LAWS OF INTERNATIONAL TRAVEL WITH SPECIAL REFERENCE TO PASSPORT AND VISA

DISSERTATION SUBMrrTEO FOR THE AWARD OF THE DEGREE OF iHasiter of ^Ijilodoplip IN POLITICAL SCIENCE

BY ANSAR AHMAD

UNDER THE SUPERVISION OF PROF. ISHTIAQ AHMAD

DEPARTMENT OF POLITICAL SCIENCE ALIGARH MUSLIM UNIVERSITY ALIGARH (INDIA) 1994 DS2722

'r '*[ i>5-2^22-,

\^iismuli\'^^^^'^' DEDICATED TO MY PARENTS Aligarh Muslim 4Ji)iver8ity 1 Phonas\^^''"''' ^^''^^ Aligarh—202002 ^^=>vj/ VMamal : 366 DateJ 18.04.95

•c r> TIFICATE

This is to certify that the work entitled "Laws of Inteu^ational Travel with Special Ref­ erence to Passport and Visa*^ has been completed by Mr. Ansar Ahmad under my supervision. In my opinion#this dissertation is suitable for submission for the award of the degree of M.Phil in Political Science. Jr.a^i:=pf'—' (PHDF. ISHTIAQ AHMAD ) CONTENTS

PAGE NO

ACKNOWLEDGEMENT

PREFACE 1-3

CHAPTER-I Growth and Significance of International

Travel 4-29

CHAPTER-II International Travel and the passport

Regime 30-57

CHAPTER-III Passport for Refugees and Stateless

Persons 58-88

CHAPTER-IV Law of Passport and Visa in U.K. ,U.S. A.

and India 89-114

CONCLUSION 115-125

APPENDICES

BIBLIOGRAPHY. ACKNOWLEDGEMENT

I feel it -y primary duty to bow my head before the Almighty Allah--..la, the most merciful, cherisher and sustainer, who bestowed on me the gift to explore new front­ iers in my studies.

For the cc.'-pletion of this work I am greatly indebted to Professor Ifci. ,_3q Ahmad, who has supervised the entire project right from its beginning. It is due to his able and intellectual guidance, constant encouragement and unhesitant help that the work could be completed.

I am also thankful to Prof, Shan Mohammad, Chairman, Department of Political Science for the interest shown in ray research work. I am equally greatful to other members of the department particularly Prof, A.S, Beg, Dr, A, R, Vijapur and Mr, M, Aaner Beg for their concrete and enlightened suggestions on the subject.

My thanks are due ^ dcie staff members of Indian Society of International Law, New Delhi, Maulana Azad Library, Allgarh liuslira University, Aligarh, Library of Food Craft Institute, University Polytechnic, A,M.U. , Seminar Libraries of the Depart­ ment of Political Science, Department of Commerce and Department of Law for their full support and help in collection of relevant material for this work. I shall be failing in my duty if I do not express my deep sense of gratitude to my revered parents and loving brothers —- Molvi Neshat Ahmad, Hafiz Seraj Ahmad/ sisters Mahmooda Khatoon, Parida Khatoon, Shaheeda ^hatoon and brother-in-law Mr. Imteyaz Ahmad whose patience, encouragement and blessings have always been a source of inspiration to me,

A special heartly word of thanks to my cousine Ms,Anwari Khatoon for her constant encouragement and moral support at every stage of my study, I am also obliged to my fellow research scholar Ms.Naghma Farooqui for her valuable help and suggestions.

Last but not the least I owe ray obligations to my friends Mr. Mohd. Andaleeb Ahmad, Mr, Amjad Ali Ansari, Mr, Jawed Akhtar, Mr, Mohd, ^iustafa Ansari, Mr, Shamim Anwar, Mr, Ejaz Ahmad Ansari and Mr, Firoz Ahmad Khan who helped me in accomplishing this work.

( ANSAR AHMAD ) PREFACE

The movements of persons across frontiers represents an era of a particular problem of interna­ tional law. States enjoy an absolute and uncontrolable discretion or sovereign power to determine whether they will permit their objects to travel abroad and whether, and on what conditions they will permit the entry of aliens. The conditions of their entry, if it be allowed at all, the treatment due to those admitted and the permitted circumstances of their repulsion are matters commonly consigned without further enquiry to the realm of sovereign state power. More-over there are obstacles put by the authorities for crossing the national frentier^. With the result, there is need for documentation, passports, visas and other conditions for entry. These are the areas which need a thorough and in-depth study. It is hoped that the present study will fulfill the gap hitherto unfulfilled.

The present study consists of four chapters^ In the first chapter a detailed account of the historical growth of travel combined with the importance which it has in the present day world has been presented. In the second chapter, the evolution of passport system, its need, and the role v;hich passports are intended to play, commonly recognised principles in the issue of passports and visas and alternative travel documents which are acce­ pted in lieu of passports have been throughly examined.

Chapter third deals with the passports and other travel documents issued to refugees and stateless persons. The circumstances which necessitate a special identity and travel document to these persons and their (document's) development under the auspices of the League of Nations and the United Nations have also been presented.

Chapter fourth sheds light on the passport rules in the United Kingdom, United States of America and India, Lastly a brief conclusion of the study has been given.

In addition to the standard works available all the relevant origin-sl source materials have been consulted for the purpose of this study. If any aspect relating to the topic is not covered^ it is due to the lack of materials available on the subject, as has been accepted by Turack Daniel in the following words s "The materials relating specifically to passports would be very short indeed, as very little literature exists on the subject. On the other hand any attempt to cover all the source materials on the subject would touch literature of ephemeral interest and would contain so many entries as to be of limited practical value to those seriously interested in the subject". CHAPTER -I

GROWTH AND SIGNIFICANCE OF INTERNATIONAL TRAVEL

Since antiquity man has been prone to migrate from one place to another. He searched for things he wented and travelled for food, shelter or just for curiosity. At times large scale movements wtre caused by changes of climate, dwindling food supplies or hostile invaders. The Aryans left their homes in Central Asia due to climatic change leading to dwindling food supplies. When man moved from country to country "he cransformed the entire length of these countries and changed the racial, religious and linguistic composition of such lands. While retaining his own tradition, he adapted himself to new conditions and environment as well as imbibed the local flavour with great abandon.

Due to the absence of roads and other transport facilities travel had to be the hard way and this led slowly to development of land routes, =s also river and sea navigation. Man pioneered the facilities and with the passage of time these generated increased travel for a variety of reasons including wander lust, conquest, gain for riches, propagation of religion and for pilgri­ mage. Travel in the distant past was not a thing of plea- 2 sure and enjoyment as is the cese now. It was full of danger and people could go on their own risk. The hazards of travel were enormous and these often meant death caused by wild animals, marauders, inclement weather , sickness and lack of food and water.

In due course other urges, other motivations made man travel from one place to another. The primary motive for which travel was undertaken related to trade and commerce and activities associated with it. The traveller in this period was thus a trader and a metchant looking for merch­ andise and engaging in trade and commerce. There wes however another type of traveller whose motive was other than trade and commerce. This traveller w?s a pilgrim, a scholar in search of ancient text and a curious wayfarer looking forward to nev/ and exciting experiences. Seeking knowledge was his primary objective.

There v;as no prohibition for individuals on moving from place to place and country to country . The cumbersome procedure as we witness in travel today were not to be found in those days. No travel formalities exsisted and travel was a simple affair.

Tr?de and commerce wes however, the strongest force at that time. It made people travel to distant lands in order to seek fortunes. The invention of money by Sumerians (aaiaylonia ) and subsequent development of trade and coiamerce is considered to be the most sign­ ificant development of the time which paved the way for the growth and organisation of international travel. Gradually the opening of new trade routes gave a big thirust to travel. Travellers from far off lands started moving abouc in large numbers and visited many distant places for the purpose of commerce. With the opening of new trede routes international tr?>vel bec-^me easier and rather more regulated. At the market places travellers made contacts with each other which resulted in incre­ ased flow of trade and cocr.merce. Trade relations gradually natured into cultural relations which became the basis of better underfetanding of each other's way of life.

Some of the earliest travellers probably, were the Phoenicians.They were perhaps the first reel traveller in the modem sense as they travelled from place to place as traders. i-arly travel in the Crient particularly in India and China was also largely based on trade and con-merce. Travel to India in particular was undertaken from allover the ancient world. This was for a variety of reasons. The most important among them being trade and commerce. India and China enjoyed the reputation of being countries of fabulous wealth where trade and commerce flourished. There are enough historical evidences which suggest that Indian merchants have gone to various parts of the world to develope economic and ccirjr.ercial relations. It is also found that large number of merchants and travellers have come to India from different, countries of the v;orld. This trend continued and bec^kme more marked in course of time with Europeans heading towards the Indian shores fcr the sole purpose of trade and commerce.

In ancient Greece, evidence of considerable tourist traffic is found, particularly for the cli'n-.pic Gemes end other festivals. Such travel sometime evoked adverse resp-onse and some of the Greek thinkers like Plato did 8

not view these travel with much favour. On the contrary, the contri-outicn made by the foreigners and visitors to the i-rosperity of Athens was recognised in the fourth century B.C. and Xenophon the author of the Athenian Constitution was favourably disposed towards tourism, Ee went to the extent for recommending construction of hotels for visitors at public expenditures. Tourist traffic was greatly encouraged under the Roman Empire, because of excellent road anc sea communication and conditions of peace , Large number of Roman traveller went overseas and still larger number of other notion?ls visited Rome from all parts of Europe, Romans used to travel upto a hundred or more miles a day using relays of horses, furnished from rest posts five to six miles apart. They travelled to see the temples in the Mediterranean Sea and the famous Pyramids of Egypt, They v/ere drawn to Greece to study Greek art, legend and civilisation and thence moved to other areas famed in those days. Medicinal baths called 'spas* and sea side resorts which were developed during this period were very popular with the Romans and were associated with pleasure travel. The concept of pleasure travel as it exists in the west perhaps has been drawn out from the traditions of the Rom.ans, Owing to peaceful atmosphere and good transporta­ tion system the upper class merchants and middlemen prosp­ ered through extensive trade and ccnmerce within the empire as well as with other countries. Wealthy itomans had a significant amount of leisure time for persuing 7 recreational and pleasure activity and for travelling.

The fall of Roman Empire in the fifth century v.as a great setback for pleasure travel in Europe, Alongwith the decline of Roman Empire, because of in-built causes, ca:7ie a sharp decline to trade and corrjnerce.

The condition of the Soman Empire exemplifies the general conditions that are applicable to modern times in fostering the grov.th of travel, namely, peace and political stability, economic prosperity, accepted medium of exchange, efficient transportation system and leisure time. All of these conditions facilitate travel. During periods in which these conditions do not prevail, travel tends to be limited to that which arises out of Q necessity. The Kiddle Ages, for example, was a period in which travel was limited due to political instability, lack of extensive trade and commerce, inefficient trans­ portation and limited leispure time. 10

During the Middle iSges travel for religious purposes assumed a significant- importance , though it was not unknov;n in ancient time. Going on a pilgrimage became a well established custom in many parts of the world. People travelled internationally to visit the Holy Land, Vatican, Angkorwatt and Mecca and a multitude of religious attractions. Pilgrimages served as a powerful means of forging unity and understanding between people from widely different regions. Great religions th?t slowly penetrated a foreign land, such -s Christianity in Europe and later in America and Buddhism, Islam and Hinduism in Asia permitted the assimilation and perpetuation of very distin­ ctive language, literature, music, art, architecture, philosophy and forms of government. Religion thus played and continues to play a crucial part in the development of international travel.

Another category of travellers appeared in the later middle ages comprising students from all over Europe, who visited centres of learning particularly the new univers­ ities and institutions like |>aris and Oxford, Study at a foreign university was considered as an added qualifi­ cation for the select few who belonged to the learned, the cultured and aristocratic classes. 11

With the considerable improvement in the quality of roads and transport services tourist traf ic received much impetus, specially among the better off pecple and their journeys increased in the nunber of places visited "nd the d^~ys spent. It also improved the commercial relations among the nations of the world. Trade fairs, the precuscr of the modern exposition, were important ccmrr.ercial attrac­ tions during the middle eges and constituted another reason for international travel. 1 ? Product fairs, trade shows, and markets are still attractions today, to pleasure travel as well as for businessmen. Today too the bulk of the tourist traffic is generated by trade and commercial links.

