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Freedom of Movement

Introduction
Rights at Stake
International and Regional Instruments of Protection and Promotion
National Assistance, Protection and Service Agencies
Advocacy, Educational and Training Materials
Other Resources


Introduction

What is freedom of movement?
According to the Universal Declaration of Human Rights (1948) all people are entitled to the recognition of inherent dignity and certain inalienable rights, which are the "foundations of freedom and justice in the world." Freedom of movement is part of the "liberty of man" (Jagerskiold) thus making it one of the most basic human rights. Article 13 of the Universal Declaration of Human Rights stipulate:

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 return to his country.

The right to free movement, or the denial of it, within national and international borders can have profound effects upon other basic human rights also outlined in the Universal Declaration of Human Rights and other treaties. Without the right to leave ones home, an individual may be politically repressed, prevented from observing his/her chosen religion, prevented from enjoying the basic right to marriage or family life, or blocked from a job or an education that ultimately could enhance his/her quality of life. Thus, while free movement may seem on the surface to be a fairly minor and obvious human right, it actually is one of the most basic rights that in many nations around the world, when violated, causes numerous problems and cases of suffering.

Who does the freedom of movement affect?
This inalienable right to liberty extends to all citizens of the world. While it may seem that this right is meant to apply mainly to immigrants, refugees and asylum seekers, it also has major ramifications on internally displaced persons and additionally economic migrants or even students.

Refugees have the potential to face a more difficult situation as far as their rights to free movement are concerned. Given that they have fled their old country of origin or nationality due to a well founded fear of persecution on one of five grounds: race, religion, nationality, membership of a particular social group or political opinion (see Refugees study guide), they do not have the ability to return to their old country. However, within their new life they are completely in the hands of a new government, which has not guaranteed citizenship to the refugees, as is the case with asylum seekers. Thus, due to the fact that the government has to find a place for these people to make their new lives, which can include refugee camps, then freedom of movement and subsequently the right to make a new and better life has the potential to be infringed upon.

Asylum seekers face problems similar to those of refugees given that they have been forced out of their country of origin or nationality in search of a new and better life. However, in this case, unlike refugees they have applied for a recognized status within their new country. Freedom of movement most often affects asylum seekers while they are waiting for their applications to be processed recognizing them as being under the protection of a new government. These people have in the past had their movement restricted to certain boundaries while waiting for applications to come through and this is in clear violation of their basic human rights.

Immigrants are directly affected by this freedom due to the fact that they have entered a new nation intending to settle there. If they are not allowed into that nation, or the government in any way restricts movement within their new society, then clearly this is in violation of the Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights.

Internally displaced persons, or those that have left their home in fear of persecution but have not crossed any international borders, face the same challenges as refugees except within their country of origin or nationality. This group of people poses a particularly interesting problem because they are subject to internal exile, another form of persecution and a violation of the human right to liberty. In this given situation those who have fled their homes are forced to remain in a specified area of the country and any movement outside this zone is forbidden.

Additionally the right to free movement affects economic migrants, those who have fled their homes not in fear of persecution but in search of a higher standard of living, which would bring increased job and educational opportunities. In this case some states have placed restrictions on those who wish to leave in order to curb the "brain drain" a situation that has begun to occur in less developed countries in which the educated professionals of that nation have begun to leave for other nations in which they have the opportunity to make a better living for themselves and their families. Thus, in this situation people are looked upon as economic agents and not as human beings. If restrictions are placed on these people not only is freedom of movement being restricted but ones ability to provide for a family is also being infringed upon.

Additionally, students also face the threat of having their right to obtain an education violated if their freedom of movement has been removed due to fear of the "brain drain" or other restrictions that may have been placed upon them. Obtaining visas to travel out of a country is difficult for those coming from underprivileged backgrounds. Additionally, once again many governments concerned about the brain drain worry that these students may not return home after receiving an education. This difficulty or even refusal of a visa is in clear violation of the Universal Declaration of Human Rights and other international treaties. Thus, while it may not be obvious that students would have their right to liberty of movement infringed upon this is a very real problem in many nations for a variety of reasons.

