A Right to Belong: Legal Protection of Sociological Membership in the Application of Article 12(4) of the ICCPR
95 Pages Posted: 23 Sep 2013 Last revised: 5 Feb 2020
Date Written: September 21, 2013
The ability of a state to determine who can enter its territory and who can claim membership in the national community is at the core of the traditional conception of sovereignty. Where sovereignty equates to control over territory and people, discretion over who can enter and who belongs would seem to be among the fundamental elements — if not the fundamental element — of a state’s status as a sovereign entity. However, while often maintaining the discourse of state discretion, international law has increasingly intervened to dictate the terms of a state’s ability to ascribe nationality and to expel non-nationals. This paper tracks the development of this intervention, which, it argues, culminates in recent events concerning the application of the right to enter and remain in one’s “own country” under Article 12(4) of the International Covenant on Civil and Political Rights. In short, the U.N. Human Rights Committee, in two recent decisions, determined that Article 12(4) grants long-term residents the right to remain in the territory of a state on the basis of their de facto membership in the national community. This interpretation of the right — which marks a break with the Committee’s past jurisprudence — has the potential to significantly challenge the scope of the state’s discretion concerning both these core areas of who can enter and who belongs. Ultimately, however, this challenge to the traditional terms of national belonging is best viewed as an example of a broader trend toward international legal protection for “sociological membership” within the national community. The growth of this protection is a natural consequence of the proliferation of global migration (and the increased mobility of individuals more generally) over the last two centuries, and the increasing recognition of the interests of the individual as a concern of international law.
Keywords: international human rights, ICCPR, Human Rights Committee, United Nations, mobility rights, citizenship, Warsame, Nystrom, own country
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