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Max Planck Encyclopedia of Public International Law [MPEPIL]

Movement, Freedom of, International Protection

Eckart Klein

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 February 2020

Right to liberty of movement — Asylum

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Definition and Legal Basis

In international law the term freedom of movement is used as a generic term to comprise specific rights and freedoms of a person related to his or her locomotion. It covers movements of individuals within a State as well as from one State to another. While the former embrace the right of a person to move freely and to choose a place of residence according to his or her own will within the territory of a State, the latter cover the right to leave a country including his or her own and to (re-)enter the home country. However, for specific reasons it does not entail a right to enter and to remain in a State of which the individual is not a national (Aliens; see also Individuals in International Law). In principle it is still up to the States to decide on the terms and conditions under which non-nationals are admitted to their territory (however, see also Asylum, Territorial).

Though the rights compiled under the term freedom of movement are crucial to the effective enjoyment of many other rights, they can barely be said to be completely based on customary international law. Only some of those rights probably qualify in this respect, eg the right to enter the State of one’s own nationality and, the counterpart of this right, the right not to be expelled from the home country. Hence international protection must be founded here as well as in most other human rights areas on international treaties. Actually, several important international treaties on the universal and regional plane contain relevant provisions with regard to the different facets of the freedom of movement, the guarantees of free movement of persons within the European Union (‘EU’) deserving special attention. All these treaties have established mechanisms devoted to the task of monitoring the respective commitments of the States Parties. There is evidently a broad range of supervisory competencies, reaching from hortatory and recommendatory power to final and binding judgments (International Organizations or Institutions, Supervision and Sanctions).

B.  Content and Scope

1.  Legal Instruments on the International and Regional Levels

On the universal level, based on Art. 13 Universal Declaration of Human Rights (Universal Declaration of Human Rights [1948] [‘UDHR’]), Art. 12 International Covenant on Civil and Political Rights (International Covenant on Civil and Political Rights [1966] [‘ICCPR’]) protects the freedom of movement. On the regional level freedom of movement is protected by Arts 2 and 3 Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘Protocol No 4 ECHR’; European Convention for the Protection of Human Rights and Fundamental Freedoms [1950]), Art. 22 American Convention on Human Rights (American Convention on Human Rights [1969] [‘ACHR’]), and Art. 12 African Charter on Human and Peoples’ Rights (African Charter on Human and Peoples’ Rights [1981] [‘AChHPR’]). A comparison of these provisions reveals that irrespective of some differences in wording and scope, a common understanding of a necessary protection of the freedom of movement can be established.

The first paragraph of the guarantee is usually dedicated to the protection of freedom of internal movement and choice of residence. Under these rights everybody is entitled to change their location within the borders (Boundaries)of a State subject only to their will and not having to request permission from the authorities or justify their movement. Actually all corresponding provisions, except for Art. 13 (1) UDHR, expressly restrict these rights to those who are lawfully within the territory of a given State. In view of the fact that States only have to tolerate within their territory individuals who reside there lawfully, it is argued that irrespective of the wording Art. 13 UDHR must apply with the same limitation (Grahl-Madsen, Melander and Ring 268). Whether an individual is lawfully residing on the territory is generally determined by the respective domestic law (Immigration). The question of lawfulness mainly arises in relation to non-nationals of the State concerned, for nationals in principle always reside lawfully within the territory as they have a nearly absolute right to enter their State of nationality (Nowak Art. 12 para. 8). Yet, there are a few exceptions, which derive from the colonial past of States (Colonialism; see also Decolonization). For example, nationals of British Overseas Territories were not entitled under domestic law to enter the territory of the United Kingdom (‘UK’) unconditionally until 2002, even though they were British nationals. The UK submitted a corresponding reservation to Art. 12 (4) ICCPR upon ratification. At any rate, restrictions on non-nationals upon entry, such as limits on the length or the purpose of stay, remain permissible. However, the Human Rights Committee (‘HRC’) has pointed out that once an alien has entered the territory and resides on it in accordance with domestic law, he or she is entitled to enjoy freedom of internal movement and choice of residence in the same way as nationals (HRC General Comment No 15 para. 8; see also Equality of Individuals). A difference in treatment between aliens and nationals or between different groups of aliens has to meet the requirements for a permissible restriction under the relevant limitation clause (see paras 14–16 below). Freedom of movement is protected from both public and private interference; eg, it would be an impermissible restriction if a woman was obliged by law or practice to request permission from another person for any movement (HRC General Comment No 27 para. 6). In the case of private interference it would be the duty of the State concerned to protect her against such a violation.

