The Human Rights Committee General Comment on Article 12 of the International Covenant on civil and Political Rights (November 1999)
In November 1999 the Human Rights Committee, the authoritative U.N. body for interpreting the ICCPR, produced a thorough and comprehensive commentary on Article 12. General Comments of the Human Rights Committee represent the most authoritative interpretation of the Covenant available to State Parties. They are produced by the Committee as authoritative guidance in order to assist States in fulfilling their reporting requirements (1). The General Comment concluded:
The wording of article 12, paragraph 4, does not distinguish between nationals and aliens ("no one"). Thus, the persons entitled to exercise this right can be identified only by interpreting the meaning of the phrase "his own country". The scope of "his own country" is broader than the concept "country of his nationality". It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, for nationals of a country who have been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. The language of article 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence"
In summary, the General Comment adopts an inclusive interpretation of "own country" to protect all those with "special ties" or connections with a country -- those who can not be considered "mere aliens." In the view of Human Rights Watch, the clearest guidance in international law for defining the basis on which an individual can exercise a claim to return to his or her "own country" is provided by the convergence of the wording of the General Comments of the Human Rights Committee -- "an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien"-- and the concept of a "genuine and effective link," which arose out of the International Court of Justice's Nottebohm case (2). While the Nottebohm case addressed the issue of nationality, the criteria that it sets forth are the most comprehensive, Human Rights Watch considers, for determining the existence of the right to return., it says :
"Different factors are taken into consideration, and their importance will vary from one case to the next: there is the habitual residence of the individual concerned but also the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc."
Thus a "genuine and effective link" to one's "own country" can be composed of various elements, including language, long-term residence, cultural identity, family ties, etc. The right of return is not restricted to nationality in the formal, or de jure, sense. Nor can it be restricted to permanent or habitual residence. One's "own country" implies a broader set of ties and connections that together make up "a genuine and effective link" as defined in the Nottebohm case. It allows for those outside their own country to return for the first time, even if they were born elsewhere and would be entering for the first time, so long as they have maintained a "genuine and effective link" to the country.
A genuine and effective link that is the basis for the right to return could conceivably fade over time. However, this would be rare in the case of those who personally fled. Such a determination should not be made for these individuals before they have had the opportunity to exercise the right to return over a reasonable period of time have chosen not to exercise the right, or have taken steps to cut the link (for example, by renouncing their nationality).
The question of whether the refugees left voluntarily or were expelled does not affect the right to return under the ICCPR.
(1) Part IV of the ICCPR (Articles 28 - 45) provides for the establishment of a Human Rights Committee to oversee the implementation of the Covenant. Article 40 stipulates that State Parties are obliged to submit reports to the Committee on measures they have taken to implement the Covenant. The Committee can also submit its own reports and "such general comments as it may consider appropriate, to the States Parties" (Article 40 (4)). The General Comment may also be submitted to the Economic and Social Council.
(2) Nottebohm Case, (Liechtenstein v. Guatemala) Second Phase, Judgment, I.C.J. reports 1955, Rep 4. The Nottebohm case dealt with the ability of one State (Liechtenstein) to initiate proceedings against another State (Guatemala) before the ICJ on behalf of one of its citizens. What was at stake was Liechtenstein?s ability to extend international protection to Nottebohm, and in order to do that the ?genuine and effective? link between Liechtenstein and Nottebohm needed to be established and specified. The case, and in particular the elements that comprise the ?link?, have been cited innumerable times by scholars, national and international courts - including the World Court - and institutions dealing with the nationality questions.