The right to enter his or her own country

The tension between the right of the State to regulate entry into its jurisdiction and the right of the individual to move freely has come to the fore in the COVID-19 pandemic. In an effort to contain the transmission of COVID-19, it has been reported that Samoa denied entry to eight of its nationals, and India prohibited the travel of individuals (including Indian nationals) to India from many States.

This post examines whether it is lawful for a State to deprive an individual of the right to enter his or her own country. The issue is examined principally through the lens of the International Covenant on Civil and Political Rights (ICCPR) but, where instructive, regional treaties are considered.

Article 12 of the ICCPR provides that:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.

As a matter of construction, it is clear that the right of an individual in Article 12(4) cannot be subject to any restrictions envisaged by Article 12(3) (“[t]he above-mentioned rights …”). However, the language of Article 12(4) raises two principal questions. First, what is the meaning of “his own country”? Second, what is the meaning of “arbitrarily”?

“His own country”

The UN Human Rights Committee (HRC) stated in General Comment No. 27 (at para. 20) that:

[t]he 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.

However, the HRC has not spoken with a consistent voice in its views. In Stewart v Canada (538/1993), the author (who was in his 30s) argued that the United Kingdom was no longer “his own country” since he left it at the age of seven and his entire life was centred upon his family in Canada. In the author’s view, Canada was “his own country”. The HRC did not agree. It reasoned as follows (at para. 12.5):

[t]he question in the present case is whether a person who enters a given State under that State’s immigration laws, and subject to the conditions of those laws, can regard that State as his own country when he has not acquired its nationality and continues to retain the nationality of his country of origin. The answer could possibly be positive were the country of immigration to place unreasonable impediments on the acquiring of nationality by new immigrants. But when, as in the present case, the country of immigration facilitates acquiring its nationality, and the immigrant refrains from doing so, either by choice or by committing acts that will disqualify him from acquiring that nationality, the country of immigration does not become “his own country” within the meaning of article 12, paragraph 4, of the Covenant. In this regard it is to be noted that while in the drafting of article 12, paragraph 4, of the Covenant the term “country of nationality” was rejected, so was the suggestion to refer to the country of one’s permanent home.

The Stewart interpretation of Article 12(4) was followed in Canepa v Canada (558/1993) and Madafferi v Australia (1011/2001). However, a broader interpretation of Article 12(4) was adopted by the HRC more recently in Nystrom v Australia (1557/2007), Warsame v Canada (1959/2010) and Budlakoti v Canada (2264/2013). In Warsame, the HRC found (at para. 8.5) that:

[i]n the present case, the author arrived in Canada when he was four years old, his nuclear family lives in Canada, he has no ties to Somalia and has never lived there and has difficulties speaking the language. The Committee observes that it is not disputed that the author has lived almost all his conscious life in Canada, that he received his entire education in Canada and that before coming to Canada he lived in Saudi Arabia and not in Somalia. It also notes the author’s claim that he does not have any proof of Somali citizenship. In the particular circumstances of the case, the Committee considers that the author has established that Canada was his own country within the meaning of article 12, paragraph 4, of the Covenant, in the light of the strong ties connecting him to Canada, the presence of his family in Canada, the language he speaks, the duration of his stay in the country and the lack of any other ties than at best formal nationality with Somalia.

Notwithstanding its inconsistent views, the HRC is clear that States Parties should be slow to equate “his own country” and “country of his nationality”. Particular caution should be exercised with respect to individuals who are permanently resident in the country and those granted refugee status by the State.

Turning to regional treaties, the African Charter on Human and Peoples’ Rights (ACHPR) uses the word “country” in Article 12(2) (like Article 12(4) of the ICCPR). It provides that “[e]very individual shall have the right … to return to his country”. While Rachel Murray (at p. 330) suggests that Article 12(2) protects the right of an individual to return to “the country of which he or she is a national“, this reading imports a limitation into Article 12(2) which is at odds with the HRC’s interpretation of “country” in Article 12(4) of the ICCPR.

Draft Article 12(4) of the ICCPR was a source of inspiration for Article 3(2) of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). It provides that “[n]o one shall be deprived of the right to enter the territory of the state of which he is a national”. In considering draft Article 3(2), the  Committee of Experts on Human Rights considered a proposal to replace the words “state of which he is a national” with “his own country” (i.e., the language used in draft Article 12(4) of the ICCPR). However, this proposal was not accepted. Most of the experts considered “state of which he is a national” to have “a more precise legal meaning” (Explanatory Report to Protocol No. 4, para. 24).

Article 22(5) of the American Convention on Human Rights (ACHR) is also limited by nationality: “[n]o one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it”.

The foregoing shows that the ICCPR (and, arguably, the ACHPR) protects a broader group of individuals than the ECHR and the ACHR.

“Arbitrarily”

The HRC considered the meaning of “arbitrarily” in General Comment No. 27. It stated (at para. 21) that:

[t]he reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action…; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.

In General Comment No. 35 (which concerns arbitrary arrest and detention), the HRC stated (at para. 12) that the notion of arbitrariness must be interpreted broadly “to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality”.

This suggests that a State Party cannot lawfully deprive an individual of the right to enter his or her own country on the basis of Article 12(4) where there are less draconian alternatives than denial of entry. In the context of the COVID-19 pandemic, there were and are less draconian alternatives than denial of entry. Not least, an individual can be screened on entry, monitored closely for 14 days after arrival and, if necessary, isolated and quarantined for a period of time. Such reasonable and proportionate measures do not interfere with the right of an individual to enter his or her own country and, simultaneously, allow the relevant State Party to contain the transmission of COVID-19 within its borders.

