CCPR/C/52/D/453/1991

UNITED CCPR

NATIONS

Of \, International Covenant bist

Ww yy on Civil and Political Rights RESTRICTED */

CCPR/C/52/D/453/1991

9 December 1994

Original : ENGLISH

HUMAN RIGHTS COMMITTEE

Fifty-second session

. VIEWS

Communication No. 453/1991

Submitted by: A.R. Coeriel and M.A.R. Aurik

[represented by counsel]

Victims: The authors

State party: The Netherlands

Date of communication: 14 January 1991 (initial submission)

Documentation references: Prior decisions - CCPR/C/WG/44/D/453/1991

(Working Group’s rule 91

decision, dated 25 March 1992)

~ CCPR/C/48/D/453/1991

(Decision on admissibility,

dated 8 July 1993)

Date of adoption of Views: 31 October 1994

On 31 October 1994, the Human Rights Committee adopted its Views under

article 5, paragraph 4, of the Optional Protocol to the International Covenant

on Civil and Political Rights, in respect of communication No. 453/1991. The

text of the Views is appended to the present document.

[ANNEX]

*/ Made public by decision of the Human Rights Committee.

VWS453.52e cb

GE.95-15187

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ANNEX */

VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5, PARAGRAPH 4,

OF THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT

ON CIVIL AND POLITICAL RIGHTS

- FIFTY-SECOND SESSION -

concerning

Communication No. 453/1991

Submitted by: A.R. Coeriel and M.A.R. Aurik

[represented by counsel]

Victims: The authors

State party: The Netherlands

Date of communication: 14 January 1991 (initial submission)

Date of decision on admissibility: 8 July 1993

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 31 October 1994,

Havin concluded its consideration of communication No. 453/1991

submitted to the Human Rights Committee by A.R. Coerieland M.A.R. Aurik under

the Optional Protocol to the International Covenant on Civil and Political

Rights,

Having taken into account all written information made available to it

by the authors of the communication, their counsel and the State party,

Adopts its Views under article 5, paragraph 4, of the Optional Protocol.

¥*7 The text of individual opinions from Messrs. N. Ando and K. Herndl

is appended to the Views.

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1. The authors of the communication are A.R. Coeriel and M.A.R. Aurik, two

Dutch citizens residing in Roermond, the Netherlands. They claim to be victims

of a violation by the Netherlands of articles 17 and 18 of the International

Covenant on Civil and Political Rights.

The background:

2.1 The authors have adopted the Hindu religion and state that they want to

study for Hindu priests ('pandits') in India. They requested the Roermond

District Court (Arrondissements Rechtbank) to change their first names into

Hindu names, in accordance with the requirements of their religion. This

request was granted by the Court on 6 November 1986.

2.2 Subsequently, the authors requested the Minister of Justice to have

their surnames changed into Hindu names. They claimed that for individuals

wishing to study and practice the Hindu religion and to become Hindu priests,

it is mandatory to adopt Hindu names. By decisions of 2 August and 14 December

1988 respectively, the Minister of Justice rejected the authors’ request, on

the ground that their cases did not meet the requirements set out in the

‘Guidelines for the change of surname' (Richtlijnen voor

eslachtsnaamwijziging 1976). The decision further stipulated that a positive

decision would have been justified only by exceptional circumstances, which

were not present in the authors' cases. The Minister considered that the

authors' current surnames did not constitute an obstacle to undertake studies

for the Hindu priesthood, since the authors would be able to adopt the

religious names given to them by their Guru upon completion of their studies,

if they so wished.

2.3 The authors appealed the Minister's decision to the Council of State

(Raad van State), the highest administrative tribunal in the Netherlands and

claimed inter alia that the refusal to allow them to change their names

violated their freedom of religion. On 17 October 1990, the Council dismissed

the authors' appeals. It considered that the authors had not shown that their

interests were such that it justified the changing of surnames where the law

did not provide for it. In the opinion of the Council, it was not shown that

the authors' surnames needed to be legally changed to give them the chance to

become Hindu priests; in this connection, the Council noted that the authors

were free to use their Hindu surnames in public social life.

