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STUDY of DISCRIMINATION in RESPECT of the RIGHT of EVERYONE to LEA VE ANY COUNTRY, INCLUDING HIS OWN, and to RETURN to HIS COUNTRY by Jose D

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STUDY of DISCRIMINATION in RESPECT of the RIGHT of EVERYONE to LEA VE ANY COUNTRY, INCLUDING HIS OWN, and to RETURN to HIS COUNTRY by Jose D STUDY OF DISCRIMINATION IN RESPECT OF THE RIGHT OF EVERYONE TO LEA VE ANY COUNTRY, INCLUDING HIS OWN, AND TO RETURN TO HIS COUNTRY by Jose D. lngles Special Rapporteur of the Sub.Commission on Prevention of Discrimination and Protection of Minorities UNITED NATIONS New York, 1963 ,">' J The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatso­ ever on the part of the Secretariat of the Ul1ited Nations concerning the legal status of any country or territory or of its authorities, or concern­ ing the delimitation of its frontiers. * >I< * Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document. E/CNA/Sub.2/229/Rev.l , UNITED NATIONS PUBLICATION NOTE The Study of Discrimination in Respect of the Right of Everyone to Leave any Country, Including His Own, and to Return to His Country, is the fourth of a series of studies undertaken by the Sub­ Commission on Prevention of Discrimination and Protection of Minori­ ties with the authorization of the Commission on Human Rights and the Economic and Social Council. A Study of Discrimination in Edu­ cation, the first of the series, was published in 1957 (Sales No.: 57. XIV.3), the Study of Discrimination in the Matter of Religious Rights and Practices, the second of the series, was published in 1960 (Sales No.: 60.XIV.2), and the Study of Discrimination in the Matter of Political Rights, the third of the series, was published in 1963 (Sales No.: 63.XIV.2). The Sub-Commission is now preparing studies on Discrimination Against Persons Born out of Wedlock and on Equality in the Administration of Justice. The views expressed in this study are those of the author. iii CONTENTS Page INTRODUCTION Historical background o. 0 •• ,•0,•,0,0•,0,,•,0•0000•0•00 •• , 0 •• 0 0 , 0 •••• , 0 1 National recognition of the right .'.,.' 0 , , •••• , •• ,,, , 0,00•0000000 ' , •• , • 4 International recognition of the right .. ' 0 • , • , •• 0 0 •• , , • 0 • , •• 0 0 , 0 0 0 •• 0 • 5 Chapter I. ORIENTATION OF THE STUDY Article 13 (2) and related articles "." ..... 0 0 ' ,• , ', , •• 0 •• 0 0 0 0 0 0 9 Travel documents 0 0 •• 0 • 0 • 0 0 0 0 •• 0 ' • , , , , 0 0 • 0 0 0 ••••• 0 0 • 0 •• 0 •••• , , 0 • 12 The meaning of "discrimination" in respect of the right. 0 0 •••• 0 • 0 0 • 14 no GROUNDS OF DISCRIMINATION Introduction .. 0 •• 0 • 0 0 0 •• 0 0 • 0 0 •••• 0 0 • 0 •• 0 •• 0 • , 0 ••••• 0 • 0 • 0 0 0 •••• 0 0 0 18 Race or colour 0 •• 000000•000000 •• 0 •••••••• 0 0 0 0 • 0 0 ••• 0 0 ••• 0 0 ••• 0 0 20 Sex o. 0 0 0 0 •• 0 •• 0 •••••• 0 • 0 • 0 0 •• 0 0 0 •••••••••••••• , , 0 ••••• , ••• , 0 0 • • 23 Language ... , ... 0 ••••• 0 •••• 0 0 • 0 ••••• , •••• , ,•0,•,0,•,•, •••• , •••• 0 25 Religion ,'. 0 0 • 0 0 0 •• 0 • 0 • 0 0 ••• 0 0 • , • , •• , • 0 • 0 0 •• 0 •••••••• , 0 •• 0 •• 0 •• 0 25 Political or other opinion o. 0 0 0 00 0 •••• ' • 0 •••••• , •• , • , • 0 • 0 ••• 0 • 0 • • • 29 National origin . 0 • 0 0 • 0 0 0 ••• 0 .0 •••••• 0 , 00 0 • o. 0 •• 0 0 • 0 0 •••• , , • 0 0 0 0 • 30 Social origin .. 0000. o •• 00' 00' ••• 0.00 ••• 0 0 0 ••• 0 ••••• 0 .00 •• 0 •••• 0 • 31 Property 0 0 •••••••••• 0 ••• 0 0 •••••••• 0•000•0•00•0 •• 0 ••• 0•••••••••• 32 Birth or other status ..... 0 • 0 0 • 0 0 •••••••••••••• 0 ••••• 0 •• , •••••• 0 0 32 Status of the country or territory to which a person belongs .. 0 0 • • 33 Ill. DIRECT LIMITATIONS Introduction .... 0 •••••• , ••• 0 •••••••••••••••••••••• 0 •• 0 0 • 0 ••• 0 ••• 36 National security .. , .. 0 ••• 0 •••• , ••••••••• 0 •••• 00 •• 0 ••••••• 0 o •••• 39 Public order, health or morals ,. 0 ••••••••••••• 0 ••••• 0 0 0 • 0 •• 40 Interest of the State , 0 0 • 0 0 •••• 0 •• 0•00•000000 •• 41 Legal incapacity 0 •• 0 • 0 • o •••••••••••••••• 0 •• 0 •• 43 Non-performance of legal obligations .. , 0 •••••••• 0 0 ••••• o ••• 0 •••• 44 Knowledge of a trade or profession ., o ••• 0 0 • 0 •••••••• 0 0 0 ••• 0 44 Passport and visa restrictions 0 •• 0 • 0 •••• 0 •• 0 •••••• 0 ••••• 45 Public emergency 0 ••••••••• 0 0 ••• ,•0000•000000 •••• 0 •• 0 • 0 0 • 46 IV. INDIRECT LIMITATIoNS Introduction 0 ••• 0 ••••• 0 •• 0 0 • 0 ••••• 0 0 0 0 0 ••• 0 ' 0 0 • 0 0 • 0 •• 0 0 0 •••• 0 0 •• 47 Economic measures 47 v CONTENTS (continued) Cllapl~r Procedures 49 Remedies 51 Sanctions 53 V. TRENDS AND CONCLUSIONS Introduction 56 The right of a national to return 56 The right of a foreigner to leave 57 The right of a national to leave 58 Passports and visas 60 Availability of remedies 63 VI. PROPOSALS Introduction .... ................................................. 