regularize the status of former citizens of predecessor States who now reside within the jurisdiction of the State party;

    V. Administration of justice

    18. Ensure that non-citizens enjoy equal protection and recognition before the law and in this context, to take action against racially motivated violence and to ensure the access of victims to effective legal remedies and the right to seek just and adequate reparation for any damage suffered as a result of such violence;
    19. Ensure the security of non-citizens, in particular with regard to arbitrary detention, as well as ensure that conditions in centres for refugees and asylum-seekers meet international standards;

    20. Ensure that non-citizens detained or arrested in the fight against terrorism are properly protected by domestic law that complies with international human rights, refugee and humanitarian law;

    21. Combat ill-treatment of and discrimination against non-citizens by police and other law enforcement agencies and civil servants by strictly applying relevant legislation and regulations providing for sanctions and by ensuring that all officials dealing with non-citizens receive special training, including training in human rights;

    22. Introduce in criminal law the provision that committing an offence with racist motivation or aim constitutes an aggravating circumstance allowing for a more severe punishment;

    23. Ensure that claims of racial discrimination brought by non-citizens are investigated thoroughly and that claims made against officials, notably those concerning discriminatory or racist behaviour, are subject to independent and effective scrutiny;

    24. Regulate the burden of proof in civil proceedings involving discrimination based on race, colour, descent, and national or ethnic origin so that once a non-citizen has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for the differential treatment;

    VI. Expulsion and deportation of non-citizens

    25. Ensure that laws concerning deportation or other forms of removal of non-citizens from the jurisdiction of the State party do not discriminate in purpose or effect among non-citizens on the basis of race, colour or ethnic or national origin, and that non-citizens have equal access to effective remedies, including the right to challenge expulsion orders, and are allowed effectively to pursue such remedies;
    26. Ensure that non-citizens are not subject to collective expulsion, in particular in situations where there are insufficient guarantees that the personal circumstances of each of the persons concerned have been taken into account;

    27. Ensure that non-citizens are not returned or removed to a country or territory where they are at risk of being subject to serious human rights abuses, including torture and cruel, inhuman or degrading treatment or punishment;

    28. Avoid expulsions of non-citizens, especially of long-term residents, that would result in disproportionate interference with the right to family life;

    VII. Economic, social and cultural rights

    29. Remove obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health;
    30. Ensure that public educational institutions are open to non-citizens and children of undocumented immigrants residing in the territory of a State party;

    31. Avoid segregated schooling and different standards of treatment being applied to non-citizens on grounds of race, colour, descent, and national or ethnic origin in elementary and secondary school and with respect to access to higher education;

    32. Guarantee the equal enjoyment of the right to adequate housing for citizens and non-citizens, especially by avoiding segregation in housing and ensuring that housing agencies refrain from engaging in discriminatory practices;

    33. Take measures to eliminate discrimination against non-citizens in relation to working conditions and work requirements, including employment rules and practices with discriminatory purposes or effects;

    34. Take effective measures to prevent and redress the serious problems commonly faced by non-citizen workers, in particular by non-citizen domestic workers, including debt bondage, passport retention, illegal confinement, rape and physical assault;

    35. Recognize that, while States parties may refuse to offer jobs to non-citizens without a work permit, all individuals are entitled to the enjoyment of labour and employment rights, including the freedom of assembly and association, once an employment relationship has been initiated until it is terminated;

    36. Ensure that States parties respect the right of non-citizens to an adequate standard of physical and mental health by, inter alia, refraining from denying or limiting their access to preventive, curative and palliative health services;

    37. Take the necessary measures to prevent practices that deny non-citizens their cultural identity, such as legal or de facto requirements that non-citizens change their name in order to obtain citizenship, and to take measures to enable non-citizens to preserve and develop their culture;

    38. Ensure the right of non-citizens, without discrimination based on race, colour, descent, and national or ethnic origin, to have access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafés, theatres and parks;

    39. The present general recommendation replaces general recommendation XI (1993).

    ©1996-2001
    Office of the United Nations High Commissioner for Human Rights
    Geneva, Switzerland

    ENDS

    9 Responses to “UNHCHR CERD Recommendation 30 (2004): UN says Non-citizens equally protected under treaty and domestic law as citizens”

    1. Frodis Says:

      After a quick read of that list it would seem easier for the GOJ to address the very few items that they are in compliance with than it would be the many they are at odds with.