The Renaissance marked the next important stage in the development of travel. It aroused a new spirit of enquiry. Travel became the means of acquiring culture in Europe, Francis Bacon, one of the greatest represen­ tatives of the spirit of Renaissance epitomized travel thus. "Travel in the younger sort is part of education, 14 in the older a part of experience". One of the by­ product of Reniassance was the spirit of adventure and and discovery as the new motivations for travel, Columbus, 12

Mecro Polo, Vasco-De-Gama, Ferdinand l-'.pg <=Llan, Sir Francis Drake all these great explorers extended the horizons of the world.

The great travelleisventured to explore distant lands for gaining knowledge and experiences. Many of them spent many formidable years of their lives in travelling. Probably the greatest traveller remembered from the distant past vas f^eun Tsang, a devoute Chinese Buddist,v/ho made the perilous journey to India around 633 A, D, His main mission was to collect and translate ancient Buddist Scriptures, The first Medieval traveller who reached the Orient was probably Benjamine of Tudela, a Jewish Scholar, who left Sarcgos:. in the year A, D. 1160. He wrote a detailed account of his thirteen year long Journey through Europe, Persia and India, giving infonn- ation on the Jewish communities and the Geography of various places he visited. Yet, another famous traveller who recorded interesting account of his travel experi­ ences was Ibn Batuta, He wrote a detailed diary of his travel experiences in parts of Asia and Africa, Merco-Polo spent almost 25 years in Asia during the later part 13

of the l3th century. He travelled through Persia and Afghanistan to the 'roof of the v;orld', the then unk­ nown Palmir Plateau. During his Journey he visited China, Jawa, Sumatra, India and Cylone, Mairco-Polo made a description of a place i-ipangu (the present day Japan) in his memoirs. The great explorer Christopher Colu­ mbus started -is historic Journey in 149 2 to find a new route to India and in the process discovered the new world of itoerlca. Two of columbus's contemporaries who also beca.T.e famous and wrote excellent accounts were Vasco-De-Gama who opened the sea route from Western Europe to India in 1498, and Ferdinand Magellan whose ship seilej around the world. Some European travellers who visited Asia especially China and India during this period were Francisco Friar and John of Monte Corrino. Later on in 16th and 17th centuries many more European travellers and adventures visited f^r off places in search of knowledge. The 1st great sailor to do a west­ ward Circumiiavigation of the world was Francis Drake who was knighted by Queen Elizabeth I in the year 1581. In the 13th century Captain James Cook made three long voyages to the Pacific, 14

The expeditions of these great travellers gifted them with great ideas and also with fabulously rich treasures from Asia and ocher areas of the world. The actual number of individuals who participated in various expeditions as travellers in search of knowledge , however, represented only a anall properticn of the affluent of the total population.

Then came the modern period with a bang of industrial revolution, which brought about great technological develop, ment,first in England and later in Europe and America, This development had a profound effect on transport which resulted in the growth of travel in general. Technological development led to the advent of railways and shipping. While railways were resi^onsible for internal travel the steanship crossed the boundaries and made strides in international travel. The shipping technology made a number of innovations in this period. The English felt a great need for improved communication accrcss the Atlantic with America for the purpose of trade and commerce and passenger transportation. As a result rhere wer? great s-crides in the development or deep se? 15

shipping. With passage o± time towards the last quarter of the nineteenth century, emigrant traffic became an important factor in North Atlantic travel. America \sas considered at that time the new world full of opportu^ nities and fortunes for people in Europe . A great number of people from the continent started going to America in search of fortunes, First England and later Germany alongwith other countries became the principal generator of emigrants to the new world. Many travelled to see the new world. Opening of Suez Canal in 1869 brought about, the possibility of a much shortend route between West and East and in turn stimulated the introduction of better steamship carriage to the Par East.

The most significant development of the twentieth century travel has been the growth in air travel since 19 30, In Europe , the years immediately after world war I witnessed the attempts to create commercial airlines. The war itself had the direct bearing on the development of air transport. Though commercial air travel was started after the first world war and slowely grev/ between the two Wars, it was only after world War-II that it became popular for passenger travel , The post world war II era brought in Improved, larger and faster flying machines covering not only the transatlantic routes, but biggest step forward in the growth of world travel. The removal of the war time restrictions on international travel and the tremendous increase in speed, safety and comfort provided by the new aircraft released the long pent-up wander lust of the people the world overjr This resulted in a noticeable increase in international travel. The increase in aircraft capacity was responsible in lowering •irfares. The fall in air fares attracted large number of people to undertake air transport for foreign travel.

The advent of Jet aircraft in 1958 was the most dramatic event which introduc*dan entirely n«w dimension to air transporl: and brought mass travel to its present level , As a result of the entry of jet aircraft in the civil aviation industry, air travel from the year I960 onwards grew tremendously. Great advances have been made ever since in the aircraft jet technology with the introduction of newer and sofisticated planes having emphasis on comfort, luxury, speed and safety. Added to all these, the technological brilliance of the supersonic aircraft have added glamour to the passenger air travel industry. 17

The world is no more a closed society. It is wide open. The world society today transcends all national bcfrriers and people frem one part of the world pay frequent visits to another, for different reasons. It creates better understanding with a broader perspective and an expanding image of the outside world. Rapid development of the inter­ national travel during the last few decades has brought the fairthest section of the world within the reach of all of us. The world has now become very small indeed. The introduction of sophisticated and faster aircraft shrinked the distance between countries and created the 'global village* cutting transit time considerably. 17

The technological advances in transportation have certainly changed the world travel picture. Estimates of international travel compiled by the World Travel Orga nisation (v;,T,0.) Secretariateshow ithat there were approx­ imately 279 million international travellers who spent $ 95 billion in 1980, Only in the United states, foreign arrivals totalled 22,5 million, representing approximately 8% of the total international travel arrivals, °

Significance ; Since the early times travel has been recognised to be an instrument of social and cultural understanding. It offers an opportunity to bring about different people in contact, and creates friendly atmosphere which leads to peace and tranquility. It provides facilities for acquisition and exchange of information about the way of life, culture, language and other social and economic endowmjents of the people. Travel induces social changes in the life style through economic benefits, raises standard of living, offers better education, better understanding and an Improved social and state consciousness. It has come to be regarded as a potent tool of social integra­ tion ,

Medlik writes in this context that'v/hen the traveller comes in contact with the place he visits and its population, a social exchange takes place. His social background affects the social structure and mode of life of his destination , He is in turn affected by it and some times carries back home new habits and new way of lifel^9

An important benefit of international travel is the exposure of people to cultures different from their own,i^'othing is remarkable than the impact, on the ordinary 19

mind, of a visit to another country. A trip to foreign country is likely to provide new perspectives and often more appreciation in viewing ones ov.n corrmunity. Travel exposure can provide new standards and new belief system. By viewing a range and diversity of societies, the person is likely to developea wider tolerance for culture other than his own,Travel represents the only universal means of raising level of human experience and achievements in many types of learning , research and artistic activities.

International travel is a passport to peace, 20 understanding and harmony in the world. It removes the suspicion and exclusiveness among the nations of the world. It offers the opportunity to share in breaking the barriers that have historically brought conflict and to join in the creation of catalyst for world peace2. 1 The face to face meeting of the people erases frontiers between their nations and promotes greater understanding and a keen insight into the common problems. It contri­ butes to an open world and free movement of culture and commerce for the benefit of all aBaxikixid . It is the 20

most powerful force in promoting unity in the v;orld.

Dag HarnerskjO'lcl y the late Secretary General of the United Nations said in 19 55 that the importance of travel in the promotion of international understan­ ding should not be under-estimated . He made a classic statement, "For it may perhaps be said that one of the best ways to lay a human foundation for peace is to bring the people of the world closer to each other, to make them understand the different ways of life, to make them recognise the needs and hopes of others, the cares of their daily living and the ideas to which all people aspire, Tiravel is an excellent means of achJL- eving such aims. It is instrumental in overcoming language barriers and contributes to a greater perception of the atmosphere in which normal traditons play so meaningful part. The expansion of travel will help to break down the frontiers which hinder the friendship between the peoples of the world."

Travel has always been an important medium for broadening the horizon of human knowledge. From the very early times, the urge for travel has been 21

inspired by the curiosity to know social institutions and cultural traditions of people. VJrong notions about the thoughts, culture, religion and way of life are dispelled by seeing things for oneself. Reading about other's way of life is one thing, obserying and talking to people is another. Travel is a channel through which ^-'e can promote knowledge and respect among the people of the world. Through this can be built up such bonds of friendship, goodwill in which alorelies the prospects of establishing the lasting foundation of a world community.

The new education for today is travel. A lot of knowledge can be gained through travelling. There are areas about which very little knowledge ean be obtained in schools and colleges. An indepth understanding in those areas can only be had through extensive travelling. That is why it is said that 'travel is education without 1 . 25 class rooms'.

The importance of international travel has been accepted in various statements made out in different national and international conferences. Th U.N. Conference on International Travel and Tourism held in Rome in 19 63, 22

for instance, declared that it was "Fully aware of the social^ educational and cultural impact of tourism and of its significant. contribution to the promotion of international good-will and understanding and to the preservation of peace between the people. In 19 66 the U.N, General Assembly designated 1967,as International Tourist year' declaring tourism as a passport to peace with the hope that it "should help to promote goodwill among men, a hightened awareness of the ridfi culturel heritage of the different nations and a deeper appreci­ ation of their worth and thus contribute to the strength- ening of peace in the world." 27

The Manila Declaration of 1980 reestated the segnificance of international travel in these words: "With respect of international relation and search for peace based on jistice and respect of individuals and national aspirations, tourism stands out as a positive and ever-present factor in promoting mutual knowledge and understanding as a basis for reaching a greater level of respect and confidence amongst all peoples of the world. "^® 23

International travel not only touches social and cultural fabric of the society, it is of immence economic importance too. The greater importance of internctional travel in fact arises from its contri­ bution to the balance of payment and foreign exchange earning of a country. International travel is the second largest item of the world trade surpassed only 29 by oil. It is an important generator of national income, a contributor to balance of payments of the countries B medium: of earning foreign exchange, a provider of employment and a powerful factor of economic development. "Travel is the fourth dimension of modem economies "'^^ said Andre Siedfricd,-

Increase in national income has motivated ir.any countries, particularly the developing countries to attract the foreign travellers, '.;hen travellers pay for goods and services in other countries these amounts are reflected as national travel receipts for such coun­ tries. The contribution made to the economy of a country v;ould depend upon these receipts and would establish the importance which foreign travel has for that country. Income 24

from foreign travel in the form of foreign exchange earnings adds to the national income and invisible export may offset a loss on the visible trading account and be of critical importance in the overall financial reckoning. Foreign travel is the only export trade that earns large foreign exchange without depleting national resources and actually exporting any material goods. This is the only area which brings in return without any secrif ice on the part of export- ing countiry. 31 Not only the developing countries but also some developed countries have sought to improve their balance of payments through foreign travel. Without earnings from foreign travel majority of the countries in the Pacific and Far East could have had a weaker balance of payments position. Foreign travel is one of the most importani: export itemsof U.K., Spain, Italy* Ireland, Newzealand , Switzerland and Mexico.

The economic importance of international travel can also be appreciated with reference to its contri­ bution to the generation of employment. Medlik says 25

•travel as a source of employment is particularly important for countries with limited alternative sources of employment as in the case in non-industrial areas deficient in natural resources but rich in scenic attractions and pleasing climate*. 32 ^'illlions of people throughout the world now depend directly or indirectly for their employment on travel and tourism. In India the National Council of Applied Economic Research (NCAER)estimated that in 1975 about 9,33,000 perscngwere directly or indirectly employed in travel industry. 33

After all foreign travel is of vital impor­ tance for rBpid economic development in developing countries. Its importance.as a contributor to economic growth is so widely accepted that year after year through-out the world massive amount is pouring in for the development of travel industry.

