provided that the International Covenant on
Civil and Political Rights is applicable to States
of origin.
The right to enter one’s own country
130.
International human rights law prohibits
arbitrary deprivation of the right to enter one’s
own country.258 The right of a person to enter his or
her own country is considered to be multi-faceted.
“It implies the right to remain in one’s own country.
It includes not only the right to return after having
left one’s own country; it may also entitle a person
to come to the country for the first time if he or she
was born outside the country.”259
131.
Significantly, the International Covenant
on Civil and Political Rights provides the right to
enter one’s “own country” which is considered
to be broader than the concept “country of his
nationality”.260 It is not limited to a national in
the formal sense, but also encompasses “an
individual, because of his or her special ties or
claims in relation to a given country, [who] cannot be considered to be a mere alien”.261 Such
individuals include nationals of a country
who have been stripped of their nationality in
violation of international law.262 Prohibition of
258 International Covenant on Civil and Political Rights
(1966), art. 12(4); African Charter on Human and Peoples’
Rights (1981), art. 12; Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental
Freedoms, securing certain rights and freedoms other than
those already included in the Convention and in the first Protocol thereto, as amended by Protocol No.11 (1963), art. 3(2).
arbitrary deprivation of the right to enter
his or her own country guarantees that even
interference provided for by law should be
“reasonable in the particular circumstance”.263
The Human Rights Committee considers that
there are few, if any, circumstances in which
deprivation of the right to enter one’s own
country can be considered reasonable.264
132.
Significantly, the Convention on the Rights
of the Child, to ensure the right to family unity, also
provides for the right of the child and his or her
parents to leave any country and to enter his or
her own country.265 Application by a child or his or
her parents to enter a State party to the
Convention for the purposes of family unification
should be dealt with by the States parties involved
“in a positive, humane and expeditious manner.”266
The right to nationality
133.
As summarized in chapter 2, the right
to nationality is provided for in a number of
international human rights treaties. Under the
International Covenant on Civil and Political
Rights, States are required to adopt appropriate
measures to ensure that every child has a nationality when he or she is born, including
through cooperation with other States.267 Repatriation to the country of origin or potential nationality is likely to be one such measure.
259 Human Rights Committee, general comment No. 27
(1999) on freedom of movement, para. 19.
263 Ibid.
260 Human Rights Committee, general comment No. 21
(1992) on humane treatment of persons deprived their liberty, para. 20.
265 Convention on the Rights of the Child (1989), art. 10(2).
261 Ibid.
262 Ibid.
264 Ibid.
266 Ibid, art. 10(1).
267 Human Rights Committee, General Comment No. 17
(1989), para. 8.
61.
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