Freedom of movement
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Freedom of movement, mobility rights or the right to travel is a human rights concept which is respected in the constitutions of numerous Western states. It asserts that a citizen of a state, in which that citizen is present, generally has the right to leave that state, travel wherever the citizen is welcome, and, with proper documentation, return to that state at any time; and also (of equal or greater importance) to travel to, reside in, and/or work in, any part of the state the citizen wishes without interference from the state.
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[edit] Common limitations
Freedom of movement is often more limited for minors, and penal law can modify this right as it applies to convicted felons (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.
[edit] 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.
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.
[edit] Exit restrictions in certain countries
Some countries, such as the defunct Soviet Union, require that their citizens, and sometimes foreign travelers obtain an exit visa in order to be allowed to leave the country. Currently, foreign students in Russia are issued only an entry visa on being accepted to University there, and must obtain an exit visa to return home. Citizens of the People's Republic of China that are residents of the mainland are required to apply for special permits in order to leave the mainland, including to enter the Special Administrative Regions of Hong Kong and Macao (and SAR residents require a Home Return Permit to visit the mainland). Saudi Arabia requires all resident foreigners, but not citizens, to obtain an exit visa before leaving the kingdom.
[edit] History
When Augustus established the Roman Empire in 27 BCE, 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 CE, he attempted to relieve strain on the food supply by granting senators the liberty to leave Rome and to travel to wherever they wished.[1]
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.
After World War II, the United Nations was established. 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 reads,
- Everyone has the right to freedom of movement and residence within the borders of each State.
- Everyone has the right to leave any country, including his own, and to return to his country.
Article 12(2) of the International Covenant also defends this right.
[edit] Institutional laws by country
[edit] Africa
Freedom of movement laws and restrictions vary from country to country on the African continent, however several international agreements beyond those proscribed 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 states laws.[2]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.[3] 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.[4]
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.
[edit] Burma/Myanmar
The military regime in Burma has been criticized for allegations of restrictions to freedom of movement.[5] These include restrictions on movement by political dissidents,[6] women,[7] and migrant workers.[8] Burmese passports contain a microchip embedded in them which 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 any 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."[9]
[edit] 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."[10]
[edit] European Union
Within the European Union, residents are guaranteed the right to freely move within the EU's internal borders by the European Parliament and Council Directive 2004/38/EC of 29 April 2004.[11] 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[12] 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.[13] Furthermore, no EU citizen may be declared permanently persona non grata within the European Union, or permanently excluded from entry by any member state.
[edit] Hong Kong
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."
[edit] Ireland
In Ireland, the Thirteenth Amendment of the Constitution of Ireland was adopted in November of 1992 by a plebiscite of the Irish people in order to ensure the freedom of movement in the specific circumstance of a women traveling abroad to receive an abortion - a practice that is banned in Ireland itself.
[edit] 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.".[14] The United Nations has reported that "in Syria, no laws or measures restrict the liberty of movement or choice of residence of citizens.".[15] 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."[16]
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.[17] The United Nations Human Rights Committee issues regular reports on human rights in Syria, including freedom of movement.[18]
[edit] Tibet
Article 5 of the International Convention on the Elimination of all forms of Racial Discrimination explicitly guarantees "...the right to freedom of movement and residence within the border of the State".[19] Under the Chinese household registration citizen, Tibetan residents must receive permission to change their household between a rural and urban area. Tibetans are also forced to agree to Chinese communist party ideals in order to receive a permit to exit the country.[20] It has been reported that Chinese residents in Tibet are not subject to these restrictions, especially if they have access to a Chinese household permit.[21]
[edit] United States
In the United States, no specific law guarantees this right, but the Supreme Court of the United States has held in a number of cases that such a right necessarily exists. In Kent v. Dulles, 357 U.S. 116 (1958), the United States Secretary of State had refused to issue a passport, based on the suspicion that the plaintiff was going abroad to promote communism. Justice William O. Douglas wrote for the Court:
- The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.
The U.S. Supreme Court dealt with the right of interstate travel most recently in the case of Saenz v. Roe, 526 U.S. 489 (1999). In that case, Justice John Paul Stevens, writing for the majority, held that the United States Constitution protected three separate aspects of the right to travel among the states: the right to enter one state and leave another, the right to be treated as a welcome visitor rather than a hostile stranger (protected by the Privileges and Immunities Clause in Article IV, §2), and for those who become permanent residents of a state, the right to be treated equally to native born citizens (this is protected by the 14th Amendment Citizenship Clause).
The issue of freedom of movement has received new attention in the United States as of 2004; in particular, concerning the methods and internal practices of the Transportation Security Administration.[citation needed]
Another issue of contention deals with freedom of movement across U.S. national borders. The United States has long been lax in permitting persons to cross from Canada into the United States. Concerns about drug trafficking and illegal immigrants seeking employment have led to much stricter controls on those crossing the border from Mexico.
[edit] References
- ^ Cassius Dio, Roman History, Book LV, 26.
- ^ http://www1.umn.edu/humanrts/instree/z1afchar.htm
- ^ http://www.hrea.org/learn/guides/freedom-of-movement.html
- ^ http://www1.umn.edu/humanrts/africa/KAMDOK.htm
- ^ http://www.burmalibrary.org/show.php?cat=1170
- ^ https://www.cia.gov/cia/publications/factbook/geos/bm.html#Issues
- ^ http://www.ibiblio.org/obl/docs/Yearbook2002-3/yearbooks/12.%20The%20Freedom%20of%20Movement.htm
- ^ http://www.ibiblio.org/obl/docs/Yearbook2002-3/yearbooks/12.%20The%20Freedom%20of%20Movement.htm
- ^ BBC / The Washington Times August 15, 2002
- ^ 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.
- ^ http://europa.eu.int/scadplus/leg/en/lvb/l33152.htm
- ^ http://europa.eu.int/scadplus/leg/en/lvb/l23010.htm
- ^ http://europa.eu.int/scadplus/leg/en/lvb/l33152.htm
- ^ Article 33, Paragraph 2, Syrian Constitution
- ^ http://daccessdds.un.org/doc/UNDOC/GEN/G04/440/26/PDF/G0444026.pdf?OpenElement
- ^ Legislative Decree No. 29 of 1970, Syrian Government
- ^ http://web.amnesty.org/library/index/engmde240732005
- ^ http://www.ohchr.org/english/bodies/hrc/hrcs84.htm
- ^ http://www.tchrd.org/publications/topical_reports/racial_discrimination-2000/housing/06_restrictions.html
- ^ TCHRD.org as above, "Promise to state that the Chinese Communist Party policies in Tibet are "good" and refrain from criticising the Party; "
- ^ TCHRD as above "Chinese traders from outside Tibet area are also able to move into and around Tibet without restriction as part of special preferential policies introduced by the government to advance the rapid development of a free market system."
