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Refugees and the Right to Freedom of Movement: from Flight to Return

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Michigan Journal of International Law Volume 39 Issue 1 2018 Refugees and the Right to Freedom of Movement: From Flight to Return Marjoleine Zieck University of Amsterdam Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Human Rights Law Commons, Immigration Law Commons, and the International Law Commons Recommended Citation Marjoleine Zieck, Refugees and the Right to Freedom of Movement: From Flight to Return, 39 MICH. J. INT'L L. 19 (2018). Available at: https://repository.law.umich.edu/mjil/vol39/iss1/3 This Special Feature is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. REFUGEES AND THE RIGHT TO FREEDOM OF MOVEMENT: FROM FLIGHT TO RETURN* Marjoleine Zieck** INTRODUCTION ................................................. 21 I. THE RIGHT TO LEAVE ONE’S COUNTRY IN SEARCH OF ASYLUM ................................................ 24 A. Introduction ........................................ 24 B. RESTRICTIONS IMPOSED BY THE COUNTRY OF ORIGIN ... 26 C. Derogation: Restrictions Imposed by the Country of Origin Based on a Public Emergency ................ 33 D. Does the Purpose of Departure Matter from a Legal Point of View? ..................................... 34 E. Restrictions Imposed by Other States ................ 37 II. THE RIGHT TO ENTER AN ASYLUM STATE, OR THE RIGHT TO ACCESS PROTECTION ......................... 45 A. Introduction ........................................ 45 B. The Right to Seek Asylum: Corresponding Obligations? ........................................ 45 C. The Principle of Non-refoulement: Extraterrorial Reach .............................................. 46 * This background study was prepared for the Eighth Colloquium on Challenges in International Refugee Law of the Program in Refugee and Asylum Law, University of Michigan Law School that took place from March 31 — April 2, 2017, and was finalized after the Colloquium. The author would like to thank the following students of Michigan Law School for their contributions and comments: Yasuhisa Arai, Nessma Bashi, Liz Bundy, Russell Busch, Soojin Cha, Alina Charniauskaya, Kristine van Doorn (on exchange from the Amsterdam Law School), Erin Collins, Adrienne Darrow Boyd, Andrew Fletcher, Ariel Flint, Ian Green, Allison Hight, Dusan Jovanovic, Iris Kessels (on exchange from the Amsterdam Law School), Thalia Lamping, Matthew Lind, Alison Lisi, Stephanie Motz, Jennifer Nelson, Salvo Nicolosi, Lauren Nishimura, Kate Ogg, Mariana Pereira, Melissa Pettit, Megan Pierce, Eric Sloat, Karima Tawfik, Tom Temprosa, Kelsey VanOverloop, Xun Yuan, and from the Amsterdam Law School, Lilla Dittrich and Lieve Pothast, and the experts involved in the 8th Colloquium on Challenges in International Law chaired by Professor James Hathaway (Michigan Law School) for their comments on an earlier version of this background study: Professor Ali Bilgic (Loughborough University), Dr. Madeline Garlick (UNHCR Geneva), Justice Susan Glazebrook (Supreme Court New Zealand), Professor Yunsong (Bill) Huang (Sichuan University), Professor Sarah Joseph (Monash University), Professor Satvinder Juss (King’s College), Professor Nora Markard (University of Hamburg), Judge Ross Pattee (Immigration and Refugee Board of Canada), and of course, Professor James Hathaway who is the auctor intellectualis and driving force of these colloquia. ** Dr. Marjoleine Zieck is Professor of International Refugee Law at the Amsterdam Law School of the University of Amsterdam, and Research Director of the Eighth Colloquium on Challenges in International Refugee Law, on which see supra. 19 20 Michigan Journal of International Law [Vol. 39:19 D. Unresponsive Borders and the Principle of Non- refoulement ......................................... 51 E. Exceptions to the Principle of Non-refoulement ...... 55 1. Territorially-based Exceptions ................... 56 2. A Numerically-based Exception ................. 58 3. Legal Constructs: First Country of Asylum, “Dublin,” Safe Third Country ................... 64 III. FREEDOM OF MOVEMENT UPON ARRIVAL .............. 65 A. Introduction ........................................ 65 B. ICCPR Article 9 and the Detention of Refugees ...... 66 C. Freedom of Movement of Unlawfully Present Refugees: Article 31(2), 1951 Convention ............ 68 D. Nature of the Restrictions to Freedom of Movement .. 73 E. Duration of Restrictions to Freedom of Movement ... 77 IV. FREEDOM OF MOVEMENT IN THE COUNTRY OF ASYLUM ................................................ 79 A. Introduction ........................................ 