The right to personal liberty is one of the most fundamental human rights as it affects the vital elements of an individual’s physical freedom. This chapter examines a) the right to liberty and security; b) the right to freedom from slavery, servitude and forced or compulsory labour; and c) the right to freedom of movement.
A. The right to liberty and security
The right to liberty can be traced back to the English Magna Charta (1215) and the United States Declaration of the Rights of Man and Citizen (1789). Even though the Magna Charta only guaranteed rights to a limited group of people, namely feudal noblemen, it nevertheless required that arrest or detention be lawful, and protected the individual against the excesses of his/her ruler. Protection against arbitrary arrest and detention as one of the main dimensions of the right to the liberty of the person was further established in the 17th century Bill of Rights (1689) and Habeas Corpus Acts (1640, 1679). The right was further developed and its scope of application widened after the French Revolution, in the French Declaration of Rights (1789) where the right to liberty was guaranteed to all nationals in the constitutions of national states. The right to liberty played a major role in the Mexican revolution (1915) where ‘land and liberty’ (Tierra y Libertad) was the slogan of the revolution.
At the international level, the right to liberty and security of the person found its first legal formulation in Article 9 of the Universal Declaration. The article prohibits arbitrary arrest, detention or exile by means of a short and vague provision, but it has since been further elaborated upon by a number of international human rights instruments at the international and the regional level.
The right to liberty and security of the person, as the title suggests, entails two distinct rights: the right to liberty of the person and the right to personal security. In order to clarify how these two rights are understood under human rights law, a short description of each right follows.
The right to liberty of the person, as found in international human rights instruments, does not grant complete freedom from arrest or detention. Deprivation of liberty is a legitimate form of state control over persons within its jurisdiction. Instead, the right to liberty acts as a substantive guarantee that arrest or detention will not be arbitrary or unlawful. In general, any deprivation of liberty is only allowed if it is carried out in accordance with a procedure established by domestic law and if the following minimum guarantees are respected: a) every detained person shall be informed promptly of the reasons for her/his arrest; b) every detained person shall be entitled to take habeas corpus proceedings before a court (which has to decide without delay and order release if the detention is unlawful); c) every detained person has an enforceable right to compensation if detention was unlawful; and d) persons held in custody shall be brought promptly, that is within a few days, before a judge who must either release them or authorise pre-trial detention. They are entitled to trial within a reasonable time and to release in exchange for bail or some other guarantee to appear for trial. In other words, pre-trial detention shall not be the general rule and shall be as short as possible, depending on the complexity of the case.
The right to personal security has not been defined as clearly as the right to liberty and the meaning of this right differs in the different human rights Conventions. Under the ICCPR, which gives it the broadest meaning, the right to personal security is understood as the right to the protection of the law in the exercise of the right to liberty. This means that the right to security extends to situations other than the formal deprivation of liberty. For instance a state may not ignore a known threat to the life of a person under its jurisdiction; it has an obligation to take reasonable and appropriate measures to protect that person.
1. STANDARDS
The right to liberty and security, expressed in Article 9 UDHR, has been embedded in most of the existing human rights instruments, both at the international and regional level.
Article 9 UDHR states very briefly that ‘no one shall be subjected to arbitrary arrest, detention or exile’. The basic principles set out in Article 9 of the Universal Declaration are elaborated upon by the ICCPR in Article 9 (right to liberty and security of the person) and Article 12(4) (prohibition of arbitrary exile). Mention should also be made of the International Convention for the Protection of All Persons from Enforced Disappearance (not in force as of March 2009). At the regional level, these rights are guaranteed in Article 7 ACHR, Article 5 ECHR and Article 6 ACHPR.
Article 9 ICCPR, Article 7 ACHR, Article 5 ECHR and Article 6 ACHPR all establish certain procedural guarantees and minimum standards for protection against arbitrary arrest and detention. Article 5(1) ECHR differs from the other Conventions in that it defines exhaustively the cases in which a person may be deprived of her/his liberty. The other human rights Conventions leave the regulation of the grounds for detention to the domain of domestic legislation. An important exception is the detention merely on the grounds of inability to fulfil a contractual obligation (detention for debt), which is clearly prohibited in Article 11 ICCPR, Article 7(7) ACHR and Article 1 Protocol No. 4 ECHR.