64 Draft principles on freedom and non-discrimination in respect of the right of everyone to leave any country, including his own, and to return to his country 64 National action 67 International action 69 ANNEXES I. How the study was prepared 74 n. Outline used in the collection of information and in the preparation of Conference Room Papers 79 In. Development of article 13 (2) of the Universal Declaration of Human Rights 82 IV. Development of article 12 of the draft covenant on civil and political rights 88 V. International consideration of related problems 94 VI. Draft principles on freedom and non-discrimination in respect of the right of everyone to leave any country, including his own, and to return to his country 113 vi INTRODUCTION HISTORICAL BACKGROUND The right of everyone to leave any country, including his own, and to return to his country is founded on natural law. Socrates regarded it as an attribute of personal liberty. In his dialogue with erito, he made the laws speak thus: "... we further pro­ claim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him. None of us laws will forbid him or interfere with him. Anyone who does not like us and the city, and who wants to emigrate to a colony or to any other city, may go where he likes, retain­ ing his property."l However, subsequent usage subjected the right to various restrictions, sometimes leading to its nullification. Thus, the struggle between the individual who wished to leave his country and those who wished to prevent him from doing so, reaches back into antiquity. The right to leave is implicit in the great migrations which peopled the earth before the dawn of history and subsequently, such decisive mass movements as the intermittent eruption of the nomads from the deserts and steppes of Asia and Africa, the voyages of the Malayo­ Polynesians into the vast reaches of the Pacific and Indian Oceans, the Hebrew exodus from the land of the Pharaohs, the settlements of East­ ern Europe and the colonization of the Americas. More recently, the right to leave manifested itself in the flight of populations displaced by the conquest or partition of their homelands which incidentally raised the important question of their right to return to their respective countries. In ancient times the right to travel was also invoked in connexion with the right of innocent passage, which was often won by force of arms. In this manner, Moses fought against the Edomites when he led Israel in search of the Promised Land,2 and the Greeks warred on the Mysians when they marched to the siege of Troy.ll The earliest recorded treaty of passage was concluded between neighbouring Germanic tribes during their 'revolt against the Romans in A.D. 70.4 1 Plato, The Dialogues, translation by Benjamin Jowett. 2 Old Testament, Numbers, Chap. XX, No. 17. 8 Rorace, Epode XVII . • Tacitus, The Histories, book IV, chap. LXV. 1 The chronicles of Chao Ju~Kua, Ibn Batuta and Marco Polo bear witness to the comparative freedom whid1 they enjoyed in leaving and returning to their respective countries as well as in entering and leaving the many kingdoms of Asia and outlying islands through which they travelled in the middle ages. To justify the travel and soJourn of Spaniards in the New World, the Dominican priest, Francisco de Victoria, said at the onset of the 'sixteenth century: "It was permissible from the beginning of the work! for anyone to set forth and travel wheresoever he would."5 By describ­ ing banishment as one of the capital forms of punishment, he also rein­ forced the right of return to one's country.o To uphold the freedom of navigation, and more particularly the right of the Dutch to trade in the East Indies, Hugo Gmtius postulated the following principle: "Every nation is free to travel ito every other nation." He named it a "most specific and unimpeachal:tle axiom of the Law 'Of Nations, called a primary rule or first pril1cipIe, the spirit of which is self-evident and immutable".7 T.he Swiss jurist, Emer de Vattel, wrote in the eighteenth centUTY: "It is not to be supposed that a man has bound himself to the society of which he is a member in such a way as to be unable to leave the country when his business affairs 'require -it and w:hen he can absent himself without harm to the country."8 He also defended the right to emigrate in the following words: "They may leave a society which seems to be undergoing a process of dissolution or re-creation; and they have the right to withdraw elsewhere-to sell their lands and to carry all their goods.
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