(2)
Article 18 of the Covenant protects the
right to freedom of religion and article 17 guarantees
everyone's right to the protection of the law against
"arbitrary or unlawful interference with his privacy".
However, in my opinion, it may be doubted whether the
right to the protection of one's privacy combined with the
freedom of religion automatically entails "the right to
change one's family name". Surnames carry important
social and legal functions to ascertain one's identity for
various purposes such as social security, insurance,
license, marriage, inheritance, election and voting,
passport, tax, police and public records, and so on. In fact,
the Committee recognizes that "the regulation of surnames
and the change thereof was essentially a matter of public
order and restrictions were therefore permissible under
paragraph 3 of article 18" (see paragraph 6.1). Moreover,
it is not impossible to argue that the request to change
one's family name is a form of manifestation of one's
religion, which is subject to the restrictions enumerated in
paragraph 3 of article 18.
shown that the changes sought were essential to
pursue their studies, that the names had religious
connotations and that they were not 'Dutch
sounding'. The Committee finds the grounds for so
limiting the authors' rights under article 17 not to be
reasonable. In the circumstances of the instant case
the refusal of the authors' request was therefore
arbitrary within the meaning of article 17,
paragraph 1, of the Covenant.
11. The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights,
is of the view that the facts before it disclose a
violation of article 17 of the Covenant.
12. Pursuant to article 2 of the Covenant, the
State party is under an obligation to provide
Mr. Aurik and Mr. Coeriel with an appropriate
remedy and to adopt such measures as may be
necessary to ensure that similar violations do not
occur in the future.
(3)
I do not consider that a family name
belongs to an individual person alone, whose privacy is
protected under article 17. In the Western society a family
name may be regarded only as an element to ascertain
one's identity, thus replaceable with other means of
identification such as a number or a cipher. However, in
other parts of the world, names have a variety of social,
historical and cultural implications, and people do attach
certain values to their names. This is particularly true with
family names. Thus, if a member of a family changes his
or her family name, it is likely to affect other members of
the family as well as values attached thereto. Therefore, it
is difficult for me to conclude that the family name of a
person belongs to the exclusive sphere of privacy which is
protected under article 17.
13. The Committee would wish to receive information, within 90 days, on any relevant measures
taken by the State party in respect of the Committee's
Views.
____________
* The text of individual opinions from Messrs N Ando
and K. Herndl is appended to the Views.
APPENDIX
Nisuke Ando
Individual Opinions concerning
the Committee's Views
2. INDIVIDUAL OPINION BY MR. KURT HERNDL
(DISSENTING)
1. INDIVIDUAL OPINION BY MR. NISUKE ANDO
(DISSENTING)
I regret that I am unable to concur in the
Committee's finding that by refusing to grant the authors a
change of surname, the Dutch authorities breached article
17 of the Covenant.
I do not share the State party's contention that, in
examining a request to change one's family name,
elements such as the name's "religious connotations" or
"non-Dutch sounding" intonation should be taken into
consideration. However, I am unable to concur with the
Committee's Views on this case for the following three
reasons:
(a)
The States party's action seen from the
general content and scope of article 17
Article 17 is one of the more enigmatic provisions
of the Covenant. In particular, the term "privacy" would
seem to be open to interpretation. What does privacy
really mean?
(1)
Despite the authors' allegation that the
requested change of the authors' family name is an
essential condition for them to practice as Hindu priest,
the State party argues that it has not been established that
the authors cannot follow the desired religious education
without the change of surname (see paragraph 9.5), and
apparently, on the basis of that argument, the authors'
claim has been rejected by the European Commission of
Human Rights. Since the Committee is not in the
possession of any information other than the authors'
allegation for the purpose of ascertaining the relevant
facts, I cannot conclude that the change of their family
names is an essential condition for them to practice as
Hindu priests.
In his essay on "Global protection of Human
Rights – Civil Rights" Lillich calls privacy "a concept to
date so amorphous as to preclude its acceptance into
customary international law".1 He adds, however, that in
determining the meaning of privacy stricto sensu limited
1
Richard B. Lillich, Civil Rights, in: Human Rights in
International Law, Legal and Policy Issues, ed. Th. Meron
(1984), p. 148.
76
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