2.4 On 6 February 1991, the authors submitted a complaint to the European

Commission of Human Rights. On 2 July 1992, the European Commission declared

the authors' complaint under articles 9 and 14 of the Convention inadmissible

as manifestly ill-founded, as they had not established that their religious

studies would be impeded by the refusal to modify their surnames.

The complaint:

3. The authors claim that the refusal of the Dutch authorities to have

their current surnames changed prevents them from furthering their studies for

the Hindu priesthood and therefore violates article 18 of the Covenant. They

also claim that said refusal constitutes unlawful or arbitrary interference

with their privacy.

The State party's observations and the authors' comments thereon:

4.1 By submission of 7 July 1991, the State party replies to the Committee's

request under rule 91 of the rules of procedure to provide observations

relevant to the question of the admissibility of the communication in so far

as it might raise issues under articles 17 and 18 of the Covenant.

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4.2 The State party submits that Dutch law allows the change of surnames for

adults in special circumstances, namely when the current surname is indecent

or ridiculous, so common that it has lost its distinctive character or, in

cases of Dutch citizens who have acquired Dutch nationality by naturalization,

not Dutch-sounding. The State party submits that outside these categories,

change of surname is only allowed in exceptional cases, where the refusal

would threaten the applicant's mental or physical well-being.

4.3 With regard to Dutch citizens belonging to cultural or religious

minority groups, principles have been formulated for the change of surname.

One of these principles states that a surname may not be changed if the

requested new name would carry with it cultural, religious or social

connotations.

4.4 The State party submits that the authors in the present case have been

Dutch citizens since birth and grew up in a Dutch cultural environment. Since

the authors' request to change their surnames had certain aspects comparable

to those of religious minorities, the Minister of Justice formally sought an

opinion from the Minister of Internal Affairs. This opinion was unfavourable

to the authors, as the new names requested by them were perceived as having

religious connotations.

4.5 The State party states that the authors are free to carry any name they

wish in public social life, as long as they do not carry a name that belongs

to someone else without the latter's permission. The State party submits that

it respects the authors' religious convictions and that they are free to

manifest their religion. The State party further contends that the fact that

the authors allegedly are prevented from following further religious studies

in India because of their Dutch names, cannot be attributed to the Dutch

government, but is the consequence of requirements imposed by Indian Hindu

leaders.

4.6 As regards the authors' claim under article 17 of the Covenant, the

State party contends that the authors have not exhausted domestic remedies in

this respect, since they did not argue before the Dutch authorities that the

refusal to have their surnames changed constituted an unlawful or arbitrary

interference with their privacy.

4.7 In conclusion, the State party argues that the communication is

inadmissible as being incompatible with the provisions of the Covenant. It

further argues that the authors have failed to advance a claim within the

meaning of article 2 of the Optional Protocol.

5.1 In their reply to the State party's submission, the authors emphasize

that it is mandatory to have a Hindu surname when one wants to study for the

Hindu priesthood and that no exceptions to this rule are made. In this

connection, they submit that if the surname is not legally changed and appears

on official identification documents, they cannot become legally ordained

priests. In.support of their argument, the authors submit declarations made

by two pandits in England and by the Swami in New Delhi.

5.2 One of the authors, Mr. Coeriel, further submits that, although a Dutch

citizen by birth, he grew up in Curagao, the United States of America and

India, and is of Hindu origin, which should have been taken into account by

the State party when deciding on his request to have his surname changed.

5.3 The authors maintain that their right to freedom of religion has been

violated, because as a consequence of the State party's refusal to have their

surnames changed, they are now prevented from continuing their study for the

Hindu priesthood. In this context, they also claim that the State party's

rejection of their request constitutes an arbitrary and unlawful interference

with their privacy.