Each of these groups of people have left their homes in search of better job opportunities and a higher quality of living for themselves and in some cases their families, another basic right guaranteed to mankind. Freedom of movement and subsequently choice of residence allows individuals the rights to choose vocations, which best suit their abilities, and additionally provides people with greater access to education thus contributing to the flow of ideas from nation to nation. However, many would make the case that there are reasons for limits to be placed on certain individual's freedom of movement. In certain cases restrictions on movement are admissible when the security of a nation or an entire group of people is at stake. If an individual or a group has committed an atrocity within a nation their free movement may be taken away in order to prevent them from fleeing the country and escaping trial.


 


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Rights at Stake

International and regional instruments protect a number of key rights relating to the freedom of movement:
- The right to leave and return: All people have the right to choose to leave their country of origin or nationality if they so choose and additionally they have the right to return to it with no questions asked by the government and no restrictions placed upon their freedom of movement.
- The right to seek asylum: All people have the right to seek asylum in another if their rights are being violated in their country of origin or nationality.
- Freedom of expulsion: All people have the right to be exempt from expulsion from their country of origin or nationality as well as countries they have immigrated to. This right applies to individuals as well as large groups of people.
- The right to education (elementary, secondary, and higher): All people are entitled to the right to an education and if their country does not have access to high quality schools or universities then citizens should be allowed to leave and pursue an education in order to raise their standard of living. Many governments worry that citizens will not return if they leave the country to gain an education thus perpetuating the problem of the brain drain. In this instance governments are viewing their citizens as economic entities and not as human beings.
- The right to housing and the right to own property: If sufficient housing does not exist within the boundaries of a nation for single families or entire groups of people they should be allowed to leave in order to find a home and thus raise their quality of living. Additionally this right holds true for citizens moving around within a nation as well. People should be free to move wherever they choose and not be subject to internal exile (the case of Guzzardi vs. Italy, 1965)
- The right to family: This is also perpetuated by the right to housing. Citizens have the right to care for their families in the best way that suits them and meets all of their needs. If that means moving to a new country they should be allowed to do that and establish a new residence in that country without blockades.
- The right to self-employment and wage earning: All human beings have the right to attempt to make a living as best they can and to provide for themselves and their families if they cannot move about to find jobs then this is in violation of their natural human rights.

Each of these rights are basic human rights that should be afforded to all people regardless of whether they are citizens of a country or not. Thus, these fundamental rights apply to the freedom of movement because no matter where one moves every basic right should still be applied to their life.




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International and Regional Instruments for Protection and Promotion

International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.

The binding treaties can be used to force governments to respect the treaty provisions that are relevant for the human right to adequate food and water. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies.

The following international and regional instruments determine standards for the freedom of movement for all people:


UNITED NATIONS

Universal Declaration of Human Rights (1948) (article 13)
This is the first international document that recognizes explicitly the right to freedom of movement of persons. This treaty stipulates that everyone has the right to freely move around within the borders of their state and in addition everyone has the right to leave their country for any reason concerning them, but at the same time they have the right to return to that country if they so choose.

Convention Relating to the Status of Refugees (1951) (article 26)
The Refugee Convention entitles refugees to many of the same rights as other citizens residing within the country. Article 26 stipulates that each state party to this agreement shall allow refugees living within their borders to move about freely subject to the rules that applied to aliens generally in the same situation.

 

International Convention on the Elimination of All Forms of Racial Discrimination (1965) (article 5)
This convention was established in order to eliminate all forms of racial discrimination. It aims to perform this task by setting down a list of guidelines as to how people should be treated, similarly to other human rights documents. Article 5 states that all people have the right to freedom of movement and residence within the border of the State, the right to leave any country, including one's own, and to return to one's country and the right to nationality.

International Covenant on Civil and Political Rights (1966) (article 12)
This is the foremost treaty dealing with the civil and political rights. The International Covenant on Civil and Political Rights, often abbreviated as ICCPR, stipulates that everyone residing legally within a state has the right to choose his/her place of residence and has the right to move around freely. In addition all people also have the right to leave any country including their own and shall not be deprived of the right to enter back into their country. These stipulations shall not be restricted except when national security, public order, health, morals, or the rights of others are at stake.