Thus international travel has both economic and non-economic significance. If on the one hand it brings about international understanding, tolerance peace and unity, on the other it earns huge foreign 26

exchange. Therefore in ultimate analysis, 3 country which succeeds in attracting foreign traveller^, makes a double gain , It earns foreign exchange for what it does not physically export and it creates a tremendous amount of goodwill in foreign countries which can not be measured in terms of money. 27

References

1. Larnbert, S, Richard^ "The fortunate traveller", Andrew Melrese Ltd, London, 1950, p, 5. 2. Bhatia A,K., 'Tourism Development' Sterling Publishers, New Delhi, 1991, p. 1. 3. Ibid p. 2 4. Kaul, R.N. , "Dynamics of Tourism', Vol.1, Sterling Publishers, New Delhi, 1985, p. 8. 5. Ibid. p.9. 6. Bhatia, A,K., Op. cit, 2, p. 4. 7. Gee, Chuck Y, 'The Travel Industry' The Avi Publishing Co., Inc. Westport, Connecticut 1984, p.18. 8. Chib, Som Nath, 'Perspective on Tourism in India; Sardar Patel Memorial Lectures', New Delhi, p.3. 9. Gee, Chuck Y. , op. cit. 7 p. 18. 10. Ibid p. 19. 11. Bhatia A.K, op.cit. 2 p. 3. 12. Gee, Chuk Y, op.cit, 7 pp. 21-22. 13. NoTval, A.J., 'The Tourist Industry*. A National and Inteimational Survey*. Sir Issac Pitman and Sons Ltd. London 1936, p. 29, 14. Sharma, Vivek, *TouristP in India' Arihant Publisher, Jaipur, 1991,p. 1. 15. Bhatia , A,K. op. cit, 2, pp. 8-9. 28

16. Ibid, pp. 20-21, 17. Gee, Chuk Y, Cp.Cit. 7,p. 27. 18. Ibid, pp. 28-33. 19. Bhatia, A.K. op. cit. 2, p. 197. 20. Negi, J,M,S,, Tburism and Development Gitanjali Publishing House, New Delhi,1990, p,99, 21. Gee, Chuk Y. Op,cit, 7, p. 29. 22. Kaul, R.N. op. cit. 4 p. 35. 23. Negi, J.M.S. op.cit. 20, pp, 102-3, 24. Sharma, Vivek op. cit. 14, p, 52. 25. Kaul, R.N. op.cit. 4, pp. 51-52. 26. Ibid, pp. 51-52. 27. Ibid, pp. 51-52. 28. Ibid, pp. 51-52. 29. Geey Chuk Y. Op. cit. 7, p. 28. 30. Sharma, Vivek, op. cit. 14, p. 30. 31. Kaul, R.N. op. cit. 4, p. 66. 32. Sharma , Vivek, op. cit 14, p. 46. 33. Bhatia, A.K. op. cit. 2 , p. 300. 29

C H A P T E lUlI

INTERNATIONAL TRAVEL AND THE PASSPORT REGIME

Untill world war I, barring a few countries/ states had generally not required any travel document from foreign travellers and people travel from one countiry to another without let or hinderance. The two world wars and the dev­ elopment of modem means of fast travel have, however, led to greater control by many states, which is done by means of passport and visa. Thus possession of a passport has become an absolute necessity for foreign travel. Discussing the nature and history of the passport, Poul Weis in his book 'Nationality and Statelessness in International Law' states:

"While the passport has been used for centuries its meaning has undergone considerable changes in the course of time. Its first use in an English Statute was in 1558, where it was applied to a license given by a military authority to a soldier to go on furlough. The use of passport issued by the authorities of the country of nationality to nationals travelling abroad became more frequent in the l9th and the beginning of the 20th century. The 30

possession of a pass-port was, however, not as a rule a requirement for the crossing of the f rDntiers,©nly since the first world war has the passport system in its modem sense been introduced in roost countries, the system whereby aliens who wish to enter a foreign country are required to produce a passport issued by the authorities of the country of their nationality."

In antiquity a travel document was document was granted as a special privilege to only a small number of persons. The Roman Einpire was the first to introduce a document which was just like a passport which demanded free and safe passage to foreign territories for the holder.

In the middle Ages royal envoys and foreign ambassa­ dors were provided with special documents which entitled them to particular privileges while travelling and in the host country. With the extension of commercial relations passports were in certain instances granted to merchants to ensure their protection. 31

The modern period of passports developed in the I6th and 17th centuries. Such passports were not only a measure of policy but also a means of protection against iiacreasing hordes of mendicants and vagrants who had become a menace to safe travel. They were Instil tuted In 18th centux^ France to enable beggers and vag­ rants to return to their country and prevent their agglome­ ration. The French Rewjlutlon In 1789 brought dt)out a more widespread application and a stricter organisation of the passport system. In the first year of Revolution the liberal principles which then prevailed led to the suppression of passports. The constitution of 1791 proc­ laimed complete freedom of transit as one of the natural incontestable and Inalienable rights of man. Within a short time, however, the establishment of a severe pass­ port system as a means of control was necessitated by the menace of political emigration , the desertion of soldiers and their flight abroad* the invasion of vagrants as well as by the requirements of natural defence, Accor­ dingly the National Assembly In 179 2 pxohiblted «11 persons without passport from travelling in France and from entering or departing.

For similar reasons aildiln an attenpt to prevent the spread of revolutionary ideas as well as for purposes of reprisal the passport system was shortly there after intotoduced in nearly all European countries except England, 32

Swedan and Norway. In this way the passport formerly a dlscrecionary document required only by certain classes of persons was transfonned into an official paper, limiting individual freedom and imposed upon all solely in the interest of the state.

However, the liberal doctrine that the state must nothinder freedom of transit except when public order necessitates restriction, gradually came to be recognised in the 19th century. The system of passports was firstr mitigated and later suppressed except during times of emergency. By 1914 the compulsory passport system was abolished in almost all states. It operated only in Persia, Itomania, Bulgaria, Columbia, Russia and in a few others.

In the United States the passport in the lest century was a certificate of citzenship granted to citzens who wished to travel or reside abroad. N© passporr was required for entrance into or for residence in the United States. AQ exception was made during the Civil War, when all Anericass and foreigners had to present a passport on entering the country. * 33

In thecconfusion produced by the first world war, not only did the compulsory passport system re­ appear but it was used much more generally and strictly than ever before. During this time of general suspicion, of constant vigilance against military espionage and of food shortage it seemed the only means of controlling aliens and of assuring the protection of the military and economic interests of the states. The return of peace did not bring with it a return to freedan from travel restrictions. There were various resscns economic, social, and political* which are responsible for the enactment of compulsory passport systen.The severe economic depression which followed the war, the widespread unemployment, the removal of populations after the treaties of peace, the revolutionary disorder, the military crises and the strong protect ion isni of most governments contributed to prevent a return to liberal pre-war period. Political changes in the post-war period which produced large dis­ locations of population also contributed to the enact­ ment of compulsory passport system. Every nation felt obliged to prenent tfhe entry into its territory of un­ employed, vagrant, spies, political agitators and persons endulging in exchange speculation, and generally to 34

limit and control the entry of foreigners. In countries where there were marked trends towards emigration, there were growing tendency to limit freedom of exit , and states endeavour to accomplish this by a systematic control of migratory uovements. The passport became compulsory every­ where, and visa for entry, exit and transit were required by the most of the goveenments.

The Leage of Nations after its fonnation had tried to set up a uniform system of passport with a view to their gradual abolition. An International Conference held in Paris in 1920 under the auspices of the League while recognising the impossibility of a complete return to pre-war condition, recommended the introduction of a uni­ form type.of passport. It further recommended the exclusion of any fiscal feature, the limitations of certain kinds of visas and simplification of all formaiities. The reco­ mmendations of the conference were, however, accepted by only a few governments and that with many reservations.

Thus in modem times a passport has become a necessary condition for travel abroad. Countries gener­ ally would not permit entry into their territories to 35

an alien who Is not In possession of a passport. Pass­ ports are also required from aliens due to the feet that if it is subsequently found that the alien is undesirable, then the state will try to deport him elsewhere and practical difficulties may arise if he has no passport or c if no other state is willing to issue him with one,

A modem passport is largely an identity and travel document Issued to the states own nationals and in the no una1 Intercourse of state, a foreign national passport is, as a rule accepted as Prima~facie evidence of the holder's nationality. It is an official document Issued in the name of the head of the state in favour of persons who wish to travel or sojourn in foreign countries. It contains a request to all persons who may be concerned to allow the bearer without let or hindrance and to afford him every assistance and pzotectionwhlch he may stand in need.

The Encyclopaedia Britanica defines a passport as; "A fonnal document or certification Issued by a national government Identifying a traveller as a citzen or national with a right to protection while abroad and right to return to the country of his citzenshlp. ••' 36

A passport is thus a document Issued by national governments to their own citzens and permitting them to leave the country and to enter to a foreign country. It assures the holder, of the diplomatic protection of his home state whilst travelling or sojourning abroad* In addition a passport implicitly confers upon the traveller the right to return to his own country. Justice doughlous of the United States Supreme Court opined in Kent. V/S Dulles that a passport is not only of great value indeed necessary abroad, it is also an aid in establishing cizen. snip for the purposes of re-entry. States too require pass­ ports from entering aliems to establish the identity and nationality of the holder and to ascertain their setum- ability to the state of issue. This retumability clause is of crucial importance as indicating the destination to which the alien may be removed on his expulsion or subsequent removal.

Although passports are normally granted in favour of a state's nationals , they are sometimes given to refu­ gees and stateless persons on humanitarian grounds and on Qce^slons to aliens who have been long resident in 37

the country. But the passports issued to these persons are of a different nature to that of an ordinary national passport*

There are three lategories of national passports viz (a) ordinary passports (b) official passports (c) Oiplo- matic passports. Ordinary passports are issued in all cases except where official or diplomatic passports are issued. Official pas^>orts are issued to government officials who may be visiting abroad in the course of their official duties, such as attending international confe - rences or proceeding on some business of the state. It is also given to goveenment employees assigned to foreign service establisl^ents* Diplomatic passports are issued in favour of diplomatic and consular officials. It accords special pF^Tlleges to the holder. In this connection oppenhiem writes : "to ensure the safety and secrecy of the depolomatic despatches they bear 'couriers' must be granted exception from civil and criminal jurisdiction and afforded special protection during the exercise of their office. They must have the right of innocent passages through third states. It is therefore necessary to provide them with special passports*. Diplomatic pass­ ports are also issued in favour of the other members of 3S

foreign service and their f dnallles« In some countries they are also Issued to ministers and senior officials of the government of sufficiently hdLgh status who proceed abroad for the purpose of attending International conferences.

Apart from the aforementioned national passports there are other travel documents which may be tendered In lieu of passport* These Include non national travel document Issued to refugees and stateless persons and special travel documents of crfiw members. The Leege of Nations and Its successor organisation the United Nations succeeded In the adoption of a number of agree­ ments and conventions relating to the issue of travel document to refugees and stateless persons,* The Inter­ national Civil Aviation Organisation (ICAO) and the Inter-governmental Moritlme Consultative Organisation (IMX) have both pioneered the wide spread adoption of International standards and practices regarding the movement of seamen and aircrew.

The 19 65 Convention on Facilitation of Maritime

* See Chapter Ilird for detail. 39

Travel and Transport of the Inter Governmental Maritime Consultative Organization provided for the issue of Seafarers Identity Documents and their reciprocal reco­ gnition. The States parties to the convention undertook to accept Seafarer's Identity Card as stadards, in lieu of passport, when it is necessary foi" the se?»man to enter or leave a country generally for the purpose of his emp­ loyment. Similar Standardisation has been made in respect of aircraft personnel. Under the Chicago Convention of International Civil Aviation Organisation, each member state of the organisation is requested to accept the ICAO approved licence or Crew Member Certificate possessed by an airline flight Crew member, as a suitable travel document in lieu of passport and visa for bearers tempo­ rary admission to the state.

Another type of travel document which are used as a passport is the 'Laissez-passer * issued by the United Nations under the authority of Article 1, Sec.24 to 28 ttf the Convention on Privileges and Immunities of the United Nation approved by the General Assembly on 40

13th Feburairy 1946. These documents are carried only by officials of the United Nations and Specialised Agencies, and the right of return -is implicitly covered by the * provisions of the *Head Quarter's agreements.

