By Lauren Gillespie
Man is a migrant species. With modern technology, emigration has lost its permanency, and people ebb and flow through borders. And today states struggle to control the movement of humanity across borders while respecting the right to freedom of movement. In this article, I argue that the international law community split freedom of movement into two distinct rights: namely, the right to leave permanently and the right to leave temporarily.
The Universal Declaration of Human Rights (“UDHR”) has a dual-pronged right to leave and return in Article 13. Dimitry Kochenov characterizes the principle as a “duo of rights”; namely, the right to the leave and the right to return. I believe this characterization confuses the issue. There are two separate rights that have long been imprudently compacted by international law.
One right is to “leave permanently.” This right is exercised when a person seeks to escape their home country for an extended period. The other right I will describe as the right to “leave temporarily.” In this ever globalized world, traveling becomes easier and more essential to people. Families are stretched across continents and businesses traverse the globe. The right to travel, the temporary right to leave, is also governed by similar treaties and laws as the right to emigrate. However, the right to travel necessarily includes the right to return. Without that right, people would be made stateless at an alarming rate.
It is important to maintain a distinction between the two concepts for several reasons. International norms were established at a time when emigration was presumed to be permanent. The UDHR and the International Covenant on Civil and Political Rights (“ICCPR”) lump the right to return and the right to leave into a tangled pair. The world has changed since these important documents were last modified, yet international law still subscribes to these antiquated categories of rights.
At the state level, the distinction may be hard to see. For example, the consulate worker who issues a student visa has no way of ensuring that the student returns. Kochenov argues that “a clear distinction was usually made between the right to travel and the right to expatriate [at the time the Magna Carta was signed] …. Yet, the right to travel abroad and the right to expatriate are very difficult to differentiate in practice.” The student is generally exercising the right to leave, but the state does not know whether she plans to leave temporarily or if she will instead ignore her visa restrictions and leave permanently. For the state, at the time of exit, there is no difference in leaving permanently and leaving temporarily until the student decides to return to her home country. For this reason, states may restrict the right to travel to stop permanent immigration as demonstrated by the Soviet Union.
The motivation for restricting movement is shifting. Countries used to have a paternalistic and property interest in their citizens. In the Soviet Union, people were prevented from leaving to further the socialist experiment. In addition, the Soviet Union did not want their citizens traveling to enrich their capitalist enemies. It is dubious as to whether this justification warrants use of the ICCPR’s national security exception. Now, countries face a real threat of radical terrorism from travelers who train with terrorist groups in Syria and the Middle East. The Netherlands has attempted to modify both its criminal law and immigration policy to address this issue, but the restrictions operate within an outdated system.
The two rights have divergent uses. The right to return is important to secure and to protect the rights of migrants if they flee political persecution or an economic drought. Automatic revocation could leave them without a fail-safe and may possibly damage their cultural identity. Travelers, on the other hand, decide where they travel and normally have means. Still, travelers may be more unprepared to be permanently locked out of a country where they did not voluntarily surrender their citizenship. In the age of global radical terrorist threats, travelers to terrorism-prone countries should be scrutinized, but limitations on travel must be based on solid intelligence.
To successfully respect the right to leave temporarily, states should consider policy changes. I suggest four starting points:
- Allow for people to vocalize their motivation for travel and allow travel when reasonable inferences support that motive.
- Nationalize the processes that would restrict travel.
- Work with other countries to identify propaganda agents and ISIS recruiters, and curb their influence instead of imposing race-based travel restrictions.
- Consider effective nationality before stripping a person of his or her citizenship.
The Netherlands currently deems it illegal to travel abroad to commit an act of terrorism. However, there are valid reasons for traveling to countries in conflict. For example, American law makes exceptions for medical and religious materials. Therefore, Médecins Sans Frontières (also known by their English name Doctors Without Borders) are permitted to travel to Syria to support hospitals and provide medical assistance. When citizens allege a certain motivation, countries should research to see if there is a reasonable inference to support the citizen’s alleged motivation. Furthermore, citizens should be allowed to appeal their travel restriction. These appeals could include national and not just local authorities. This would ensure that the right to travel is protected by a legal process while simultaneously respecting states as the primary authority in immigration and emigration matters.
Second, the international community does not hold cities responsible, so countries must make sure these important determinations are being taken at the national level. With the goal of simplifying their immigration process, Germany enacted the Immigration Act of 2005. This act made visas (nationally issued) a type of residence permit, which took the decision to accept immigrants out of the hands of local government. Currently, local and national authorities resettle refugees. Instead of allowing local mayors to grant travel visas, there could be a national oversight system. This may include adopting the appeals process suggested above or introducing a national agency to grant all visas. National authorities should still work with local partners to obtain the best information, but this approach may promote uniformity of enforcement.
Third, states should work together regionally to identify terrorist networks and curb their influence. The Netherlands should continue working with the European Union and international intelligence agencies to identify terrorist networks. Currently, one of the EU’s difficulties in coordinating counter-terrorism efforts, including the foreign fighter issue, is that there is no one single body that deals with all matters related to terrorism. Having a coordinated system of communication could also improve the capacity of the Dutch police. Furthermore, reliance on such networks would give Dutch border authorities data about where suspected terrorists had traveled. This might confound terrorists like the French citizens who traveled after leaving Syria to cover their tracks.
Fourth, when revoking citizenship for terrorist offenses, the Netherlands should take into consideration the effective nationality test established by the International Court of Justice in the 1950s. In the Nottebohm case, the court decided a person must have genuine link to the country in which he claims citizenship. “Effective nationality” considers various factors to determine citizenship: “there is the habitual residence of the individual concerned but also the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.”
The Dutch law does not make people technically stateless, because a person’s Dutch citizenship can only be revoked when they possess another citizenship. But people may be effectively stateless when they are only left with citizenship of a place with which they are unfamiliar. When a person exercises their right to leave permanently, it may denote a serious flaw in the home country, such as violence or extreme economic hardship.
To better protect human rights, International Law should distinguish the right to leave permanently from the right to leave temporarily. This may seem insignificant in light of all of the immigration and citizenship woes facing our world today, but for people whose rights are violated, this is an important matter. International law has already expressed a right to leave and return, but states and lawmakers have only focused on the right to leave. This was at issue during the Soviet reign and international law took a reactionary role. Vestiges of the Soviet mindset still exist, but now more countries fear citizens returning than citizens leaving. Unfortunately, there is little guidance on protecting that element of the right. As laws aim to prevent travel, the right to leave temporarily is at risk. A simple way to ensure the right is protected is to encourage separation of the right to leave permanently and the right to leave temporarily. States should embrace the full spirit of the UDHR’s dual-pronged right to leave in a way that balances national security and our migrant tendencies.
Lauren Gillespie is a student at William & Mary Law School and a student fellow at the Center for the Study of Law and Markets. She will serve as Managing Editor for William & Mary’s Environmental Law and Policy Review.