The second paragraph of the provisions relating to freedom of movement typically enshrines the right to leave any country, including one’s own. It covers the right of the individual to leave any country temporarily—freedom to travel abroad—or permanently —freedom to emigrate (Emigration). It does not ensure that the person has a place to go to as there is no general right under international law to enter a foreign State. The right to leave is commonly taken for granted in democratic societies, yet a look at the not too distant past reveals that it is by no means self-evident. Socialist States imposed such extensive and radically implemented restrictions on the individual’s right to leave that it had nearly lost any substance. During the drafting process of Art. 13 UDHR the delegate of the Soviet Union proposed that the right to leave should be granted only when exercised in accordance with a procedure laid down in the respective national laws. This proposal evoked strong objections from the other delegates and eventually was refused by a clear vote (Hofmann 34–36). In order to secure the effective enjoyment of this right, the provision has to be read in such a way that it entitles the individual to obtain all necessary travel documents at a reasonable cost within a reasonable time (HRC General Comment No 27 para. 9; see also Passports). Hence, the right to leave imposes obligations not only on the State of residence, ie not to prevent the departure, but also on the State of nationality. The latter may only refuse to issue required travel documents if this may be justified under the respective limitation clause of the provision. Still under debate is whether freedom of movement also entitles the individual to take along his or her personal effects. There is good reason to understand the guarantee in this way as supporting the implementation of the right (see also Giegerich para. 36; Property, Right to, International Protection).

The fourth right contained in provisions relating to freedom of movement is the right to enter or to return to one’s own country, being the counterpart to the right to leave any country. It contributes to the efficacy of the latter, as people are more likely to claim their right to leave knowing that they always have the opportunity to come back. The majority of the international legal instruments phrase the right to enter or return to one’s own country in a negative way, stipulating that ‘no one shall be deprived of the right to enter’ instead of ‘everyone has the right’. However, the latter formulation is taken up by Art. 13 (2) UDHR and Art. 12 (2) AChHPR.

Whereas Art. 12 (2) AChHPR thus recaptures the wording of Art. 13 (2) UDHR by entitling everyone to return to their own country, Art. 22 (5) ACHR and Arts 3 (1) and (2) Protocol No 4 ECHR expressly restrict the right to enter a State and the prohibition to be expelled to the nationals of that State only. Thus the circle of beneficiaries under the UDHR and AChHPR is wider than under the ACHR and ECHR. The same is true for Art. 12 (4) ICCPR which states that ‘no one shall be arbitrarily deprived of the right to enter his own country’. By referring to ‘no one’ the text does not distinguish between nationals and non-nationals. On the other hand, the words ‘his own country’ imply that there has to be a special bond of some kind between the State and the individual. Certainly, the term embraces the country of nationality, but also permits a broader interpretation. The HRC has indicated that the notion ‘might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence’ (HRC General Comment No 27 para. 20; Stateless Persons). This does not mean that every permanent resident may claim the State of residence to be his or her own country. As Stewart v Canada, decided by the HRC, shows, the term ‘his own country’ must always be interpreted in the light of the individual case.

Unlike Art. 3 Protocol No 4 ECHR and Art. 22 (5) ACHR, Art. 12 (4) ICCPR only prohibits arbitrary deprivation of the right to enter. The content of these guarantees, however, does not differ as the HRC has stressed that nowadays ‘there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable’ (HRC General Comment No 27 para. 21). Furthermore, the concept of arbitrariness was not meant to restrict the prohibition of deprivation in any way, but to clarify that the provision applies to any kind of State action, ie legislative, judicial or administrative action (ibid). Finally, a State may not deprive someone of the right to enter their own State by taking away their citizenship. Even if the legal instrument does not include a provision stipulating a right to nationality (cf Art. 15 UDHR), this deprivation would constitute an impermissible circumvention of the rights conferred upon the individual.