79 B. The Beneficiaries of Articles 26 of the 1951 Convention, and Article 12 of the ICCPR: Lawfully Present Refugees .................................... 80 C. Restrictions to the Rights Granted in Article 26 of the 1951 Convention .................................... 82 D. Restrictions on Freedom of Movement Based on ICCPR Article 12 ................................... 86 V. EXTERNAL FREEDOM OF MOVEMENT ................... 87 A. Introduction ........................................ 87 B. The Beneficiaries of ICCPR Article 12(2): The Right to Leave “any Country” ............................ 88 C. The Right to Leave in Time of Peace and During a State of Emergency ................................. 90 D. The Right to Leave in Time of a Non-international Armed Conflict ..................................... 92 E. The Right to Leave in Time of International Armed Conflict ............................................ 95 F. Article 28 of the 1951 Convention ................... 97 G. Travel Documents for any Other Refugee: Freedom of Onward Movement............................... 100 H. Readmission to the Country of Refuge ............... 102 VI. THE RIGHT TO RETURN TO ONE’S COUNTRY OF ORIGIN ............................................. 104 A. Introduction ........................................ 104 B. Return to the Country of Origin ..................... 105 C. Constraints on Return to the Country of Origin ...... 111 VII. CONCLUDING OBSERVATIONS ........................... 114 Winter 2018] Refugees and the Right to Freedom of Movement 21 INTRODUCTION The human right to freedom of movement has been characterized as a right of personal self-determination.1 This is a particularly apt characteri- zation when applied to refugees: those who are forced to flee their country of origin on account of a well-founded fear of persecution.2 For them, the right to leave is a prerequisite to securing protection against (anticipated) persecution and the enjoyment of human rights. Not only departure, but also finding refuge abroad, stay abroad, and eventual return are elements of this human right, and that means that the physical span of refugee status coincides with the scope of the right to freedom of movement, which in- cludes the right to leave one’s country, liberty of movement within the host state, external freedom of movement, and the right to enter one’s country. This background study focuses on the right to freedom of movement of refugees. It reviews the law pertaining to this freedom from the per- spective of the spatial journey of refugees. This focus on the law means that extralegal considerations will not be taken into consideration. The analysis will not proceed from any perceived need for limits that should be accepted as “a product of realism about the strains that migration, espe- cially high-volume migration or sudden influxes, can bring to a society.”3 The decision to ignore such realism follows from the intention to iden- tify the state of the law with respect to the right to freedom of movement of refugees.4 Moreover, the drafters of the 1951 Convention Relating to 1. Jose ´ Ingles ´ (Special Rapporteur of the Sub-Commission on Prevention of Discrim- ination and Protection of Minorities), Study of Discrimination in Respect of the Right of Eve- ryone to Leave Any Country, Including His Own, and to Return to His Country, at 9, U.N. Doc. E/CN.4/Sub.2/220/Rev.1 (Jan. 14, 1964); see also U.N. Human Rights Comm., CCPR General Comment No. 27: Article 12, Freedom of Movement, ¶ 1, U.N. Doc. CCPR/C/ 21Rev.1/Add.9 (1999) (stating that freedom of movement is “an indispensable condition for the free development of a person”); Roger Nett, The Civil Right We Are Not Ready For: The Right of Free Movement of People on the Face of the Earth, 81 ETHICS 212, 218 (1971) (char- acterizing this right in terms of a right that is fundamental to human opportunity). In the drafting process of what would become Art. 12 of the 1966 International Covenant on Civil and Political Rights, the question had nonetheless been raised whether freedom of movement was as basic or as fundamental as, for example, the right to live. See U.N. ESCOR, 6th Sess., 150th mtg. ¶ 50, U.N. Doc. E/CN.4/SR.150 (Apr. 27, 1950); U.N. Secretary-General, Draft International Covenants on Human Rights, at 38, U.N. Doc. A/2929 (July 1, 1955). 2. Throughout, use will be made of the masculine gender when referring to refugees, in line with the predominant usage of the masculine pronoun in the text of the 1951 U.N. Convention Relating to the Status of Refugees. It should not be taken to reflect any norma- tive position. See Convention Relating to the Status of Refugees,
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