Article 10 ICCPR and Article 5(3) to (6) ACHR guarantee to all persons deprived of their liberty a special right to humane treatment and to certain minimum conditions of pre-trial detention and imprisonment, such as the segregation of the accused from convicted persons or segregation of juveniles from adults. Mention should also be made of Article 16 CMW that grants migrant workers and their families the right to liberty and security of person and similarly Article 14 CRPD.
2. SUPERVISION
The Human Rights Committee, the Inter-American Commission and Court and the European Court have developed fairly detailed case-law on the varied and highly complex issues related to the right to personal liberty and security. The exact meaning of many terms, such as ‘arbitrarily’, ‘promptly’, ‘speedily’ and ‘without delay’ is unclear and can only be established on a case-by-case basis, taking into account all relevant circumstances. The increasing body of case-law is gradually contributing to a clearer definition of the concept of liberty and security.
At the universal level, the Human Rights Committee has developed extensive case-law with regard to the right to the liberty and security of the person. The Committee has issued a large number of decisions concerning most aspects of the provisions in Article 9. The large majority has concerned detention for the purposes of criminal justice, though other types of detention (such as detention of aliens and detention for the reason of enforced psychiatric treatment) have been dealt with as well (see, e.g., Torres v. Finlandand A. v. New Zealand). Nevertheless, there remain a number of uncertainties concerning the interpretation of certain provisions of Article 9, such as the exact definition of ‘promptness’ and what is considered a permissible length of time that a court can take to render a decision under a habeas corpus application. In Taright v. Algeria the Committee stated that the drafting history of Article 9 confirms that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and illegality. In Shafiq v. Australia the Committee concluded that the author’s mandatory immigration detention, for a period of over seven years, during which he became mentally ill, was arbitrary within the meaning of the ICCPR. Further, continued pre-trial detention following legal arrest must not only be lawful, but also reasonable in all respects. With regard to the right to personal security, the Committee has given this right its widest scope, as it has established in a number of statements that, in the case of serious threats to the life of persons under their jurisdiction, states are under the obligation to take reasonable and appropriate measures to protect them (see, e.g., Delgado Paez v. Colombia, Bwalya v. Zaire and Oló Bahamonde v. Equatorial Guinea). Furthermore, the Committee has established that Article 9 also protects the right to security of persons outside formal deprivation of liberty. In Rajapakse v. Sri Lanka the Committee found that the state had violated the applicant’s security of person as it had failed to take adequate action to ensure that the author was and continued to be protected from threats issued by police officers after he filed a domestic petition concerning a violation of his fundamental rights. In addition to decisions regarding individual applications, General Comment 8 elaborates on the meaning of the right to liberty and helps define some of its elements and General Comment 29 establishes that the requirement of a court review to determine whether detention is lawful is a non-derogable element of Article 9.
Another important mechanism under the UN that deals specifically with arbitrary detention is the UN Working Group on Arbitrary Detention. The former UN Commission on Human Rights entrusted the Working Group, which has been assumed by the Human Rights Council, with the following mandate: a) to investigate cases of detention imposed arbitrarily or otherwise inconsistently with relevant international standards set forth in international human rights instruments; b) to seek and receive information from governmental and intergovernmental and non-governmental organisations, and receive information from the individuals concerned, their families or their representatives; and c) to present a comprehensive report to the Commission at its annual session. An example of the remit of the Working Group is found in its 2008 report where it identifies several issues of concern. It notes with concern the growing body of cases on non-citizen detention, whereby asylum seekers are denied judicial review of their imprisonment, as are those detained in the context of the counter terrorism effort and it analyses the situation of certain vulnerable groups of detainees and prisoners susceptible to sexual violence by co-inmates and staff. The Working Group is the only non treaty based mechanism whose mandate expressly provides for consideration of individual complaints.