While passports are well established in practice which governs the movement of persons across f rentiers, much of the passport practice is dependent upon the provisions of municipal law. It is not always clear whet­ her possession of a passport is a legal prerequisite to travel abroad, whether the individual has an enforceable right to be issued with a passport and whether due process or alternative guarantees are applicable in such matters. On the question of the right to travel also municipal systems vfiry considerably. While such a right finds exp­ ression in a number of international instruments such as. Universal Declaration of Human Rights 1948, Article 13(2), International Covenant on Civil and £blitical Rights, Articles 12(2), International Convention on the Elimination of All Forms of Racial Disc rlmination^ Article

•Agreement between the concerned agency and the country where its head quarters issituated. 41

5(d) and European Convention on Human Rights« IVth Protocol, Article 2(2), State practice in the municipal s^ihere tends to reflect a claim of absolute discretion, rather than any restrictive xrule of general international law. * Since the requirement of a passport for aliens is almost universally accepted, it is clear that a refusal by the nation state to issue such a document may seriously hamper the individual in his exercise of the right to travel. This view was upheld by the Supreme Courts of India add U.S.A.

In S.S. Sawhney v/s Assistant Passport Officer, for example, the Supreme Court held that the individual has a right to travel abroad, and the refusal by the government to issue him with a passport, is a denial of the right to personal liberty and equality before law which are guaranteed by the Constituciop. The effect of this decision was, however, not extensive, for within three months the government had enacted the passport Act 1967, which forbids any citzen or alien to depazrt from, or attemt to depart from, India, unless he holds a valid passport or any other suitable travel document. The right of a person to be issued with a passport now 42

stems from this statute, which also lays down fairly wide grounds for refusal and withdrawl of a passport and thereby hampering the right to travel.

In the United States, Judicial decisions as well as state practice, untill 1950, held the view that the issue of passport is a discretionary act on the part of the Secretary of State and belongs to a class of government action which the courts denied to review. The United States Supreme Court has since departed from this view and declared the right to travel and hence the right to a passport was a right guaranteed by the const­ itution* In 1958, the Supreme Court held in Kent V/s Dulles that the right to travel was part of the liberty, of which the citzen can not be deprived without due process of lew under Fifth Amendment, In 1964 in 1 c Aptheker V/s Secretary of State the Supreme Court held that Section 6pf the Subversive Activities Act.l950 Was unconstitutional in so far as it made it unlawful for members of any Communist Organisation to apply for or attempt to use a passport and thus forfeiting his right to travel. 43

The general rule remains that the question of the right to travel as a fundamental freedom and the issue of passports is essentially a matter within the reserved domain of local Jurisdiction, an aspect of executive control over foreign affairs. States feel themselves free, therefore, to impose those conditions and restrictions which they deem fit, and it is app­ arent th?t the majority of states accept that the passport be used to control the movement of their nationals. It has become a condition for free travel.

The mere possession of a passport, however, in no way assures the entry of the holder into a foreign fttate. The majority of states today pexmit the entry of aliens only with prior permission, which may or may not be granted. This permission usually takes the form of a special endorcement called visa. A person desirous of visiting a foreign country must hold apart from a valid passport an entry visa from the Government of the state which he wishes to enter for the purpose of travel 44

or residence. It is In the form of stamp affixed on the passport of the person concerned.

States has full right to regulate the entry of foreigners into their own country. The granting of perinissior. to enter and leave is a sovereign right of state. The right of a state to permit or refuse entry flows from the generally recognised principles of Contemporary Intematlon Law, The Principle of State 17 Sovereignty.

Open Hiem Summarises the law on this subject as:

"Apart from special treaties of Commerce, friendship, and the like, no state canr.claim the right for its subjects to enter into and reside in the territory of a foreign state. The reception of aliens is a matter of discretion, and every state by reason of its territorial supremacy is competent to exclude aliens from the whole, or any part, of its territory".^®

A visa is defined as "an endorsement on a passpojrt denoting that its (Passports) authenticity.has been examined 45

and that the bearer may be permitted to proceed on his Journey, 19

It is a permission to enter into the country and it is granted by a competent authority or deplomatic, consular or passport authority of the country wherein the holder of the passport desires to enter. The issue of a visa would also signify the consent of the state concerned to give the holder such protection:; which a state is required to afford in accordance with intemationl law and practice. A country csn always make regulations with respect to landing and embarking of aliens, the conditions to be imposed upon them, the exemption to any person or class of persons from all or any of the requirements laid down. It may also make a distinction between persons who wish to enter the territory for a temporary visit and those who wish to come for long residence. Usually dip­ lomatic mission or consultate is authorised to grant a visa in respect of person who wish to enter the country for the purposes of travel and tourism, but in case of long residence generally a special authorisation from the Home Ministry is required. Visas are not given on passport issued by a country which the receiving state does not recognise. Some countries have made special provisions for travellers from unrecognised states, so 46

20 as to avoid any possibility of implied recognition.

For example, Chinese with Nationalist passports had obtained visa to travel to U.K.« the Neitherlands Switzerland, Sweden and Denmark even when these countries had with-drawn recognition from the issuing regime. 21 Visas are also granted to refugees and stateless persons who do not posses a national passport but do posses a valid travel document issued by the country of their temporary residence.

It is regaixled that a visa is only prima-f acie evidence that the holder, according to available infor­ mation and examination , is entitled to enter the state. It is no guarantee that he will be able to do so. The final decision still rests with the Immigration officials who may refuse him pennission to enter the country even though the alien has a valid passport and visa. 22 Any person, for instance who can not satisfy the immigration officers, that he will be admitted to another country after his entry in the in the United Kingdom may be excluded on that ground. 23 47

Like passport there are three main categories of visas viz, (a) diplomatic visa (b) official visa (c) ordinary visa. Diplomatic courriers, members of diplomatic service of foreign state and foreign consular officers proceeding to or returning from their posts, who are in possession of diplomatic passports are invariably given diplomatic visas. They are also given on other pas^>orts in certain cases. For example, British diplomatic visas are given to Cabinet Ministers and important officials r£ foreign governments on official missions, representatives and officials of the united Nations and of other interna­ tional organisations when travelling in their official capacity or official business of their organisation. family members of the Wives and meters of the Diplomatic and Consular service, with the exception to that of diplomatic couriers, are also given diplomatic visas while travelling to and returning from the post where the latter arestationed. Servants ©f persons to whom diplomatic visas have been granted also receive diplomatic visas when travelling with their employers. The official visas are normally 48

granted to foreign government officials travelling on official business for their government and to personnel of delegation and official of certain international organisations where grant cf a diplomatic visa is not justified* In all other cases ordinary visas are given* Ordinary visa is again devided into three types, namely, entry visa, transit visa, tourist visa. Entry visa—.is an endorsement on passport issued to persons who wish to visit a country for purposes of business^ employment, permanent residence, profession etc. Transit visa... is an endorsement on a passport which is issued to a tourist whose destination is somewhere else and is pass­ ing across.Such visitors passing through a country en route to some other destination are granted transit visa on production of through tickets for onward Journey. !Iburist Visa.... is an endorsement on passport issued to a person who wishes to visit a country as a tourist.

The tourist must arrive within six months of the d?te of issue of visa. 25

While the passport and visa remain the universally accepted travel document^municipal systemsmake frequent 49

provisions for the use of substitute documents. This is with a view to facilitate control formalities and to encourage the freedom of movements of the people,

Openhiem states, 'The recognition of a State's Sovereign right to decide questions of permitting entry to its territory to aliens does not exclude the possl^ bility of international agreements dealing with the rights of aliens concluded on the basis of mutual respect of Oft sovereign rights and the interest of the signatory states.

It is evident from this statement that states may enter into agreements with other states by which they may exempt each other's nationals from producing a passport or visa or both on entering the country or they may accept any other travel docuxnent less than a full national pass­ port.

Concerned with the obstacles in the f tee movement of persons between states after the first world war and strict rules of the countries for the requirement of passport and visa as early as in 1926 the l-eague of Nations at its 2nd Passport Conference held in Geneva, 50

expressed the hope that special agreements between various states mlghc bring about a gradual return to pre-war conditions. The Committee of Experts appointed by the United Nations in 19 47 was of the opinion that bilateral and multilateral agreements to waive the passport requirement on a basis of reciprocity should be encouraged. In 19 63 the United NatioreConference on International Travel and Tburism also recommtaCud in its Final Act that states should persue the abolition of the passport through the conclusion of bilateral and multilateraltreraties. Yet it also noted that while much had already been achieved on regional basis, a valid passport is still the most suitable international travel document.

There exist a considerable number of agreements providing for the abolition of visas on the passport issued by the contracting parties.Such an agreement was signed between Belgium and Luxembourg in 19 45. It facilitated the movements of persons between them and provided that Belgium nationals proceeding to Luxambourg, and Luxambourg nationals proceeding 51

to Belgium might be admitted to the two countries on the production of an identity card issued by the cwnpetent locair authorities. In a slnnilar agreement with the Neitherlands, Belgium agreed to recognise a'Certificate of Neitherland's Nationality' as a valid travel document* The Nationals of the two States are not under obligation to carry a passport or any travel document while travelling in each ochers territory • Belgium also entered in such agreements with France and Switzerland. In 19 49 Canada conciuded such reciprocal agreements with Sweden, Denmark, Belgium, Luxembourg and the Neitherlands. In 1952, Sweden, Denmark, Finland and Norway have esta­ blished a 'common travel area' by a similar agreement undcrwhich their nationals do not require to have e passport or other travel document when travelling from any one to any other of these countries or for residence thetein during such time as a residence 28 permit is not required. Freedom of movement was3 29 further encouraged by the Benelux Agreement in I960, Passport control' was eliminated at the international frontiers and provision was made for the issue of a visa valid for Benelux territory as a whole • 52

The United Kingdom and Republic o£ Iireland also formed a common travel area* Citizens of either country can cross the Frontier between their countries without presenting any Identity document . Passengers exanlned at any one point are there-after free to travel to any other part without further examination.

The United States has agreements with a number of countries mainly contiguous and neighbouring ones for abolishing the visa requirement and admitting travel document less than full passport from the nationals of these states. It also has agreements with some non contiguous states for the reduction or elimination of passport visa fee. Some of these, namely France, United Kingdom, Denmark, Norway ,Iceland, Moracco, Tunisia and Portugal waived the visa requirement altogether for American citizens vlsitingfor a 31 temporary period;

The European agreement or regulations governing the movements of persons between member States of the Council of Europe signed at Paris on 13th December 1957 also provided for the abolishion of the passport require, ment. Some bilateral agreements for the suppression of passport between the member states of the organis­ ation of European Economic Cooperation were concluded in 1958 and 1959. These include France-Neitherlands agreement of 15th March 1958, the Neithe rlands-Switzer­ land agreement of 27th March 19 58, the Federal Republic of German,—Neithe rlands agreement of 9th April 19 58, and Italy- Luxembourge and Austria -Belgium agreements. In addition Greece government dispensed with the passport requirement for the nationals of Austria, Belgium, Prance, Germany, Italy, Luxembcurg on visiting Greece, In i9 60 Italy and Switzerland reached an agreement to reciprocally accept an identity card in lieu of passport when presented by other parties nationals for entry to their territories. 32 Besides there are numerous agreements between the states in Europe suck as Agreement between Sweden and Federal Republic of Germany, 19 54 , Agreement between Denmark and Eederal Republic of Germany 1954, Agreement between Austria and Federal Republic of Germany 19 61, Agreement 54

between Austria and France, 19 62, Agreement between Hungary and Gennan Democratic Reptibllc 1969.

A further arrangement was made within the special regime existing In the E.E.C, Fundamentals to the creation of Common market. It provides for the suppression of all obstacles which frustrate the free circulation of merchandise , people, services and capital. Article 48 to 56 of the Treaty of Rome proposed the freedom of movements of workers reser­ ving the member state's, right to: Impose restrictions on grounds of public policy, public safety and security and public health* The state members of the E.E.C. have agreed to recognise 'National identity card of each others nationals in their territory.

