limiting the rights of States to expel an individual
categorized as an “alien”. It would thus appear that
“his own country” as a concept applies to individuals
who are nationals and to certain categories of
individuals who, while not nationals in a formal
sense, are also not “aliens” within the meaning of
article 13, although they may be considered as aliens
for other purposes.
brother is in a program for the disabled and is
therefore taken care of by social services. As a
matter of fact, there is no one depending on the
appellant for sustenance and support...”. Counsel
argues that emphasis on the financial aspect of the
relationship does not take into account the emotional
family bond and submits in support of her argument
the report of Dr. Irwin Silverman, a psychologist,
summarizing the complexity of human relationships.
Moreover counsel cites from a book by Johathan
Bloom-Fesbach, The Psychology of Separation and
Loss, outlining the long-term effects of breaking the
family bond.
12.4 What is less clear is who, in addition to
nationals, is protected by the provisions of article 12,
paragraph 4. Since the concept “his own country” is
not limited to nationality in a formal sense, that is,
nationality acquired on birth or by conferral, it
embraces, at the very least, an individual who,
because of his special ties to or claims in relation to
a given country cannot there be considered to be a
mere alien. This would be the case, for example, of
nationals of a country who have there been stripped
of their nationality in violation of international law
and of individuals whose country of nationality has
been incorporated into or transferred to another
national entity whose nationality is being denied
them. In short, while these individuals may not be
nationals in the formal sense, neither are they aliens
within the meaning of article 13. The language of
article 12, paragraph 4, permits a broader
interpretation, moreover, that might embrace other
categories of long-term residents, particularly
stateless persons arbitrarily deprived of the right to
acquire the nationality of the country of such
residence.
10.6 Counsel rejects the State party's argument that
proper balancing has taken place between State
interests and individual human rights.
Issues and proceedings before the Committee
11.1 This communication was declared admissible
in so far as it appears to raise issues under articles
12, paragraph 4, 17 and 23 of the Covenant.
11.2 The Committee has considered the
communication in the light of all the information
made available to it by the parties, as provided in
article 5, paragraph 1, of the Optional Protocol.
12.1 The question to be decided in this case is
whether the expulsion of Mr. Stewart violates the
obligations Canada has assumed under articles 12,
paragraph 4, 17 and 23 of the Covenant.
12.2 Article 12, paragraph 4, of the Covenant
provides: “No one shall be arbitrarily deprived of the
right to enter his own country”. This article does not
refer directly to expulsion or deportation of a person.
It may, of course, be argued that the duty of a State
party to refrain from deporting persons is a direct
function of this provision and that a State party that
is under an obligation to allow entry of a person is
also prohibited from deporting that person. Given its
conclusion regarding article 12, paragraph 4, that
will be explained below, the Committee does not
have to rule on that argument in the present case. It
will merely assume that if article 12, paragraph 4,
were to apply to the author, the State party would be
precluded from deporting him.
12.5 The question in the present case is whether a
person who enters a given State under that State's
immigration laws, and subject to the conditions of
those laws, can regard that State as his own country
when he has not acquired its nationality and
continues to retain the nationality of his country of
origin. The answer could possibly be positive were
the country of immigration to place unreasonable
impediments on the acquiring of nationality by new
immigrants. But when, as in the present case, the
country of immigration facilitates acquiring its
nationality, and the immigrant refrains from doing
so, either by choice or by committing acts that will
disqualify him from acquiring that nationality, the
country of immigration does not become “his own
country” within the meaning of article 12, paragraph
4, of the Covenant. In this regard it is to be noted
that while in the drafting of article 12, paragraph 4,
of the Covenant the term “country of nationality”
was rejected, so was the suggestion to refer to the
country of one's permanent home.
12.3 It must now be asked whether Canada
qualifies as being Mr. Stewart's country”. In
interpreting article 12, paragraph 4, it is important to
note that the scope of the phrase “his own country”
is broader than the concept “country of his
nationality”, which it embraces and which some
regional human rights treaties use in guaranteeing
the right to enter a country. Moreover, in seeking to
understand the meaning of article 12, paragraph 4,
account must also be had of the language of article
13 of the Covenant. That provision speaks of “an
alien lawfully in the territory of a State party” in
12.6 Mr. Stewart is a British national both by birth
and by virtue of the nationality of his parents. While
he has lived in Canada for most of his life he never
applied for Canadian nationality. It is true that his
criminal record might have kept him from acquiring
Canadian nationality by the time he was old enough
56
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