Freedom of movement

Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect. It asserts that a citizen of a state in which that citizen is present has the liberty to travel, reside in, and/or work in any part of the state where one pleases within the limits of respect for the liberty and rights of others,[1] and to leave that state and return at any time. Some immigrants' rights advocates assert that human beings have a fundamental human right to mobility not only within a state but between states.

Contents

Common limitations

Restrictions on international freedom of movement (immigration or emigration) are commonplace. Within countries, freedom of movement is often more limited for minors, and penal law can modify this right as it applies to persons charged with or convicted of crimes (for instance, parole, probation, registration). In some countries, freedom of movement has historically been limited for women, and for members of disfavored racial and social groups. Circumstances, both legal and practical, may operate to limit this freedom. For example, a nation that is generally permissive with respect to travel may restrict that right during time of war. In some instances, the laws of a nation may assert a guarantee of this right, but lawless conditions may make unfettered movement impossible. In other instances, a nation whose written laws codify such rights may fail to actually provide them. Other common political-legal restrictions on freedom of movement are:

  • national and regional official minimum wage tariff barriers to labour market entry (free movement or migration of workers);
  • official identity cards (internal passports, citizenship licenses) that must be carried and produced on demand;
  • obligations on persons to register change of address or partner with the state authorities;
  • protectionist local-regional barriers to housebuilding and therefore settlement in particular districts; and
  • road toll barriers to the free movement of persons by motor cars.

Philosophical grounds for a right to move

Scholars have attempted to base a universal "right to move" on several philosophical grounds, including the idea of a common ownership of the earth, a natural right of movement existing prior to the advent of nation states, an ethics of cosmopolitanism, and utilitarian notions of the benefits of immigration to both receiving countries and immigrants.[2]

Freedom of movement between private parties

Freedom of movement is not construed as a right to permit an individual to enter private property of another. Such an unauthorized entry constitutes a trespass, often punishable as a tort or a crime, for which the private landowner can summon public officials to remove a trespasser from the landowner's property. In some jurisdictions, questions have arisen as to the extent to which a private owner of land can exclude certain persons from land used for public purposes, such as a shopping mall or a park. There is also a rule of law that a landowner whose property is completely boxed in by that of other private landowners shall have the right to cross private land if that is necessary to reach a public thoroughfare. The concept is also used as the basis for enacting laws to prevent alternate use of streets, roads and right-of-ways from blocking or restricting freedom of movement such as block parties and playing basketball.

There is a converse duty for a private person not to impede the free movement of another. Where a person prevents another from freely leaving an area, either by physically imprisoning them or by threats, that person may be subject to a lawsuit for false imprisonment, and to criminal charges for kidnapping.

Entrance restrictions in certain countries

British Government asks travelers arriving to London Stansted Airport not to destroy their travel documents, in order to be able to adjudicate their eligibility to enter the country

The Henley Visa Restrictions Index[3] ranks countries based on the number of other countries its citizens are free to enter without visa.

Exit restrictions in certain countries

Some countries, such as the former Soviet Union and the United States, require that their citizens, and sometimes foreign travelers, obtain a passport or exit visa to be allowed to leave the country. The United States may revoke passports at will, thereby preventing exit.[4]

Currently, some countries require that foreign citizens have valid visas upon leaving the country if they needed one to enter. For example, a person who overstayed a visa in Czech Republic may need to obtain an exit visa. In Russia, the inconvenience goes even further as the legislation there does not recognize residency permits as valid visas; thus, foreign citizens lawfully residing in Russia need to obtain "exit-entry" visas in order to do a trip abroad. This, in particular, affects foreign students, whose original entry visas expire by the time they return home.

The United States requires foreign students to receive permission from the school to exit. This is done by official signature on an I-20 form. Without the signature the student will not be allowed to exit (if checked) or re-enter.

Citizens of the People's Republic of China who are residents of the mainland are required to apply for exit and entry endorsements in order to enter the Special Administrative Regions of Hong Kong and Macau (and SAR residents require a Home Return Permit to visit the mainland).

Saudi Arabia and Qatar require all resident foreigners, but not citizens, to obtain an exit visa before leaving the kingdom.[5]

Sometimes restrictions are placed on leaving that are specific to the intended destination. In the United States travel to Cuba is restricted with the ostensible goal of putting pressure on Cuba by denying it income from American travelers.

