Le régime juridique des étrangers au Cameroun

INTRODUCTION

The foreigners are they also men ?

In the Business of Barcelona Traction, the International Court of Justice (CIJ) affirmed in these terms the principle relating to the treatment from abroad : « since a State admits on its territory (...) foreign nationals, (...) it is held to grant the protection of the law to them and assumes certain obligations as for their treatment »^1(*) . Thus, although these obligations are neither absolute, nor without reserve, the CIJ at all did not intend to authorize the States to violate the rights of this category of people. On the contrary, it rather recommended to them to frame the foreigners juridically.

In right, foreigners are the individuals who do not have the nationality of the State in which they remain^2(*). According to RIVIER^3(*), the terms « subjects, nationals, citizens, régnicoles », are as many synonyms whose opposite is « foreigners ». That undoubtedly constitutes the reason for which, the foreigners are indifferently called «immigrants, expatriates, or, non-national ».

They are thus synonymic expressions returning to the same concept. Indeed, the concept of immigration translates an action of physical people who go in a State other than that of which they have nationality, with the intention to fix itself at it definitively or for a rather long period^4(*). In the same way, the concept of expatriation indicates either the action of expatrier an individual against his liking (it is more precisely of the exile or the banishment), or the fact for an individual of expatrier voluntarily (it is the phenomenon of the emigration). An expatriate is any person who left her fatherland and finds herself in foreign territory, whatever the reason of his departure^5(*). Pareillement, not-nationality, contrary to nationality, is the fact for an individual of not having any bond of legal fastening with the State on the territory of which it remains ; in other words, this individual does not have the nationality of the host country. So it is quite simply non-national or a foreigner in this country.

As Michel REYDELLET affirms it^6(*), it is necessary to go obviously that the world is filled from abroad. Moreover, in any country the latter are not on an equal footing with the nationals. The basic rights are generally refused or measured to the immigrants, or subjected to authorization, so that they incontestably form part of these weakened beings, of these « situations at the risk » as regards basic rights and human dignity. Indeed, it continues, contrary to the nationals, the foreigners have already decreased rights and are put at the variation. This is why we wonder whether the immigrants can truly be compared to men with whole share.

Actually, in spite of the unfavourable treatment that the latter within various official companies undergo, it is undeniable that they remain always men as well as the nationals because the humans right^7(*) are principles inherent in any human person without any discrimination.

As in the other States of the world, the foreigners living on the Cameronian territory are not in margin of this treatment differentiated, which carries reached to their rights however recognized as well as those of the nationals, by the legal instruments from protection from the personal freedoms. It is thus in this direction that the present study is registered relating to « the legal status from abroad in Cameroun ». Indeed, our principal concern is to evaluate the specifically Cameronian situation as regards management from abroad by the State. Such an evaluation will thus make it possible to check if the treatment of the immigrants living on the own territory is in conformity with the letter and the spirit of the decision returned by the CIJ in the Business of Barcelona Traction above mentioned.

But au préalable, for a better apprehension of the topic of analysis, it appears convenient to define the expression « legal status »^8(*). It is advisable to recall that, according to HORNED Gerard^9(*), a mode is a system of rules, considered as a whole, either as he gathers the whole of the rules relating to a matter, or because of the finality to which these rules are ordered. Jean SALMON^10(*) gives a definition a little clearer of it. In his opinion, it is especially about a whole of rules which govern a given legal institution.

It should be noted that the concept of legal status of the people also returns to two others, namely it « condition » and it « statute » that it is important to define.

For a great number of authors like Serge ON and Jean COMBACAU^11(*), the concepts of condition and statute of the individuals are basically distinct. Indeed, the fact that the State refuses on a foreign subject certain rights which it grants on its own subjects is a question concerned with « condition » of the individuals and not of their « statute » which is that of the people in comparison with the whole of the official rights. In other words, the condition of the individuals expresses the specificity of the rights, the preferences and the capacities reserved exclusively for the nationals by the State while, the statute of the individuals rather reveals the whole of the official rights of which can profit any person without any discrimination.

