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not been sufficiently recognized everywhere and therefore require appropriate
international protection.”
33. It is essential to ensure the proper application and interpretation of these
provisions aimed at guaranteeing that the rights and fundamental freedoms of
migrants are respected in practice. Hence the importance of the progressive
interpretation by the human rights treaty bodies of the rules contained in the
instruments in question. These interpretations are embodied in a number of general
comments and general recommendations, some of which refer explicitly to the
obligations of States parties with respect to non-nationals. Nevertheless,7 for the
purposes of this report, the Special Rapporteur will confine herself to mentioning
briefly the principles established by the Human Rights Committee and the
Committee on the Elimination of Racial Discrimination, since it would be
impossible to carry out an in-depth analysis in the limited space available.
34. In its general comment No. 15, the Human Rights Committee states that
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” (para. 1), as provided in article 2, paragraph 1, of the
International Covenant on Civil and Political Rights. The Committee’s experience in
examining periodic 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” (para. 2).
35. The Committee’s general comment No. 18 states that “non-discrimination,
together with equality before the law and equal protection of the law without any
discrimination, constitute a basic and general principle relating to the protection of
human rights” (para. 1). The general requirement of non-discrimination with respect
to the rights guaranteed in article 2, paragraph 1, of the International Covenant on
Civil and Political Rights “must be guaranteed without discrimination between
citizens and aliens” (general comment No. 15, para. 2), except in the case of the
rights of citizens and of aliens set forth in articles 25 and 13, in that order. The
Committee states that “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” (ibid., para. 4). It should be borne in mind that the
general guarantee provided in article 2 of the International Covenant on Civil and
Political Rights is not the same as the right set forth in article 26 of the Covenant,
which, as noted in the Committee’s general comment No. 18, “prohibits
discrimination in law or in fact in any field regulated and protected by public
authorities”, since it is concerned with “the obligations imposed on States parties in
regard to their legislation and the application thereof”. Thus, the scope of article 26
“is not limited to those rights which are provided for in the Covenant” (para. 12).
36. In its recent general recommendation XXX, the Committee on the Elimination
of Racial Discrimination clarifies the responsibilities of States parties to the
International Convention on the Elimination of All Forms of Racial Discrimination
with regard to non-citizens. In this general recommendation, the Committee
addresses specific issues such as protection against hate speech and racial violence,
access to citizenship, the administration of justice, expulsion and deportation of
non-citizens and the enjoyment of economic, social and cultural rights by noncitizens. The Committee recommends the adoption of a number of measures to
prohibit and eliminate racial discrimination in all its forms in regard to the
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