To more fully elaborate on the strategies for implementation of the rights set forth in the International Covenant on Civil and Political Rights, the Human Rights Committee -- the monitoring body of the Covenant -- drafted:

General Comment 15, The position of aliens under the Covenant (twenty-seventh session, 1986)
This comment discusses the position of aliens under the International Covenant on Civil and Political Rights. It states that aliens have the right to liberty of movement and free choice of residence; they shall be free to leave the country. While this document does recognize that states shall have the right to choose who enters their borders it calls on nations to allow in anyone whose fundamental human rights are at stake and anyone who may be facing persecution. It also recognizes that aliens may be kept out of a country if they pose a threat to the well being of others.

General Comment 25 (1996)
This comment is in reference to article 40 of the International Covenant on Civil and Political Rights which deals with the right to participate in public affairs, voting rights and the right of equal access to public service. In discussing voting rights this comment states that all people should be given equal access to voting rights and there should be no impediments in their doing so. Thus, freedom of movement, amongst other rights, should not be restricted because then the people's right to vote could be restricted and prevented by corrupt governments.

General Comment 27, Freedom of Movement (sixty-seventh session, 1999)
This document provides an in depth look at the freedom of movement, its ramifications and even its restrictions. The Committee stated that freedom of movement is indispensable for the free development of a person and that this right interacts with several others in the International Covenant on Civil and Political Rights. This document states that all people shall have the freedom to choose where they reside. They also have the right to leave any country they choose, including their own. It lists restrictions that under exceptional circumstances that can potentially be placed on freedom of movement, and lastly, stipulates the right to enter one's own country. This "general comment" picks apart every section of article 12 of the International Covenant on Civil and Political Rights, further examining it from a legal standpoint. This document is one of the main documents referred to when examining in depth the freedom of movement and its boundaries.

General Comment 28, Equality of rights between men and women (2000)
This comment deals specifically with article 3 of the International Covenant on Civil and Political Rights, which states the equality of rights between men and women. This comment states in section 16 that states parties should provide any information on any legal practice or provision which restricts women's freedom of movement such as: the exercise of marital powers over ones wife and children or the issuance of travel documents to women. Subsequently, this comment calls for governments to repeal such laws giving women the same rights as men.

General Comment 29, States of Emergency (2001)
This comment discusses exceptions from provisions of the International Covenant on Civil and Political Rights. This comment is extremely important due to the fact that it provides limits too the work set forth in the Covenant itself. Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature. Before a state moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. However, the forcible removal of people from their places of residence is to be considered a crime against humanity (section 18d).

ILO Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on Freedom of Movement for Workers within the Community
This document provides for the full protection of workers within their respective communities or across national borders as with the case of migrant workers. The International Labour Organization (ILO) considers freedom of movement is a fundamental right of workers and their families and the right of freedom of movement requires that equality of treatment shall be ensured by law and common belief in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker's right to be joined by his family and the conditions for the integration of that family into the host country. This document goes on to list the rights of workers and their families establishing the basic guidelines by which governments and corporations must respect their workers and thus ensure them freedom of movement in order to pursue what is best for themselves and their families.

Convention on the Elimination of All Forms of Discrimination Against Women (1979) (article 15)
Discrimination against women violates the basic rights of respect for human dignity as well as equality. Article 15.4 of the Convention on the Elimination of All Forms of Discrimination Against Women, better know by its abbreviation CEDAW, states that women shall be afforded the same right as men to choose their nation of residence as well as their place of residence within that nation.

Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live (1985) (article 5)
This declaration establishes the basic rights of migrants, refugees and others who are not nationals of the country in which they reside. It stipulates that no restrictions can be placed on the freedom of movement of non-nationals. They cannot be forced to leave the country nor can they be prevented from moving around and choosing a residence within the borders of the country they are currently occupying.

 

International Convention on the Protection of the Rights of all Migrants Workers and Members of Their Families (1990) (article 8, 39)
This human rights treaty recognizes and secures the need to bring about the international protection of the rights of all migrant workers and members of their families who in many cases have not been given adequate standards of living in the states they have chosen to migrate to and from. Migrant workers and their families shall have the right to move freely in the territory or state of their employment and subsequently have the right to choose their residence. These rights are not to be tampered with unless there is a legitimate threat posed to national security, public order, health, morals, or the rights and freedoms of others.