The simple production of an identity card or passport is sufficient fonn«ality for the nationals of one member state who seek to exercise their treaty rights in the territory of another member state. 55

Australia , ^ewzealand,Malaysia s^d Singapore also have visa abolishlon agreements with a number o£ countries in Western Europe, France accords special treatment to nationals of those countries in Africa which at one time formed part of the French colonial territory. The United Kingdom requires only entry certificates from the nationals of countries in Asi?,and Africa which are members of the commonwealth.

The successful conclusion on a regional basis of agreements such as those considered above, has resulted in localized travel regimes of remarkable freedom. The acceptance of national identity cards may also have an indirect effect on the individual and on his right to travel^ for he will often have a legal entitlement to such a card'When he has no enforceable right to a passport. 56

References

1. Weis Poul, 'Nationality and Statelessness In International law*, ste^n Publishing Company, London, 1956 page 226, 2. Agrawal, B.R« 'The law relating in to and exit from India', Mettcpolit;=in 3ook Co. New Delhi, 1980, Introductory part. 3. Encyclopaidia of Social Sciences, Vol. 12^J.4. 4. Hackworth, G. 'Digest of International Law' Washington, 1942, pp. 435-52. 5. Goodwin Gill, 'International Law and the movements of Persons bewtween States', Clarendon Press, Oxford, 1978, p. 45. 6. Weis, Poul op. cit, 1, p. 226. 7. Encyclopaidia Britanica, 1965 edition, p. 358. 8. B. Sen, 'A Diplomat's Hand Bpok/of Intajcn»ti6>B*l- L>w ^nd

Practice', Martinus Nijhofif Publications,The Hague,4979,pp.34:? 9. Oppenhiem, 'International Law'Volume I, p,813. ~ 10. Turack, Daniel C, 'Passports in Intematlonsl LPW', p. 142. 11. Ibid, p. 151. 12. Goodwin Gill op. cit. 5, p. 29.

13. .A3;R19 67. 14. Ehrlich, Themas,'Passtorts^Stanford Law Review' I966-I967, p. 133. 15. Ibid, p. 13 -32. 16. Street^Harry, 'Freedom, The Individual and the Law', pelican Biooks,, London.,i 19 63, p. 271« 17. Ojppenhiem, .op. cit. 9, p. 159. 57

18. ibid p. 675. 19. Encyclopaidia of Social Sciences.Vblume 11, p. 13. 20. Goodwin Gill, op. cit.5 p. 26. 21. Lee, L.T. , 'Consular Law & Practice,London« p.184. 22. ibid, p. 184. 23. Goodwin Gill, op. cit. 5, p. 26, 24. S. Sen, op. cit. 8, p. 349. 25. Bhatia, A.K,, 'International {Tourian,*. Sterling Publishers, New Delhi, pp.485-90. 26. Oppenhiem, op. cit.9# p. 159. 27. U.N. Treaty Series, Volume 65, p. 147. 28. ibid. Volume 158, pp. 37 & 47 and Vblume 199 p. 29. 29. Turack, op. cit. 10, p. 89. 30. Ibid, p. 118. 31. B. Sen, op. cit 8, p. 350. 32. 'Turack, op cit. 10, pp. 59-60. 33. ibid ,p,63. 58

CHAPTER -III

PftSSPCRT FOR REFUGEES AND STATELESS PERSONS

Though the world has known the refugee from time Immemorial, the two worldwars of the present century produced unprecedented number of refugees in Europe as well as great political changes.The political tensions and intolerance which resulted from these conflicts caused widespread persecution or fear of persecution. Thus many persons fled from their native state to seek asylum in a foreign country. These persons were in great need of material assistance, but still more critical was the poten­ tial econcir.ic and social disruption in the receiving states Caused by the sudden inflow of refugees. The solution to their problon perhaps lay more within the province of international aid and development rather then in the insti- 2 tution of asylum.

An overview of the most extensive refugee move­ ments that harassed Europe and Asia after worldwar I provides a general idea of the extent of the dislocations. In the year 1918-22 about 1.5 million Russian refugees were stranded, mainly in North, Central and Southern Europe 59

and in the Far East, as a result of Bolshevik Revolution in Russia in I9l7, Russian famine of 1921 and the break­ through of White Russian resistance in Siberia in 19 22. By 1923 there were also an estimated 32,000 Armenian refugees scattered through-out the Near East, the Balkan and other European countries afcer their flight from persecution and massacres in Asia Minor following the collapse of Ottoman of Empire and the adoption by Turkey of a policy nationalism. In addition, the refugees included 30,000 Assyrian, Assyro- Chaldean, Turkish and Assimilated refugees, Chiristian minority groups who before world war^-I lived in Kurdistan and Persian Azerbijan, During the war they were driven from the Ottoman Empire end they subsequently resettled mainly in Greece, Iraq, Lebanon and Syria,

The political and economic repercussions of the war which intensified the refugee problem so enormously, universally affected the countries which had to meet the problem. The general situation was complicated by widespread unemployment, by political and economic nationalism and by severe restrictions on immigration. The largest group of refugees was that of the Russian, who poured into adjacent states after the Revolution and the Civil War, Their situation called not only for 60

linmedlate relief measures, but raised the issue of their status in the receiving countries.

No efforts were made before the war towards securing the general acceptance of a clearly defined legal status for refugees which would make their position secure in hospitable countries and while travelling. The great increase of the refugee problem in the post-war ere accompanied by political, economic and social difficulties made it \itmost necessary to evolve some formula which might provide the refugees some kind of legal status. Some efforts have been made in this direction, few of which have fully succeeded.

However before establishing any legal regime governing the status of refugees, the first step must be a definition of the term 'refugee' itself, A clear definition would facilitate to justify aid and protection , Moreover in practice satisfying the relevant criteria indicates entitlement to the pertinent rights or benefits.

The term refugee is generally held to refer to 61

those who have left or been foixed to leave their country for polltico-religlo->reclal reasons, who have been depri­ ved of its diplomatic protection and have not acquired the nationality or diplomatic protection of any other state. This includes those from whom the state has taken away protection and assistance but without suppressing juridically their nationality, and those whom the state has deprived of their nationality, thus making them stateless. While in strict law the position of these different cata- gories of refugees is not uniform, in practice it is identical,^

Despite the general acceptance of the above definition of the term 'refugee', the agreements and conventions concluded under the auspices of the League of of Nations, for the purpose clarifying the legal position of refugees and ameliorating their conditions, had not given the term a general connotation. Each was limited in its operation to refugees coming from certain specified states of origin. Agreement of 5th »iuly 19 22, for ins­ tance, extended its provisions only to Russian refugees 62

to which were included refugees of Armeftlan origin by the Agreement of 31st May 19 24, Similar approaches were adopted in the subsequent agreements on the subject till 19 51# when the Convention Relating to the Status of Refu­ gees provided a comprehensive and universal definition to the ;:erm refugee. It was further amended in 19 67 as to cover any person who might happen to be a refugee at any time in future. The amended definition reads:

refugee is any persons who owing to well founded fear of being persecuted for reasons of race^ religion, nationality membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his habitual residence, is unable or, owing to such fear, is unwilling to return to it?

The world was plagued with the problem of passports and visas in the years following the 1st World War. Many states had imposed restrictions on the entry of foreigners without passport. It became as a rule necessary 63

for foreign travel. Most of rhe refugees either had no" passport or the passport had lost their validity. In order to travel the primary requirement for refugees was the provision of an identity and travel document anolo- gous to a national passport and the possibility of ol>taining visas. The normal individual is a national of some st?te enjoying the protection of government of that state. But the peculiarity of the refugee is th?t he does not in fact enjoy the protection of the govern­ ment of his state of origin, whether he is entitled 7 to such protection or not. States, provide their nationals passports which entitle them to travel outside the country and give them the right to diplomatic protection while abroad. A refugees ne^d is greater than anyone elses in that he can not even establish himself in any country other than that of his first asylum unless he can legally travel thither. To the extent that he is deprived of the protection of the government of his country of origin and can not be issued -its national passport, special measure had been nacessary to see thet he can be issued some appropriate document that is generally recognized. 64

The pre-eminence of the need for an internationally recognized travell document was in fact such that the first international conference for the protection of irefugees was concerned with arrangement for the issue of such a document.

On 20 August 19 21 the Council of League of Nations appointed Dr, Fridtjof Nansen as lligh Commissioner for Russian Refugees'. He took charge of the High Commission on 1st September 1921 and assumed the task of relief work for refugees, Amongst Either things, the problem Dr.Nansen Was very much concerned with, was securing some agreement to provide refugees with identity and travel document that would give them standing in the country of refuge and thus permit them employment or toable them to travelfrom one country to another in search of opportunities else-where,^

After careful preparation. Dr. Nansen convened an Inter-governmental Confereiice under the auspices of League of Nations at Geneva in July 19 22 to consider a proposal for a travel document for registered refugees which would be acceptable within and between countries and would provide them some legal status. The conference 65

endorsed his proposal for a special certificate of identity to be issued by individual governments to Russian refugees in their territory. This certificate came to be known as 'Hansen Passport' though it was not identical with a national passport. It was valid for one year only, and not for return to the issuing country unless it was specifically authorised on the certificate. Within its limits it was an identity paper of international validity for Russian refugees, intended as a substitude for a national passport. Fifty-four government ultimately agreed to accept this certificate. On presentation 6f the 'Nansen Passport* the refugee might be admitted to the state to which he intended to travel, either after a visa had been affixed or after he had received a certificate permitting him to cross the frontier.

By an agreement of 31st May 19 24 the same provis were ions"^extended to Armenian refugees who were scattered in different countries particularly in Syria and Greece . It was accepted by thirtyeight states.

Practical experience of the application of the arrangement , however, disclosed certain defects. Although 66

the two arrangements secured wide recognition, the extent of practical application, in many countries, fell f&^ short of the standard necessary to give t.ie refugee the benefi-s contemplated when the systems were reco- mir.ended. Also much of the value of the -ravel document is lost, if it dees noc Imply a right to return to the territory of the state which issued it. For then the refugee will find the gravest dificulty in obtaining visa enabling him to proceed to another state, even for a limited period. In the arrangement of 1922 it v;as expressly stated that the issue of an identity certificate to Russian refugees should not in any way imply the right for the refugee to return to the state in which he obtained it, unless it had - special provision to that effect. When the provision of 1922 agreement was extended to Armenian refugees by the agreement of 19 24 it was urged that states should grant such authorisation in all cases where there were no special reason?to the contrary, bu- very few adhered to it.

The lack of a return permission of the certifi­ cate became an obstacle to emigration. The Immigration 67

countries regarded the issue of the identity certificate with a certain amount of apprehension. This led to further efforts to meet the needs of both refugees and hospita­ ble countries, through an improvement and regularisatlon of the handling of the legal question. On behalf of the League council , Dr. Nansen convened the second Inter­ im governmental Conference at Genev? on May 10, 1926, known as passport Conference to consider the improvement of the arrangements concerning refugee identity certifIcatea, He urged a universal application of the identity certificate system, and asked the states to accept the principles of permitting , on the passport, the return of the refugees. He suggested that on each passport could be placed the permis de sejour (Permicted to return ) and the entrance, exit and transit. He also proposed a definition of refugees entitled to this certificate.

According to the definition incorporated in 1926 Agreement the provisions of the agreement applied to any person of Russian origin, or of Armenian origin formerly a subject of the Ottoman Empire, who did not 68

enjoy, or no longer enjoyed, the protection of government of the Union of Soviet Socilist Republic or of the Turksih Republic respectively, and who had not acquired another nationality'•

crnlike the previous arrangements the agreement of 39 26 foresaw the permission to return to the hospitable country and suggested the application of a uniform document of identity and travel. But this arrangement was applied only by twenty three governments, and thus this dream was not realised. More than half of the interested states continued to apply only the provisions of earlier agreements.