The logical counterpart to the right comprised in the term freedom of movement is the right not to move or be moved, ie protection against forced resettlement and expulsion from one’s own country (see also Forced Population Transfer; Population, Expulsion and Transfer). Beyond that, several conventions contain further regulatory provisions concerning the expulsion of aliens (Art. 22 (6) ACHR, Art. 12 (4) AChHPR, Art. 13 ICCPR; Aliens, Expulsion and Deportation), the prohibition of refoulement (Art. 22 (8) ACHR; see also Art. 33 Convention relating to the Status of Refugees of 1951), and the prohibition of mass expulsion of aliens (Art. 22 (9) ACHR, Art. 12 (5) AChHPR, Art. 4 Protocol No 4 ECHR).

2.  European Union

10  Unlike the international legal instruments already examined in this article, the law of the European (Economic) Community initially did not contain a provision stipulating a general and uncommitted right to freedom of movement for everyone. Instead the Treaty establishing the European Community (‘ECT’) and the secondary legislation granted the right to freedom of movement only to workers (now Art. 39 ECT; see also Migrant Workers) and self-employed persons (Art. 43 ECT) as far as they are nationals of the Member States or their family members (see also Family, Right to, International Protection). Hence, freedom of movement was primarily protected as a means for individuals to pursue economic activities within the common market. Compared with the guarantees of freedom of movement in international law, the content and scope of the corresponding rights under EC law appear to be rather limited (European Community and Union Law and International Law). Yet, the reason for this limitation becomes clear if one recalls the very nature of the EC, which first and foremost was created as an economic community, not a political union. This changed with the implementation of the Treaty on the European Union signed in 1992 in Maastricht (‘TEU’; European Union, Historical Evolution). The treaty introduced the concept of European citizenship; according to Art. 17 ECT everyone who is a national of a Member State is at the same time a citizen of the EU. European citizenship entails several rights for the individual, ie a general and uncommitted right to move and reside freely within the territory of the Member States (Art. 18 ECT). Following the judgment in Baumbast v Secretary of State for the Home Department of the European Court of Justice in 2002, the provision of Art. 18 ECT is now commonly considered as comprising an independent right to freedom of movement for EU citizens that is directly applicable (Kokott 214–17). Therefore, freedom of movement is no longer guaranteed as a mere annex to the economic-related fundamental freedoms, but as a fundamental freedom itself (Magiera [2005] 437). As such it entitles EU citizens to enter another Member State from anywhere in the world and to move freely as well as choose a residence within the territory of the EU. Moreover, it comprises a right to leave any Member State, but only as far as this is a necessary prerequisite to enter another Member State. A right to leave the territory of the EU as such is not included in the guarantee.

11  The relationship between Art. 18 ECT and Arts 39, 43, and 49 ECT is generally assessed as one of lex generalis to lex specialis, meaning that as soon as economic activities are the reason for the movement only the economic-related fundamental freedoms are applicable. Recent jurisprudence of the ECJ seems however to cast doubt on this view. Likewise it is under dispute whether Art. 18 ECT also applies to cases that do not involve transboundary movements of persons between Member States, ie movements of EU citizens within the borders of their own State. The wording of Art. 18 ECT is ambiguous.

12  It is important to remark that apart from the guarantees already mentioned that are expressly enshrined in EC law, the EU is also indirectly bound by its Member States’ international human rights commitments that take part in the formation of the general principles of community law (Art. 6 (2) TEU). Through this mechanism the rights related to the freedom of movement as protected under Protocol No 4 ECHR and ICCPR may become relevant for the EU/EC. Art. 45 EU Charter of Fundamental Rights (Charter of Fundamental Rights of the European Union [2002]), still not yet entered into force but intended to become part of the European Constitution (Art. I–10 (2) (a) and Art. II–105 Draft Treaty establishing a Constitution for Europe) or an equivalent basic document, intends to replace Art. 18 ECT. Scope and content of both provisions are identical.

