9.2 (a) In this respect the Committee notes that in
the case of the 17 unmarried co-authors there is no ques
tion of actual interference with, or failure to ensure
equal protection by the law to any family. Furthermore
there is no evidence that any of them is actually facing a
personal risk of being thus affected in the enjoyment of
this or any other rights set forth in the Covenant by the
laws complained against. In particular it cannot be said
that their right to marry under article 23 (2) or the right
to equality of spouses under article 23 (4) are affected
by such laws.
9.2 (b) 1 The Committee wiU next examine that
part of the communication which relates to the effect of
the laws of 1977 on the family life of the three married
women.
9.2 (b) 2 The Committee notes that several provi
sions of the Covenant are applicable in this respect. For
reasons which will appear below, there is no doubt that
they are actually affected by these laws, even in the
absence of any individual measure of implementation
(for instance, by way of a denial of residence, or an
order of deportation, concerning one of the husbands).
Their claim to be "victims" within the meaning of the
Optional Protocol has to be examined.
9.2 {b) 2 (i) 1 First, their relationships to their
husbands clearly belong to the area of "family" as used
in article 17 (1) of the Covenant. They are therefore
protected against what that article calls "arbitrary or
unlawful interference" in this area.
9.2 (ft) 2 (i) 2 The Committee takes the view that the
common residence of husband and wife has to be con
sidered as the normal behaviour of a family. Hence, and
as the State party has admitted, the exclusion of a per
son from a country where close members of his family
are living can amount to an interference within the
meaning of article 17. In principle, article 17 (1) apphes
also when one of the spouses is an alien. Whether the ex
istence and application of immigration laws affecting
the residence of a family member is compatible with the
Covenant depends on whether such interference is either
"arbitrary or unlawful" as stated in article 17 (1), or
conflicts in any other way with the State party's obliga
tions under the Covenant.
9.2 (b) 2 (i) 3 In the present cases, not only the
future possibihty of deportation, but the existing
precarious residence situation of foreign husbands in
Mauritius represents, in the opinion of the Committee,
an interference by the authorities of the State party with
the family life of the Mauritian wives and their
husbands. The statutes in question have rendered it
uncertain for the families concerned whether and for
how long it will be possible for them to continue their
family life by residing together in Mauritius. Moreover,
as described above (para. 7.4) in one of the cases, even
the delay for years, and the absence of a positive deci
sion granting a residence permit, must be seen as a con
siderable inconvenience, among other reasons because
the granting of a work permit, and hence the possibility
of the husband to contribute to supporting the family,
depends on the residence permit, and because deporta
tion without judicial review is possible at any time.
9.2 (6) 2 (i) 4 Since, however, this situation results
from the legislation itself, there can be no question of
regarding this interference as "unlawful" within the
meaning of article 17 (1) in the present cases. It remains
to be considered whether it is "arbitrary" or conflicts in
any other way with the Covenant.
9.2 (6) 2 (i) 5 The protection owed to individuals in
this respect is subject to the principle of equal treatment
of the sexes which follows from several provisions of the
Covenant. It is an obligation of the State parties under
article 2 (1) generally to respect and ensure the rights of
the Covenant "without distinction of any kind, such as
... (inter alia) sex", and more particularly under ar
ticle 3 "to ensure the equal right of men and women to
the enjoyment" of all these rights, as weU as under arti
cle 26 to provide "without any discrimination" for "the
equal protection of the law".
9.2 (b) 2 (i) 6 The authors who are married to
foreign nationals are suffering from the adverse conse
quences of the statutes discussed above only because
they are wonien. The precarious residence status of their
husbands, affecting their family hfe as described, results
from the 1977 laws which do not apply the same
measures of control to foreign wives. In this connection
the Committee has noted that under section 16 of the
Constitution of Mauritius sex is not one of the grounds
on which discrimination is prohibited.
9.2 (b) 2 (i) 7 In these circumstances, it is not
necessary for the Committee to decide in the present
cases how far such or other restrictions on the residence
of foreign spouses might conflict with the Covenant if
applied without discrimination of any kind.
9.2 (b) 2 (i) 8 The Committee considers that it is
also unnecessary to say whether the existing discrimina
tion should be called an "arbitrary" interference with
the family within the meaning of article 17. Whether or
not the particular interference could as such be justified
if it were applied without discrimination does not matter
here. Whenever restrictions are placed on a right
guaranteed by the Covenant, this has to be done without
discrimination on the ground of sex. Whether the
restriction in itself would be in breach of that right
regarded in isolation, is not decisive in this respect. It is
the enjoyment of the rights which must be secured
without discrimination. Here it is sufficient, therefore,
to note that in the present position an adverse distinc
tion based on sex is made, affecting the alleged victims
in their enjoyment of one of their rights. No sufficient
justification for this difference has been given. The
Committee must then find that there is a violation of ar
ticles 2 (1) and 3 of the Covenant, in conjunction with
article 17 (1).
9.2 (b) 2 (ii) 1 At the same time each of the couples
concerned constitutes also a "family" within the mean
ing of article 23 (1) of the Covenant, in one case at
least—that of Mrs. Aumeeruddy-Cziffra—also with a
child. They are therefore as such "entitled to protection
by society and the State" as required by that article,
which does not further describe that protection. The
Committee is of the opinion that the legal protection or
70
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