At the regional level, both the Inter-American Commission and the Inter-American Court have issued a considerable number of decisions regarding most provisions in Article 7 ACHR. However, the jurisprudence of the Court and the Commission has not substantially clarified these provisions; although many of the decisions present new viewpoints, they lack in-depth legal reasoning and analysis. This may be related to the difficult circumstances in which decisions concerning this right have to be made; states are often reluctant to co-operate and evidence (especially in disappearance cases) is hard to obtain. Nevertheless, both the Commission and the Court have rendered some groundbreaking judgements concerning the right to personal liberty and security. InVelásquez Rodriguez and Godinez Cruz v. Honduras, the Court held that the kidnapping of an individual and the denial of access to judicial authorities by which the legality of the detention could be reviewed (habeas corpus) constituted a manifest violation of Article 7. In Garcia v. Peru (Case 11.006), the Commission ruled that threatening persons with arbitrary and unjust detention can infringe the right to personal security and therefore violated Article 7. In Chaperro Alverez and Lapo Iniguez v. Ecuador, ‘arbitrary’ detention was found to involve a degree of inappropriateness, injustice or unpredictability. More generally, the Commission has stated that any arrest must be made by the agency properly authorised by the national constitution and in accordance with the procedures required by international law. If these conditions are not met, ‘arrests cease to be arrest per se and become kidnappings’. In regard to liberty and security, the Inter-American Court cases of Gangarand v. Surinam and Bulacio v. Argentina are also worth mentioning.
The European Court has dealt with hundreds of cases under Article 5 ECHR, providing extensive jurisprudence that aids in clarifying difficult issues, such as ‘reasonable time’, ‘promptly’ and ‘judge or other officer’. One of the problems that the Court deals with is the exhaustive list of circumstances in which states may detain an individual. As explained above, the European Convention is the only one that provides the states with such a list, and both states parties and the Court have found that it is not easy to accommodate all recognised cases of arrest in one article. The Court has established that short detention for the purpose of searching a person in the street is not a violation of Article 5(1) (see, e.g., McVeigh, O’Neill and Evans v. The United Kingdom). Another problem has been that some of the provisions found in Article 5 are difficult to apply uniformly to the different civil and common law systems represented among the states parties. In general, however, the Court has provided the most comprehensive jurisprudence with regard to the right to the liberty and security of the person and its well-formulated decisions have greatly assisted other international human rights supervisory bodies. It has, for instance, ruled that the provision that a person must be brought ‘promptly’ before a judge implies that this has to be done within exactly four days (see, e.g., O’Hara v. The United Kingdom). In Epple v. Germany a detention of 19 hours was held to be excessive taking into account the minor nature of the offence. However, the proportionality principle does not give states a carte blanche to extend detention without judicial review simply due to the severity or complexity of the case. InBrogan v. The United Kingdom the court explicitly stated that ‘to attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word ‘promptly’. It further said the four days is the limit for criminal charges, rising to five in exceptional cases. For the concept of ‘reasonable time’ a series of parameters have been developed which provide a useful framework for deciding whether a period is reasonable. Some states have introduced such parameters to reduce the time before a sentence is given to less than for instance one-and-a-half-years, even in the more difficult cases. With regard to who can be the ‘judge or other officer’ under Article 5(3), the Court found in Assenov and Others v. Bulgaria that the Bulgarian system violated Article 5 in allowing prosecutors and even arresting officers to determine the legality of pre-trial detention. The prosecutor, as a party to proceedings, can never truly be independent.
The African Commission has attempted in a number of cases to clarify and elaborate on the content of Article 6 ACHPR. On the issue of the length of detention the Commission has found in a number of communications that, for example, imprisonment of over twelve years without a trial constituted a violation of Article 6 and that three years’ detention without a trial or even three months may be sufficient to violate Article 6 (see, e.g., Krishna Achuthan (on behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwa and Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, Communications 64/92, 68/92 and 78/92). In other cases, a violation of Article 6 was found in regard to the basis and manner of the detention. In Alhassan Abubakar v. Ghana, Communication 103/93 the Commission found that the detention of the victim without a trial constituted a violation of Article 6 Arbitrary arrests and detention, presumably by the Rwanda government, of thousands of people solely because of their ethnic origin, was found contrary to Article 6 (Organisation Mondiale Contre la Torture and Association Internationale des Juristes Democrates, Commission Internationale des Juristes (CIJ) and Union Interafricaine des Droits de l’Homme v. Rwanda, Communications 27/89, 46/90, 49/91 and 99/93, see also Commission Nationale des Droits de l’Homme et des Libertés v. Chad, Communication 74/92). See also the annual reports of the Special Rapporteur on prisons and detention in Africa under Article 45 ACHPR.
