Refugees and Rights

Mary Crock

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351905626
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Derechos humanos

Forced migration is both as ancient as human life on earth and a relatively new subject of interest for human rights scholars. This volume continues the discussion from Migrants and Rights to focus attention on refugees, victims of trafficking and others who cross borders seeking protection from anthropogenic or natural disasters. The opening essays provide historical and conceptual overviews of rights to freedom of movement and asylum; and links between human rights and refugee law. Articles on the principle of non-refoulement in international law explore the occasional disjuncture between the individual's right to protection and the State's rights to protect its national interests. The refugee's rights to due process and the substance of entitlements at law are explored in essays that range across administrative processes; social and cultural rights, including family reunion; detention; and the right of return. There follow four essays that address sexual orientation and refugee rights; refugees and disability rights; human rights and persons displaced by climate change disasters; and the rights of victims of human trafficking. The volume concludes with work reflecting on the rights discourse outside of traditional 'Western' theatres. These cover Africa (Kenya), India, South America (Brazil) and the Asia-Pacific (Indonesia and Papua New Guinea).

PART 1
The Challenge of Forced Migrants:
Shifting the Discourse from
Obligation to Rights

[1]
An Intellectual History of Freedom of Movement in International Law: The Right to Leave as a Personal Liberty

JANE MCADAM^*

The history of freedom of movement has been framed most commonly as a narrative about the rights of individuals to enter another country or, viewed the other way around, as a story of immigration restriction. Yet, recent research into the legal regulation of movement reveals that it is as much a history of emigration restriction — curtailment of the rights of nationals to leave their own country — as it is one of migration controls by other countries. The right to enter a country is only half the story; indeed, it does not even come into play if the antecedent right to leave one ’s country is not respected.

This article examines the philosophical underpinnings of the right to freedom of movement in modern international human rights law. It provides the ‘back story ’ to its inclusion in the first universal human rights instrument, the 1948 Universal Declaration of Human Rights, (and subsequently the 1966 International Covenant on Civil and Political Rights, which was being negotiated at the same time). Though the immediate impetus for the inclusion of the right was the Nazi regime ’s curtailment of free movement during World War II, it arose from a much longer intellectual lineage linked to the concept of ‘liberty’. The present article traces its development as an idea from classical times through to its inclusion in the Universal Declaration of Human Rights to explore its changing character over time. It finds that while there is considerable formal support for the right to freedom of movement, including the right to leave one ’s country, there remain practical as well as legal impediments to its full realisation. This represents a continuum, rather than a break with past practice.

CONTENTS

1. I Introduction
2. II The Right to Freedom of Movement
   1. A The Right to Leave One’s Country in Classical Thought
   2. B The Right to Leave One’s Country in Modern International Law
      1. 1 De Vitoria
      2. 2 Grotius
      3. 3 Vattel
3. III Movement as Personal Liberty
4. IV Emigration as the ‘Highest Form’ of Freedom of Movement
5. V The Drafting of the UDHR
   1. A The Impetus for a Right to Freedom of Movement
   2. B The Text
6. VI Conclusion

I INTRODUCTION

The history of freedom of movement has been framed most commonly as a narrative about the rights of individuals to enter another country, or, viewed the other way around, as a story of immigration restriction.¹ Yet, recent research into the legal regulation of movement reveals that it is as much a history of emigration restriction — curtailment of the rights of nationals to leave their own country — as it is one of migration controls by other countries.² The right to enter a country is only half the story; indeed, it does not even come into play if the antecedent right to leave one’s country is not respected.

The right to leave is recognised in a number of human rights instruments, most notably, the Universal Declaration of Human Rights (‘UDHR’) and the International Covenant of Civil and Political Rights (‘ICCPR’).³ However, it is an incomplete right, since it is not matched by a state duty of admission.⁴ While modem international human rights treaties reflect the right to seek asylum and the principle of non-refoulement (non-retum to persecution and other serious human rights violations), these are relatively limited incursions into states’ otherwise unfettered sovereign power to determine who crosses their borders and may remain within them. How and why, then, were rights to free movement codified in modem human rights treaties and what, substantively, do they mean?