Many countries restrict their own citizens as well as foreigners from exiting under certain conditions, such as being under investigation as a suspect, serving a criminal sentence, or being a debtor in default.

History

India

In ancient India, all people, including women,[6] enjoyed complete freedom of movement.[7][8] Freedom of movement was considered part of India's traditional Hindu Vedic culture that upheld the dignity of man and saw in him the embodiment of the divine.[9]

Europe

When Augustus established the Roman Empire in 27 BC, he assumed monarchical powers over the new Roman province of Egypt and was able to prohibit Senators from traveling there without his permission. However, Augustus would also allow more liberty to travel at times. During a famine in 6 AD, he attempted to relieve strain on the food supply by granting senators the liberty to leave Rome and to travel to wherever they wished.[10]

In England in 1215, the right to travel was enshrined in Article 42 of the Magna Carta:

It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and Merchants who shall be treated as it is said above.

In the Holy Roman Empire, a measure instituted by Joseph II in 1781 had permitted serfs freedom of movement. The serfs of Russia were not given their personal freedom until Alexander II’s Edict of Emancipation of 1861. At the time, most of the inhabitants of Russia, not only the serfs but also townsmen and merchants, were deprived of freedom of movement and confined to their places of residence.[11]

United Nations Declaration

After the end of hostilities in World War II, the United Nations was established on October 24, 1945. The new international organization recognized the importance of freedom of movement through documents such as the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966). Article 13 of the Universal Declaration of Human Rights, adopted by the U.N. General Assembly, reads,

(1) Everyone has the right to freedom of movement and residence within the borders of each State.
(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 12 of the International Covenant on Civil and Political Rights incorporates this right into treaty law:

(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 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.

The ICCPR entered into force for the initial ratifying states on 23 March 1976, and for additional states following their ratification. In 1999, the U.N. Human Rights Committee, which is charged with interpreting the treaty, issued its guidelines for Article 12 of the ICCPR in its "General Comment No. 27: Freedom of Movement".

Institutional laws by region

Africa

Freedom of movement laws and restrictions vary from country to country on the African continent, however several international agreements beyond those prescribed by the United Nations govern freedom of movement within the African continent. The African Charter on Human and People's Rights, Article 12, guarantees that every individual will have the right to freedom of movement within the borders of their own state so long as they abide by the state's laws.[12] The Charter also recognizes the right to leave and return to one's country at will, barring concerns of national security, public health, or a threat to the general population. The charter also prevents the mass expulsion of entire groups of people.[13] However, these laws are not necessarily followed or enforced, as evidenced recently by the genocide and mass expulsion in Sudan. There have been attempts to have intellectuals recognized as having special freedom of movement rights, to protect their intellectual ideals as they cross national boundaries.[14]

The Constitution of South Africa also contains express freedoms of movement, in section 21 of Chapter 2. Freedom of movement is guaranteed to "everyone" in regard to leaving the country but is limited to citizens when entering it or staying in it. Citizens also have a right to a passport.

Burma/Myanmar

The military regime in Burma has been criticized for allegations of restrictions to freedom of movement.[15] These include restrictions on movement by political dissidents,[16] women,[17] and migrant workers.[17] Burmese passports contain a microchip embedded in them that carries identifying information about the passport holder. UN special envoy Razali Ismail, part owner of Iris corporation, which won the contract to install the new system, dismissed security concerns, and said, "Must you think of things in such sinister terms? Anyway, it’s only for those people who want to travel outside. In most cases, those will be government people."[18]

Canada

The Constitution of Canada contains mobility rights expressly in section 6 of the Canadian Charter of Rights and Freedoms. The rights specified include the right of citizens to leave and enter the country and the right of both citizens and permanent residents to move within its boundaries. However, the subsections protect poorer regions' affirmative action programs that favour residents who have lived in the region for longer. Section 6 mobility rights are among the select rights that cannot be limited by the Charter's notwithstanding clause.

