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The Incomplete Right to Freedom of Movement

  • Moria Paz (a1)
Extract

We live now in the midst of a massive global crisis of mobility. An ever-growing population finds itself refugees displaced from the legitimate jurisdiction of any territorial state. In the face of this pressing emergency, influential voices argue that international human rights law should be placed “at the center” of international efforts to meet this challenge. But today's calamity is set against the backdrop of a universal human rights regime that is not only thin but, more importantly, incomplete. When it comes to cross-border mobility, human rights law ensures that states allow individuals to leave their state, but alas does not require that any other state let them enter and remain. Such entry and residence rights are required only for a country's own nationals (however nationality is defined). And so, many refugees who have exercised their human right to exit come up against a functional block to mobility: they have no place to stop moving. Some of them may nonetheless find a state willing to take them in. In that case, they may enjoy meaningful protection, but this protection exists only by virtue of a state's domestic policies and has little to do with international human rights.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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2 I focus in my essay only on human rights norms which purport to grant rights to individuals and are interpreted and enforced by a range of international courts and institutions. I leave aside refugee law which has been internalized in various ways in national law but is not enforced through any international court.

3 GA Res. 217 (III) A art. 13(2) (Dec. 10, 1948) [hereinafter UDHR]; International Covenant on Civil and Political Rights art. 12(2), Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR].

4 There may be a fourth variation: a right for entry under family unification. But under human rights law this entry is mainly limited to family members of migrants lawfully present, while under humanitarian law it is only aspirational in nature.

5 UDHR, supra note 3, art. 13(2); ICCPR, supra note 3, art. 5(d)(ii); International Convention on the Elimination of all Forms of Racial Discrimination, GA Res. 2106 (XX) (Dec. 21, 1965).

6 Human Rights Committee, CCPR General Comment No. 27: Article 12 (Freedom of Movement) para. 19, UN Doc. CCPR/C21/Rev.1/Add.9 (Nov. 2, 1999).

7 Id. at para 20.

9 Human Rights Committee, Warsame v. Can., Communication No. 1959/2010 para. 8.4, UN Doc. CCPR/C/102/D/1959/2010 (Sept. 1, 2011); Human Rights Committee, Nystrom v. Austl., Communication No. 1557/2007 para. 7.4, UN Doc. CCPR/C/102/D/1557/2007 (Sept. 1, 2011). For an earlier articulation, see Stewart v. Can., Communication No. 538/1993, dissenting opinion, UN Doc. CCPR/C/102/D/538/1993 (Dec. 16, 1996). But see for a strong dissenting opinion Nystrom v. Austl., Communication No. 1557/2007, dissenting opinion of Committee members Neuman & Iwasawa, paras. 3.1-3.3, UN Doc. CCPR/C/102/D/1557/2007 (Sept. 1, 2011).

10 See, e.g., Human Rights Committee, supra note 6, at paras. 19-21.

11 UDHR, supra note 3, art. 14.

12 Convention on Asylum, Feb. 20, 1928, O.A.S.T.S. No. 34.

13 The Convention Relating to the Status of Refugees art. 33(1), Apr. 22, 1951, 189 UNTS 137.

14 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3(1), GA Res. 39/46 (Dec. 10, 1984). There has been a great deal of commentary on the gap between a “right not to be returned” and a “right to enter to see if you ought to be returned.” But, as already mentioned, I leave this body of law to the side and focus here only on Human Rights law which does purport to grant rights to individuals and is interpreted and enforced by a range of international courts and institutions.

15 On this, see Moria Paz, Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls, 34 Berkeley J. Int'l L. (Article 4, Spring 2016).

16 Nationality Decrees in Tunisia and Morocco Case, 1921 P.C.I.J. (ser. B) No. 4, at 36 (Nov. 8); Nottebohm Case (Liech. v. Guat.) (Second Phase), 1955 ICJ Rep. 4, 20 (Apr. 6). In fact, in some cases, a sovereign even bears the duty to control its territory. No state, for example, may permit its territory to become a haven for people intent on violating the sovereign rights of another state.

17 See, e.g., Human Rights Committee, General Comment 15: The Position of Aliens Under the Covenant para. 5 (Apr. 11, 1986) (“It is in principle a matter for the State to decide who it will admit to its territory.” Note, however, exceptions listed therein.).

18 Nationality Decrees in Tunisia and Morocco Case, supra note 15 at 36; Nottebohm Case, supra note 15 at 20-22. Population exchange is possibly a second form of a nonobligatory entry under a deliberate decision of a host state, see Moria Paz, A Most Inglorious Right: René Cassin, Freedom of Movement, Jews and Palestinians, in Jewish Lawyers and International Law: A Sphere Between Nations (James Loeffler & Moria Pez eds., forthcoming, 2018).

19 On this, see Moria Paz, The Law of Walls, 28 Eur. J. Int'l L. (2017).

20 For example, see Eyal Benvenisti's discussion of the UN response to the Turkish occupation of Northern Cyprus in Eyal Benvenisti, The Right of Return in International Law: An Israeli Perspective. See earlier: Settlers of German Origin in Poland, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 6 (Sept. 10); Question Concerning the Acquisition of Polish Nationality, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 7 (Sept. 15).

I am thankful to Amalia Kessler, Peter Kozody, Jaya Ramji-Nogales, and David Sklansky for reading earlier drafts. Thank you also to the editors for their careful read and detailed suggestions.

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