B. The right to freedom from slavery, servitude and forced or compulsory labour
Slavery has existed since time immemorial; rules regarding slaves were, for instance, part of written Roman law. For centuries, slave trade was practiced globally and large scale slave trade in the past and the slavery or slavery-like practices that accompanied colonialism had a devastating impact on societies around the world, notably in West and East Africa as well as Latin America and Asia.
The freedom from slavery was the first human right to be protected under international law. In 1926 the Slavery Convention, the first multilateral human rights treaty, was adopted. Its aim was to prevent slave trade and abolish slavery in all forms. Prohibition of slavery is today considered a customary international law rule and a jus cogens norm. Moreover, in one of its judgements, the International Court of Justice identified the protection from slavery as an erga omnes obligation (Barcelona Traction Case). The problematic abolition of traditional slavery in the course of the 19th and the first half of the 20th century demonstrates how complex and controversial it can be to change current practices in order to protect human rights.
The word ‘slavery’ has come to include a variety of human rights violations. In addition to traditional slavery and slave trade, abuses include the sale of children, child prostitution, child pornography, the exploitation of child labour, the sexual mutilation of female children, the use of children in armed conflicts, debt bondage, the traffic in persons and sale of human organs, the exploitation of prostitution and certain practices under apartheid and colonial regimes.
Contemporary slavery is a distressing fact. Today, even in the 21st century, it is estimated that 27 million people are slaves or endure slavery-like situations. Of these, some 20 million suffer various forms of bonded labour. All over the world persons are sold and bought, kept in private detention, maltreated and exploited for economic benefit.
Slavery
The 1926 Slavery Convention defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’ (Article 1(1)). The circumstances of the ‘enslaved person’ are crucial to identify what slavery is. It depends, for instance on a) the degree of restriction of the individual’s inherent right to freedom of movement; b) the degree of control of the individual’s belongings; and c) the existence of informed consent and a full understanding of the nature of the relationship between the parties (see, for example, the 1956 Supplementary Convention on the Abolition of Slavery). In general, slavery occurs when one human being effectively ‘owns’ another, so that the former person can exploit the latter with impunity.
Servitude
Servitude is a broader concept than slavery. The term ‘servitude’ refers to other forms of atrocious economic exploitation exercised by one person over another. In Van Droogenbroeck v. Belgium, the European Commission held that the concept of ‘servitude’ involves the obligation of the ‘serf’ to live on the property of another person without the possibility of changing her/his condition. However, in the same case, the Commission found that a situation could only be regarded as ‘servitude’ if it involves ‘particularly serious form of denial of freedom’.
Forced or compulsory labour is defined in Article 2 ILO 29 concerning Forced Labour as ‘all work or service, which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.’ Supervisory bodies such as the European Court have used the definition of ILO 29 to interpret freedom from forced labour in their respective Conventions. In addition, the European Court has, through its jurisprudence, contributed to a more comprehensive understanding of forced and compulsory labour. In Van Der Mussele v. Belgium, the Court found that forced labour includes manual work, as well as professional work, and that the term ‘forced’ includes both physical and mental constraints. The Court also further defined the term ‘compulsory’, which it found to refer to work ‘exacted under the menace of any penalty’, and performed against the will of the person concerned. Thus, ‘compulsory’ labour does not only refer to any form of legal compulsion or obligation. In Siliadin v. France, the Court found that that the criminal law legislation in force at the material time had not afforded the applicant specific and effective protection against the actions of which she had been a victim and accordingly that France had not fulfilled its positive obligations under Article 4.
In the UN realm, in Faure v. Australia, the Human Rights Committee differentiated between work that falls under Article 8 - work which forms part of normal civic obligations - and forced labour. Work of a civic nature is defined as labour that is not an exceptional measure, that does not possess a punitive purpose or effect, and it must be provided for by law in order to serve a legitimate purpose under the ICCPR.
1. STANDARDS
Article 4 UDHR states that ‘no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’.
In Article 8 ICCPR, Article 4 ECHR, Article 6 ACHR and Article 5 ACHPR slavery is prohibited together with slave trade, servitude and forced or compulsory labour. In addition, Article 6 ACHR expressly prohibits traffic in women.
Article 8(3)(c) ICCPR, Article 4(3) ECHR and Article 6(3) ACHR enumerate four categories of work or service which are not deemed to be included in the concept of forced or compulsory labour: a) military and substitute service; b) duties in cases of emergency; c) normal civic duties; and d) normal work in detention.
