GENERAL COMMENT ADOPTED BY THE UNITED NATIONS HUMAN RIGHTS COMMITTEE
Twenty‑seventh session (1986)
General Comment No. 15
The Rights of Aliens under the International Covenant on Civil and Political Rights
Reports from States
parties have often failed to take into account that each State party must
ensure the rights in the Covenant to "all individuals within its territory and
subject to its jurisdiction" (art. 2, para. 1). In general, the rights set forth in the Covenant apply
to everyone, irrespective of reciprocity, and irrespective of his or her
nationality or statelessness.
Thus, the general
rule is that each one of the rights of the Covenant must be guaranteed without
discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non‑discrimination
in respect of the rights guaranteed in the Covenant, as provided for in
article 2 thereof. This guarantee applies to aliens and citizens
alike. Exceptionally, some of the
rights recognized in the Covenant are expressly applicable only to citizens (art. 25),
while article 13 applies only to aliens. However, the Committee's experience in examining reports
shows that in a number of countries other rights that aliens should enjoy under
the Covenant are denied to them or are subject to limitations that cannot
always be justified under the Covenant.
A few constitutions
provide for equality of aliens with citizens. Some constitutions adopted more recently carefully
distinguish fundamental rights that apply to all and those granted to citizens
only, and deal with each in detail.
In many States, however, the constitutions are drafted in terms of
citizens only when granting relevant rights. Legislation and case law may also play an important part in
providing for the rights of aliens.
The Committee has been informed that in some States fundamental rights,
though not guaranteed to aliens by the Constitution or other
legislation, will also be extended to them as required by the Covenant. In certain cases, however, there has
clearly been a failure to implement Covenant rights without discrimination in
respect of aliens.
The Committee
considers that in their reports States parties should give attention to the
position of aliens, both under their law and in actual practice. The Covenant gives aliens all the
protection regarding rights guaranteed therein, and its requirements should be
observed by States parties in their legislation and in practice as
appropriate. The position of
aliens would thus be considerably improved. States parties should ensure that the provisions of the
Covenant and the rights under it are made known to aliens within their
jurisdiction.
The Covenant does
not recognize the right of aliens to enter or reside in the territory of a
State party. It is in principle a
matter for the State to decide who it will admit to its territory. However, in certain circumstances an
alien may enjoy the protection of the Covenant even in relation to entry or
residence, for example, when considerations of non‑discrimination,
prohibition of inhuman treatment and respect for family life arise.
Consent for entry
may be given subject to conditions relating, for example, to movement,
residence and employment. A State
may also impose general conditions upon an alien who is in transit. However, once aliens are allowed to
enter the territory of a State party they are entitled to the rights set out in
the Covenant.
Aliens thus have an
inherent right to life, protected by law, and may not be arbitrarily deprived
of life. They must not be subjected
to torture or to cruel, inhuman or degrading treatment or punishment; nor may
they be held in slavery or servitude.
Aliens have the full right to liberty and security of the person. If lawfully deprived of their liberty,
they shall be treated with humanity and with respect for the inherent dignity
of their person. Aliens may not be
imprisoned for failure to fulfil a contractual obligation. They have the right to liberty of
movement and free choice of residence; they shall be free to leave the country. Aliens shall be equal before the courts
and tribunals, and shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law in the
determination of any criminal charge or of rights and obligations in a suit at
law. Aliens shall not be subjected
to retrospective penal legislation, and are entitled to recognition before the
law. They may not be subjected to
arbitrary or unlawful interference with their privacy, family, home or
correspondence. They have the
right to freedom of thought, conscience and religion, and the right to hold
opinions and to express them.
Aliens receive the benefit of the right of peaceful assembly and of
freedom of association. They may
marry when at marriageable age.
Their children are entitled to those measures of protection required by
their status as minors. In those
cases where aliens constitute a minority within the meaning of article 27, they
shall not be denied the right, in community with other members of their group, to
enjoy their own culture, to profess and practise their own religion and to use
their own language. Aliens are
entitled to equal protection by the law.
There shall be no discrimination between aliens and citizens in the
application of these rights. These
rights of aliens may be qualified only by such limitations as may be lawfully
imposed under the Covenant.
Once an alien is
lawfully within a territory, his freedom of movement within the territory and
his right to leave that territory may only be restricted in accordance with
article 12, paragraph 3.
Differences in treatment in this regard between aliens and nationals, or
between different categories of aliens, need to be justified under article 12,
paragraph 3. Since such
restrictions must, inter alia, be
consistent with the other rights recognized in the Covenant, a State party
cannot, by restraining an alien or deporting him to a third country,
arbitrarily prevent his return to his own country (art. 12, para. 4).
Many reports have
given insufficient information on matters relevant to article 13. That article is applicable to all
procedures aimed at the obligatory departure of an alien, whether described in
national law as expulsion or otherwise.
If such procedures entail arrest, the safeguards of the Covenant
relating to deprivation of liberty (arts. 9 and 10) may also be
applicable. If the arrest is for
the particular purpose of extradition, other provisions of national and
international law may apply.
Normally an alien who is expelled must be allowed to leave for any
country that agrees to take him.
The particular rights of article 13 only protect those aliens who are
lawfully in the territory of a State party. This means that national law concerning the requirements for
entry and stay must be taken into account in determining the scope of that
protection, and that illegal entrants and aliens who have stayed longer than
the law or their permits allow, in particular, are not covered by its
provisions. However, if the
legality of an alien's entry or stay is in dispute, any decision on this point
leading to his expulsion or deportation ought to be taken in accordance with
article 13. It is for the
competent authorities of the State party, in good faith and in the exercise of
their powers, to apply and interpret the domestic law, observing, however, such
requirements under the Covenant as equality before the law (art. 26).
Article 13 directly regulates
only the procedure and not the substantive grounds for expulsion. However, by allowing only those carried
out "in pursuance of a decision reached in accordance with law", its purpose is
clearly to prevent arbitrary expulsions.
On the other hand, it entitles each alien to a decision in his own case
and, hence, article 13 would not be satisfied with laws or decisions providing
for collective or mass expulsions.
This understanding, in the opinion of the Committee, is confirmed by
further provisions concerning the right to submit reasons against expulsion and
to have the decision reviewed by and to be represented before the competent
authority or someone designated by it.
An alien must be given full facilities for pursuing his remedy against
expulsion so that this right will in all the circumstances of his case be an
effective one. The principles of
article 13 relating to appeal against expulsion and the entitlement to review
by a competent authority may only be departed from when "compelling reasons of
national security" so require.
Discrimination may not be made between different categories of aliens in
the application of article 13.
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