(b)
The State party's action seen from the
viewpoint of the criteria for permissible State interference
in rights protected by article 17
"Guidelines for the change of surname" which, in
themselves, are not manifestly arbitrary. These Guidelines
have been applied in the present case, and there is no
indication that they were applied in a discriminatory
fashion. Hence it is equally difficult to call the decision
arbitrary. The Committee does so, however, "in the
circumstances of the present case" (see para. 10.5 of the
Views). To arrive at that finding the Committee introduces
a new notion – that of "reasonableness". It finds "the
grounds for limiting the authors' rights under article 17 not
to be reasonable" (see para. 10.5 of the Views).
On the assumption that there exists a right of the
individual to change his/her name, the question of the
extent to which "interference" with that right is still
permissible, has to be examined (and is, indeed, addressed
by the Committee in the present Views).
What then are the criteria laid down for (State)
interference? They are two and only two. Article 17
prohibits arbitrary or unlawful interference with one's
privacy.
The Committee thus attempts to expand the scope
of article 17 by adding an element which is not part of that
article. The only argument the Committee can adduce in
this context is a simple reference (renvoi) to its own
General Comment on article 17 where it stated that "even
interference provided by law ... should be, in any event,
reasonable in the particular circumstances". It is difficult
for me to go along with this argumentation and to base on
such argumentation a finding that a State party violated
this specific provision of the Covenant.
It is obvious that the decision of the Dutch
authorities not to grant a change of name cannot per se be
regarded as constituting "arbitrary or unlawful"
interference with the authors' rights under article 17. The
decision is based on the law applicable in the Netherlands.
Hence it is not unlawful. The Committee itself says so (see
para. 10.3 of the Views). The conditions under which a
change of name will be authorized in the Netherlands are
laid down in generally applicable and published
Kurt Herndl
Communication No. 455/1991
Submitted by: Allan Singer on 30 January 1991
Alleged victim: The author
State party: Canada
Declared admissible: 8 April 1993 (forty-seventh session)
Date of adoption of Views: 26 July 1994 (fifty-first session)
commercial advertisements in English outside his
store by advertisements in French. The author
appealed against all these summons before the local
courts and contended that the Charter of the French
Language (Bill No. 101) discriminated against him
because it restricted the use of English for
commercial purposes; in particular, section 58 of Bill
No. 101 prohibited the posting of commercial signs
in English outside the author's store. In
October 1978, the Court of Sessions of Montreal
found against him. The Superior Court of Quebec,
Montreal, did likewise on 26 March 1982, and so did
the Court of Appeal of Quebec in December 1986.
Subject matter: Language-based discrimination in
outdoor commercial advertising
Procedural issues: Standing of the author –
Ineffective remedies
Substantive issues: Right to freedom of opinion and
expression – Non-discrimination
Articles of the Covenant: 19, 26 and 27
Articles of the Optional Protocol: 1 and 5 (2) (b)
1.
The author of the communication is Allan
Singer, a Canadian citizen born in 1913 and a
resident of Montreal, Canada. He claims to be a
victim of language discrimination by Canada, in
violation of the International Covenant on Civil and
Political Rights, without however specifically
invoking article 26 thereof.
2.2 The author then took his case to the Supreme
Court of Canada, which, on 15 December 1988,
decided that an obligation to use French only in
outdoor advertising was unconstitutional and struck
down several provisions of the Quebec Charter of
the French Language (Charte de la langue
française). The Quebec legislature, however, passed
another legislative measure, Bill No. 178, on
22 December 1988, the express ratio legis of which
was to override the judgement handed down by the
Supreme Court of Canada one week earlier. With
this, the author contends, he has exhausted available
remedies.
The facts as presented by the author
2.1 The author runs a stationery and printing
business in Montreal. His clientele is predominantly,
but not exclusively, anglophone. Starting in 1978,
the author received numerous summons from the
Quebec authorities, requesting him to replace
78
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