to protect the existing name of individuals – refuses to
allow a change of name requested by an individual.
help can be obtained from European Convention practice.
And there he mentions that i.a. "the use of name" was
suggested as being part of the concept of privacy. This is,
by the way, a quote taken from Jacobs, who with reference
to the similar provision of the European Convention
(article 8) asserts that "the organs of the Convention have
not developed the concept of privacy".2
Nevertheless, it can be argued that it would be
appropriate to assume that the term "privacy" inasmuch as
it covers, for the purpose of appropriate protection, an
individual's name as part of his/her identity, also covers
the right to change that name. In that regard one must
have a closer look at the "Guidelines for the change of
surname" published in the Netherlands Government
Gazette in 1990 and applied in the Netherlands as
common policy. The Dutch policy is, as a matter of
principle, based on the premise that a person should keep
the name which he/she acquires at birth in order to
maintain legal and social stability (see para. 9.1, last
sentence, of the Views). As such, this policy can hardly be
seen as violating article 17. On the contrary, it is
protective of acquired rights, such as the right to a certain
name, and would seem to be very much in line with the
precepts of article 17.
What is true for the European Convention is
equally true for the Covenant. In his commentary on the
Covenant Nowak states that article 17 was the subject of
virtually no debate during its drafting and that the case law
on individual communications is of no assistance in
ascertaining the exact meaning of the word.3
It is therefore not without reason that the State
party argues that article 17 would not necessarily cover
the right to change one's surname (see para. 7.1 of the
Views).
The Committee itself has not really clarified the
notion of privacy either in its General Comment on
article 17 where it actually refrains from defining that
notion. In its General Comment the Committee attempts to
define all the other terms used in article 17 such as
"family", "home", "unlawful" and "arbitrary". It further
refers to the protection of personal "honour" and
"reputation" also mentioned in article 17, but it leaves
open the definition of the main right enshrined in that
article, i.e. the right to "privacy". While it is true that the
Committee, in its General Comment, refers in various
instances to "private life" and gives examples of cases in
which States must refrain from interfering with specific
aspects of private life, the question whether the name of a
person is indeed protected by article 17 and, in particular,
whether in addition there is a right to change one's name,
is not brought up at all in the General Comment.
A change of name, according to the Guidelines,
will be granted when the current name is a) indecent, b)
ridiculous, c) so common that it has lost its distinctive
character and d) not Dutch sounding. None of these
grounds was invoked by the authors when they asked for
authorization to change their surnames.
In accordance with the Guidelines a change of
name can also be granted "in exceptional cases", for
instance "in cases where the denial of the change of
surname would threaten the applicant's mental or physical
well-being" or "in cases where the denial would be
unreasonable, taking into account the interests of both the
applicant and the State" (see para. 9.2 of the Views). As
the authors apparently could not show such "exceptional
circumstances" in the course of the proceedings before the
national authorities, their request was denied. Their
assertion that they needed the name-change to become
Hindu priests was apparently not substantiated (see the
reasoning given by the Council of State in its decision of
17 October 1990, para. 2.3, last sentence, of the Views;
see also the inadmissibility decision of the European
Commission of Human Rights of 2 July 1992, where the
European Commission held that the authors had not
established that their religious studies would be impeded
by the refusal to modify their surnames; para. 2.4, last
sentence, of the Views). Nor can requirements imposed by
Indian Hindu leaders be attributed to the Dutch
authorities, as confirmed by the Committee in the present
case in the framework of its decision on admissibility.
There it examined the present communication under the
angle of article 18 of the Covenant and came to the
conclusion that "a State party to the Covenant cannot be
held accountable for restrictions placed upon the exercise
of religious offices by religious leaders in another
country" (see para. 6.1 of the Views).
I raise the above issues to demonstrate that the
Committee is not really on safe legal ground in
interpretating article 17 as it does in the present decision. I
do, however, concur with the view that one's name is an
important part of one's identity, the protection of which is
central to article 17. Nowak is therefore correct in saying
that privacy protects the special, individual qualities of
human existence and a person's identity. Identity
obviously includes one's name.4
What is, therefore, protected by article 17, is an
individual's name and not necessarily the individual's
desire to change his/her name at whim. The Committee
recognizes this, albeit indirectly, in its own decision. The
example it refers to in order to illustrate a possible case of
State interference with individuals' rights under article 17
in contravention of that article is : "... if a State were to
compel all foreigners to change their surnames.... " (see
para. 10.2 of the Views). This view is correct, but
obviously cannot have a bearing on a case where a State –
for reasons of generally applied public policy and in order
The request for a change of name was, therefore,
legitimately turned down as the authors could not show
the Dutch authorities "exceptional circumstances" as
required by law. The refusal cannot be seen as a violation
of article 17. To hold otherwise would be tantamount to
recognizing that an individual has an almost absolute right
to have his/her name changed on request and at whim. For
such a view, in my opinion, one can find no basis in the
Covenant.
2
Francis G. Jacobs, The European Convention on
Human Rights (1975), p. 126.
3
Nowak,
section 15.
4
CCPR
Commentary
(1993),
p.
294,
Nowak, loc. cit., p. 294, section 17.
77
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents