Freedom of movement in international conventions
Compilation of moatinoon
1. Freedom of movement is a prerequisite for peoples free development. It interacts with several other rights contained in the Covenant, as evidenced by the Committees experience in examining States parties reports and often individual communications. In its general comment No. 15 (Status of aliens under the Covenant, 1986), the Committee also referred to the special link between articles 12 and 131.
2. The permissible limitations on rights protected under article 12 must not override the principle of freedom of movement, which was governed by the necessity requirement of article 12, paragraph 3, and the need for consistency with other rights recognized in the Covenant.
3. In their reports to the Committee, States parties should provide information on domestic legal norms and administrative and judicial practices relating to rights protected under article 12, taking into account the issues raised in the present general comment. Reports must also contain information on available remedies in the event of such rights being restricted.
Freedom of movement and freedom to choose ones residence (para. 1)
4. Everyone lawfully present in the territory of a State has the right to freedom of movement and to choose his or her place of residence within that territory. In principle, nationals of a State are always lawfully within that States territory. The question of the presence of an alien lawfully within the territory of a State is governed by the internal law of a State, which may impose restrictions on the aliens entry into the territory of a State, provided that such restrictions comply with the States international obligations. In this regard, the Committee considered that, for an alien who had entered a State illegally, but whose situation had subsequently become consistent with the law, his presence within that States territory must be considered legal 2 for the purposes of article 12. Once a person is lawfully present within a State, any restrictions on his or her rights protected under article 12, paragraphs 1 and 2, as well as any treatment different from that of citizens, must be justified under the rules set out in article 123, paragraph 3. It is therefore important that States parties reports refer to cases in which aliens are treated differently from their nationals in this regard, and to the justification for this difference in treatment.
5. The right to freedom of movement applies throughout the territory of the State concerned, including throughout the federal States. According to article 12, paragraph 1, persons are entitled to move from one place to another and to reside in one place at their choice. The enjoyment of this right must not be subject to any particular purpose or reason of the person wishing to move or stay somewhere. Any restrictions on that right must be consistent with paragraph 3.
6. The State party must ensure that the rights guaranteed in article 12 are protected from any interference, whether from public or private actors. This obligation is particularly important for the protection of womens rights. For example, subjecting a womans right to freedom of movement and choice of residence to another persons decision, even if she has a relationship with her, whether by law or customary practice, is contrary to the provisions of article 12, paragraph 1.
7. Subject to article 12, paragraph 3, the right to reside in a place of ones choice within a territory includes protection against all forms of forced internal displacement and prevents persons from being prevented from entering or remaining in a specific part of the territory. However, legal detention more specifically affects the right to personal liberty and is covered by article 9 of the Covenant. In some circumstances, articles 12 and 9 may apply together.
Freedom to leave any country, including ones own (para. 2).
8. A persons freedom to leave any territory of a State shall not be required to be subject to any specific purpose or dependent on the period during which the person chooses to remain outside the country. Therefore, travel abroad is guaranteed in addition to departure for the purpose of permanent migration. The right to determine the State of destination is also part of the legal guarantee. Since the scope of article 12, paragraph 2, is not limited to persons lawfully within the States territory, an alien who is expelled by law from the country is also entitled to choose the State of destination subject to the consent of that State.
9. Obligations are imposed on the State of residence and the State of nationality to enable the individual to enjoy the rights guaranteed by article 126, paragraph 2. Since international travel usually requires appropriate documentation, and specifically a passport, the right to leave a country must include the right to obtain the necessary travel documents. Passports are usually the duty of an individuals State of nationality. The States refusal to issue it or extend its validity to a citizen residing abroad may deprive him of the right to leave the country of residence, travel and elsewhere. It was not justified for a State to claim that its citizen could return to its country without a passport.
10. State practice often shows that legal rules and administrative measures adversely affect the right to leave, in particular a persons departure from his or her own country. It is therefore extremely important that States parties report on all legal and practical restrictions they apply to the right to leave for their nationals and foreigners, so that the Committee can assess the consistency of those rules and practices with the provisions of article 12, paragraph 3. States parties should also include in their reports information on measures that impose sanctions on international modes of transport transporting undocumented persons to their territory in cases where such measures affect the right to leave another country.
Restrictions (para. 3)
11. Article 12, paragraph 3, provides for exceptional circumstances in which the rights guaranteed under paragraphs 1 and 2 may be restricted. Paragraph 3 allows the State to restrict these rights only for the protection of national security, public order, public health, morals or the rights and freedoms of others. Such restrictions must be permitted by law, are necessary in a democratic society to protect these purposes and are consistent with all other rights recognized in the Covenant (see para. 18 below).
12. The law itself must specify the circumstances under which rights may be limited. States reports should therefore specify the legal rules on which restrictions are placed. Restrictions not provided for by law, or inconsistent with the requirements of article 12, paragraph 3, would constitute a violation of the rights guaranteed under paragraphs 1 and 2.
