Article by Francis A. Gabor
Human migration is a major force in the evolution of human civilization. The dimension and scope of human movement have changed the outlook of the community of nations. However, the freedom of movement by people across national boundaries did not receive any international legal recognition until after the Second World War. The lack of an adequate theoretical foundation explains the relative neglect of this phenomenon.
The classic theory of international law denies the individual direct protection when the individual is in conflict with the notion of state sovereignty. In this traditional system individuals are helplessly bonded to their nation states. While freedom of movement across national boundaries receives lip service, in reality, each sovereign state has the prerogative of restricting the freedom of movement of people entering its territory.
Thus, under the traditional model, the whole spectrum of human migration was duly subordinated to the notion of state sovereignty. The only exception to this rigid approach has been the international legal protection of political refugees. Political asylum can be considered one of the most ancient recognized forms of human rights. Customary international law and recent international legislation assure the freedom to seek political asylum. Generally, therefore, only the narrow spectrum of political asylum has received full-fledged international recognition—enabling a relatively small amount of freedom of human migration to occur.
At the same time, however, the freedom of movement across national boundaries is today almost universally recognized as both a customary and conventional norm of international law. Unfortunately, both the theory and practical implementation of this basic human right reflect a great deal of ambivalence.
The basic human rights concerning freedom of movement are set forth in several multinational conventions: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Fourth Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, and the African Charter on Human and Peoples' Rights.
The unanimously adopted Universal Declaration of Human Rights, which has become binding international customary law, clearly provides for the freedom of movement in article 13, which states:
1. Everyone has the right to freedom of movement and residence within the borders of each state.
2. Everyone has the right to leave any country, including his own, and to return to his country.
Subsection 2 of article 13 clearly sets forth the right of free emigration from any country. This is, however, only a one-way freedom. Once individuals leave their native countries, they have to find a country that will admit them as aliens. Article 14 of the same Declaration provides the only way of exercising this freedom of immigration: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
In subsequent conventions, political refugees have constituted the only class of aliens who enjoy the basic human right of immigration.
About the Author
Francis A. Gabor. Professor of Law, Memphis State University. D. Jur. 1967, Eotvos L. Science University (Hung.); J.D. 1975, Tulane University; LL.M. 1974, University of California, Berkeley.
Citation
65 Tul. L. Rev. 849 (1991)