According to the 14th amendment in the United States Constitution there are some rights that have to be protected, some call them fundamental and others say that they are inherent because of the fact that the rights are included in natural law. Within the ordinary meaning and the text of the 14th amendment, the provision lays down some important principles; such as that a State is not allowed to deprive any person life, liberty or property nor deny equal protection of the laws. The Statute of equal protection is used to analyze government actions that draw a distinction among people. However, the equal protection clause is only protecting; that similar situations are treated similar and different situations are treated differently.
An individual right and a fundamental one, can be invaded or limited but only if the legislation is necessary to accomplish a compelling state interest. If that is the case, the provision and the policy must impose current burdens and must be justified by current needs. A desire to harm a group or a decision based on mere hostility or negative attitudes towards a group can never constitute a legitimate governmental interest. It is important that the classification is objective and does not have the purpose to be animus.
States hold the primary responsibility for the protection of all persons within their borders. But unfortunately this is not the practice of many States today. Some States are incapable to protect all the rights, and some States may be unwilling to do so. Even where a nation’s laws are consistent with the international protecting norms, there could be problems due to the implementation and enforcement at all levels of government because of economic inability or practical reality.
One example of unequal access to rights is when States distinguish between citizens and certain categories of noncitizens. The term ‘noncitizen’ itself refers to a diverse range of people, but basically it means every person that is not a citizen. Often the noncitizens experience different treatment because of the classification. In some cases it can be legitimate to distinguish, but that is only permissible in narrow circumstances tied to certain State’s rights under international law, such as to vote or take part in the conduct of public service.
A lot of States only ensure full civil, political, economic and social rights to their own nationals. Despite the existence of an extensive framework for noncitizens rights, there still remain a disparity between prescribed and the realities noncitizens face. For example, stateless people and persons without identity documents, has far more difficult to find jobs, register the birth of children, obtain education, return to a home State, access to judicial processes or even obtain asylum. Arguably this kind of “rights” is fundamental for most human beings. During the last years, the numbers of refugee and asylum seekers has increased which have led to a higher burden for some countries. Because of the high costs associated with hosting asylum seekers and determining refugee or asylee status, many States are motivated to turn asylum seekers away from their asylum systems, before they even reach a port of entry.
Brok Wubeshet, juriststudentrepresentant, Scandinavian Human Rights Lawyers