    2. Frank Says:

      31. Avoid segregated schooling and different standards of treatment being applied to non-citizens on grounds of race, colour, descent, and national or ethnic origin in elementary and secondary school and with respect to access to higher education;

      So, No. 31 means no-more Korean schools?
      Or is voluntary segregation OK?

      – People (particularly minorities and ethnicities) can set up their own schools according to the UN. But having the state impose segregation in education by the criteria above is a violation of the CERD.

    3. Steve Says:

      Non-Citizens have Human-Rights? That’s an amazing find Debito :-)

      * On one hand, it shows the U.N. writes some beautiful words.

      * On the other hand, it shows the U.N. has no enforcement ability.

      * On the 3rd hand, it makes us want to give the U.N. enforcement ability.

      * On the 4th hand, whoever covertly controls the U.N. will then control the world.

      So obviously, my feelings are mixed, about reading beautiful words from the U.N.

      I’m happy about the U.N. members’ beautiful words granting Human Rights to All Humans, and yet…
      I’m concerned about the possibility the U.N. was founded to lead us into a “Problem, Reaction, Solution” trap.

      Namely, when such beautiful manifestos as shown above continue to go unenforced, we notice a “Problem” that naturally leads us towards a “Reaction” of wanting to give the U.N. enforcement ability, that unfortunately would lead us to the “Solution” [unsubstantiated claim deleted] since the first U.N. building: a World Government with a World Court and a World Police [unsubstantiated claim deleted].

      Meanwhile, in addition to the U.N.’s International Court of Justice, and the International Criminal Court, both vying to be respected as the future World Court, [unsubstantiated claim deleted] which then might lead us to naively allow the I.S.C. be designated The World Court. And the World Police, of course, will be a suddenly-nuclear-arm-strengthened N.A.T.O. with directed-energy-weaponry satellites surprisingly already in place, and world-wide martial-law declared. D’oh!

      When I was in elementary school in America, all kids who scored within the top 5% percentile on the I.Q. test were moved into a “Gifted” class in which we were tested further through a “Model United Nations” program to select who received scholarships to top universities (Harvard, Yale, Oxford, Stanford, Wharton, etc.) in an effort to groom future United Nations representatives, and much more importantly to mark the best of us and later initiate us into secret clubs for future covert control operations. Fortunately for my soul (yet unfortunately for my wallet, ha-ha) I dropped out.

      Anyway, again, about reading beautiful words from the U.N., my feelings are mixed. :-)

      – Your alarmism notwithstanding, don’t “beautiful words” translate into higher goals that nations should shoot for? Yes, it’s an imperfect world with largely unenforceable international laws, but would you rather we didn’t have beautiful words against, say, genocide, and we just said nothing about it when it happens? Sorry, I’m not quite that pessimistic, and wouldn’t want to be.

    4. Steve Says:

      Right on Debito :)

      I should say that on balance, even though I don’t trust the founding financiers of the U.N. and the I.S.C., I do trust the people at the bottom within the U.N.

      The people writing these wonderful rights, their hearts are surely in the right place, so do I respect them. They are doing their best.

      And I’m glad you found this document, and I think we can benefit from this document. Seriously.

      How about someone writes a news article in Japanese, covering this scoop as it should indeed be covered: Evidence has been discovered showing that Japan is currently in violation of the treaty Japan signed with U.N. CERD on Human Rights, with a nice quote at the end from a U.N. official, or an American Ambassador or somebody, saying something like, “Now that this violation has been noticed, documented, and evidenced, Japan must act quickly to introduce the necessary legislature which the signed treaty requires to be in place, because if Japan continues to knowingly be in violation of the treaty it has signed there will be severe repercussions.”