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The Committee's admissibility decision:

6.1 During its 48th session, the Committee considered the admissibility of

the communication. With regard to the authors' claim under article 18 of the

Covenant, the Committee considered that the regulation of surnames and the

change thereof was eminently a matter of public order and restrictions were

therefore permissible under paragraph 3 of article 18. The Committee,

moreover, considered that the State party could not be held accountable for

restrictions placed upon the exercise of religious offices by religious

leaders in another country. This aspect of the communication was therefore

declared inadmissible.

6.2 The Committee considered that the question whether article 17 of the

Covenant protects the right to choose and change one's own name and, if so,

whether the State party's refusal to have the authors' surnames changed was

arbitrary should be dealt with on the merits. It considered that the authors

had fulfilled the requirement under article 5, paragraph 2(b), of the Optional

Protocol, noting that they had appealed the matter to the highest

administrative tribunal and that no other remedies remained. On 8 July 1993,

the Committee therefore declared the communication admissible in so far as it

might raise issues under article 17 of the Covenant.

The State party's submission on the merits and the authors' comments thereon:

7.1 The State party, by submission of 24 February 1994, argues that article

17 of the Covenant does not protect the right to choose and change one's

surname. It refers to the travaux préparatoires, in which no indication can

be found that article 17 should be given such a broad interpretation, but on

the basis of which it appears that States should be given considerable freedom

to determine how the principles of article 17 should be applied. The State

party also refers to the Committee's General Comment on article 17, in which

it is stated that the protection of privacy is necessarily relative. Finally,

the State party refers to the Committee's prior jurisprudence’ and submits

that, whenever the intervention of authorities was legitimate according to

domestic legislation, the Committee has only found a violation of article 17

when the intervention was also in violation of another provision of the

Covenant.

7.2 Subsidiarily, the State party argues that the refusal to grant the

authors a formal change of surname was neither unlawful nor arbitrary. The

State party refers to its submission on admissibility and submits that the

decision was taken in accordance with the relevant Guidelines, which were

published in the Government Gazette of 9 May 1990 and based on the provisions

of the Civil Code. The decision not to grant the authors a change of surname

was thus pursuant to domestic legislation and regulations.

7.3 As to a possible arbitrariness of the decision, the State party observes

that the regulations referred to in the previous paragraph were issued

precisely to prevent arbitrariness and to maintain the necessary stability in

this field. The State party contends that it would create unnecessary

uncertainty and confusion, in both a social and administrative sense, if a

formal change of name could be effected too easily. In this connection, the

State party invokes an obligation to protect the interests of others. The

State party submits that in the present case, the authors failed to meet the

criteria that would allow a change in their surname and that they wished to

adopt names which have a special significance in Indian society. "Granting a

? See the Committee's Views with regard to communications No.

35/1978 (Aumeeruddy-Cziffra v. Mauritius, Views adopted on 9 April 1981) and

No. 74/1980 (Estrella v. Uruguay, Views adopted on 29 March 1983).

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request of this kind would therefore be at odds with the policy of the

Netherlands Government of refraining from any action that could be construed

as interference with the internal affairs of other cultures". The State party

concludes that, taking into account all interests involved, it cannot be said

that the decision not to grant the change of name was arbitrary.

8. In their comments on the State party's submission, the authors contest

the State party's view that article 17 does not protect their right to choose

and change their own surnames. They argue that the rejection of their request

to have their surnames changed, deeply affects their private life, since it

prevents them from practising as Hindu-priests. They claim that the State

party should have provided in its legislation for the change of name in

situations similar to that of the authors, and that the State party should

have taken into account the consequences of the rejection of their request.

9.1 During its 5lst session, the Committee began its examination of the

merits of the communication and decided to request clarifications from the

State party with respect to the regulations governing the change of names. The

State party, by submission of 3 October 1994, explains that the Dutch Civil

Code provides that anyone desiring a change of surname can file a request with

the Minister of Justice. The Code does not specify in what cases such a

request should be granted. The ministerial policy has been that a change of

surname can only be allowed in exceptional cases. In principle, a person

should keep the name which (s)he acquires at birth, in order to maintain legal

and social stability.