C.  Limits

1.  Universal and Regional Legal Instruments

13  As the freedom of movement is not an absolute right, all international legal instruments examined in this article contain provisions according to which the right to freedom of internal movement and choice of residence as well as the right to leave any country may be restricted. Only the right to enter one’s own country is usually guaranteed without explicit restrictions. Nevertheless, it may be suspended temporarily, for instance if the person concerned suffers from an infectious disease and is put in quarantine outside the State’s territory. This is not considered to be an impermissible deprivation but a modification of the right to enter (Gollwitzer Prot. 4 Art. 3 para. 4), or, at least, it would not be arbitrary. The UDHR and the AChHPR subject the right to enter to the same restrictions as the other rights protected by the freedom of movement (Arts 13 and 29 UDHR; Art. 12 (3) AChHPR).

14  A general pattern of the conditions under which the restriction of the rights is permissible, is clearly discernible. First, any limitation has to be determined by law or must be in accordance with it. The term ‘law’ in this context refers to an act of parliament that is general and abstract or an equivalent unwritten norm of common law. The law has to be accessible and predictable for the individual (Nowak Art. 12 para. 29). Secondly, a restriction is only permissible to protect essential interests listed in the respective provision, eg national security, public safety, ordre public (public policy), public health and morals, the rights and freedoms of others, and the prevention of crime. The enumeration of interests that justify the restriction of rights and freedoms is always regarded as being complete. Thus, a State may not refer to an interest that is not listed. For instance the restriction of the freedom of movement for reasons of the economic welfare of a State is not permissible under any of the respective provisions. Such a limitation was actually discussed during the drafting process of Protocol No 4 ECHR but eventually dismissed by the majority. Finally, almost every limitation clause requires that the restrictions are necessary in a democratic society and—although not explicitly mentioned—consistent with the principle of proportionality and must not impair the essence of the right (cf HRC General Comment No 27 paras 13 and 14). A prime example for a permissible restriction of the right to freedom of internal movement in order to protect the rights and freedoms of others are the laws on trespassing, which exist in every legal system in democratic societies. Their aim is to strike a balance between the interests of freedom of movement and the right to enjoy private property. Other permissible restrictions include the imposition of reporting duties on persons suspected to be criminals along with the prohibition to leave the current place of residence.

15  Art. 2 (4) Protocol No 4 ECHR and Art. 22 (4) ACHR contain an additional limitation clause for the freedom of internal movement, which only applies if the restrictions are confined to designated zones or particular areas of the State concerned. Examples of such limitations are prohibitions to the public to enter designated military areas or nature reserves. The requirements for restrictions are less strict where Art. 2 (4) Protocol No 4 ECHR and Art. 22 (4) ACHR apply. Instead of being necessary in a democratic society, they merely have to be justified by public interest. The principle of proportionality, however, has to be strictly observed.

16  Finally, the most extensive limitation is the derogation of human rights in times of national emergency (Emergency, State of). Derogation means temporary suspension of human rights or restrictions that go further than those permitted under ordinary circumstances. Art. 4 ICCPR, Art. 15 ECHR, and Art. 27 ACHR include provisions on derogation. The guarantee for freedom of movement is not included in the list of non-derogable rights in any of these international legal instruments. However, the conditions under which derogation is permissible according to the corresponding provisions are extremely strict. According to them, the emergency must not be less than life-threatening to the nation. A duty to inform the international community about the derogation is imposed, and the derogation has to be non-discriminatory and must not be further extended and endure no longer than is absolutely necessary to overcome the crisis.

2.  European Union

17  According to Art. 18 ECT all of the rights contained therein are subject to the limitations and conditions set out in the ECT itself and by the measures adopted to give it effect, ie secondary legislation. The corresponding provisions are currently to be found in Arts 39 (3), 46 ECT and in Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the Right of Citizens of the Unions and their Family Members to Move and Reside Freely within the Territory of the Member State (‘Directive 2004/38/EC’). Intrinsically, Arts 39 (3) and 46 ECT stipulate restrictions intended to limit the exercise of the economy-related fundamental freedoms. However, it is now commonly accepted that these limitations also apply analogously to Art. 18 ECT as they are not necessarily linked to economic activities. According to these provisions freedom of movement may be restricted on grounds of public policy, public security, or health. The principle of proportionality has always to be observed.