The CRC is potentially one of the most effective means of combating slavery-like practices. Properly implemented by states, the Convention offers protection to children at risk from sexual, economic, and other forms of exploitation, including their sale, trafficking and involvement in armed conflict.
Article 11 CMW provides for protection of migrant workers from slavery, servitude and forced or compulsory labour.
In addition to the main international human rights Conventions, there are other instruments dealing with the prohibition of slavery and slavery-like activities. The most comprehensive ones include a) the Slavery Convention (1926); b) the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956); c) the Convention for the Suppression of Traffic in Person and of the Exploitation of the Prostitution of Others (1950); and d) the Council of Europe Convention on Action against Trafficking in Human Beings (2008). Moreover, a number of ILO instruments are relevant to the matter of forced and compulsory labour.
2. SUPERVISION
Although slavery and slavery-like practices are a wide-spread problem in our societies today, human rights supervisory bodies such as the Human Rights Committee, the European Court and the Inter-American Commission and Court have not developed a comprehensive ‘jurisprudence’ with regard to the subject. The following section will outline briefly the trends in the different universal and regional systems.
At the UN treaty body level, the Human Rights Committee has dealt with Article 8 to a limited extent in its jurisprudence. At the UN charter-based level, many Special Rapporteurs have been appointed over the years to conduct studies on slavery, especially related to the exploitation of children. In 1990, the UN Commission on Human Rights created the mandate of the Special Rapporteur on the sale of children, child prostitution and child pornography (assumed by the Human Rights Council). The Rapporteur is required to investigate the exploitation of children around the world and to submit reports on the findings to the UNGA and the Human Rights Council, making recommendations for the protection of the rights of the children concerned. These recommendations are targeted primarily at governments, other United Nations bodies and NGOs.
At the regional level, in Siliadin v. France, the European Court ruled that the applicant had been a victim of servitude. She was a minor in France illegally and her passport had been confiscated. She was forced to work 15 hours every day, without pay. She had no freedom of movement and was entirely dependent upon her employers who threatened to have her deported if she did not comply. The Court found that her situation was similar to slavery, in that she was obliged to work under coercion and one employer had ‘lent’ Ms Siliadin to another employer. Although this would suggest the ‘ownership’ required for a verdict of slavery, the Court was of the opinion that it had not constituted sufficient evidence of such. In addition to finding a violation of the prohibition of forced labour and servitude the Court ruled that the state had failed to fulfil its positive obligations under Article 4 as French criminal law in force at the material time had not afforded the applicant specific and effective protection. In a number of cases concerning forced or compulsory labour, both the European Commission and Court have found that the imposition of obligations to provide services of a certain type (free legal aid) or in a given location (in an isolated part of the country) does not constitute a violation of Article 4 of the European Convention (see, e.g., Van der Mussele v. Belgium). With regard to slavery, the article has mainly been invoked in connection with complaints of detainees over the obligation to perform work in prison, which is not considered a violation by the European Court.
In its 1999 Annual Report the Inter-American Commission opined that the forced recruitment of children under the age of 18 to the armed forces was comparable to slavery. However, more generally, the concepts of slavery, servitude and related practices are not defined and the Inter-American Commission and Court have not yet had the occasion to elaborate upon these concepts in any detail.
The African Commission dealt with the issue of slavery in the five consolidated communications against Mauritania. With regard to some of the allegations of systematic enslavement of the black community of Mauritania, the Commission stated that ‘[?] there was a violation of Article 5 of the Charter due to practices analogous to slavery, [?] the conditions to which descendants of slaves are subjected clearly constitute exploitation and degradation of man, both practices condemned by the African Charter.’(Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne des Droits de l’Homme v. Mauritania, Communications 54/91, 61/91, 98/93, 164/97 -196/97 and 210/98). The Commission has also dealt with slavery in relation to the right to property. The case concerned a family that was expelled from their home after the death of the mother. The landlord claimed that as she had been his slave her estate should pass to him. The applicant lost the case before the domestic courts. The Commission did not find a violation of Article 5 but, finding a violation of Article 14 (the right to property), called on all public institutions in Mauritania to, inter alia, ‘persevere in their efforts so as to control all the offshoots of slavery’ (Bah Ould Rabah v. Mauritania, Communication 197/97).