9.2 To prevent arbitrariness, the policy with respect to the change of

surname has been made public by issuing ‘Guidelines for the change of

surname'. The State party recalls that the guidelines indicate that a change

of surname will be granted when the current surname is indecent or ridiculous,

so common that it has lost its distinctive character, or not Dutch-sounding.

In exceptional cases, the change of surname can be authorized outside these

categories, for instance in cases where the denial of the change of surname

would threaten the applicant's mental or physical well-being. A change of

surname could also be allowed if it would be unreasonabie to refuse the

request, taking into account the interests of both the applicant and the

State. The State party emphasizes that a restrictive policy with regard to the

change of surname is necessary in order to maintain stability in society.

9.3 The Guidelines also contain rules for the new name which an applicant

will carry after a change of surname has been allowed. In principle, a new

name should resemble the old name as much as possible. If a completely new

name is chosen, it should be a name which is not yet in use, which sounds

Dutch and which does not give rise to undesirable associations (for instance,

a person would not be allowed to choose a surname which would falsely give the

impression that he belongs to the nobility). As regards foreign surnames, the

Government's policy is that it does not wish to interfere with the law of

names in other countries, nor does it wish to appear to interfere with

cultural affairs of another country. This means that the new name must not

give the false impression that the person carrying the name belongs to a

certain cultural, religious or social group. In this sense, the policy with

regard to foreign names is similar to the policy with regard to Dutch names.

9.4 The State party submits that the applicant's request is heard by the

Minister of Justice, who then adopts his decision in the matter. If the

decision is negative, the applicant can appeal to the independent judiciary.

All decisions are being taken in accordance to the policy as laid down in the

Guidelines. This policy is departed from in rare cases only, in order to

prevent arbitrariness.

9.5 As regards the present case, the State party explains that the authors'

request for a change of surname was refused, because it was found that no

reasons existed to allow an exceptional change of surname outside the criteria

laid down in the Guidelines. In this context, the State party argues that it

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has not been established that the authors cannot follow the desired religious

education without a change of surname. Moreover, the State party argues that,

even if a change of surname would be required, this condition is primarily a

consequence of rules established by the Hindu-religion, and not a consequence

of the application of the Dutch law of names. The State party also indicates

that the desired names would identify the authors as members of a specific

group in Indian society, and are therefore contrary to the policy that a new

name should not give rise to cultural, religious or social associations.

According to the State party, the names also conflict with the policy that new

names should be Dutch-sounding.

Issues and proceedings before the Committee:

10.1 The Human Rights Committee has considered the present communication in

the light of all the information made available to it by the parties, as

provided in article 5, paragraph 1, of the Optional Protocol.

10.2 The first issue to be determined by the Committee is whether article 17

of the Covenant protects the right to choose and change one’s own name. The

Committee observes that article 17 provides, inter alia, that no one shall be

subjected to arbitrary or unlawful interference with his privacy, family, home

or correspondence. The Committee considers that the notion of privacy refers

to the sphere of a person's life in which he or she can freely express his or

her identity, be it by entering into relationships with others or alone. The

Committee is of the view that a person’s surname constitutes an important

component of one’s identity and that the protection against arbitrary or

unlawful interference with one’s privacy includes the protection against

arbitrary or unlawful interference with the right to choose and change one's

own name. For instance, if a State were to compel all foreigners to change

their surnames, this would constitute interference in contravention of article

17. The question arises whether the refusal of the authorities to recognize

a change of surname is also beyond the threshold of permissible interference

within the meaning of article 17.

10.3 The Committee now proceeds to examine whether in the circumstances of

the present case the State party’s dismissal of the authors’ request to have

their surnames changed amounted to arbitrary or unlawful interference with

their privacy. It notes that the State party’s decision was based on the law

and regulations in force in the Netherlands, and that the interference can

therefore not be regarded as unlawful. It remains to be considered whether it

is arbitrary.

10.4 The Committee notes that the circumstances in which a change of surname

will be recognised are defined narrowly in the Guidelines and that the

exercise of discretion in other cases is restricted to exceptional cases. The

Committee recalls its General Comment on article 17, in which it observed that

the notion of arbitrariness "is intended to guarantee 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". Thus, the request to have one’s change of name

recognised can only be refused on grounds that are reasonable in the specific

circumstances of the case.