18  Directive 2004/38/EC, which amended or repealed the previous secondary legislation concerning freedom of movement and right of residence within the EU, specifies the details of this right and of its limitations. According to these provisions EU citizens may enter and reside within another Member State for up to three months subject to only one condition, namely that they take along their passport or identity card. If a citizen of the EU desires to stay longer than the period of three months in the host Member State, he or she has to fulfil further requirements. In particular one must have health insurance and sufficient financial means to support oneself and one’s dependants. Arts 27–33 comprise the details on permissible restrictions on the right of entry and the right of residence. The essential interests the restrictions have to serve are reiterated and explained in more detail, eg the restriction of freedom of movement on grounds of public policy or public security shall be ‘based exclusively on the personal conduct of the individual concerned’ (Art. 27 Directive 2004/38/EC). Furthermore, it is explained what kind of diseases constitute a threat to public health that justifies the restriction of freedom of movement. Another, if not the most important, provision is included in Art. 35 Directive 2004/38/EC. It permits Member States to adopt all necessary measures to refuse, terminate, or withdraw any right conferred by this directive in cases of abuse or fraud. Yet, in any circumstance the principle of proportionality has to be observed. According to the innovative Arts 16–18 EU citizens and their dependants who resided legally for a continuous period of five years in the host Member State are entitled to a permanent right of residence in that State.

19  Hence, Directive 2004/38/EC not only sets out the details of permissible restrictions to freedom of movement, but also confers rights on the individual. This becomes apparent with regard to third-country nationals who are closely related to EU citizens. As Art. 18 ECT only applies to EU citizens, the dependants of EU citizens who hold the nationality of a third State are only entitled to enter and take residence within a Member State according to the provisions of this directive. Third-country nationals who are not closely related to EU citizens may only obtain a right of residence according to corresponding provisions in Association Agreements (European Community and Union, Association Agreements) which the EC has concluded with several countries, eg Turkey.

D.  International Practice

20  The efficacy of the protection of freedom of movement depends not only on the content and scope of the guarantee laid down in a given international legal instrument, but also on the implementation of these rights. One way of ensuring their effective enforcement is to provide for an independent monitoring body, which keeps an eye on the implementation of the rights and may remedy their violation (Human Rights, Remedies). Naturally, the strongest form of protection is offered where individuals themselves have the chance to claim violations of their rights by filing individual complaints to the respective supervisory body (Human Rights, Individual Communications/Complaints). This is the case under the regime of the ECHR and the ICCPR. As a result the most sophisticated case law on freedom of movement relates to Art. 12 ICCPR and Arts 2 and 3 Protocol No 4 ECHR. The following section reflects some of those decisions relating to freedom of movement issues.

21  One of the major current problems is the fight against terrorism, which quite often comes along with restrictions of human rights. This consequence is generally permissible as long as the requirements set out for these restrictions are met and the principle of proportionality is observed. Several years ago the HRC was already faced with the effects of countering terrorism in the individual communication in Celepli v Sweden and Karker v France. Both applicants were foreigners in the respective respondent State. They were suspected to be terrorists and had received an expulsion order which could not be enforced. The HRC held that the quite harsh restrictions—Celepli was confined to his home municipality for nearly seven years and had to report to the police three times a week—on their right to free movement within the State territory were justified on grounds of national security. As already mentioned the HRC, in Stewart v Canada, has extensively discussed the meaning of the right ‘to enter his own country’ in Art. 12 (4) ICCPR.

22  In a much-noticed advisory opinion (Advisory Opinions) concerning the legal consequences of the construction of a wall in the Occupied Palestinian Territories (Israeli Wall Advisory Opinion [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory]), the International Court of Justice (ICJ) found that the construction impedes,

the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights (para. 134).