C. The right to freedom of movement
The right to freedom of movement is a fundamental human right, which has found expression and won endorsement in a range of human rights and humanitarian instruments. Its first legal recognition can be traced back as early as the English Magna Charta (1215). During the Cold War years, the right to leave one’s country – part of the freedom of movement – constituted a source of sharp conflicts between Western and Eastern European countries. After 1989, changing conditions have affected the issues covered by the right to freedom of movement. Increasing international mobility, tourism and migration on the one hand and alarming tendencies of xenophobia and restrictive attitudes of many states towards asylum seekers, migrant workers and aliens on the other, have made the right to freedom of movement increasingly important and at the same time controversial.
Freedom of movement, commonly understood, entails the right of everybody lawfully within a given territory to move about freely within it, without hindrance, and without having to ask specific permission of the authorities. The right to freedom of movement, as found in international human rights instruments, includes four distinct rights: a) the right to move freely within a given territory; b) the right to choose a residence within a territory; c) the right to leave any country, including one’s own; and d) the right to enter one’s own country.
The right to move freely within a given territory
Everyone lawfully within the territory of a state has the right to move freely within that territory. The citizens of a state are always lawfully within the territory of that state. As regards aliens, however, a state may determine by law whether persons may move freely in accordance with the law. The Human Rights Committee has held on this matter that an alien who enters a state lawfully, and whose status is regularised, must be considered lawfully within the territory (General Comment 27). Once a person is lawfully within a state, any restrictions on her/his right to freedom of movement and any treatment different from that accorded to nationals, have to be justified on one or more of the grounds prescribed in Article 12 ICCPR.
Permissible restrictions on the freedom of internal movement often relate to efforts to protect ‘public order’, where detention is in order, where traffic must be regulated, or where special measures (such as blockades) are called for to maintain public safety. Limitations for ‘public health reasons’, such as those which confine freedom of movement for quarantine reasons in order to prevent the spread of infectious diseases, are also permissible. Protection of the natural environment is a further justifiable basis for controlling movement. The Human Rights Committee has indicated that under Article 12 ICCPR it is permissible to restrict the categories of persons entitled to live on tribal reserves, for the purpose of protecting the resources and preserving the identity of the tribe (see, e.g., Lovelace v. Canada).
The state’s obligation under the right to freedom of movement is to ensure that the right to freedom of movement is protected from both public and private interference. In the case of a woman, the obligation to protect includes the right to move freely and to choose her residence without any interference, by law or by practice, by any other person, including a relative.
The right to choose a residence within a territory
Any person lawfully within the territory of a state has the right to choose her/his place of residence. The right to choose where to live includes protection against all forms of forced internal displacement. It also means that the state is not permitted to prevent the entry or stay of persons in a defined part of the country. This right was successfully invoked before the Human Rights Committee in, inter alia, Ackla v. Togo, where the applicant was under a prohibition from entering a certain area and his native village. The Committee found that in the absence of an explanation from the state justifying the restriction, there had been a violation of Article 12(1) ICCPR (see also Mpaka-Nsusu v. Zaire).
An important point to mention is that the right to choose a residence within the territory of one’s state of nationality is not affected by temporary absence from home.
The right to leave any country
The right to leave any country, including one’s own, is another component of the right to freedom of movement. It involves the right to depart permanently (emigration), or for a shorter or longer period. It stems from the general principle that no state owns an individual, and that the right is a personal one. The right to leave any country is not restricted to persons lawfully within the territory of a state, which means that an alien being legally expelled from the country is allowed to choose the state of destination, with the agreement of that state. The right to leave any country, including one’s own, does not however guarantee an unrestricted right to travel from one country to another. However, Article 12 UDHR, Article 22(7) American Convention, and Article 12(3) African Charter recognise the right of a person to leave her/his country in order to seek and enjoy asylum from persecution in another country. In order to enable a person to exercise her/his right to leave any country, including her/his own, obligations are imposed both on the state of residence and on the state of nationality. Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country includes the right to obtain the necessary travel documents. Normally, the issue of a passport falls under the obligation of the state of nationality of the individual. If the citizen is resident abroad, or being resident abroad has obtained travel documents from another country, this does not relieve the state of nationality of the obligation to issue a passport. In such a case, obligations are imposed both on the state of residence and on the state of nationality. The Human Rights Committee has been called upon, in the context of analysing the right to freedom of movement, to consider the denial of provision or revocation of passports to citizens living abroad. These cases, known as the ‘Passport cases’, articulate positive and negative duties on both the state of residence and the state of nationality.
