Barriers to International Freedom of Movement: A Lacuna in International Human Rights Law?
Citation: Michael Curtotti (2002) Barriers to International Freedom of Movement: A Lacuna in International Human Rights Law?. New Challenges and New States: What Role for International Law (RSS)
Author argues "controls on immigration (although universally practiced) are at a fundamental level inconsistent with the basic philosophies of the human rights movement: equal human dignity, and the universality and indivisibility of human rights."
Beyond freedom of movement, author notes access to citizenship: "Associated with restrictions of freedom of movement, but largely consequent on it, are barriers to free access to national citizenship – to which access to the fullest protection of human rights generally attaches. These barriers moreover go to the very heart of the nation-state and to our exercise of democratic rights within it. In very real ways this issue confronts us with the challenge of questioning the privileges which we enjoy as citizens of wealthy nations, with the power to grant and withhold human rights of our fellow human beings."
In the 1800s migration was largely unrestricted, author noting passports has fallen into disuse, and: "In the nineteenth century it was even possible for respectable argument to be made that a state did not have the right to curtail freedom of movement. In 1892 the Institute of International Law proposed that “the free entrance of aliens into the territory of a civilized state should not be curtailed in a general and permanent manner other than in the interests of public welfare and for the most serious of reason”
Author writes two causes of rapid change to heavily restricted migration:
- "The growing influence on public policy of racist ideologies seeking to promote racially segregated national communities"
- word turmoil making mass movement of people from impacted areas a possibility
Universality of human rights is core to thinking after the first part of the 1900s, yet human rights declarations and efforts are limited when it comes to migration. Some progress has been made on treatment of "resident aliens" (category 2 in the paper; category 1 is resident citizens), but little on non-resident non-citizens (category 3).
The International Covenant on the Elimination of All Forms of Racial Discrimination allows discrimination based on citizenship, which would not be necessary if the drafters had not realized the strong historical connection between race and citizenship.
The concept of indivisibility of human rights recognizes that rights are interdependent. Exclusion at borders breaks this, eg those living in extreme poverty are by definition not enjoying full human rights, and cannot move out of that poverty.
Exclusion, or "the absence of participation, segregation, neglect and being forgotten" is the result of migration restrictions for a growing proportion of humanity.
Exclusion for "national interest" is natural given a state-centered view, but contrary to a human rights centered view.
Civil society needs to start a discussion on freedom of movement. Acceptance of such a right does not mean borders would immediately disappear, rather it would be a step in a long process of rights implementation.