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AFRICAN UNION (FORMERLY ORGANIZATION OF AFRICAN UNITY, OAU)

African Charter on Human and Peoples’ Rights (1981) (article 12)
The main human rights treaty on the African continent stipulates that every individual should have the right to move about freely within the borders of his/her state provided they are law-abiding citizens. In addition, every individual shall have the right to leave and return to his/her country at will unless national security, public health or the general population is threatened. Every individual has the right to seek asylum in another country and non-legal citizens may only be expelled from a nation in accordance with federal law. Lastly, the treaty prohibits mass expulsions of entire groups of people.

African Charter on the Rights and Welfare of the Child (1990) (article 13)
Article 13 addresses the rights of handicapped children and stipulates that all states involved with this charter shall use their available resources to assure convenience and freedom of movement and access to public highways and other public transportation venues to mentally or physically disabled children.

Kampala Declaration on Intellectual Freedom and Social Responsibility (1990) (article 4) This declaration is intended mainly for the security of intellectuals and the freedom for education to exist and flourish within Africa itself. This declaration was written by intellectuals who were aware of the responsibility they had to the larger African community due to their status. Article 4 states that all intellectuals have the right to move freely within their country of origin or nationality and also have the right to move across borders without restrictions on this person's intellectual beliefs or activities.


COUNCIL OF EUROPE

Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto as amended by Protocol No. 11 (1963) (article 1, 2, 3, 4)
This treaty outlines specifically the right of freedom of movement. It states that no one shall have his or her liberty taken away due to debt. It provides against the expulsion of nationals and of aliens and also reiterates the same stipulations put forth in the International Covenant on Civil and Political Rights.

Recommendation 1373: Freedom of movement of and the issue of visas to members of the Parliamentary Assembly of the Council of Europe (1998)
This document was intended to make travel between member states of the Council of Europe easier. The recommendation acknowledges that obtaining travel documents can be very costly and that while it will not be possible in the immediate future to obliterate the need for such documents the ultimate goal of the Council of Europe should be free movement within all member states for all nationals of each separate country.

 

 

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National Assistance, Protection and Service Agencies

Countries which have ratified international and regional human rights treaties have agreed to meet their obligations under these conventions by inter alia implementing these provisions fully at the national level.

The Organization of Security and Co-operation in Europe (OSCE) assists participating States to meet their commitments in the areas of freedom of movement and choice of place of residence, migration, and human contacts. Working primarily in Eastern Europe in countries such as Ukraine, Armenia, Georgia and Azerbaijan this organization works with other international organizations and NGOs to enhance the protection of rights and ensure non-discrimination of various categories of migrants. Conflicts in this region over the years have resulted in the displacement of over 7.5 million people and over the years OSCE has worked to implement programs to reform registration legislation, reform of border service, develop domestic training capacities, cross-border co-operation and develop information-sharing mechanisms, create new internally displaced persons legislation, develop new civil registration and internal migration legislation, and the develop new housing and property rights law for refugees and internally displaced persons (IDPs), a key step in the resolution of the Georgian-South Ossetian conflict.

 


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Advocacy, Educational and Training Materials

For advocates

Human Rights and Refugee Protection (UNHCR)
This module is designed to help familiarise UNHCR staff with the principles and provisions of international human rights law, and how they can be used to complement and enhance protection activities on behalf of refugees.


For educators

Neighbours: Learning to respect one another (Jana Ondrácková)
The aim of this teacher manual is to acquaint young people between the ages of 12-18 (upper primary and secondary school age range) with the multicultural history and tradition of their country and to inculcate in them the spirit of mutual understanding and respect between individuals and groups, members of the majority and minorities.

 


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Other Resources

Courses and training opportunities

Organisations advocating for the freedom of movement

 

 

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This guide was developed by Sarah Gees.

Copyright © Human Rights Education Associates (HREA), 2003. All rights reserved.

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