The state of residence is primarily obligated to avoid interfering with the freedom to leave; the state of nationality is under a positive duty to ensure effective possibilities to leave by issuing the necessary documents; States that deny their citizens a passport thus violate Article 12(2) [of ICCPR] insofar as this denial is not justified pursuant to Article 12(3) (see, e.g., Varela Nuñez v. Uruguay and El Ghar v. Libyan Arab Jamahiriya).
The right to enter one’s own country
The right of a person to enter her/his country or to return to one’s own country recognises the special relationship of a person to that country. The right entails different guarantees, such as a) the right to remain in one’s own country; b) the right to return after having left one’s own country; and c) the right to come to the country for the first time if she/he were born outside of it (for example, if the country is the person’s state of nationality). The right to return is of particular importance for refugees seeking voluntary repatriation.
The right to enter one’s own country is a right enjoyed by a person who is abroad. Accordingly, the state has the positive obligation to take all necessary measures to ensure that a citizen abroad has the right to return to her/his own country, since constitutionally recognised rights are guaranteed not only within the territory of the state but within its jurisdiction as well. If the citizen is detained abroad, positive obligations require the state of nationality to deal with the state where the citizen is detained in order to secure the enjoyment of the right to return, since no citizen on her/his own can act with equal legal status with the governmental authorities of the foreign country. The right to return, however, does not imply that a person who has committed a crime shall be freely entitled to serve the prison sentence in his/her home country.
Absolute freedom of movement would include the right to enter another country. However, given the complexities of residence, the rights of the nationals already residing in a country, and the preservation of certain cultural rights, it has never been possible to achieve absolute freedom of movement in any human rights fora. In the so-called Schengen area, consensus on a rather ‘complete’ freedom of movement was reached. This has, however, had the side effect of a rather strict entry policy for persons from countries not belonging to the Schengen agreement.
1. STANDARDS
The right to the freedom of movement is found in a number of international and regional Conventions.
The UDHR contains the first universal statement on the right to freedom of movement. Article 13 UDHR states that: ‘[e]veryone has the right to freedom of movement and residence within the borders of each state’ and ‘[e]veryone has the right to leave any country, including his own, and to return to his country.’ Article 13 UDHR does not directly restrict the right to freedom of movement to those lawfully within the territory. Under many subsequent international and regional instruments, however, the right to freedom of movement applies only to persons lawfully within a given territory.
Article 12 ICCPR, Article 2 Protocol 4 ECHR, Article 22 ACHR and Article 12 ACHPR state that everyone lawfully within the territory of a state has the right to liberty of movement and the freedom to choose her/his residence. Moreover, the state may not arbitrarily deprive someone of the right to enter her/his own country.
Article 4 Protocol 4 ECHR, Article 22 ACHR and Article 12 ACHPR also prohibit the collective expulsion of aliens (mass expulsion of non-nationals under Article 12 ACHPR).
The right to freedom of movement, as found in Article 12 ICCPR, Article 2 Protocol 4 ECHR and Article 22 ACHR, allows the state to restrict the right in certain specific circumstances such as national security, public safety, maintenance of ‘ordre public’, for the prevention of crime, protection of health and morals, and protection of the rights and freedoms of others. The power of the state to restrict freedom of movement is, however, circumscribed by the requirement that the limitations must be ‘provided by law’ (ICCPR and American Convention), or be ‘necessary in a democratic society’, in order to safeguard certain essential interests of the state (European Convention).
Article 12(3) ACHPR is unusual in that it provides that a person has the right not only to seek but also to obtain asylum. Similarly, Article 22(7) ACHR provides for the right to ‘seek and be granted asylum’.
The right to freedom of movement can also be found in other related texts such as the Convention Relating to the Status of Refugees; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Elimination of all Forms of Racial Discrimination; the International Convention Governing Specific Aspects of Refugee Problems in Africa; and the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
2. SUPERVISION
The right to the freedom of movement has not generated as detailed case-law as other civil rights. Having said that, the Human Rights Committee, the Inter-American Commission and Court and the European Court have some interesting case-law regarding the right to the freedom of movement, which has helped interpret and clarify this right.