10.5 In the present case, the authors’ request for recognition of the change

of their first names to Hindu names in order to pursue their religious studies

had been granted in 1986. The State party based its refusal of the request

also to change their surnames on the grounds that the authors had not 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.

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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.

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.

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APPENDIX

INDIVIDUAL OPINIONS CONCERNING THE COMMITTEE’S VIEWS

1. Individual opinion by Mr. Nisuke Ando (dissentin

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:

(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.

(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.

(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.

Nisuke Ando

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2. Individual opinion by Mr. Kurt Herndi (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.

(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?

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".? He adds, however, that in

determining the meaning of privacy stricto sensu limited help can be obtained

from European Convention practice. And there he mentions that i.a. "the use

of name" was suggested as being part of the concept of privacy. This is, by

the way, a quote taken from Jacobs, who with reference to the similar

provision of the European Convention (article 8) asserts that "the organs of

the Convention have not developed the concept of privacy".?

What is true for the European Convention is equally true for the

Covenant. In his commentary on the Covenant Nowak states that article 17 was

the subject of virtually no debate during its drafting and that the case law

on individual communications is of no assistance in ascertaining the exact

meaning of the word.‘

It is therefore not without reason that the State party argues that

article 17 would not necessarily cover the right to change one’s surname (see

para. 7.1 of the Views).

The Committee itself has not really clarified the notion of privacy

either in its General Comment on article 17 where it actually refrains from

defining that notion. In its General Comment the Committee attempts to define

all the other terms used in article 17 such as "family", “home", "unlawful"

and "arbitrary". It further refers to the protection of personal "honour" and

"reputation" also mentioned in article 17, but it leaves open the definition

of the main right enshrined in that article, i.e. the right to "privacy".

While it is true that the Committee, in its General Comment, refers in various

instances to "private life" and gives examples of cases in which States must

refrain from interfering with specific aspects of private life, the question

whether the name of a person is indeed protected by article 17 and, in

particular, whether in addition there is a right to change one’s name, is not

brought up at all in the General Comment.

I raise the above issues to demonstrate that the Committee is not really

on safe legal ground in interpretating article 17 as it does in the present

decision. I do, however, concur with the view that one’s name is an important

part of one’s identity, the protection of which is central to article 17.

Nowak is therefore correct in saying that privacy protects the special,

2 Richard B. lLillich, Civil Rights, in: Human Rights in

International Law, Legal and Policy Issues, ed. Th. Meron (1984), p. 148.

3 Francis G. Jacobs, The European Convention on Human Rights (1975),

p. 126.

‘ Nowak, CCPR Commentary (1993), p.294, section 15.

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individual qualities of human existence and a person's identity. Identity

obviously includes one’s name.*

What is, therefore, protected by article 17, is an individual’s name and

not necessarily the individual's desire to change his/her name at whim. The

Committee recognizes this, albeit indirectly, in its own decision. The example

it refers to in order to illustrate a possible case of State interference with

individuals’ rights under article 17 in contravention of that article is

"... if a State were to compel all foreigners to change their surnames....

(see para. 10.2 of the Views). This view is correct, but obviously cannot have

a bearing on a case where a State - for reasons of generally applied public

policy and in order to protect the existing name of individuals - refuses to

allow a_change of name requested by an individual.

Nevertheless, it can be argued that it would be appropriate to assume

that the term "privacy" inasmuch as it covers, for the purpose of appropriate

protection, an individual's name as part of his/her identity, also covers the

right to change that name. In that regard one must have a closer look at the

"Guidelines for the change of surname" published in the Netherlands Government

Gazette in 1990 and applied in the Netherlands as common policy. The Dutch

policy is, as a matter of principle, based on the premise that a person should

keep the name which he/she acquires at birth in order to maintain legal and

social stability (see para. 9.1, last sentence, of the Views). As such, this

policy can hardly be seen as violating article 17. On the contrary, it is

protective of acquired rights, such as the right to a certain name, and would

seem to be very much in line with the precepts of article 17.

