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The Problem of the Applicability of Existing International Provisions for the Protection of Human Rights to Individuals Who are not Citizens of the Country in Which They Live

  • R. B. Lillich
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      The Problem of the Applicability of Existing International Provisions for the Protection of Human Rights to Individuals Who are not Citizens of the Country in Which They Live
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1 But see L. Sohn & T. Buergenthal, International Protection of Human Rights 135–36 (1973), and McDougal, , Lasswell, , & Chen, , The Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights, 70 AJIL 456 n.99 (1976).

2 See text accompanying note 4 infra.

3 Cf. Freeman, , Human Rights and the Rights of Aliens, 45 ASIL Procs. 120, 122 (1951), who a quarter of a century ago caustically observed that “[e]ven those nations which in the recent past would have choked trying to swallow the much more restricted concept of a minimum standard for aliens, today apparently do not experience as great a degree of indigestion at the conference table when asked to partake of a bill of fare garnished in a dressing called Human rights.’“

4 A subject which has been under renewed attack for several decades. Cf. Lillich, , The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law Under Attack, 69 AJIL 359 (1975), especially the authors cited in note 1 thereof. The imaginative efforts to restate this body of international law by the International Law Commission’s first Special Rapporteur, Dr. Garcia-Amador, unfortunately came to naught. See Garcia-Amador, (Sixth) Report on State Responsibility, [1961] 2 Y.B. Int’l L. Comm’n 1, UN Doc. A/CN.4/134 & Add. 1 (1961). The mandate of the Commission’s second Special Rapporteur, Dr. Roberto Ago, gives priority to the definition of “general rules governing the international responsibility of the State,” relegating to evidential purposes “the experience and material gathered in certain special sectors, specially that of responsibility for injuries to the persons or property of aliens… .” Ago, Report of the Sub-Committee on State Responsibility, [1963] 2 Y.B. Int’l L. Comm’n 227, UN Doc. A/CN.4/152 (1963). As McDougal, Lasswell, and Chen trenchantly remark, “[t]he more recent work of the Commission has been at such a high level of abstraction as to shed but a dim light upon specific controversies.” McDougal, Lasswell, & Chen, supra note 1, at 454 n.92.

5 Twenty-Fifth Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/1101, E/CN.4/Sub.2/332, at 60 (1972).

6 54 UN ECOSOC, SUPP. 6, at 71 and 98, UN Doc. E/5265 (1973) (emphasis added).

7 Id., SUPP. 1, at 25, UN Doc. E/5367 (1973).

8 The Problem of the Applicability of Existing International Provisions for the Protection of the Human Rights of Individuals Who are Not Citizens of the Country in which They Live, UN Doc. E/CN.4/Sub.2/335 (1973).

9 Twenty-Sixth Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/1128, E/CN.4/Sub.2/343, at 37 (1973).

10 Id

11 Twenty-Seventh Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/1160, E/CN.4/Sub.2/354, at 22–26 passim (1974).

12 Id., at 55, 57.

13 U N Doc. E/CN.4/Sub.2/L.628 & Add.l-4 (1975).

14 (Draft) Twenty-Eighth Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc.E/CN.4/Sub.2/XXVIII/CRP.3/ Add.7, at 2 (1975).

15 The writer is informed by Lady Elles that her final report will include a draft declaration. Compare text at note 16 infra. There has been some opposition over the years to such a declaration, but the possibility of its being adopted always has been recognized. See text at notes 5, 6, and 7 supra.

16 UN Doc. E/CN.4/Sub.2/L.628/Add.2, at 2–4 (1975). But see text at and accompanying note 19 infra.

17 See generally L. Sohn & T. Buergenthal, supra note 1, at 137–211.

18 Even before the United Nations existed Garcia Robles of Mexico had advanced the prototype of this thesis. See Freeman, , Recent Aspects of the Calvo Doctrine and the Challenge to International Law, 40 AJIL 121, 122, 125 (1946).

19 Id. Compare Lillich, note 4 supra. Also ignored is the fact that, while some human rights guarantees found in instruments concluded under the auspices of the United Nations protect all individuals, including aliens, other guarantees, often for no apparent reason, cover only citizens or nations. To the extent that no rational ground for a given discrimination against aliens exists, the present situation aptly can be described as “intolerable.” Twenty-Seventh Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, supra note 11, at 24.

20 McDougal, Lasswell, & Chen, supra note 1, at 452.

22 A forthcoming article will evaluate the draft declaration in some detail.

21 Id. at 456.

23 Thus, under Article 1, its coverage reaches only to those noncitizens who reside, on a permanent or semi-permanent basis, in a state, excluding tourists and less-than semi- permanent residents.

24 Thus, under Article 9(2), when the assets of noncitizens are expropriated they are deemed entitled to “prompt, adequate and effective compensation.”

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