At the UN level, the Human Rights Committee has decided relatively few cases under Article 12 ICCPR. General Comment 27, adopted in 1999, was a welcome addition to the jurisprudence. States parties have been able to justify restrictions to the right to freedom of movement by invoking the limitations despite the fact that limits to freedom of movement and the right to leave the country are to be interpreted Narrowly (see, e.g.,Celepli v. Sweden and Peltonen v. Finland). The Committee’s most controversial views under Article 12 concern the right to enter one’s ‘own country’ under Article 12(4). InStewart v. Canada, the Committee found that Canada would not violate Article 12(4) by deporting a British citizen who had committed petty crimes, even though he had lived in Canada since the age of seven and both his mother and brother still resided in Canada. This is a narrow interpretation of the term ‘own country’, as it does not include a person who has lived most of his life in a country but never applied for the nationality (see, e.g., the dissenting opinions in Stewart v. Canada). De facto restrictions upon liberty of movement have also been found to violate Article 12. For instance, in a number of cases, the emigration of citizens has been followed by state seizure of their property, e.g., Aurel Blaga v. Romania. At the regional level, all three supervisory bodies have dealt with the right to freedom of movement, but like the Human Rights Committee, not in detail.
At the European level, the European Court appears to allow states a considerable margin of appreciation when applying the right to freedom of movement. In general, whenever considering a case under the right to freedom of movement, the Court examines whether the interference with a person’s freedom of movement was provided by law, necessary and proportionate. In Raimondo v. Italy, for example, the Court ruled that the house arrest of a person suspected of being a member of the mafia was not disproportionate. However, the Court found that allowing 18 days to pass before informing the person that the house arrest had been revoked was not in accordance with law, not necessary and therefore violated Article 2 Protocol 4 ECHR. In addition, the Court has applied the principle of proportionality in several cases against Italy, where it found that forbidding persons declared bankrupt to move from their place of residence until liquidation proceedings have been concluded is a necessary measure to ensure payment to creditors, that is, such measures are not considered disproportionate. However, where the liquidation proceedings, and therefore the interference, had lasted for 18 years, the Court found a violation as the fair balance between the general interest and the individual’s interest had been upset (see Bassani v. Italy and Neroni v. Italy). The need to inform government agencies of a change of residence was found to violate the right, as evidenced in a number of Russian cases including Tatishvili v. Russia andBolat v. Russia. When a restriction of movement is initially lawful and proportional, that legality will extinguish unless periodically reassessed (see Bartik v. Russia andRosengren v. Romania).
At the Inter-American level, few petitions concerning the right to freedom of movement have been brought to the Inter-American Commission. The jurisprudence concerning this right is therefore limited. In summary, the Commission has interpreted some of the issues included in the right to freedom of movement in the following way: a) the right to freedom of movement and residence is violated if a person is unlawfully detained and kidnapped (see, e.g., Rivera v. El Salvador (Case 10.227)); b) forced exile without proper due process procedure is a violation of Article 22(5) ACHR (see, e.g., Ituango Massacres v. Colombia); c) regarding the expulsion of legal aliens, the Commission has held that due process must be followed and that the procedural guarantees in Article 8 must apply in such proceedings; and d) the mass expulsion of illegal immigrant agricultural workers because of violence that followed a World Cup football match was considered a violation of Article 22(9).
At the African level, examples where the African Commission has found a violation of Article 12 ACPHR include the following situations: a) where travel restrictions were imposed on former politicians (Sir Dawda K. Jawara v. The Gambia, Communications 147/95 and 149/96 and Law office of Ghazi Sulerman v. Sudan, Communication 228/99), b) where people were evicted from their homes and deprived of their nationality (Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne des Droits de l’Homme v. Mauritania, Communications 54/91, 61/91,98/93, 164/97-196/97 and 210/98) and c) where a person was forced to flee his country because of abductions and threats (Rights International v. Nigeria, Communications 215/98, 147/95 and 54/91). The Commission has also stated that the mass expulsion of non nationals prohibited by Article 12 (5) need not all occur at the same time. Separate arrests made over a period of time, and with multiple deportation order dates, may constitute mass expulsion within the meaning of Article 12 (Institute for Human Rights and Development in Africa v. Republic of Angola, Communication 292/2004).