A change of name, according to the Guidelines, will be granted when the

current name is a) indecent, b) ridiculous, c) so common that it has lost its

distinctive character and d) not Dutch sounding. None of these grounds was

invoked by the authors when they asked for authorization to change their

surnames.

In accordance with the Guidelines a change of name can also be granted

"in exceptional cases", for instance "in cases where the denial of the change

of surname would threaten the applicant's mental or physical well-being" or

“in cases where the denial would be unreasonable, taking into account the

interests of both the applicant and the State" (see para. 9.2 of the Views).

As the authors apparently could not show such "exceptional circumstances" in

the course of the proceedings before the national authorities, their request

was denied. Their assertion that they needed the name-change to become Hindu

priests was apparently not substantiated (see the reasoning given by the

Council of State in its decision of 17 October 1990, para. 2.3, last sentence,

of the Views; see also the inadmissibility decision of the European Commission

of Human Rights of 2 July 1992, where the European Commission held that the

authors had not established that their religious studies would be impeded by

the refusal to modify their surnames; para. 2.4, last sentence, of the Views).

Nor can requirements imposed by Indian Hindu leaders be attributed to the

Dutch authorities, as confirmed by the Committee in the present case in the

framework of its decision on admissibility. There it examined the present

communication under the angle of article 18 of the Covenant and came to the

conclusion that "a State party to the Covenant cannot be held accountable for

restrictions placed upon the exercise of religious offices by religious

leaders in another country" (see para. 6.1 of the Views).

The request for a change of name was, therefore, legitimately turned

down as the authors could not show the Dutch authorities "exceptional

circumstances" as required by law. The refusal cannot be seen as a violation

of article 17. To hold otherwise would be tantamount to recognizing that an

Nowak, loc. cit., p. 294, section 17.

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individual has an almost absolute right to have his/her name changed on

request and at whim. For such a view, in my opinion, one can find no basis in

the Covenant.

(b) The State party’s action seen from the viewpoint of the criteria

for permissible (State) interference in rights protected by

article 17.

On the assumption that there exists a right of the individual to change

his/her name, the question of the extent to which "interference" with that

right is still permissible, has to be examined (and is, indeed, addressed by

the Committee in the present Views).

What then are the criteria laid down for (State) interference? They are

two and only two. Article 17 prohibits arbitrary or ‘unlawful interference with

one’s privacy.

It is obvious that the decision of the Dutch authorities not to grant

a change of name cannot per se be regarded as constituting "arbitrary or

unlawful" interference with the authors’ rights under article 17. The decision

is based on the law applicable in the Netherlands. Hence it is not unlawful.

The Committee itself says so (see para. 10.3 of the Views). The conditions

under which a change of name will be authorized in the Netherlands are laid

down in generally applicable and published "Guidelines for the change of

surname" which, in themselves, are not manifestly arbitrary. These Guidelines

have been applied in the present case, and there is no indication that they

were applied in a discriminatory fashion. Hence it is equally difficult to

call the decision arbitrary. The Committee does so, however, "in the

circumstances of the present case" (see para. 10.5 of the Views). To arrive

at that finding the Committee introduces a new notion - that of

"reasonableness". It finds "the grounds for limiting the authors’ rights under

article 17 not to be reasonable" (see para. 10.5 of the Views) .

The Committee thus attempts to expand the scope of article 17 by adding

an element which is not part of that article. The only argument the Committee

can adduce in this context is a simple reference (renvoi) to its own General

Comment on article 17 where it stated that "even interference provided by law

. should be, in any event, reasonable in the particular circumstances". It

is difficult for me to go along with this argumentation and to base on such

argumentation a finding that a State party violated this specific provision

of the Covenant.

Kurt Herndl

[Done in English, French and Spanish, the English text being the original

version. Subsequently to be issued also in Arabic, Chinese and Russian as part

of the Committee’s annual report to the General Assembly.]