Dr. Shynar Sabitova
Kazakh State Pedagogical University
named after Abay
e-mail: sabitova.shinara@mail.ru
Modern
understanding and definition of the status foreign citizens
Universal Declaration of Human Rights,
International pacts, European Convention on Human Rights and other important
international legislation determined that the universal set of human rights and
freedoms, which in the whole with constitutional rights obliged to provide with
normal vital activity of individual.
That’s why in modern conditions under the main human rights you should
understand the rights contained in state constitution and international legal
documents on human rights. Defense of human rights is first of all the task of
national, domestic legal order.
Guarantees of human rights and freedoms are clearly declared in the
Constitution of the Republic of Kazakhstan.
The International human rights constitute an integral part of the system
of modern human and civil rights and freedoms in recent period. Without doubt the UNO plays the important
role in formation of international standards of human rights defense all over
the world. To determine the role of the
UNO in this aspect, it’s justly to remember the history of the UNO, which
formation became possible as a result of joining together efforts of states in
struggle with fascism. The League of
Nations actually stopped its activity in 1939.
General Assembly is responsible for the
general management of the United Nations activity, including the field of human
rights. Due to the item 13 of the Charter, one of functions of General Assembly
is the organization of researches and elaborating of recommendations, which are
aimed for " assistance to the international cooperation in the field of
economic, social, culture, education, public health and assistance to
realization of human rights and basic freedoms for everybody, without
distinction of race, sex, language and religion”. The most important problems
are discussed on plenary sessions of General Assembly of the United Nations.
Its special position in structure of the United Nations institutions
predetermines the point that the General Assembly makes the basic decisions in
the field of human rights and responsible for cooperation of the states within
the limits of the United Nations on these points. As more detailed, the basic
organizational - legal actions, concerning practical activities of the United
Nations under human rights, are carried out by Economic and Social Board
(ECOSOB). It operates as the supervising and coordinating institution of the
United Nations in economic, social field of human rights, formulates
recommendations on these points for the all institutions and organizations of
the United Nations. The Commission of Human Rights (further CHR) is a leading
institution in a system of the United Nations, prosecuting practical issues of
codification of the general principles and norms under the international law of
human rights. During the existence of
the system of the United Nations many international-legal certificates about
protection of human rights have been developed within the frameworks or under
the aegis of the United Nations. More than five decades has passed since the
General Declaration of human rights has been proclaimed.
By the
legal nature the Declaration, accepted in the form of a resolution of the
United Nations "as a task, which performance should be aimed by all people
and states", formally does not establish legally obligatory rules and
norms of behavior for the states. Legal significance of the Declaration is
concluded in real and straight impact on consolidation of the humanitarian
element in practice of interstate communication and became a basis for
development of obligatory rule of conduct for governments that is fixed in
numerous international conventions and agreements on the human rights. On the
practice way of using them by U.N.O. agencies and the governments themselves
individual norms – recommendations of The Declaration partially obtain the
character of obligatory norms of international law. It is significant that a
part of national constitution contain direct reference to Declaration and its
elementary claim and principles proclaiming them as a source of regulating and
interpretation of human rights on domestic level.
Norms
of the international law state rights and freedom of the human differing
citizenry, foreigners, and stateless persons. In the national legislation this
difference is worth to be held to determine correctly correlation of rights and
freedom of citizens and persons who are not citizens of the given government.
From this principle the Constitution of the Republic of Kazakhstan determining
in the article 12, item 4 what regime
is spread on the persons who are not citizens of the Republic of Kazakhstan and
stateless persons. In the present-day international law developed the whole
complex of the right acts that is concerned to human rights. Norms of the
international law directly do not regulate human rights in the specific
governments. Regulation of U.N.O. (p.3, a.1) imposes governments to provide
every person who are on their territory basic rights and freedom without any
discrimination.
It will
not be exaggerated to say that the definition of the legal status for
foreigners is always of high priority. Today the sharpness of the problem is
not solved; moreover it acquires new aspects it concerns not only young
sovereign democratic governments but also countries with “developed democracy”.
