decision to deport the author was arbitrary, and thus a
violation of his rights under article 12, paragraph 4.
in the case, I am writing a separate opinion. This separate
opinion may be read as supplementary to the opinion of
Mrs. Evatt and Mrs. Medina Quiroga.
10.
We agree with the Committee that the deportation
of the author will undoubtedly interfere with his family
relations in Canada (paragraph 12.10), but we cannot
agree that this interference is not arbitrary, since we have
come to the conclusion that the decision to deport the
author - which is the cause of the interference with the
family - was arbitrary. We have to conclude, therefore,
that Canada has also violated the author's rights under
articles 17 and 23.
This is not a case of one single individual. Its
decision will have an impact on the lives of tens of
thousands of immigrants and refugees. This case has
therefore caused me immense anxiety. If the view taken
by the majority of the Committee is right, people who
have forged close links with a country not only through
long residence but having regard to various other factors,
who have adopted a country as their own, who have come
to regard a country as their home country, would be left
without any protection. The question is: are we going to
read human rights in a generous and purposive manner or
in a narrow and constricted manner? Let us not forget that
basically, human rights in the International Covenant are
rights of the individual against the State; they are
protections against the State and they must therefore be
construed broadly and liberally. This backdrop must be
kept in mind when we are interpreting article 12,
paragraph 4.
APPENDIX IV
Individual opinion submitted
by Ms.Christine Chanet and Mr. Julio Prado Vallejo
pursuant to rule 94, paragraph 3, of the Committee’s rules
of procedure, concerning the Views of the Committee on
communication No 538/1993,
Charles Stewart v. Canada
We do not share the Committee's position with
regard to the Stewart case, in which it concludes that, “as
Canada cannot be regarded as Mr. Stewart's 'own
country'”, there has been no violation by Canada of article
12, paragraph 4, of the Covenant.
First let me dispose of the argument with regard to
article 13. The Committee has declared the
communication under article 13 inadmissible and
therefore it does not call for consideration. Coming to
article 12, paragraph 4, it raises three issues. The first is
whether article 12, paragraph 4, covers a case of
deportation or is it confined only to right of entry; the
second is as to what is the meaning and connotation of the
words “his own country” and whether Canada could be
said to be the author's own country; and the third is what
are the criteria for determining whether an action alleged
to be violative of article 12, paragraph 4, is arbitrary and
whether the action of Canada in deporting the author was
arbitrary. I may point out at the outset that if the action of
Canada was, on the facts, not arbitrary, there would be no
violation of article 12, paragraph 4, even if the other two
elements were satisfied, namely, that article 12,
paragraph 4, covers deportation and Canada was the
author's own country within the meaning of article 12,
paragraph 4, and it would in that event not be necessary to
consider whether or not these two elements were satisfied.
But since the majority of the members of the Committee
have rested their opinion on the interpretation of the words
“his own country” and taken the view, in my opinion
wrongly, that Canada could not be said to be the author's
own country, I think it necessary to consider all the three
elements of article 12, paragraph 4.
Our criticism concerns the approach taken to the
case on this point:
–
assuming that wrongful acts disqualified
the author from acquiring nationality and that, as a
consequence, Canada may consider that it is not his own
country, that conclusion should have led the Committee to
reject the communication at the admissibility stage, since
its awareness of that impediment should have precluded
any application of article 12, paragraph 4, of the
Covenant.
–
there is nothing either in the Covenant itself
or in the travaux préparatoires about the “own country”
concept; the Committee must, therefore, either decide the
question on a case-by-case basis or establish criteria and
make them known to States and authors, thus avoiding any
contradition with admissibility decisions; if a person is
unable to acquire the nationality of a country owing to
legal impediments, then regardless of any other criteria or
factual circumstances, the communication should not be
declared admissible under article 12, paragraph 4, of the
Covenant.
I am of the view that on a proper interpretation,
article 12, paragraph 4, protects everyone against arbitrary
deportation from his own country. There are two reasons
in support of this view. In the first place, unless article 12,
paragraph 4, is read as covering a case of deportation, a
national of a State would have no protection against
expulsion or deportation under the Covenant. Suppose the
domestic law of a State empowers the State to expel or
deport a national for certain specific reasons which may
be totally irrelevant, fanciful or whimsical. Can it be
suggested for a moment that the Covenant does not
provide protection to a national against expulsion or
deportation under such domestic law? The only article of
the Covenant in which this protection can be found is
article 12, paragraph 4. It may be that under international
law, a national cannot be expelled from his country of
We agree with the substance of the individual
opinion formulated by Ms. Evatt, Ms. Medina Quiroga
and Mr. Aguilar Urbina.
APPENDIX V
Individual opinion submitted by Mr.Prafullachandra
Natwarlal Bhagwati pursuant to rule 94, paragraph 3, of the
Committee’s rules of procedure, concerning the Views of the
Committee on communication No 538/1993,
Charles Stewart v. Canada
I entirely agree with the separate opinion prepared
by Mrs. Elizabeth Evatt and Mrs. Cecilia Medina Quiroga,
but having regard to the importance of the issues involved
60
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