23  According to the ICJ this interference cannot be justified either by military exigencies (Military Necessity) or requirements of national security or public order and thus constitutes a breach of the obligations undertaken by Israel under the ICCPR (ibid para. 137).

24  In the case of Streletz, Kessler and Krenz v Germany where the applicants alleged violations of their rights because of their conviction by the courts of the unified Germany, the European Court on Human Rights (ECtHR) found that the rigorous border control regime established by the authorities of the German Democratic Republic (‘GDR’) constituted an impermissible restriction of the right to leave as enshrined in Art. 12 (2) ICCPR. It dismissed the argument that the measures taken were necessary to protect national security or other interests mentioned in this provision (ibid para. 100). Likewise, the German courts had referred to the freedom of movement guaranteed by the ICCPR ratified by the GDR (Schüsse an der Berliner Mauer I 16–21 [German Border Guard Case I]; Schüsse an der Berliner Mauer 1972 [German Border Guard Case 1972]). Only recently the ECtHR was concerned with the legal concept of propiska (registration) in Russian law according to which a person wishing to take up residence in Russia has to apply for residence registration first. Without being registered, a person is not entitled to enjoy several fundamental social rights, eg is prevented from possessing property and marrying. Furthermore, access to medical assistance and social security is denied. In Tatishvili v Russia the applicant, who was a citizen of the former Soviet Union but became a stateless person at the end of the year 2000, challenged the refusal to certify her residence at the chosen address. The court held that the refusal, preventing the applicant from exercising fundamental rights and exposing her to administrative penalties and fines, constituted a violation of the right contained in Art. 2 (1) Protocol No 4 ECHR as not being in ‘accordance with law’. The only argument put forward by the government to justify the refusal, namely that the applicant was unlawful within the territory and thus barred from invoking the said article, was dismissed by the ECtHR. In this context one should also refer to Resolution 1277 (2002) and Recommendation 1544 (2001) of the Parliamentary Assembly of the Council of Europe (COE). In other exemplary cases the ECtHR concluded that though the restrictions on the applicant’s freedom of movement were in accordance with law they could not be regarded as having been ‘necessary in a democratic society’ (eg Labita v Italy and Bartik v Russia).

E.  Assessment

25  Though the right to freedom of movement has not the same appeal to many human rights activists as the right to life (Life, Right to, International Protection) and prohibition of torture (Torture, Prohibition of), it is recognized that freedom of movement is a prerequisite for the enjoyment of many other rights and ‘an indispensable condition for the free development of a person’ (HRC General Comment No 27 para. 1). For some this right marks the beginning of human rights development because it allowed individuals to remain faithful to their own religious belief by using their right to leave the country—ius emigrandi—when a different belief was imposed by the ruler of a given territory—cuius regio, eius religio (see also Religion or Belief, Freedom of, International Protection). Of course, in a globalized world freedom of movement has received additional, particularly economic, dimensions that indicate its growing importance. Thus the decision to include the guarantee of free movement in the human rights catalogues of all relevant conventions putting it under international protection is very reasonable. Of course, the respect of the right varies with the preparedness of ratifying States to honour their substantive as well as procedural obligations. It remains the intrinsic weakness of the international protection of human rights that it lastly remains dependent on the goodwill of the States. Only in a few instances is it thinkable that on the basis of binding decisions of the United Nations Security Council (United Nations, Security Council [‘UN Security Council’]) the respect for human rights may be enforced. This general power of the UN Security Council, however, raises the question of how far the council itself is bound by human rights. One may well argue that at least ius cogens limits the UN Security Council’s action, but freedom of movement does not enjoy the status of compulsory law. However, the rights embraced by the term freedom of movement share this fate with most other human rights.

26  The EU of today is plainly non-conceivable without freedom of movement for its citizens. The idea behind a united Europe is not only to secure peace in the region, but also to tear down the barriers between the Member States and to promote exchange among the peoples of Europe. The opportunity to move freely and to choose a residence within any Member State of the EU gives the individual citizen a taste of what the union is actually meant to be.

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