The Constitution of the Republic of Kazakhstan reinforcing rights and freedom of
citizens is based on norms and principles of the international law. After
acquisition the sovereignty our government established diplomatic relations
with a lot of countries in the world. In view of it every year the flow of
foreign citizens who visit the republic of Kazakhstan on special purpose is
increasing. It is fair to say that Kazakhstan faces complex of questions on
this basis: what rights and charges should foreigners possess while being in
the territory of Kazakhstan. This problem has not only theoretical but
practical meaning. To determine in confronted aspect rights and charges for
foreigners that came to the Republic of Kazakhstan, a candidate for a degree
tried to install a comparative analysis of some aspects of the foreigners’
rights on the examples of some governments. The constitution of the Republic of Kazakhstan has
fixed basic ideas and provisions of the international documents on human rights
with view of specific conditions of our state. In the Constitution provision
about attitude of the state to the person and the citizen is fixed. «Rights and
freedom of the person belong to everyone from birth, admit absolute and
inalienable, determine contents and application of laws and other statutory
acts» (item 2 of the article 12). This recognition of natural human rights by
the state is the initial beginning and defines contents of the Section II of he
Constitution «the Person and the citizen». Alongside with human rights this
section describes rights and duties of the citizen.
Development of human rights in Kazakhstan as well as
in any state, has own features. In 1991 Kazakhstan got independence, became a
full subject of the international law. A huge set of serious problems appeared
before the young state. The President of the RK notes in the book «On the
threshold of XXI century»: « … the tasks, faced Kazakhstan, were great. They
are formation of statehood, transition from one economic system to another one,
development of democratization process, preservation and strengthening of
social and interethnic stability, expansion of line of foreign policy,
development of integration processes and stabilization in the countries of the
CIS» [1]. As the Kazakhstan researcher professor M.A.
Sarsembayev notes «the main principles of legal status of foreign citizens in
the Republic of Kazakhstan are first, the principle of national regime meaning
that foreign citizens in Kazakhstan have all rights and freedoms and also fulfill
the duties established by the Constitution, laws and the international
agreements of the Republic for citizens of Kazakhstan, except for the cases
stipulated by laws and the international agreements …. The legislation of Republic of Kazakhstan does not
connect granting of the national regime to the principle of reciprocity. Rights
and freedom stipulated by the legislation are given to foreign citizens
irrespective of whether citizens of Kazakhstan have such rights in their
countries» [2].
Before the Kazakhstan legislators
the constant task is to keep up with conformity of the Kazakhstan of laws
adopted in the Republic with the international law. It is necessary to note
that on all aspects of treatment of foreigners the Republic of Kazakhstan
adheres to the international obligations adopted and in some questions the
legislation takes the lead. Measures of amplification of guarantees for
foreigners on protection of their interests have been taken on the basis of
norms of the national law and international law. Simultaneously sanctions
concerning the foreigners committing a crime and other illegal actions become
stronger. It is done with the purpose of social order and protection of rights
and safety as citizens of the Republic of Kazakhstan as foreigners in the
territory of the country. An unreasonable refusal to enter and unjustified restrictions
established by the state are possible to qualify as unfriendly act, hence, in
this respect the states should adhere to principles of mutual respect and
equality.
In the manual a general-theoretical complex of rights
and duties of foreign citizens under the legislation of the Republic of
Kazakhstan and on international law, a relation of international legal and
national regulations in this field by the example of the Fundamental Law of the
Republic of Kazakhstan and basic international documents fixing considered
aspects are studied. Studying of problems of legal nature definition of the
status of foreign citizens, the analysis of the legislation of foreign
countries with the purpose of definition of an opportunity of its use in the
Republic of Kazakhstan, basic provisions of the international conventions and
agreements concerning rights of the persons who are not citizens of the host
country and research of the problems of participation of the Republic of
Kazakhstan in these international acts and also development of concrete
theoretical and practical offers on perfection of the Kazakhstan legislation in
these issues. In the legislation of states prevalence of the term
"foreigner" takes place that is connected to new tendencies in
development of the modern international legal theory in the field of human
rights and their realization in national - legal systems. In the statutory acts
and legal literature the concept "foreigner" is used in two senses -
wide and narrow. In the wide sense "foreigners" are all those persons
who are not citizens of the state of their stay, in the narrow one – people who
are in the territory of the country, but have citizenship of other state.
