The limits of the political rights of non-citizens

TLast of 5 parts

HE preceding four parts of this column explored the legalpolitical history of the right of states to exclude non-citizens from their political sphere. Now, this series ends by applying the wisdom of the UN Human Rights Committee (HRC) case

(2002), which I explained in the fourth instalment of this series.

was about when limitations to the political partici-

under the International Covenant on Civil and Political Rights (ICCPR). To determine this, the HRC established a link between the political right in question and the right protected by Article 25 of the ICCPR, which is “the right to take part in the conduct of public affairs,” which in turn is only limited to citizens. The HRC decided that if the activity is an act of taking part in the conduct of public affairs, then restricting the participation of non-citizens in that

In the previous part, I used the right of peaceful assembly (protected by Article 21 of the ICCPR) as an example.

If the protest joined by a noncitizen in the Philippines can be considered as taking part in the conduct of its public affairs, then restricting his/ her participation from it is reasonable because he/ she is not a citizen. However, how

demonstration or protest is related to the conduct of public affairs?

Two paragraphs in HRC’s General Comment No. 25 provide a hint:

Paragraph 5. The conduct of public affairs...is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels.

Paragraph 8. Citizens also take part in the conduct of public af-

public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association.

- stration can be considered as taking part in the conduct of public affairs if

the exercise of political power, in particular the exercise of legislative, executive, and administrative powers.

Thus, if the protests fall under this category, participating in them is participating in the public political life of the Philippines. Restricting the participation of non-citizens in them is reasonable. However, this does mean that the restriction has of permissible restrictions provided in Article 21 of the ICCPR.

Let me end this series by emphasizing the larger question. It isn’t really the legal one but the political

the legal question is answered.

Democracy means rule of the people, by the people, for the people. The people in a democracy have all the right to take part in the conduct of its public affairs. But are non-citizens part of the “demos” of a democracy? Is their exclusion democratic?

In democratic theory, the question of who belongs to the demos is referred to as “the boundary problem.”

The UN resolution on

(2013) equates people with citizens and uses them interchangeably. Adopted without a vote, the resolution uses citizenship to demarcate the boundary of the demos. After it states that “the will of the people shall be the basis of the authority of government,” it declares that “no distinctions are permitted among citizens in the enjoyment of the right to participate in the conduct of political and public affairs.” This implies that non-citizens are not part of the people. By equating the with the

the resolution endorses a bounded political community demarcated by citizenship.

In international law, the decision of who can be a citizen, and therefore who can be part of the is a function of sovereignty. In its advisory opinion on nationality decrees issued in Tunis and Morocco (1923), the Permanent Court of International Justice (PCIJ) noted that the conferment of citizenship is “within the jurisdiction of a State.”

However, “the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations.” The PCIJ provides no definite answer on where the boundary of citizenship lies. It only recognizes the role of the states in drawing this boundary. However, following the logic of the opinion, the legitimacy of this boundary is an essentially relative question, which depends upon factors contingent on the development of international relations.

Currently, nationalism is that force drawing the boundary of citizenship, and therefore of the demos. The logic of nationalism has equated the demos with citizen,

- istics of the dominant ethnic group. History has not yet taken a different route, and keeps on marching on the road that nationalism has paved, in which territorial sovereignty, nationalism, and democracy are entangled. The question of whether or not excluding non-citizens from non-electoral political activities is democratic ultimately depends on the decision of the citizens of the democratic society in question.