Such is however not the point of view of other doctrinary which thinks rather than it is undoubtedly about the same reality. Indeed, according to Jean SALMON^12(*), the statute, still synonymous with legal statute, is the legal condition of the people. It is in particular about the mode which is applicable for them. Thus it speaks about the condition from abroad to indicate by the same terms « statute, condition and mode », the whole of the rules which specify the state, the capacity, the legal personality, in short, rights and duties of these immigrant people. From the same point of view, HORNED Gerard^13(*) gives contents identical to these concepts. For him, indeed, the statute is a coherent whole of rules applicable to a category of people and who essentially determine of it the condition and the legal status. Applying that the abroads, it defines the legal condition as their statute, the whole of the rules relating to their situation, as governed by a State, so much with regard to the administrative mode to which they are subjected than as regards the public, professional or deprived rights which are recognized to them.

It is this design which will be adopted within the framework of our research. We will not establish any distinction between « condition » and « statute » since the use of one or the other concept will support a broader apprehension of the study of the legal status from abroad in Cameroun.

These preliminary considerations being formulated, it consequently proves necessary to raise the central problems of our reflection who articulates himself around the following question : can we speak about an effective protection from abroad within the State? In other words, Cameroun it envisaged solid texts and mechanisms to ensure a perfect recognition of the rights and fundamental freedoms of the expatriates ?

With our opinion, although it is not ignored, protection is far from being completely effective because Cameroun does not seem to have a solid legal base, which would reflect truly the characteristics of a supposed democratic State to in general ensure with effectiveness the guarantee of the humans right and the statute from abroad in particular. Moreover, certain regional legal instruments relating to the humans right and the condition from abroad in Africa and to which Cameroun left, seem to suffer from many imperfections tending to relativize the defense of freedoms of these people.

In addition, we will analyze the legal condition of the immigrants, for purposes to have a critical apprehension of the problems which they encounter.

As, most important will consist in showing as the formal recognition of the rights from abroad to Cameroun (First part) led to an institutionalization in fact of the violations of their fundamental freedoms (Second part).

* ¹ ABOUR (J.Maurice), public International law, 3rd edition, Quebec, Editions Yvon Blais Inc, 1997, p 359.

* ² SALMON (Jean) (Dir.), Dictionary of public International law, Brussels, Bruylant, 2001, p 468-470.

* ³ RIVIER, quoted by SALMON (Jean), ibid

* ⁴ Idem, p 556-557.

* ⁵ HORNED (Gerard), legal Vocabulary, Paris, PUF, 1987, p.364.

* ⁶ REYDELLET (Michel), «  The dignity from abroad  » IN PHILIPPE (Pedrot) (Dir.), Mixtures Christian Bolze  : Ethics, right and dignity of the person, Paris, Economica, 1999, p 227-259.

* ⁷ According to GRAWITZ (Madeleine), Lexicon of social sciences, 7th edition, Paris, Dalloz, 2000, p.15, the humans right are one «  together of rights, freedoms and prerogatives recognized with the men as such  ». VINCENSINI (J.J.), the book of the humans right, Paris, Edition Robert Laffont, 1985, p.12, gives a very extensive definition of it. It regards the humans right as «  prerogatives controlled by the rules recognized by the constitutional law and the international law which aim at defending the rights of the person in their relations with the capacity of the State and the other people and which tend to promote the establishment of the conditions making it possible to enjoy these rights indeed  ».

* ⁸ We did not give all contours of the expression «  legal status  ». Indeed, only the legal status of the physical people, in particular from abroad, is taken into account for the simple reason which it interests our study.

* ⁹ HORNED (Gerard), COp Cit, p 691-692.

* ¹⁰ SALMON (Jean), COp Cit, p 957-959.

* ¹¹ COMBACAU (Jean) and ON (Serge), public International law, Paris, Montchrestien, 1993, p 305.

* ¹² SALMON (Jean), Op.Cit, p 227-228 and p 1052-1054.

* ¹³ HORNED (Gerard), Op.Cit, p 189-190 and p 833-834.