The Human Rights of Aliens under International and Comparative law (International Studies in Human Rights)

345 Pages·2001·12.25 MB·English

by  State University of Rio de Janeiro Staff

The Human Rights of
Aliens under International
and Comparative Law
CARMEN TIBURCIO
MARTINUS NIJHOFF PUBLISHERS
THE HUMAN RIGHTS OF ALIENS
UNDER INTERNATIONAL AND COMPARATIVE LAW
International Studies in Human Rights
VOLUME 65
The titles published in this series are listed at the end of this volume.
The Human Rights of Aliens
under International and
Comparative Law
by
CARMEN TIBURCIO
Associate Professor of Private International Law
and International Litigation,
State University of Rio de Janeiro,
Brazil
MARTINUS NIJHOFF PUBLISHERS
THE HAGUE / BOSTON / LONDON
A C.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN 90-411-1550-1
Published by Kluwer Law International,
P.O. Box 85889, 2508 CN The Hague, The Netherlands
Sold and distributed in North, Central and South America
by Kluwer Law International,
675 Massachusetts Avenue, Cambridge, MA 02139, USA
In all other countries, sold and distributed
by Kluwer Law International, Distribution Centre
P.O. Box 322, 3300 AH Dordrecht, The Netherlands
Printed on acid-free paper
All Rights Reserved
© 2001 Kluwer Law International
Kluwer Law International incorporates the publishing programmes of
Graham & Trotman Ltd, Kluwer Law and Taxation Publishers,
and Martinus Nijhoff Publishers.
No part of the material protected by this copyright notice may be reproduced or
utilized in any form or by any means, electronic or mechanical,
including photocopying, recording or by any information storage and
retrieval system, without written permission from the copyright owner.
Printed in the Netherlands.
To my parents, Paulo and Myrian, with gratitude;
To Carlos, my husband and best friend, with love;
To Antonio Augusto, my son, the best gift life has given me, with hope that he nei-
ther perpetrates nor suffers any kind of discrimination
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Table of Contents
Foreword ix
Preface xi
Introduction to the subject xiii
Chapter I
Definition of Alien: the Importance of Nationality 1
Chapter II
Historical Development of the Treatment of Aliens 23
Chapter III
Development of the Treatment of Aliens from Diplomatic Protection to
Human Rights 35
Chapter IV
Fundamental Rights 75
Chapter V
Private Rights 103
Chapter VI
Social and Cultural Rights 145
Chapter VII
Economic Rights 171
Chapter VIII
Political Rights 177
Chapter IX
Public Rights 197
viii Table of Contents
Chapter X
Procedural Rights 245

Conclusion 267

Bibliography 277

Table of Cases 291

Treaties Cited 297

Index 311
Foreword
To be an alien is not necessarily a bad thing. Millions of inhabitants of the globe
deliberately seek out this status each year, traveling to foreign lands in pursuit of
tourism, excitement, exotic adventure, or the commerce that increasingly binds the
planet together. Alienage is not an immutable characteristic. It is a status readily lost
by returning to one's country of nationality. And in many of the top immigrant
receiving states, naturalization is available on relatively easy terms after lawful res-
idence for three to five years - a process that by definition cancels out alienage.
Nonetheless, for a great many alienage is not easily mutable. Much travel falls
well below the glamorous level of jet-set tourism or executive-level business deal-
ing. Poverty or the threat of violence in the home country may have impelled the ini-
tial migration. Lingering war or persecution there may make it difficult for the
migrant to contemplate return - and sometimes renders it violative of international
law for the host state to expel a migrant. Moreover, in some countries host to mil-
lions of resident foreigners, even of the second or third generation, naturalization
remains difficult to acquire.
When alienage becomes disadvantageous, questions of aliens' rights come to the
fore. Aliens may be the object of discrimination (or worse), based solely on their
alienage - or perhaps because of ethnic or tribal affiliation that overlaps state bor-
ders. In what ways does international law protect them? Even jet-setters can find
themselves accused of crime, and they then have a great stake in knowing what sorts
of procedural protections they have to contest the charge or plead for leniency. What
access should aliens have to the broader labor market, and to social insurance or
workers' compensation schemes? Should they be considered to obtain a right to
vote, at least at the local level, after many years of lawful residence?
According to the Population Reference Bureau, in the mid-1990s, 145 million
people lived outside the country of their nationality, and that number grows by 2 to
4 million each year. What rights these persons possess, living as aliens in a foreign
land, is therefore a question of growing salience. Classic international law assigned
most of these issues to the realm of diplomatic protection—ultimately an unsatis-
factory placement, because it reduced questions of individual rights to issues of state
discretion and political compromise. As we move increasingly into a global regime
that comfortably considers individuals to be rights-bearing subjects at the interna-
tional level, we need greater clarity on the range of human rights possessed by aliens
sojourning or settling, legally or illegally, in distant lands.