      Imagine a big-stick big-story like that being sent to every single news outlet at once, if it’s a slow news day we might get lucky and some nationwide news station or channel or newspaper might decide to run with this story and actually report it!

      Then, with enough eyes on Japan, we might be able to shame the politicians into doing they should have done a long time ago: enact actual laws, with penalties, here in Japan, which specifically state that all Humans inherently have the same Human Rights.

    5. KaZ Says:

      Hi,
      I had a strange experience this monday, while commuting to work. I was stopped by plain clothes policemen, just before entering the ticket gate of the station in the morning. I had most civilly requested that for any checks etc. to be performed at this time, I would require a late slip explaining the reason for delay in my office.

      On hearing this they simply exploded and using extremely rude language, threatened me with dire consequences and immediate incarceration, if I did not co-operate at once. Since I didn’t have time to argue, I showed them my alien card and left quickly.

      Having read your FAQ before, I had known about the Keisatsukan Shokumu Shikkou Hou), Section 2, but I’m left wondering that their dealings with NJ their behavior borders on the Gestapo rather than a civillian police force.

      (Question: It is proper to ask them for a delay slip?)

    6. Astrix Says:

      #KaZ Says:
      I had a strange experience this monday, while commuting to work. I was stopped by plain clothes policemen, just before entering the ticket gate of the station in the morning.#

      First of all you should have asked for ID, they might not have even been real police.
      Secondly police don’t carry delay slips. If they were rude you should have got their names and police numbers and made a formal complaint. I suggest you make the complaint anyway.

    7. Mark in Yayoi Says:

      KaZ, if you don’t want to complain directly to the police (and I wouldn’t blame you), start with the stationmaster. Ask the stationmaster why poilce officers were in the station to begin with, and in particular why the police were out of uniform. There is no excuse for non-uniformed police to be forcibly questioning non-suspects — as Astrix mentions, someone without a uniform or badge could easily be an impostor or scammer. Even if the train company has agreed to let police conduct training exercises (or, more likely, has allowed the NPA to bully them into allowing them), they also have a duty to their riders.

      Emphasize this. Measures are taken to the point of overkill to ensure that passengers are safe from any kind of danger, and also free from harassment. Abusive language from another passenger would not be tolerated, and from what you could see, these “police” looked just like other passengers. Why does the stationmaster allow this to happen inside his station? Does he allow chikan and violent drunks to harass passengers too? Remind the stationmaster that there are other train lines you could make use of if this one is so unpleasant — and that that goes for any other customers whom the police harassed too.

      If it happens again, demand that an employee of the train station be present while the police officer questions you.

    8. Level3 Says:

      @Kaz

      Sounds much more like volunteer wannabe policemen in the local “crime patrol” who decided to be “patriotic” and hassle foreigners at the station. They are the ones who tend to be rude. Secondly, in my limited experience, and in the few videos/moives I’ve seen of this kind of situation, if they were really doing police duties, a uniformed cop would probably be very nearby to back them up and prove they are real cops. No uniformed police appeared?

      @the lunatic above
      So, you’re saying you dropped out of elementary school before the initiation into the Secret Society that Controls the World? Was this before or after you got an invitation? I got a 1200 on the SATs (when I was 11, did much better in HS), skipped a grade and was 1st in my class in high school, 2nd in class in uni, yet I didn’t even receive a SStCtW pamphlet. Guess I got overlooked in a clerical error, dammit. I hear they pay well. Were you drawn to debito becuase you spend every workday (do you have a job?) Googling “United Nations” and looking for sites that permit replies to stories about the UN without site registration? I’ll stop now before I get mean.

    9. Kaz Says:

      Hi,
      Actually they produced their badges though they were in plain clothes. They just opened and closed their wallets quickly, I guess it’s a tactic to let you check the star mark, but not long enough to read their names. In which case one has to explicitly ask them once again.

      Since I was not looking to pick a fight and wanted to get away quickly, I didn’t think about asking for their names at the time.(But I’ll make sure I do it next time). But it seems to be an alarming precedent that they are free to harass office commuters in any manner they choose,in the name of clamping down on Illegal Immigrants.

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