The legal status of foreign citizens is understood first of all as set of
their rights and duties. The legal status of the category of people is common -
it is predetermined by the reason that they are not citizens of the country
where they are. At the same time, the unity of their legal status is determined
also by the circumstance that all foreigners have minimal volume of rights
guaranteed by the international obligations of the states in sphere of rights
and basic freedom of the person. Alongside the states classify foreign citizens
allocating them with some additional rights. The problem is solved with the
help of the legal regimes established for various categories of foreigners. In
the theory of international law three basic kinds of such regimes: a national
regime, most favored nation basis and special (preferential) mode are established.
Most of the states of the world apply the national regime except for some
provisions of the legislation. The most favored nation basis and special regime
are established as a rule in bilateral contracts. The analysis of the
regulations of the international law and acts of the national legislation shows
that in a host country there are various categories of foreigners, the volume
of rights and duties of which is connected to duration and purposes of their
stay. On the basis of availability of citizenship foreigners are divided into
two biggest groups (categories): foreign citizens and persons without
citizenship. Distinction between these two categories of foreigners takes place
on the basis of the civil belonging in spite of the fact that uniting attributes
prevail in their legal characteristic. So, foreign citizens obey not only law
and order established in the state of stay, but also keep the rights and
obligations of the citizenship state, first of all the right of protection and
patronage of the citizenship country. At the same time, persons without
citizenship can have only the protection of the international law, which is
applied in the regulations of the national legislation. Therefore in the modern
international law the tendency of measures reducing a condition of “stateless”
dominates.
The legal status of foreign citizens is divided in two groups: residents
and visitors. The status of residents is defined first of all by character of
their connection with the state of their stay, i.e. they are those persons who
irrespective of term of residing would like to get citizenship of the state.
Foreign citizens – visitors are those people whose stay in the territory of the
state is connected to definite purposes after achievement of which they wish to
return to the citizenship country. Also the visitors are the people who have
arrived to study, for business trip, tourist purposes etc. Among foreign
citizens – visitors it is necessary to
allocate the foreigners having immunity from jurisdiction of the host country
who in turn can be divided into having incomplete diplomatic immunity and
privileges. Diplomatic agents (including international officials), members of
their families and also the persons equated to them (heads of the foreign
states, governments, Ministers of Foreign Affairs and consular officials if
under the contract between the states, they have privileges and immunities of
the diplomatic agents) are included in the first group of the category of
foreign citizens. The foreign citizens having incomplete diplomatic immunity
and privileges include other employees of diplomatic, consular and other
official representative offices of foreign countries and also representative
offices of the international organizations if they are not citizens of the receiving
nation. The legal status of the specified categories of foreign citizens is
defined by the international law and the national legislation of the states can
influence their status only in aspect of their rights as a category of
diplomatic agents. The category of foreigners – visitors also includes working
migrants, which basis of a legal status are established by the Convention on
protection of rights of all working - migrants and members of their families
dated 1990. Specificity of the status of the category of foreigners consists of
granting of the right of the international protection from the part of
committee of rights protection of all working - migrants and members of their
families.
