HUMAN RIGHTS COMMITTEE CONCLUDES REVIEW OF FIRST DRAFT OF GENERAL COMMENT ON ARTICLE 12 OF POLITICAL, CIVIL RIGHTS COVENANT

HR/CT/525
23 March 1999

1731st Meeting (AM)


The Human Rights Committee this morning concluded its review of a draft general comment on article 12 of the International Covenant on Civil and Political Rights by adopting and proposing amendments to operative paragraphs 20 to 25.

Article 12 addresses the right to liberty of movement, freedom to choose residence and freedom to leave any country. It states that those rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the Covenant. In addition, the article
states that no-one shall be arbitrarily deprived of the right to enter his own country.

The Committee first adopted paragraph 20 of the draft general comment on article 12, which states that the Covenant requires respect of article 2(3), of the Covenant, providing an effective remedy, if the individual claims that his rights were denied. That includes fair and effective protection in each case.

According to article 2 (3), each State party to the Covenant undertakes to: ensure that any person whose rights or freedoms are violated shall have an effective remedy, notwithstanding that the violation had been committed by persons in an official capacity; ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other
competent authority provided for by the State, and to develop the possibilities of judicial remedy; and to ensure that the competent authorities shall enforce such remedies when granted.

The Committee decided to hold further discussion on the development of paragraph 21 of the general comment to include more relevant issues pertaining to the right to remain in a country.

According to the original text of paragraph 21 of the general comment "the right of a person to enter his or her own country recognizes the existing strong affiliation of a person with that State. The right to enter not only entitles him to return, but to come to his own country for the first time, if he has been born or lived outside his State of
nationality. The right to enter their country is of the utmost importance for refuges seeking voluntary repatriation".

Also this morning, the Committee agreed to redraft paragraph 22 of the general comment. The original text of that paragraph stated that the wording of article 12 (4), did not distinguish between nationals and aliens ("no one"). In a recent view the Committee agreed that the scope of the phrase "his own country" was broader than the concept "country of his nationality". It was not limited to nationality in a formal sense -- that
was nationality acquired at birth or by conferral. It embraced, at the very least, an individual who, because of his special ties to or claims in relation to a given country, could not therefore be considered a mere alien.

That would be the case of nationals of countries who had been stripped of their nationality and of individuals whose country has been incorporated into or transferred to another national entity whose nationality was denied to them. The language of article 12 (4), permits a broader interpretation that might embrace other categories of long-term residents.

The Committee also agreed to redraft paragraph 23 of the general comment. That paragraph originally stated that in no case might a person be arbitrarily deprived of the right to enter his own country. Regarding the concept of arbitrariness, the Committee referred to paragraph 4 of its General Comment No.16 on article 17 (1988). The approach taken there also appeared to be appropriate in the context of article 12 (4).

According to paragraph 4 of General Comment No. 16, the expression "arbitrary interference" was also relevant to the protection of the right provided for in article 17 of the Covenant. In the Committee's view, the expression "arbitrary interference" could also be extended to interference provided for under the law. The introduction of the concept of arbitrariness was intended to guarantee that even interference provided for
by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be reasonable in the particular circumstances.

[Article 17 states that no-one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. It also says that everyone has the right to the protection of law against such interference or attacks.]


The Committee then agreed in principle to combine paragraphs 20, 24 and 25, with possible amendments, as a conclusion to the present general comment.

According to the original text of paragraph 24, States parties should very attentively examine the need for any deprivation of the right to enter one's own country, report on any relevant rules and procedures and practices to the Committee and explain the underlying reasons. The individual concerned must be provided with an effective remedy according to article 2 (3).

By the original text of paragraph 25 of the general comment, States parties should establish the relevant guarantees of the right to move freely within the country and the right to leave and to enter it. States should also closely cooperate with each other to ensure that individuals may enjoy their rights of crossing borders as provided for in article 12.

Also this morning the Chairman of the Committee, Cecilia Medina Quiroga, expert from Chile, introduced a draft General Comment on Article 3. Article 3 addresses the equal right of men and women to enjoy all civil and political rights set forth in the Covenant.

The Committee will meet again tomorrow, 24 March, to begin its consideration of the fourth periodic report of Chile.