Canada's Social Union Framework Agreement, an agreement between governments made in 1999, affirms that "All governments believe that the freedom of movement of Canadians to pursue opportunities anywhere in Canada is an essential element of Canadian citizenship." In the Agreement, it is pledged that "Governments will ensure that no new barriers to mobility are created in new social policy initiatives."[19]

China

In the People's Republic of China, the Hukou system of household registration makes internal migration difficult, especially for rural residents to move to urban areas. Many people move to places in which they don't have a local hukou, but local governments can restrict services like subsidized schooling, subsidized housing, and health insurance to those with local hukou. The system was used as far back as the Han Dynasty for tax collection, and more recently in the early days of the People's Republic to stabilize urbanization, but modern economists call it outdated, and many in China expect the system to be reformed or abolished "in six or seven years" from 2010.[20] The Tibetan Centre for Human Rights and Democracy claimed in 2000 that people in Tibet had to promise not to criticize the Chinese Communist Party before receiving official permission to leave for India or Nepal,[21] though it did not say if this was true for other provinces as well.

European Union

Within the European Union, residents are guaranteed the right to freely move within the EU's internal borders by the Treaty on the Functioning of the European Union and the European Parliament and Council Directive 2004/38/EC of 29 April 2004.[22] Union residents are given the right to enter any member state for up to three months with a valid passport or identity card. If the citizen does not have a travel document, the member state must afford them every facility in obtaining the documents. Under no circumstances can an entry or exit visa be required. There are some security limitations[23] and public policy restrictions on extended stays by EU residents. For instance, a member state may require that persons register their presence in the country "within a reasonable and non-discriminatory period of time". In general, however, the burden of notification and justification lies with the state. EU citizens also earn a right to permanent residence in member states they have maintained an uninterrupted five year period of legal residence. This residency cannot be subject to any conditions, and is lost only by two successive years absence from the host nation. Family members of EU residents, in general, also acquire the same freedom of travel rights as the resident they accompany, though they may be subject to a short-stay visa requirement.[22] Furthermore, no EU citizen may be declared permanently persona non grata within the European Union, or permanently excluded from entry by any member state.

Hong Kong

Hongping, Shennongjia District - within a section of Hubei province closed to foreign visitors

Under Basic Law of Hong Kong article 31, "Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization."

India

  • Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and traveling, so as to control epidemics.
  • Freedom to reside and settle in any part of the territory of India, which is subject to reasonable restrictions by the State in the interest of the general public, or for protection of the scheduled tribes because certain safeguards, as are envisaged here, seem justified to protect indigenous and tribal peoples from exploitation and coercion.[21]

Ireland

In Ireland, the Thirteenth Amendment of the Constitution of Ireland was adopted in November 1992 by a plebiscite of citizens in order to ensure the freedom of movement in the specific circumstance of a woman traveling abroad to receive an abortion. Abortion in Ireland is illegal unless the pregnancy is in threat of endangering the life of the woman.

Israel

Israeli Basic Law: Human Dignity and Liberty, which has quasi-constitutional status, states that "there shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise"; that "all persons are free to leave Israel"; and that "every Israeli national has the right of entry into Israel from abroad".[24]

Poland

The freedom of movement in Poland of Polish nationals holding dual citizenship is possibly unlawfully restricted by the Polish government. The US Department of State has warned Polish nationals holding dual citizenship that despite Poland's joining of the Schengen Area, they are obliged to use Polish travel documents (a Polish passport or, within the Schengen zone, a Polish National ID card (Dowód Osobisty), or they will not be allowed to leave Poland by the Polish government. The latest such incident is recorded as of January 15, 2008.

Poland requires Polish citizens (including American citizens who are or can be claimed as Polish citizens) or those who can be suspected to be Polish citizens to enter and depart Poland using a Polish passport.

Poland does not recognize (although it does not prohibit) dual nationality.

A person holding Polish and US citizenship is deemed by Poland to be a Polish citizen and subject to Polish law.

The US Embassy in Poland will not be in a position assist Polish citizens not being allowed to leave Poland.

Russia

The Russian Constitution in article 27 states that "1. Everyone who is lawfully in the territory of the Russian Federation has the right to freely move and choose a place of stay or living. 2. Everyone may freely exit the territory of the Russian Federation. [Every] citizen of the Russian Federation may return onto the territory of the Russian Federation without hindrance."