This article examines the philosophical underpinnings of the right to freedom of movement in modem international human rights law. It provides the ‘back story’ to its inclusion in the first universal human rights instrument, the UDHR(and subsequently the ICCPR, which was being negotiated at the same time). Though the immediate impetus was the Nazi regime’s curtailment of free movement during World War II,⁵ it derived from a much longer intellectual lineage linked to the concept of ‘liberty’. The present article traces its development as an idea from classical times through to its inclusion in the UDHR to explore its changing character over time. It charts a story which has not previously been told in this way, providing a fascinating backdrop to national histories of immigration restriction and admission.

The article’s analysis is restricted to freedom of movement as a civil and political right, rather than as an economic one. This is because the extent to which states permitted emigration was typically regarded as a test of their liberalism towards personal political freedom.⁶ The UDHR also reflected the idea of free movement as an expression of individual civic liberty. Of course, in practical terms, emigration was at times an economic necessity for states and was seen as a means of expanding national wealth through trade and remittances.⁷ Population was manpower and this often ‘represented the most valuable asset of any sovereign’.⁸ The focus, however, was less on free movement as an aspect of personal economic freedom and development — a more recent concept — and rather as a means of increasing national wealth. For this reason, analysis of freedom of movement as an economic right falls outside the scope of the present article, which instead seeks to understand why the right to free movement came to be reflected in modem human rights law at all.

What is striking is that despite the longstanding ideal of free movement in Western political and philosophical thought, it has in practice always been subject to state restrictions. As international lawyer Paul Fauchille wrote in 1924, ‘the liberty of the individual must be reconciled with a [state-based] system of regulation and emigration’.⁹ The right to leave one’s country has therefore never been considered an absolute right’.¹⁰ It has always been subject to limitations of various sorts, including being denied to convicted criminals, some minors, those seeking to evade prosecution and those who are mentally incapacitated or have a dangerous disease. Although the particular restrictions imposed by states vary, ‘the very breadth of actual practice is strong evidence against the emergence of a general principle of free movement’.¹¹ Thus, Fauchille concludes that:

Notwithstanding almost universal formal support for the principle of freedom of movement, including the right to leave one’s country, the scope of permissible restrictions and the nature and extent of State practice show clearly why the right in question has scarcely emerged from the context of domestic, constitutional norms to the level of internationally enforceable claim.¹²

II THE RIGHT TO FREEDOM OF MOVEMENT

The right to freedom of movement appears in three manifestations in the UDHR and the ICCPR.¹³ First, it encompasses the right to move freely within a country and to choose one’s place of residence there.¹⁴ Secondly, it includes the right to cross an international border, expressed as the right to leave any country, including one’s own.¹⁵ Thirdly, it extends to the right to return to one’s country.¹⁶ This is coupled with the right to seek and enjoy, in other countries, asylum from persecution.¹⁷

The present article is primarily concerned with the second of these, although, in order to understand the philosophical underpinnings of free movement as a personal liberty (or, in contemporary discourse, a human right), it necessarily examines the first as well. Indeed, as will be shown, the regulation of international movement paralleled controls on internal movement and the development of the passport as a document for international travel was an extension of instruments that monitored movement within states.

Part II traces the intellectual history of free movement as a philosophical, political and legal concept. While it attempts to do so chronologically, it also picks up on the theme of ‘liberty’ in classical, Enlightenment and liberal consciousness as a linking and consistent ideal, encapsulated in contemporary thought by the framework of human rights law.¹⁸ However, just as there are numerous contemporary examples of state practice that curtail the right to free movement and the right to leave one’s country, as expressed in various international and regional human rights instruments,¹⁹ so a similar disconnect can be seen historically between the theory of free movement, on the one hand, and its exercise in practice, on the other. Indeed, there are virtually no historical examples of unlimited freedom of movement across borders, even in the restricted context of the right to leave and return.²⁰ This remains true of state practice today, despite ‘almost universal formal support for the principle of freedo...