Among all categories of all foreign citizens in territory of Kazakhstan
citizens of the countries - members of the CIS have the greatest volume of
rights, first of all of those states which Kazakhstan is closely integrated
with. Their exclusive position in comparison with other foreigners is
established by the agreements of Kazakhstan with these countries. At the same
time, even this category of foreigners can be graded. So the most exclusive
position among all of them citizens of Russia have, who according to the
Agreement dated January 20, 1995About legal status of citizens of the Republic
of Kazakhstan residing in the territory of the Russian Federation and citizens
of the Russian Federation residing in the territory of the Republic of
Kazakhstan are given the right to hold a post of heads and assistants of heads of
structural divisions of regional, municipal, country administrations and also
departments, managements, committees and other organizations which are included
in the system of local authorities on the basis of the order agreed by the
parties of the Agreement (for example, such provision is absent in precisely
the same Kazakhstan – Belarusian agreement dated January 17, 1996). Besides
under the same agreement citizens of Russia do not obey restrictions or
additional duties which are established or can be established for foreign
citizens. To the agreements establishing the special status of foreign
citizens, the agreement between Russia and Kazakhstan about military service of
citizens of the Russian Federation in Military forces of the Republic of
Kazakhstan under the contract and their status dated January 20 1995 is also
included. The model of the previous Kazakhstan - Russian agreement was used as
a basis of the new quadrilateral Agreement of Byelorussia, Kazakhstan, Kyrgistan
and Russia On the legal status of citizens of one state residing in the
territory of other state dated April 28, 1998. The Agreement establishes higher
status of citizens of the listed states in the territory of other contracting
parties and enters a new term - "permanent resident" (the citizen of
one party residing in the territory of other party on the basis of the sanction
given by the other party). Special categories of
foreigners can include "immigrants" as well, i.e. citizens of one
state and moving for residing to other state in frameworks of migratory quotas
(for example, such status is established by the Agreement between government of
the RK and the Russian Federation On regulation of process of resettlement and
protection of rights of immigrants dated November, 20 1999). The above-stated
categories of foreign citizens are characterized by using a special regime on a
contractual basis mutually.
The international legal
regulations concerning regulation of the legal status of foreigners in the
Republic of Kazakhstan have primary force. After entrance of foreigners to the
territory of the Republic of Kazakhstan their legal status is defined by the
Kazakhstan legislation which should correspond to the international obligations
of the Republic. In the territory of the RK the following rights are given to
foreign citizens: work and rest right; right of health protection; right of social security; right of dwelling;
right of property; copyright; right of getting education; right of participation
in public associations; right of enjoyment
of culture; right of marriage and divorce; right of free movement in the
territory of the Republic of Kazakhstan open for foreign citizens visiting;
right of free choice of a residence according to the order established by the
legislation of the RK; freedom of conscience, security of residence, honor and dignity are guaranteed for foreign
citizens. The foreign citizens broken the established order of stay in the RK,
the order of registration, arrival or departure and also national legislation
of the RK bear the responsibility stipulated by the legislation of RK and the
term of stay can be reduced or they can be excluded from the Republic. The analysis of
statutory acts of the national legislation shows that in the majority of the
countries of the world the term "foreigner" prevails. This term is
applied in the Declaration of the General Assembly of the United Nations dated
1985 on human rights concerning the persons who are not citizens of the country
where they live « … the term « the foreigner» means taking into account
provision of below-mentioned clauses any person who is not the citizen of the
state where he is» [3]. Working groups participated in preparation of this
declaration considered remarks of the governments and came to a conclusion the
term "foreigner" is more acceptable for the states - members of the
United Nations and it complies with the
requirements of their national legislations. The concept "foreigner" is connected to new tendencies
in development of the modern international legal theory in the field of human
rights and their realization in national - legal systems. Consideration of this
institute shows, that in the statutory acts and legal literature the concept
"foreigner" is used in two senses - wide and narrow. In a wide sense
"foreigners" are all persons who are not citizens of the state of
their stay, in narrow - the persons who are in the territory of the country,
but have citizenship of other state. Many lawyers adhere to the same opinion. Consideration of the legal status of
foreigners in the science of international law assumes finding - out of the
following questions: who and under what conditions should be relate to the
category "foreigner"; what do terms «legal status of foreigners », «
principles of the legal status of foreigners» etc mean. Rather appreciable
disagreements are observed in the contents and volume of the concept
"foreigner" in the international legal science, regulations of the
international law, the legislation of the states, their practice and doctrines. In the international legal documents directly or indirectly touching the
legal status of foreigners the concept "foreigner" was not defined.
In 1972 with the beginning of development of the project of the Declaration on
the legal status of people who are not citizens of the residing state, attempt
to formulate a concept "non citizen" which subsequently was replaced
with concept "foreigner" was undertaken. In the final edition of the
official documents of the United Nations this definition looks as follows:
"foreigner" means … any person who is not citizen of the state where
he is. According to this definition we can make a conclusion that the category
"foreigner" includes citizens of other states and persons who don’t
have citizenship at all and refugees who formally have citizenship of any
state, but actually lost all contacts with it and political emigrants who were
compelled on political grounds to leave their country etc.