Freedom of movement of Russian citizens around the country is legally limited in a number of situations including:

  • In closed cities (mainly nuclear research centers) and border-adjacent areas. Special permits are necessary for both visiting and settling there.
  • Emergency or quarantine areas.
  • In the interests of justice (imprisonment, bailiff's order, arrest, undertaking not to leave during a criminal investigation etc.).
  • Conscription.

Since the abandonment of propiska system in 1993, a new legislation on registration was passed instead. Unlike propiska which was a permit to reside in a certain area, registration as worded in the law is merely notification. However, administrative procedures developed "in implementation" of the registration law imposed such conditions on registration which effectively made it depending on the landlord's assent. As landlords, for various reasons, are not interested to register tenants or guests in their properties, many of internal migrants are prevented from executing their legal duty to register. Before 2004, it was common for police to fine those having failed to register within 3 working days at a place of stay. In 2004, the maximum permitted registration lag was raised to 90 days thus making such a prosecution practically infeasible. Thus now there are no obstacles to movement of citizens per se. Nevertheless, since registration is the primary source of one's address for legal purposes, many internal migrants still are de facto second-class citizens deprived of their right to vote, obtain a passport or driver's license etc.

The Russian citizens' right to leave Russia may be legally suspended on a number of reasons including:

  • Person's having had access to classified documents while working for the state or the military, for the time when access is granted and up to 5 years afterwards. This limitation is included as a provision in job contract.
  • In the interests of justice (imprisonment, bailiff's order, undertaking not to leave etc.).
  • If the person is subject to conscription.

Russia does not recognize (though doesn't forbid) dual citizenship. Russian citizens possessing foreign citizenship may not enter or leave Russia on foreign travel documents. Russian citizens living abroad may get stuck in Russia if they need to obtain a passport while on visit to Russia; the legal term for issuance of a passport may be up to 4 months under some circumstances. Russian consular offices do not grant visas to foreign passport holders who are (or are suspected to be) Russian citizens.

Syria

The Syrian Constitution states "Every citizen has the right to liberty of movement within the territory of the State unless prohibited therefrom under the terms of a court order or public health and safety regulations.".[25] In its mandated report on human rights to the United Nations, Syria has argued that because of this constitutional protection: "in Syria, no laws or measures restrict the liberty of movement or choice of residence of citizens".[26] Legislative Decree No. 29 of 1970 regulates the right of foreigners to enter, reside in and leave the territory of Syria, and is the controlling document regarding the issuance of passports, visas, and diplomatic travel status. The document specifically states "The latter provision is intended merely to ensure that our country is not the final destination of stateless persons."[27]

However, Syria has been criticized by groups, including Amnesty International for restrictions to freedom of movement. In August 2005, Amnesty International released an "appeal case", citing several freedom of movement restrictions including exit restriction without explanation, refusal to issue passports to political dissidents, detention, restriction from entering certain structures, denial of travel documents, and denial of nationality.[28] The United Nations Human Rights Committee issues regular reports on human rights in Syria, including freedom of movement.[29]

United Kingdom

Britons have long enjoyed a comparatively high level of freedom of movement. Apart from Magna Carta, the protection of rights and liberties in this field has tended to come from the common law rather than formal constitutional codes and conventions, and can be changed by Parliament without the protection of being entrenched in a constitution.

It has been proposed that a range of specific state restrictions on freedom of movement should be prohibited under a new or comprehensively amended Human Rights Act. The new basic legal prohibitions could include: road tolls and other curbs on freedom of travel and private vehicle ownership and use; personal identity cards (internal passports, citizenship licenses) that must be produced on demand for individuals to access public services and facilities; and legal requirements for citizens to register changes of address or partner with the state authorities.[30]

United States

West Bank

The restriction of the movement of Israelis and Palestinians in Israel and the West Bank by Israel and the Palestinian National Authority is one issue in the Israel-Palestinian conflict. The varying Israeli restrictions were put into place since 1987 and the First Intifada due to Palestinian political violence. In the mid-1990s, with the implementation of the Oslo Accords and the division of the West Bank and the Gaza Strip into three separate administrative divisions, Israeli freedom of movement was limited by law. Israel says that the regime of restrictions is necessary to protect Israelis living in Israel proper and the Israeli settlements.[31]

