nationality. I am not familiar with all aspects of
international law and I am therefore not in a position to
affirm or disaffirm this proposition. But, be as it may, a
law can be made by a State providing for expulsion of a
national. It may conflict with a principle of international
law, but that would not invalidate the domestic law. The
principle of international law would not afford protection
to the person concerned against domestic law. The only
protection such a person would have is under article 12,
paragraph 4. We should not read article 12, paragraph 4,
in a manner which would leave a national unprotected
against expulsion under domestic law. In fact, there are
countries where there is domestic law providing for
expulsion even of nationals and article 12, paragraph 4,
properly read, provides protection against arbitrary
expulsion of a national. The same reasoning would apply
also in a case where a non-national is involved. Article 12,
paragraph 4, must therefore be read as covering expulsion
or deportation.
There are two observations I would like to make in
connection with this view of the majority. The majority
view argues that article 12, paragraph 4, and 13 are
mutually exclusive. It is observed by the majority in the
view of the Committee 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, though they may be considered as aliens for
other purposes”. Thus, according to the majority view, an
individual falling within article 12, paragraph 4, would not
be an “alien” within the meaning of article 13. I too
subscribe to the same view. But there my agreement with
the view of the majority ends. The question is: who is
protected by article 12, paragraph 4? Who falls within its
protective wing? I may again repeat, in agreement with the
majority view, that article 12, paragraph 4, 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 an alien. This is a correct test but I fail
to understand why its application should be limited to the
three kinds of cases referred to by the majority. These
three kinds of cases would certainly be covered by this test
but there may be many more which would also answer this
test. I do not see any valid reason why they should be
excluded except a predetermination by the majority that
they should not be regarded as fulfilling this test, because
that would affect the immigration policies of the
developed countries. Take for example, a large number of
Africans or Latin Americans or Indians who are settled in
U.K., but who have not acquired U.K. citizenship. Their
children, born and brought up in U.K. would not have
even visited their country of nationality. If you ask them:
“which is your own country?”, they would unhesitatingly
say: “U.K.”. Can you say that only India or some country
in Africa of Latin America which they have never visited
and with which they have no links at all is the only
country which they can call their own country? I agree
that mere length of residence would not be a determinative
test but length of residence may be a factor coupled with
other factors. The totality of factors would have to be
taken into account for the purpose of determining whether
the country in question is a country which the person
concerned has adopted as his own country or is a country
with which he has special ties or the most intimate
connection or link in order to be regarded as “his own
country” within the meaning of article 12, paragraph 4.
Moreover, it is obvious that if a person has a right
to enter his own country and he/she cannot be arbitrarily
prevented from entering his/her own country, but he/she
can be arbitrarily expelled, it would make non-sense of
article 12, paragraph 4. Suppose a person is expelled from
his own country arbitrarily because he/she has no
protection under article 12, paragraph 4, and immediately
after expulsion, he/she seeks to enter the country.
Obviously he/she cannot be prevented because article 12,
paragraph 4, protects his/her entry. Then what is the sense
of expelling him? We must therefore read article 12,
paragraph 4, as embodying, by necessary implication,
protection against arbitrary expulsion from one's own
country.
That takes me to the second issue. What is the
scope and ambit of “his own country”? There is a general
acceptance that “his own country” cannot be equated with
“country of nationality” and I will not therefore spend any
time on it. It is obvious that the expression “his own
country” is wider than “country of nationality” and that is
conceded by the majority view. “His own country”
includes “country of nationality and something more”.
What is that “something more”? The majority view
accepts that the concept “his own country” 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”. I am in full agreement
with this view. But then, the majority proceeds to delimit
this concept by confining it to the following three
illustrative cases:
Before I part with the discussion of this point, I
must refer to one other illogicality in which the majority
appears to have fallen. The majority seems to suggest that
where the country of immigration places unreasonable
impediments on the acquiring of nationality by a new
immigrant, it might be possible to say that for the new
immigrant who has not acquired the nationality of the
country of immigration and continues to retain the
nationality of his country of origin, the country of
immigration may be regarded as “his own country”. There
are at least two objections against the validity of this view.
In the first place, it is the sovereign right of a State to
determine under what conditions it will grant nationality
to a non-national. It is not for the Committee to pass
judgment whether the conditions are reasonable or not and
whether the conditions are such as to impose unreasonable
impediments on the acquisition of nationality by a new
immigrant nor is the Committee competent to enquire
(1)
where nationals of a country have been
stripped of their nationality in violation of international law,
(2)
where the country of nationality of
individuals has been incorporated into or transferred to
another national entity whose nationality is being denied
to them and
(3)
stateless persons arbitrarily deprived of
their right to acquire the nationality of the country of their
residence.
It is the view of the majority that “while these
individuals may not be nationals in the formal sense,
neither are they aliens within the meaning of article 13”
and they fall within article 12, paragraph 4.
61
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