13. In adopting laws providing for permissible restrictions in article 12, paragraph 3, States should always be guided by the principle that the substance of the right is not impeded by restrictions (see article 5, paragraph 1); The relationship between right and restriction must be reversed between rule and exception. Laws permitting the application of restrictions should use precise criteria and should not give those responsible for their implementation unrestricted freedom of action at their discretion.
14. Article 12, paragraph 3, clearly states that restrictions are not sufficient to serve permissible purposes; They must also be necessary to protect them. Restrictive measures must be consistent with the principle of proportionality; It must be adequate to fulfil its protective function; They must be the least intrusive compared to other means that can achieve the desired result; They must be proportionate to the interest they will protect.
15. The principle of proportionality must be respected not only in the law defining the framework of limitations, but also in its application by administrative and judicial authorities. States should ensure that any actions relating to the exercise or limitation of those rights are completed expeditiously and that reasons for the application of restrictive measures are provided.
16. States have often failed to demonstrate that the application of their laws restricting the rights guaranteed in article 12, paragraphs 1 and 2, is consistent with all the requirements mentioned in article 12, paragraph 3. In any individual case, the application of restrictions must be based on clear legal grounds and must meet the requirement of necessity and proportionality. For example, these conditions will not be met if an individual is prevented from leaving a country simply because he or she holds State secrets, or if an individual is prevented from travelling internally without explicit authorization. On the other hand, conditions can be met by restrictions on entry into military areas for reasons of national security, or restrictions on freedom of residence in areas inhabited by indigenous peoples or minority communities.
17. The multifaceted legal and bureaucratic barriers that unnecessarily affect the full enjoyment of individuals rights to move freely and leave a country, including leaving their country and choosing their place of residence, are a major concern. With regard to the right of movement within a country, the Commission has criticized provisions requiring individuals to apply to be allowed to change their residence or to seek the consent of local authorities in the place of destination, as well as delays in deciding on such written requests. States practices are full of obstacles that make it more difficult for them to leave the country, especially for their citizens. These include, inter alia, rules and practices, For example, applicants lack of access to competent authorities and lack of information on requirements; the requirement to apply for special forms through which appropriate application documents for issuing a passport can be obtained; the need for supporting data for the applicant from his or her employees or family members; accurate description of the travel route; issuance of passports only after payment of excessive fees significantly exceeds the Departments service costs; unreasonable delays in issuing travel documents; restrictions on family members travelling collectively; the requirement to provide money as a fee for repatriation or to present a return ticket; the requirement to produce an invitation from the intended State or persons living there; disturbing applicants, for example by intimidating physical violence, threatening arrest, loss of employment or expulsion of children from schools or universities; He refused to issue a passport on the grounds that the applicant would damage the countrys good reputation. In the light of these practices, States parties should ascertain that all restrictions imposed by them are in full compliance with article 12, paragraph 3.
18. The application of the restrictions permitted under article 12, paragraph 3, must be consistent with the Covenants other rights and with the fundamental principles of equality and non-discrimination. Thus, limiting the rights set forth in article 12, paragraphs 1 and 2, by any discrimination of any kind, whether on grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or social status, constitutes a clear violation of the Covenant. During its examination of States reports, the Committee noted several instances in which measures prohibiting women from moving freely or leaving the country were applied except with the consent or with the consent of a male person, which also constituted a violation of article 12.
Right to enter ones own country (para. 4)
19. The right to enter ones own country implies recognition of ones own relationship with that country. This right has several facets. It implies the right to remain in ones own country. It is not limited to the right to return after leaving ones own country, as it is also entitled to come to the country for the first time if born outside the country (for example, if that country is the persons home country of nationality). The right to return is of paramount importance to refugees wishing to return home by choice. It also implies the prohibition of forced deportations or mass expulsions to other countries.
20. The wording of article 12, paragraph 4, does not distinguish between citizens and aliens (no one shall be deprived...). Thus, persons entitled to exercise this right can be identified only by interpreting the term country 9. The scope of the term country is broader than the concept of country of nationality. It is not limited to nationality in a formal sense - nationality acquired by birth or by naturalization. It includes, at least, a person who cannot be considered a mere alien, by virtue of his or her country-specific links or entitlements. This applies, for example, to the case of nationals of a country in which they have been deprived of their nationality by a procedure in violation of international law, and to the case of persons whose country of nationality has been incorporated into another national entity, or transformed into such an entity, and deprived of the new entitys nationality. In addition, the wording of article 12, paragraph 4, allows for a broader interpretation that may include other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of their country of residence as such. As other factors may in certain circumstances lead to close and lasting links between the person and the country, States parties reports should include information on the rights of permanent residents to return to their country of residence.
21. In no case shall a person be arbitrarily deprived of the right to enter his or her own country. The purpose of the reference to the concept of arbitrariness in this context is to emphasize that it applies to any State action, whether legislative, administrative or judicial; The reference to it necessarily ensures that any intervention, even by law, is compatible with the Covenants provisions, aims and objectives, and is in any event reasonable in the particular circumstances. In the Committees view, there are rarely, if any, circumstances that could be considered reasonable to deny a person access to his or her own country. The State party must not, by depriving a person of his or her nationality or expelling him or her to another country, arbitrarily prevent him or her from returning to his or her own country.