In the context of regional treaties, although draft Article 12(4) of the ICCPR was a source of inspiration for Article 3(2) of Protocol No. 4 to the ECHR, the Committee of Experts considered that Article 3(2) should not contain the word “arbitrarily”. However, it was understood “that an individual’s right to enter the territory of the State of which he was a national could not be interpreted as conferring on him an absolute right to remain in that territory” (Explanatory Report to Protocol No. 4, para. 28 (emphasis added)). For example, if a criminal is extradited by the State of which he is a national and subsequently escapes from prison in the receiving State, he would be able to re-enter the State of his nationality, but he would not have an unconditional right to seek refuge in his own State.

Article 22(5) of the ACHR is similarly categorical: it does not permit a State to deprive its national of the right to enter the territory of the State in any circumstance.

Article 3(2) of Protocol No. 4 to the ECHR and Article 22(5) of the ACHR can be contrasted with Article 12(2) of the ACHPR. Article 12(2) provides that the right of an individual to return to his or her country may “be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality”. While the terms of Article 12(2) do not stipulate that any restrictions must be “proportionate” or “necessary”, the absence of such a requirement would mean that a State could frame its national laws in a fashion to reduce greatly the protection guaranteed by the ACHPR. The African Commission on Human and Peoples’ Rights must surely, therefore, have been right when it found in Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan (279/03-296/05), in the context of Article 12(1) of the ACHPR, that restrictions on the enjoyment of the right to freedom of movement “should be proportionate and necessary to respond to a specific public need or pursue a legitimate aim” (at para. 188).

In short then, notwithstanding that the terms of Article 3(2) of Protocol No. 4 to the ECHR, Article 22(5) of the ACHR and Article 12(2) of the ACHPR are different, they (like Article 12(4) of the ICCPR) cannot be said to permit a State to deprive an individual (or national, as the case may be) of the right to enter his or her own country in an effort to contain the transmission of COVID-19.

Derogations

Aside from the content of Article 12(4) of the ICCPR, mention should be made of Article 4 of the ICCPR. Pursuant to Article 4(1) of the ICCPR, a State Party may take measures derogating from its obligation under Article 12(4) of the ICCPR provided that “there is a public emergency which threatens the life of the nation and the existence of which is officially proclaimed” by the State Party and the derogating measures taken are “strictly required by the exigencies of the situation”. From the data available in the UN Treaty Collection, as at 21 May 2020, 15 States (Armenia, Chile, Colombia, Ecuador, El Salvador, Estonia, Georgia, Guatemala, Kyrgyzstan, Latvia, Moldova, Palestine, Peru, Romania and San Marino) have notified the other States Parties to the ICCPR of derogations to the ICCPR (in accordance with Article 4(3) of the ICCPR). Notably, neither Samoa nor India are among the 15 States.

The phrase “public emergency” is not defined in the ICCPR and the HRC has not sought to define exhaustively the phrase. Sarah Joseph and Melissa Castan (at p. 911) are of the view that the phrase would include “a war, a terrorist emergency, or a severe natural disaster, such as a major flood or earthquake”. There is no reason why a public health emergency could not be added to this list.

The HRC appears to agree. On 24 April 2020, the HRC acknowledged that “States parties confronting the threat of widespread contagion may resort, on a temporary basis, to exceptional emergency powers and invoke their right of derogation from the Covenant under article 4, provided this is required to protect the life of the nation”.

However, while the HRC may be satisfied that the COVID-19 pandemic constitutes a public emergency, a State Party seeking to derogate must also be satisfied the COVID-19 pandemic “threatens the life of the nation”. Whether such a threat exists is highly fact-dependent. In due course, a State Party may be forced to defend its decision to derogate from the ICCPR before the HRC. In such circumstances, the HRC will have to grapple with conflicting medical and scientific advice about COVID-19 and the particular circumstances faced by the State Party at the relevant time to determine whether the COVID-19 pandemic threatened the life of the nation.

Any derogating measures taken must be “strictly required by the exigencies of the situation”. In General Comment No. 29, the HRC stated (at para. 4) that “the obligation to limit any derogations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers”. In the context of the COVID-19 pandemic, the HRC has stated (at para. 2(b)) that the predominant objective of derogating measures must be “the restoration of a state of normalcy, where full respect for the Covenant can again be secured. Derogations must be limited, as much as possible, in respect of their duration, geographical coverage and material scope, and all measures taken … must be proportional in nature”.

It is difficult to conceive of any circumstance where it could plausibly be said that the exigencies of the COVID-19 pandemic require a State Party to interfere with the right of an individual to enter his or her own country when that individual can be screened on entry, monitored closely for 14 days after arrival and, if necessary, isolated and quarantined for a period of time. The Emergency Committee convened under the International Health Regulations would likely agree: notwithstanding that we are in the midst of a public health emergency of international concern, the Emergency Committee advised the World Health Organization on 1 May 2020 that it should “[c]ontinue working with countries and partners to enable essential travel needed for … repatriation”.

Conclusion

If the reports concerning Samoa and India are accurate, there can be little doubt that they breached Article 12(4) of the ICCPR. Of course, going to court (or a human rights body) takes time and requires resources and, in practice, those seeking to enter their country often have little time and limited resources. But this should not embolden States to plough on unconcerned. Instead, States should embrace the rule of law as part of their public health response. In so doing, they will lay the groundwork for a more considered response to the next public health crisis.