The federal legislation of Switzerland according to
the article 69 of the federal constitution governs arrival and departure, stay
and settling of foreigners. And though decisions on stay and settling are
accepted on the basis of the federal right by the cantons, the Confederation
makes final decisions on sanctions for long stay, settling and deviation from
the established limits, infringements of contracts on a settlement made by the
cantons, expulsion from the Confederation, refusal of the refuge. The
confederation according to the article 70 can expel from the territory the
people not being its citizens and menacing to its national or international
safety. The constitution, article 68 provides that the federal legislation can
establish civil rights for persons without citizenship and measures of
prevention of “stateless” cases. The
second chapter of the Constitution of Bulgaria, part 2, item 57 defines legal
status of the foreigners providing the national regime to the foreigners,
except for provisions established by the Constitution and laws. The Clause 27
guarantees foreigners staying in the country and that they will not be expelled
or extradited under protest to the other state except for the conditions and
order established by the law. The legal status of foreigners in Spain is
regulated by the Organic law about rights and freedom of foreigners in Spain
1985; this act establishes not only the status of foreigners in territory of
the country, but also defines the order of arrival at the country, a regime of
the national frontier and special section contains detailed regulations about work
of foreigners and their residing in the country. Persons who do not have
Spanish citizenship are considered as foreigners. Foreigners have the same
rights and freedom as Spaniards but only specified in the first section of the
Constitutions, i.e. basic rights and freedom under the conditions established
by the Organic law and laws which regulate these rights and freedom. Foreigners
who are connected to Spain by virtue of residing or interest have duties,
obligation and responsibilities under the national law except for rights and
obligation related exclusively to Spaniards. Except for regulations stipulated by the constitution which we have
mentioned and which give natives of countries - members of the European Union
suffrages at elections of local authorities, foreigners can not have such
rights as well as the right to hold public posts. The foreigners who are
lawfully in the territory of Spain, have the right of free movement and
choosing of a residence, except for the cases established by the law and connected,
for example, with safety of the country. They have the right of education, to
enter trade unions, the right of strike according to the regulations of the law
and have other rights and freedom. The law specially stipulates that foreigners
can be engaged in teaching and research work. To work the foreigner in Spain, a
special sanction from the ministry of labor and other authorities is required
and in the sanction the certain part of territory of the country or the certain
enterprise where only the foreigner can work can be stipulated. Some categories
of people do not require such sanction (teachers invited by the Spanish
universities, some persons of the managing personnel, accredited journalists of
foreign newspapers, actors arrived to the country for a long period and
others). The organic law on rights and freedom of foreigners in Spain contains
sanctions for infringement of the regulations stipulated in it as to the
foreigner and its employers - from exile from the country to criminal
prosecutions. If we look at the legislation of the Republic of
Kazakhstan, in particular, at the Decree of the President of the RK equal to
the law «About legal status of foreign citizens in the RK» dated 19.06.1995,
the item 2 of the Decree defines: «the people who are citizens of the Republic
of Kazakhstan and have the proofs of belonging to citizenship of other state
are admitted in the Republic of Kazakhstan as Foreign citizens. The persons who
are not citizens of the Republic of Kazakhstan and have the proofs of belonging
to the citizenship of other state are admitted as people without citizenship». As we mentioned earlier a big inflow of foreign citizens to the Republic of
Kazakhstan has sharply increased for the last ten years. Freedom of foreign
trade activities of the Kazakhstan businessmen and foreign investments in
development of the Kazakhstan economy, removal of many administrative
interdictions and restrictions for arrival of foreigners to Kazakhstan and stay
here, and also development of civil-law connections and tourism - all this has
resulted in sharp increase of number of the foreign citizens coming to our
country and living in our country for a long time. As a result of
transformation of former Union Republics into the independent states millions
people which were in their territory, became foreigners for each other.
Sources
1.
Nazarbayev N.A. On the threshold of XXI century. Almaty, 1996., Ñ.-135
2.
M.A.Sarsembayev. Private International law. Institute
of the international law and business
«Daniker», 1998, Ñ.-93
3. 51 the Declaration of the General Assembly of the United Nations dated 13.12.1985. Declaration of the human rights about people who are not citizens of the residing country