See also

References

  1. ^ Postema, Gerald (1997). Racism and the law: the legacy and lessons of Plessy. Springer. p. 48. ISBN 9780792346654. http://books.google.co.in/books?id=9Bth9OCy5VUC&pg=PA48. 
  2. ^ “Defining a Right to Move? Reflections on ‘Ethics of Migration’ Conference” by James Farrer and Devin T. Stewart. Policy Innovations. January 6, 2010
  3. ^ http://www.henleyglobal.com/citizenship/visa-restrictions/
  4. ^ See Haig v. Agee, Passport Act of 1926.
  5. ^ "Travel restrictions started during WW-I". The Times of India. 2010-05-31. http://timesofindia.indiatimes.com/india/Travel-restrictions-started-during-WW-I/articleshow/5992817.cms. Retrieved 2010-06-13. [dead link]
  6. ^ Chatterji, Madhumita (2007). The Kṣatriyas in ancient India. Munshiram Manoharlal Publishers. p. 251. ISBN 9788121511582. http://books.google.co.in/books?id=ny9uAAAAMAAJ. 
  7. ^ Chaurasia, Radhey Shyam (2002). History of Ancient India: Earliest Times to 1000 A. D.. Atlantic Publishers & Distributors. p. 166. ISBN 9788126900275. http://books.google.co.in/books?id=cWmsQQ2smXIC&pg=PA166. 
  8. ^ Mudgal, Bhagwan Sahai (1960). Political economy in ancient India: (based on Vedas, Smritis, Epics & Kautalya's philosophy). M/S Mudgal. p. 31. http://books.google.co.in/books?id=_cUtAAAAMAAJ. 
  9. ^ Jayawickrama, Nihal (2002). The judicial application of human rights law: national, regional and international jurisprudence. Cambridge University Press. p. 440. ISBN 9780521780421. http://books.google.co.in/books?id=kowFdvofCckC&pg=PA440. 
  10. ^ Cassius Dio, Roman History, Book LV, 26.
  11. ^ "Pale of Settlement"
  12. ^ African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986: [excerpts]
  13. ^ Human Rights Education Associates - Education and training in support of human rights worldwide
  14. ^ The Kampala Declaration on Intellectual Freedom and Social Responsibility (1990)
  15. ^ Online Burma Library > Main Library > Human Rights > Freedom of Movement > Freedom of Movement, violations of
  16. ^ CIA - The World Factbook - Burma
  17. ^ a b 12
  18. ^ BBC / The Washington Times August 15, 2002
  19. ^ Government of Canada, Social Union, News Release, "A Framework to Improve the Social Union for Canadians: An Agreement between the Government of Canada and the Governments of the Provinces and Territories, February 4, 1999," URL accessed 20 December 2006.
  20. ^ Richburg, Keith B. (2010-08-14). "China 'hukou' system deemed outdated as way of controlling access to services". The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2010/08/14/AR2010081402009.html. Retrieved 2010-08-14. 
  21. ^ "Restrictions on Freedom of Movement and Residence". Tibetan Centre for Human Rights and Democracy. http://www.tchrd.org/publications/topical_reports/racial_discrimination-2000/housing/06_restrictions.html. Retrieved 2010-08-14. 
  22. ^ a b SCADPlus: Right of Union citizens and their family members to move and reside freely within the territory of the Member States
  23. ^ SCADPlus: Limitations on the movement and residence that are justified on grounds of public policy
  24. ^ Basic Law: Human Dignity and Liberty, The Knesset
  25. ^ Article 33, Paragraph 2, Syrian Constitution
  26. ^ Ods Home Page
  27. ^ Legislative Decree No. 29 of 1970, Syrian Government
  28. ^ Syria: Unable to Move: Freedom of Movement restricted for Human Rights Defenders (and Others) | Amnesty International
  29. ^ http://www.ohchr.org/english/bodies/hrc/hrcs84.htm
  30. ^ “The Legal Protection Of Democracy & Freedom: The Case For A New Written Constitution & Bill Of Rights", in Lewis F. Abbott, British Democracy: Its Restoration & Extension, ISR/Google Books, 2006. ISBN 978-0-906321-31-7. [1]
  31. ^ "OCHA Closure Update". United Nations Office for the Coordination of Humanitarian Affairs. 2008-05. http://www.ochaopt.org/documents/UpdateMay2008.pdf. Retrieved 2010-03-29. 

External links


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