Human Rights and Mitigation
Right to acquire, maintain and transmit nationality
Article 15 of the UDHR states that ‘[e]veryone has the right to a nationality’ and ‘[n]o one
shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’.
Equality and non-discrimination
■ Article 2, UDHR: ‘[e]veryone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status’
■ Art 26, ICCPR: ‘All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.’
General Comment No. 15 to the ICCPR (Adopted: 11 April 1986)
■ “In general, the rights set forth in the Covenant apply to everyone, irrespective of
reciprocity, and irrespective of his or her nationality or statelessness.”
■ Human rights apply to all people within the jurisdiction of the state (not just citizens
of the state)
The exceptions are based on political rights and freedom of movement
Political rights exception
■ It is stated in Article 25 ICCPR
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will
of the electors;
(c) To have access, on general terms of equality, to public service in his country
Freedom of movement exception
■ Stated in Article 12 ICCPR
1. Everyone lawfully within the territory of a State shall, within that territory, have the right
to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which
are provided by law, are necessary to protect national security, public order (ordre public),
, public health or morals or the rights and freedoms of others, and are consistent with the
other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
Judgement cases:
ECtHR, C v Belgium, 1996, App. No. 35/1995/541/627 – distinction EU non-EU
nationals on deportation
IACtHR, Juridical Condition and Rights of Undocumented Migrants (Advisory
Opinion), OC-18/03, 2003 – workers’ rights even for unauthorised aliens
Protection from refoulement and arbitrary expulsion
■ Non-refoulement – ø deportation if risk of persecution
■ Sources:
■ Convention relating to the Status of Refugees (1951)
■ Customary international law
Scope of application:
■ The United Nations High Commissioner for Refugees (‘UNHCR’) has noted
that the Refugee Convention’s non-refoulement provision applies ‘wherever
a State exercises jurisdiction, including at the frontier, on the high seas or on
the territory of another State’.
Protection from refoulement and arbitrary expulsion
Article 33 Convention relating to the Status of Refugees (1951)
Prohibition of expulsion or return (“refoulement”)
“1. No Contracting State shall expel or return (“refouler”) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership of a particular
social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by
a refugee whom there are reasonable grounds for regarding as a danger to
the security of the country in which he is, or who, having been convicted by
a final judgment of a particularly serious crime, constitutes a danger to the
community of that country.”
Right to acquire, maintain and transmit nationality
Article 15 of the UDHR states that ‘[e]veryone has the right to a nationality’ and ‘[n]o one
shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’.
Equality and non-discrimination
■ Article 2, UDHR: ‘[e]veryone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status’
■ Art 26, ICCPR: ‘All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.’
General Comment No. 15 to the ICCPR (Adopted: 11 April 1986)
■ “In general, the rights set forth in the Covenant apply to everyone, irrespective of
reciprocity, and irrespective of his or her nationality or statelessness.”
■ Human rights apply to all people within the jurisdiction of the state (not just citizens
of the state)
The exceptions are based on political rights and freedom of movement
Political rights exception
■ It is stated in Article 25 ICCPR
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will
of the electors;
(c) To have access, on general terms of equality, to public service in his country
Freedom of movement exception
■ Stated in Article 12 ICCPR
1. Everyone lawfully within the territory of a State shall, within that territory, have the right
to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which
are provided by law, are necessary to protect national security, public order (ordre public),
, public health or morals or the rights and freedoms of others, and are consistent with the
other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
Judgement cases:
ECtHR, C v Belgium, 1996, App. No. 35/1995/541/627 – distinction EU non-EU
nationals on deportation
IACtHR, Juridical Condition and Rights of Undocumented Migrants (Advisory
Opinion), OC-18/03, 2003 – workers’ rights even for unauthorised aliens
Protection from refoulement and arbitrary expulsion
■ Non-refoulement – ø deportation if risk of persecution
■ Sources:
■ Convention relating to the Status of Refugees (1951)
■ Customary international law
Scope of application:
■ The United Nations High Commissioner for Refugees (‘UNHCR’) has noted
that the Refugee Convention’s non-refoulement provision applies ‘wherever
a State exercises jurisdiction, including at the frontier, on the high seas or on
the territory of another State’.
Protection from refoulement and arbitrary expulsion
Article 33 Convention relating to the Status of Refugees (1951)
Prohibition of expulsion or return (“refoulement”)
“1. No Contracting State shall expel or return (“refouler”) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership of a particular
social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by
a refugee whom there are reasonable grounds for regarding as a danger to
the security of the country in which he is, or who, having been convicted by
a final judgment of a particularly serious crime, constitutes a danger to the
community of that country.”