It is a notable POlBkt that in addition to Russian and Armenian refugees, there were persons who were without protection and were in the s?ime situation as the refugee groups defined by the said ^greemefit.No responsibility was taken in regard to these stateless persons. Because of the opposition of various states the attempt to make available the 'Kansen passpoirt' to these stateless persons in general had failed when the question of an identity and travel document for other rei^ugees and stateless persons 69

had been negetlated at the Passport Conference in May 19 26 and had been discussed at the Third Conference on Communi- cations and Transit, held in 1927 in Genera . 13 Individual countries had/ however, adopted the proposal of the League and issued passports to those of their residence who were without a nationality, or who, for various reasons could not obtain a passport from their own country or were ineligible for N^nsen Certificate, This document was later provisionally adopted for German refugees,

14 By an agreement of 30 June 19 29 , the provi­ sions of 1926 agreement were extended to Assyrian, Assyro- Chaldean, Turkish and Assimilated refugees who lost their nationality. This was accepted by thirteen governments. In May 19 35, the same provisions were further extended to about 4000 Sar refugees who hsving previously had the status of inhabitants of the Sar, had left the territory on the occasion of the plebicite and are not in possession of national passports.

The Nansen passport became an important legal instrtiment for refugees. Through this first international 70

identity paper refugees of specified catagories became the possessors of a legal and judicial status. It inabled then and their family to travel to destinations where they can get employment or join friends and relat­ ives willing to support them.. The question of passport wasclearly connected with those of immigration and employment and once it had been solved, the Refugee Organisation, with the help of International Labour Office was able to give very substantial assistance in these respects.

The world economic crisis at the turn of the thirties continued to cause unemployment everywhere, and labour regulations for foreigns had become very stringent in many countries. There was an increasing tendency on the part of certain governments to expell frcMTi their territories, refugees whose certificates'-of identity and travel had expired, but who were not in possession of entry visas to neighbouring states. This increasingly serious situation focussed attention on the proposal for a more binding and comprehensive legal agreement than the earlier arrangements, which would guarantee an international status to the refugees. 71

Inspite of the critical time a legal convention was achived in 19 33 under the outstanding leadership of Max Hubber, which soughtto meet thetaost emergent needs of the existing situation. 17 The convention was adopted by fourteen participating states and introduced a new stage in the efforts to achieve an intexmatlonal legal status for refugees. This was a culmination of the previous empirical efforts on behalf of Russian, Armenian, Assijrian, Assyro-Chaldian, Turkish and Assimilated refugees.

The 1933 convention improved the Nsnsen certif i^ cate System with regard to the period of validity as well as to the right to return to the hospitable country. It made the inclusion of the return clause an obligatory feature. It restricted the practice of expulsion, ensured the enjoyment of civil rights and secured most favourable treatment in-respect of labour, welfare, relief and taxation. 18

After the Nazis captured the reign of power in Germany, a new problem surfaced. Many Germans left the country. These included both political refugees and 72

persons who feared persecution on account of their Jewish extraction. Initially their numbers were small. However, a quarter of a million were to seek refuge outside their homeland in the course of £±x years.

The whole German refugee question was brought before the League Assembly in 1933 by the delegation of the Neitherlands, and considered as a technical problem. Due to the objections set forth by the German delegates, the Assembly compromised and the 'High Commission for the Refugees from Germany' was setup as an autonomous organisation. Though it v/as created by the League but it was responsible to its own Governing Body and not to the Council of the X^eague, 20

Refugees coming from Germany were not eligible for Nansen Passport. They did not come within any of the catagories hitherto foreseen in the international arrangements. They were thus in a critical situation, unable to go into another country without risking the danger of being driven back to Germany or being Impris­ oned and later expelled.

The High Commission for German Refugees sugge­ sted that the governments of the countries where these 73

refugees resided should give the document of identity and travel instituted for persons without nationality or doubtfull nationality as recommended by the Conference on Communications and Transit in 19 27. Thus the travel document for the German refugees was secured relatively easily, but the problem remained of securing legal and political protection, similar to the provisions for the Russian and Armenian refugees laid down in the agreement of 1928.

In July 19 36 a provisional arrangement dealing with the status of German refugees was achieved which provided for the issue by the governments of a cert if i- cate of identity similar to the Nansen Passport. 21 It was replaced two years later by the more formal Convention Concerning the Status of Refugees from Germany, signed at Geneva on 10th February 19 38. It incorporated the following definition of refugees!

"(a) Persons possessing or having possessed German nationality and not possessing any other nation­ ality who were proved not to enjoy, in law or infact, the protection of German Government. 74

(b) Stateless persons not covered by previous conven­ tions or agreements who had left German territory after being stablished thereixi* and who were proved not to enjoy, in law or infact, the protection of the German Government. "It did not include, hov.-ever, persons who left Germany for reasons of purely personal Convenience, 22

By the convention the pari;ies under-took to issue to refugees coming from Germany, and sojourning lawfully within their territoiry, a travel document similar to an attached specimen. They also agreed to issue such document to refugees not staying lawfully in their territory on the date of coming into force of this convention, subject to certain conditions. The documents are to be in confojrmity with the laws and regu­ lations governing the supervision of foreigners in force in the territory in question. In addition the signatories undertook to grant facilities for the issue of transit visas to refugees who had obtained visas for the terri­ tory of final destination. 75

The convention entitled the holder of this document to return during the period of its validity which was fixed at one year* but reserved to the High Contracting Parttethe right to limit the period during which the refugees may return. Such limitation 23 had to be noted on the document. A 1939 protocol to the convention extended the provisions to refugees coming from Austria. 24

The major shortcomings of the legal arrangements made on behalf of refugees during the period of the League of Nations were the lack of universality in their acceptance and lack of uniformity in application. The more toinding and comprehensive the nature of the agreements , the fewer tended to be the states--which ratified them. Thus, while fifty six states eventually accepted the arrangements, with regard to the issue of certificate of identity to Russian refugees of 5 July 199 2, only eight states ratified the much more comprehensive convention relating to the International Status of Refugees of 28 October 1933, aiid only three states ratified the convention concerning the status of Refugees 76

coining from Germany of 10th February, 19 38. Many of the ratifications were made subject to reservations. Moreover, some of the arrangements made during this period were purely recommendations to governments and not of a binding nature. Arrangement for the issue of certificates of identity to Armenian Refugees of May 31, 1924, and Arrangement for the issue of certificate of identity to refugees from the Ssrof 23 May 1935, are of this nature.

However, the efforts of Dr. Nansen and his successors could not be forgotten in bringing about a general acceptance of the need to provide refugees with a recognised travel document that would permit them to cross international borders in search of a new and permanent home.

At a meeting in Evian, France in the year 19 38 participating states resolved to stablish an Intergove­ rnmental Committee with its primary objective t6 helping German and Austrian refugees. In 19 43 the committee extended its protection to ell persons who­ ever they might be, who, as a result of events in 77

Europe, had to leave, or might have to leave, their countries of residence because of the danger to their lives or liberty on account of their political opinions, religious beliefs, or racial origin, as well as to those who had already left for those reasons and had 25 not stablished themselves elsewhere. Meanwhile the great upheavals caused by the world War II, crippled the activities of the Leagues High Commissioner and so did the liquidation of the League of Nations, The number of refugees which was around one million at the time of the outbreak of war swelled almost beyond calc- ulation. On 17 August 1944, the Intergovernmental Committee adopted a resolution calling for the establi^ shment of a commission of experts to examine the feasl— lity of adopting an internationally recognized identity and travel document for stateless persons not enjoying the protection of any government. The experts completed their assignment at the end of August 19 45 and submitted the draft arrangement and a specimen travel document to 27 the Intergovernmental Committee.

The Intergovernmental Committee convened a conference in London from 8-15 9^^b^^|5^=^46^ . 78

On the final day the conference adopted an agree­ ment relating to the issue of a travel document to refugees. It applied to the refugees who were the concern of Intergovernmental Committee on Refugees and who were not covered by the previous agreements. The document issued persuant to this agreement was in the form of a passport and was known as the 'Lodon Travel Document', It was to be vaiidfor either one or two years at the discretion of the issuing state. It contained an automatic return clause permitting the holder to return to the issuing country during the period of the documents validity. In exceptional cases states might limit the returning period to a minimum of three months. The agree­ ment was signed by 23 states and was ratified by 21. In addition twelve other governments formally recognised the London Travel Document and a number of other countries recognized it de facto.^

This new identity and travel document for refugees did make a valuable long term contribution to the future resettlement works of the Preparatory Commission of the International Refugee Organisation (PCIOR) and the 79

Intemetional Refugee Organisation (I,R«0.), This travel document patterned after the Nansen passport provided an internationally recognized means for identifying refugees and displaced persons. This document like a passport made it possible to affix the usual visas and certificates of entry. It recogni^ zed the civil status of refugees in the signatory countries and gave them a right to work. Another valu­ able feature of this document was the retumability clause, which gave the refugee the right to retumx to the issuing country. However this document primarily served the needs of states with stateless or non- repatriable displaced persons and refugees such as France and Britain, but did not apply properly to occupied Germany or Austria, where, most of these persons were found. The utility of this travel document was further limited by the fact that the U.S. rep re sent a - tive although taking an active part in its adoption by sixteen states namely Argentina, Austria, Beljiimi, Brazil, Chile, Dominican Republic, Ecuador, Prance, Greece, India, Luxemburg, Neitherlends, Sweden, Switzer­ land, United Kingdom and Venezuela did not sign the agreement. 80

There were still some refugees who were not Intit- led to the London Travel Document, To alliviate the hard­ ship of these refugees, the International Committee of the Red Cross (ICRC) devised a travelling certificate which became known as the I.C.R.C. Travel Document N©, 10,

•31 100A. This document intended to enable the bearer to either return to their own country or to continue lawful residence in the country in which he was temporarily staying. Since it lacked adequate authorisation to the bearer's civil status at the time of issue, it was not regarded as a passport or a subsitute thereof.

The I.CR.C, Travel Document was to be issued on a number of pre-conditions and was valid for one year. The delegations of ICRC in different countries issued more than 100000 travel documents. However only thirty countries obliged to recognize the document.

In the United Nations the Secretary General on demand presented a document entitled 'A Study of stateless­ ness' to the Economic and Social Council and recommended •so the conclusion of a convention on the subject. Ultimately, 81

the General Assembly adopted a resolution on 14th December 1950, to convene a conference of Plenipoten­ tiaries at Geneva to consider a draft convention Relating to the Status of the FRefugees,

The United Nations Conference of Plenipoten­ tiaries met in Geneva in July 1951 and some twenty six govenments, members and nonmembers were represented to the convention. The Final act of the Conference was signed en 28th July 1951 33 and was thereafter open for signature and ratification by the states.

The convention of 1951 sought to revise consolidate and expand on the previous arrangements and conventions relating to refugees. The scope of the convention covers persons who :

a) has been considered a refugees under the agreements of 19 26 and 19 28, the convention of 19 33 and 1938, the protocol of 19 39 and the constitution of the IRO,

b) As a result of events occuring before 1st January 1951 and owing to well founded fear of being 82

persecuted for reasons of race, religion, nationality, membership of a particular group Ot political opinion, is out of the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who not having a nationality and being out-side the country of his farmer habitual residence as a result of such events, is unable or owing to such fear, is unwilling to return to it. 3^

Article 28 of the convention maintains the practice of issuing travel documents, initiated under the League of Nations and provides for the documents issued under earlier agreements to continue to be recognized. It provides that contracting partiesshall issue refugees lawfully staying in their territory, travel document for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require. It also provides that the contracting states may issue such a travel document to any other refugee, not otherwise lawfully staying in their terri­ tory. They shall in particularr give sympathetic consi­ deration to the issue of such a travel document to refugees 83

in their territory, who are unable to obtain a travel document from the country of their lawfull residence.

The schedule annexed to the convention prescribes the forrr.at and further regulates its issue and renewal, extension recognition and guarantee of the holders retumability to the issuing state. The document is to be valid for as many countries as possible and is valid for one or two years at the discretion of the issuing state. Renewal shall be by the issuing state so long as the holder has not established lawful resid­ ence in another country. Under the convention every contracting state has to readmit the holder of valid travel document at any time, unless it contains a statement to the contrary, during the period of its validity which shall not be in any case less than three months.

