Important factors to consider in residence planning
By Prof. Dr. Dimitry Kochenov, Princeton University
Nationality and territory are connected in many ways. The classical understanding of sovereignty is traditionally rooted in the exercise of authority over people and place. Territorial borders, as we know them, are as new as the idea of people ‘belonging’ to states, and have never, and could never, become a perfect reality in practice.
Whatever we find in the law books, people migrate, no matter how states treat such migrations – accepting them, or making them illegal. Moving in search of a better life is one of the key drivers behind the development of human civilization. Many lives can be cardinally improved by leaving.
The right to move out is one of the most important guarantees of human liberty. It is thus only logical that this right is officially recognized, if not protected, by international law, yet the law as it stands is powerless against the current reality, which is overwhelmingly restrictive.
There is no specific right to movement as such in international law, as it is channeled via a duo of proclaimed rights: the right to leave any country, including your own and the right to return to one’s own country. The omission of a right to enter any other country is glaring in this context.
At the highest general level the right to leave any country including your own is proclaimed in the Universal Declaration on Human Rights of 10 December 1948 (UDHR). Although devoid of a binding legal nature, this instrument is of paramount importance for the whole context of the international human rights regime. The UDHR contains the first ever proclamation of the ‘Right to Leave’ in international law.
The picture is optimistic at the regional level. Europe, and, more specifically, the EU, works in contrast to the general failure of the UN to make the right to leave any country real on a global level. Within the EU this right is virtually absolute and functions very well in practice, at least as far as the movements of EU citizens are concerned. A clear distinction is made, however, between the territory of the Union and the rest of the world.
All in all, the right to leave a country is generally recognized on paper by the majority of the governments in the world. All this has not shaped a reality, however, where this right genuinely creates enforceable obligations and protects individuals. It is abundantly clear that outside the EU, the right is not international in nature, but belongs more to the realm of national constitutional law.
Another important aspect of the right to leave any country lies in its dual nature: it includes a negative obligation on the State not to impede departure and a positive obligation to issue all the necessary travel documents without undue delay. In the majority of cases this obligation comes down to the requirement to issue a passport. Yet, in a number of countries such documents are not available to the majority of citizens.
Most of the limitations to the right to leave the country occur via the denial of travel documents, which are effectively, absolutely necessary for international travel. This is the case even when a country does not require that a passport be presented at the border when leaving, such as in the UK. The majority of carriers will simply refuse to accept a passenger without a passport as the person may not be admitted at the border of the destination, which can result in fines for the carrier – a situation which is clearly dubious under international law.
To ensure that a limitation is legal it has to be both provided by law and meet the standards set out in Article 12(2) of the International Covenant on Civil and Political Rights (ICCPR). It is obvious that limitations of the right should be possible on a number of occasions, but if we analyze the legitimate restrictions of the right, the requirement is that such restrictions should be provided by law. The requirement of ‘provided by law’ is a necessary condition for any justifiable restriction, but it should always be regarded in the context of the specific concerns named in Article 12(3) ICCPR. The UDHR allows for the departure from the rights for reasons including, most importantly, national security and public order. Both constitute extremely broad grounds, particularly in these times of the war on terror. States, however, restrict the right to leave by imposing very questionable blanket prohibitions on a number of grounds, and today even more fundamental rights of individuals are being limited with the recourse to fighting terror as a justification.
It is unquestionable that the freedom to leave reinforces liberty at the level of individuals and the respect of the laws at the level of societies. This importance notwithstanding, it is clear that international law is practically powerless to ensure that the right is respected. There have been a number of positive developments over the last decades, and today more people can enjoy the right to leave than ever before. However, the very nature of international law today makes guaranteeing this right impossible in practice.
This is a summary of Kochenov, The Right to Leave Any Country Including Your Own in International Law, in: Connecticut Journal of International Law (2012), Vol. 28, pp. 43-71