The General Assembly'a resolution of 14th December 19 50 also recommended to consider a draft protocol relating to the st'atus of stateless persons by the 1951 conference of plenipotentiacies^ut when it came before the Conference for discussion no consensus was

*See Appendix -I. 84

reached and it was consideired that further study on the subject wes necessary. The conference recommended that governments which where parties to the 1946 agree­ ment or which recognized the travel document issued b^- virtue of that agreement should continue to issue or recognize the travel document issued to such persons. After a long discussion with the state parties to the 19 51 convention a second conference of plenipotentiaries on the status of stateless persons was held in New York in September 1954, Delegates from 27 States attended and ultimately approved a Convention relating to the Status of Stateless Persons on 28 Septentoer. For^ the purposes of the convention the term stateless person, means a person who is not considered as a national by any state under the operation of its law. It covers many stateless persons not covered by the 19 51 convention. The provisions of the convention was closftly modelled after the 1951 convention and provides for each contra­ cting party to issue identity paper to any stateless person in its territory who does not posses a valid travel document, A ^tateles^ i^er^n whether-lawfully 85

resident in the state or not, is enticled to one if he did not possess a valid travel document. Article 28 of the 19 51 convention which provides for the issue of travel document was copied almost verbatim under article 28 of the 19 54 convention substituting the word refugees to stateless persons. Schedule annexed to this convention is also the same as the previous convention using the word stateless in all places where thev W0rd refugees is used*

Since the provisions of the 1951 convention Was only applicable to persons who had become refugees as a result of events before 1st January 19 51, problem arose for refugees who had left their territory as a result of events occuring subsequent to that date. Cons­ idering that it would be desirable that equal status should be enjoyed by all refugees covered by the def dU. nition in the convention irrespective of the date line of 1st January 1951, it-was felt necessary to do away with this date line. For this purpose a protocol relating

*See Appendix. 2 86

to the status of refugees was signed on 31 January 1967,"^^ which removed the limitation on the definition of refugees in the 1951 convention, VVhen the protocol went into force on 4 October 19 67 it rejuvenated the 1951 convention by enabling it to aid all persons who might happen to be a refugee at any time in future.

The travel document issued in conformity with the 1951 convention and its 19 67 protocoi supersedes the travel document issued in accordance with previous agreements including Nansen Passpozrt. This document is presently in use and is called 'Convention Travel Document •• 87

References

1. Tarack, Daniel C, 'The Passport in International Law*, Lexington Books, Massechussets, 1972, p.123. 2. Goodwin, Gill, "The Refugee in International Law', Clarendon Press, Oxford, 1983, p.l. 3. HoIbom^Louise, "The Legal Status of Political Refugees 1920-1938', AJIL , Vol.32, No.4, 1938, p.680. 4. Collection of 'International Instrument/Concerning Refugees ' , office of the UNHCR, Geneva, 1979 ,pp. 11& 40. 5. Waltrers, F,p, 'A History of the League of Nations' Oxford University Press, Vbl.II,l952, p. 180. 6. Holborn, op.cit. 3,p. 681. 7. Jenings, R. Yewdal, 'Some International Law Aspects of the Refugee Questions,'British Yeer Book of Intema- _tional Law', 1939,p.99. 8. Weis^Paul, 'The International Protection of Refugees', AMIL, Vol.48, No. 2, 1954, p. 205. 9. Holbom^Louise W, 'Refugeesj A Problem of our time (1951-72),' Oxford University Press, London, 1975, p. 7. 10. League of Nations Treaty Series, Vol, 13,p. 237. 11. Holbom, op.cit, 3, p. 684. 12. League of Nations Treaty Series , Vol, 89, p. 47. 13. Holbom, op. cit. 3,p. 686. 88

14. League of Nations Treaty Series« VDI, 89#p.63. 15. Jeaning;, op. cit, 7«p.l00. 16. Walters, op, cit, 5, p. 188. 17. Holborn^op, cir. 9,p,15. 18. ibid p. 15. 19. ibid p. 15. 20. Holbom, op.cit. 3#p«692. 21. ibid, p. 695. 22. ibid, p. 69 5. 23. Jenings^op. cit. , 7,p. 104, 24. Goodwin Gill, op.cit, 2,p. 3. 25. ibid, p. 3. 26. Holbom^pp.cit. 9,p. 23. 27. Turack^op.cit, l,p,123. 28. United Nations Treaty Series, vol, 11, p, 84. 29. We is, Paul Op.cit. 8, pi 207. 30. Proudfoot, Malcolm J, 'Europian Refugees (1939-52)/ ft Study in forced Population movement. North -western University Press, Illinois, 1956, p. 296 n. 31. Turack, op.cit, 1, p, 125, 32. lb id. p. 128, 33. U.N, Treaty Series, Wo 1.189, p. 150. 34. 'Collection of International Instruments Concerning Refugees'-. Office of the UNHCR, Gene-^a, 1979,p. 11. 35. ibid,p. 21. 36. ibid,p. 57. 37. AJIL, Vol. 63,1969,p. 385. 89

C H A P T £ R^IV

LAW OF PASSPORT AND VISA IN U.K« U.S.A> AND INDIA

U.K. : In the United Kingdom there is no law, as such, which either declares the right to a passport or regulates its issue. The law and practice regulating passport in the United Kingdom is based on various statements by ministers in Parliament , various admissions to international conferences, the content of bilateral and multilateral treaties and a few decisions of the courts.

Technically, a citizen of the United Kingdom is under no obligation to carry a passport for the purposes of international travel and return to his own country. The Immigration Act 1971 declares thatpatrials i.e. /those with the right of abode in the United Kingdom shall be free to live in and to come and go into and from the United Kingdom without let or hinderance. But the appearance of an absolute right is substan­ tially qualified by reference to those restrictions 90

which may be required in order to enable this right to be established or as may be otherwise lawfully Imposed on any person. A United Kingdom passport when issued, is the best evidence available in the matter, because, for the purposes of travel abroad there is considerable practical difficulties, both in entering foreign country and in finding a transport company which is wishing to take the passenger without a passport.

Due to practical difficulties in transportation and in entering a foreign country the United Kingdom issues passports to its nationals who seek to obtain one for foreign travel, A passport in the United Kingdom can not be 2 claimed asof right nor in practice is a passport issued automatically to all those substanting their status as a citizen! of the United Kingdom and colonies. Indeed a British passport bears a legend informing its bearer of that fact and also that the passport remains the property of the government.

However, there are no published rules and regu­ lations which set out the reasons which may justify the withdrawl or refusal oir a passport. But these have been the subject of various state­ ments in parliament. Such declarations are 91

almost the only evidence of the law of passport in the United Kingdom. The few decided cases suggest that this is an area of prerogative and discretionary control and like other prerogative acts this is not subject to review by the courts. In the notorious case of Joyce V/s DPP in 1946, for example, the House of Lords held that an alien abroad who holds a British passport enjoys the protection of the Crown and so long as he has not renounced that pcotection, he is guilty of treason if he adheres to the Crown's enemies.

The grounds for refusal were set out in 1958 in a statement in the House of Lords and include (a) cases of minors suspected of being taken illegally out of jurisdiction (b) fugitives from justice (c) persons whose activities are notoriously undesirable or dangerous and (d) those who have not repaid repatriation loans. Passports are also refused to those who can not prove their entitlement because they are not United Kingdom citizens.

In practice the refusal or loss of a passport usually results in the prevention of travel by the person on whom 92

the refusal or loss operates, because states generally do not permit entry of aliens without a passport. And since the passports in the United Kingdom are not only regarded =as defacto exit visas but they are also given the subsidiary function of serving as exchange voucher, the banks in practice refuse to issue foreign currency to a person unable to produce a passport* This imposes severe limitations on a person to whom a passport is refused, or whose passport is withdrawn. If exchange facilities are refused the possibility of foreign travel is rende­ red financially non-existent. More significantly, British Immigration Officers have refused to allow individuals to leave the Kingdom without a passport. The government however, does not wish to prevent the holder totally 4 from travelling, and keeping in view the practical necessity of the possession of a passport, the government issues a travel document or certificate of identity in cases where passports 5re withdrawn, .

A pa trial may enter the United Kingdom without leave and to that extent he is not bound to undergo any form 93

of examination abroad, although in some circumstances he may need a certificate of patriality as proof of his right of abode All those who are not pa trials and who therefore do not have the right of abode are subject to control. Non-patrials require leave to enter the United Kingdom which may be given for a limited or for an indefinite period and may be made subject to conditions requiring restrictions on employmtnt or occupation or requirement of registeration with authorities.

The United Kingdom's law concerning the passport requirement from non-patrrials is quite specific. It requires all non-patrisls whether commonwealth citizzenp, EEC or other nationals, to produce to the Immigration officer on request, either a valid passport or other travel document which indicates the holders nationality and identity. Entry is refused to the holder of a passport which is issued by an unrecognized government, or by one which does not accept United Kingdom's passport or that the passport itself does not comply with international standards. The United Kingdom requires 'Entry Certificates' from the nationals of countries in Asi* and Africa which 7 are members of common-wealth, but the texts applied for grant of entry certificates are sometimes more stringent 94

than visas for other foreign nationals. Under its obliga­ tion to the EEC it accepts identity cards from the nationals of the member states of the community. It also accepts collective passports from nationals of the states with whom it has such an agreement. The United Kingdom is also a party to the international agreements providing for the reciprocal recognition of the special travel documents of crewmembers. Under various bilateral arrangements, nati­ onal identity cards are accepted with the condition that the holder is coming for non-employment purposes and his entry will not be more than three months.

In addition to the full national passports, the United Kingdom on 15 March 19 61, introduced a new travel document. The govecnment indicated that since it did not issue identity cards to residents of United Kingdom it would introduce a simplified form of passport known as •British Visitors Passport '^ which would be available to British subjects and citizens of UK and colonies. To ensure that the British Visitors Passport would be internationally accepted and recognized, the United Kingdom concluded a number of bilateral agreements. 95

A British Visitors passport remains valid for a inaxl- mum period of three nonths and can not be held along with a valid British passport. Holders of this document can only be British subjects who are citizens of United Kingdom who would otherwise be entitled to hold a British passport, but the onus of entitlement lies on the applicant to produce certain documentary evidence to satisfy the issuing authorities. The first bilateral agreement of this purpose was concluded with Iceland in an exchange of notes at Rikjavik in 1961 constituting an agreement concerning the acceptance of British visitors passport for travel between UK and Iceland. Similar agreements were concluded with certain members of European Council and Organization of Economic Cooperation and Development, namely, France, Spain Germany, Belgium, Luxembourg, Neitherlands, Portugal, Switzerlands, Italy, Greece, Sweden, Denmark, Norway, Turkey, Austria, Haltaand Canada.

U.S.A. t Until the coming into force of the Immigration and Nationality Act 1952, a passport though a great convenience in foreign travel, was not a legal requirement for leaving 96

or entering the United States. With brief wartime exceptions U. L. citizens were free to ieave the country without a passport. It was first made 5 requirement by the Act of 1952, which states that, after a prescribed proclamation by the President , it is "unlawful for any citizen of the U.S. to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid pass- port •" And the proclamation necessary to make the restric­ tions of this Act applicable has been made ,

The basic legislative authority applicable to passports is a 19 26 statute . It works in conjunction with the Subversive Activities Act 19 50, and the Act of 19 52. The statute authorises the Secretary of State to grant and issue passports under such rules as the President shall designate and prescribe". An executive order in 19 66, delegates to the Secretary the authority, without further Presidential action to designate and prescribe for and on behalf of the United States, rules governing the granting, issuing and verifying of passports."

Under current regulations, passports are issued to nationals, that is , to persons who owe perm?nent allegiance to 97

the United State*. It is provided that a passport may be denied to those who has not paid a repatriation loan and to those v». o are under indictment and to those where the Secretary of State determines that the national's activities abroad are causing or are likely to cause serious damage to the security or foreign policy of the United States. It may also be refused for travel to restricted a re as where vi-ar is in progress or foreign policy consideration limit entry. However any person who is affected by an adverse decision reg?rding the issue or restriction of a passport is entitled to make use of the system of administrptive tribunal provided.

Until the 1952 the Goveunment of United States main­ tained that the issuance of passport was a matter within the complete discretion of the Secretairy of State, And prior to that there were no discrenible standards for the exercise of that discretion. In a series of cases between 1952 and 1967 there was a reaction against the Department of State's policy of refusing passports, withdrawing those already issued and imposing so called area restrictions. 98

In 1952 in Bouer V/s Acheson the District Court of Columbia held th?t the denial of an Americ?n passport had a direct bearing on the applicant's personal liberty to travel outside the United States It was considered that the discretion of executive branch in such matters, although political , must be exercised with due regard to the cons­ titutional rights of the citizens. The freedom of travel abroad like other liberties guarateed by the Constitution, is subject to reasonable regulation afld control in the interest of public welfare, but the constitution demands due process and equal protection of the laws in the exercise of that control. The court found that in the present case the Secretary of State was without authority summarily to revoke a passport during the period for which it was valid, withou:: prior notice or opportunity for a hearing, and on the bald statement that the citizen's activities were contrary to the best interest of the United States, There was similarly no authority to refuse to renew a passport under the same circumstances.

Passports were denied to leading American Communists for a decade and a half Immediately after the Russian Revolution, This policy was reversed in 19 31 and for the 99

next twenty years no restrictions were imposed on travel abroad by alleged communist subversives. In 1951, howeve c, the State Department began denying passports not only to Communist Party members but also others supporting the Communist Movement as well. In 1958 in Kent v/s Dulles the Supreme Court of US came to consider the validity of the Secretary of State's action in refusing to issue passports to the plaintiff on the ground of his refusal to file affidavit concerning his membership in the Communist Party, In this case the Supreme Court held that the right to travel was part of the liberty of which the citizen can not be deprived without due process of law under Fifth Amendment and that the secretary of State h?d no authority to deny a passport on the ground of an applic­ ants political belief. They were also of the opinion that, while the issue of a passport carried some implication of an intention to extend diplomatic protection to the bearer, this is but one subordinate function. The primary purpose of a passport was control over exit and the right of exit was a personal right included within the word liberty in the Fifth Amendment . In another case 100

the US Supreme Court held that section 6 of the Subversive Activities control Act of 19 50 was unconstitutional which made it unlawful for members of any Communist Organisation to apply for or attempt to use a US passport.

It Was considered that the concept of area restri­ ction is more of a political and foreign affairs matter than is the denial of a passport in an individual case. The power to restrict the travel of American citii;ens to certain countries or areas was recognized by the courts in a number of cases. Contrary to its decision in the Kent V/s Dulles that the president has no inherent constitu­ tional power to limit individual freedom to leave the country, here the court held the legality of area rest­ riction on the premises of public welfare. In 19 65 the decisions on area restrictions were upheld by the Supreme Court in Zemel V/s Rusk , in which the t>etition6r, sought to challenge the Secretary of State's refusal to issue passports valid for travel to Cuba,

Regarding the entry of aliens, the Immigration and Nationality Act 19 52 is the principal statute. Numerical 101

control end the issue of visas etc. are dealt with by the Department of State through consular officers abroad, while control at the borders of the United States is exeaxised by officers of Immigration and Nationality Service. The statute makes a first distinction between immigrant aliens and non-immigrant aliens. The later are further reduced into different Catagories , such as, aliens in transit, treaty aliens, alien student^ inter­ national orgarisation aliens, representative of foreign imformation media , exchange workers, fiance , fiancee, business executive and so forth.Classification determines the class of visa vhich v/ill be grentec.V.ith tht €>:ception of the nationals of certain contiguous countries, passport and visa requirement is imposed on all aliens who seek to enter the United States, either as en immigrant or a non immigrant. Immigrant aliens will only be admitted to the United States if they are in possession of a valid unexpired immigrant visa, together with a valid unexpired passport or document of identity and nationality.Similar provision apply to non-immigrants who reguire their own non-immigrant visa or for some purposes a valid border crossing card and a passport which is valid for a minimum of six months from the date of expiration of the initial 102

period of admission , and which authorises the holder to return whence hec?me or to pxroceed to another country. 12

There are, however, many exceptions to these requl^ rements. For example, as regards immigrants, no passport is required if the alien is the spouse, parent, unmarried son or daughter of a United States citizen, or is steteless, or an anti-communist who for that reason is unable or unwilling to obtain a passport from the country of his nationality.Certain non-immigrants are also exempt including uninformed or documented members of armed forces and American Indians bom in Canada. In all other circumstances the pass­ port obligation and the comprehensive visa system are strictly enforced. Under the Irrmigratlon and Nationality Act 19 52, even the returning Americans were required to produce a valid passport. But in Worthy v/s United States in 1964 the court declared unconstitutional section 215 of the said A:t on the ground that it makes, it unlawful for a citizen to return to the United States wittout a valid pas^ort. The court saidi "It is inherent in the concept of citizenship that the citizen when absent from the country to which he owes allegiance, has a right to return, again to set foot on 103

its soil. The Government can not say to its citizen, standing beyond its border, that his entry into the land of his allegiance is a criminal offence."

The United States is very sensitive on the question of return-ability and this plays an important p?rt in its laws, and practice is supported by official pronounce­ ments in the following words:

The current United stated practice of requiring pass­ ports fran aliens from noncontiguous territories provides this countiry with a reasonable assurance that some foreign country will receive the alien whenever he becomes deport­ able. Any bilateral or multilateral agreement abolishing the passport requirement would have to provide the same assurance to the US Government.

The United States^of Course^ has visa abolishing agre­ ements with certain countries of the western hemisphere.lt accepts travel docxaments less than full passport from the nationals of these countries for entry in its territory.

A US passport is issued for three years and renewed 10 4

for an additional two years. It is issued by the State Department through the passport agencies within the United States. US consular authorities perform this function in foreign countries. Proof of citizenship is required. Visa issuing function is carried out by the consular officers of the United States abroad. The prospective travellers who hold e valid passport may apply for granting a visa to the US consular officer accredited in their country. Visas are normally valid according to reciprocal agreements viith the state where they are issued. In some cases visas may be issued which are valid indefinitely and for an indefinite number of entries, while others may be restri­ cted to a limited number of admissions end for a limited time. Visas may be extended or revalidated either by the issuing office or any other consular office but only if the applicant is otherwise eligible.

INDIA ; Falling into line with most of the countries adopting some measure of control on the entry of aliens after the first World War, the Government of India passed the Passport Act 1920. It was supplemented by Passport Rules 19 50. The Act prohibits the entry of persons without 105

a valid passport or travel document. As the preamble of was the Act shows its purposeyto provide for a statutory requirement that persons desiring to enter India shall be in possession cfa valid passport. Passport Rules 1950 lays down that no person proceeding from any place outside India shall enter or attempt to enter India by land, water or air unless he is in possession of a valid passport conforming to the conditions prescribed thereunder. In Abdul Rahim Ismail V/s state of Bombay the Supreme Court held that this rule applies to all persons inclu- ding Indian citizens 14« The result is that even en Indian citizen can not enter India unless he is in possession of a valid passport.Thus it is evident that both the passport Act and the Rules made thereunder relate to passports in connection with the entr^ of a person in India. There was no prevision in the Act or in the Rules for the grant or issue of passports to persons leaving India.

In the absence of any law regulating to the granting of passports to persons intending to leave India, conflic­ ting views were held by the High Courts on the important legal issue as to whether e citizenc of India has ? fundamental right to travel abroad. In modem times a valid passport 10 6

is a necessary condition for travel abroad,because most countries would not permit: entry into their territories to an alien who is not in possession of a valid passport . It hps become a condition for free travel. Moreover the fact that the passport Act 1920, prohibits entry into India without a passporc indirectly prevents a person, desiring of returning to India, from leaving India.

If, then, a passport is an essential requirement for travel abroad as well as for re-entry into India# the question would arise whether a person has a fundamental right to a passport. To put the question in another form, has a person a fundamental right to travel abroad?

The constitution of our country does not specifically guarantees the citizen a reight to travel. Exercise of the passport issuing function was considered a constitutive part of the foreign affairs power which claimed an absolute discretion in the issuing of passports. A passport was considered to be essentially a political document of India to the governments of or aathorities in^foreign countries 107

requesting them to afford facilities of safe travel to the holder in their territories and to provide hini necessary assistance and protection.

Prior to 19 67 there was no statutory prevision to prohibit a person from leaving the country without a passport. But as a passport was usually a prerequisite for entry -nd sojourn in other countries, denial of a pas^ort meant denial of the right to travel. The decision of supreme court in Satwant Singh Sawhney V, s Assistant Passport Officer, Government of India^has finally set at •rest the question as to whether a citizen of India has a fundamental right tof travel abroad. The primary question that came up for the consideration of the Court was whether the refusal by the government to issue a passpoirt to the petitioner was violative of the fundamental rights guaranteed under Article 14 and 21 of the constitution.

While deliberating the case the Supreme Court referred to decisions of the United States Supreme Court which had accepted the right to travel, and it observed that the right was also recognised by Magna Car^a and under the Common Law 108

of England. The Court arrived at the judgement that the contentions put forward by the government that the passport is only a facility provided by the government and no person has a right to it or that the right to travel is not included in the personal liberty guaranteed under Article 21 of the Constitution, can not be accepted. It took the view that whether it be regarded ?s a facility given to a person to travel abroac or H request to a foreign country to give the holder diplomatic protection ,, it can not be denied that the government by refusing a permit to an Indian citizen, 17 completely prevents him from travelling abroac:.

It was contended in this case that the right to leave India and travel outside India and return to India is part of personal liberty guaranteed under Article 21 of the constL. tution, and that the refusal to give a passport or v/ithdrawl of one given, amounts to deprivation of that liberty in as much as it is not possible to leave India or to travel abroad or to return to India without a passport. Article 21 of the Constitution says : 'No person shall be deprived of his life or personal liberty except according to procedure 109

established by law*. The court concluded that expression •personal liberty' in the said Article included freedom of Indian Citizen to go abroad, restriction on re-entry without passport implies right to obtain passport,—a person can not be deprived of that right except according to procedure established by law. It furt-her said as there is no law establishing such procedure, the government had no right to refuse a passport to any person who might have applied for the same. The court also found that the refusal to issue a passport patently violates the equality provisions of Article 14 of the Constitution in as much as the executive is vested with unbridled arbitrary discretion in the matter of issuance of passports enabling it thereby to discriminate between persons without just classification. 19

The Immediate effect of the Supreme Courts' ruling in Sawhney's case was that, in the absence of any law regulating the issuance of passports, the Government would have been compelled to issue passports to all persons who seek it. The executive would have no discretion to with­ hold passports even to those persons whose travel abroad 110

may be considered as harmful to the interests of the country, In order to remedy the situation, the Passports Act 19 67 was passed.

The object of the passports Act 19 67 is to regulate the departure from India of citizens of India and other persons. Section 3 of the Act reads : 'No person shall depart from, or attempt to depart from India unless he holds in his behalf a valid passport or travel document. The Act is thus designed to regulate only the departure or exit of persons from India. The entry into India is regulated as earlier by the Indian Passport (Entry into India) Act 19 20,* The 19 67 Act does not purport to affect' the application of the earlier Act, Section 23 of the 19 67 Act provides that its provisions shall be in addition to and not in derogation of the provisions of the 1920 Act, The 1920 Act therefore, continues to govern the matters relating to entry into India, The 1920 Act toge­ ther with the 19 67 Act as amended till date constitute the comprehensive passport Laws' of India.

The Act of 19 67 foi±>ids any citizen or alien to depart from, or attempt to depart from, India unless he holds

*Passport Act 19 20 as Amraended under section 25 of the Passport Act 19 67. Ill

in his behalf a valid passport or travel document. This provision is in conformity *ith the realities of the situation that a passport is an essential requirer.ent for travel abroad , and cures rather anomalous and unrealistic view that the absence of a passport does not prevent a person from leaving India. The right of an Indian citizen to be issued with a passport now stems from this statute, which also lays down fairly wide grounds for refusal and withdraw 1, The grounds for refusal are exhaustive and any restriction upon the freedom of movements shall be invalid unless it falls under one of these grounds. The Act provides for the issue of various class of passport, namely, ordinary passport, official passport, and diplomatic passport, and empowers the government to prescribe in consonance with the Usage and practice followed by it in this behalf the classes of persons entitled to such passports.

It is concluded chat an Indian citizen who has been issued with a passport may visit the country or countries endorsed on the passport freely subject to the visa requirement of the country in whose jurisdiction 112

he wishes to enter. In the absence of visa or entry peimit by the receiving state he will not be allowed to enter into that country. However, there is an understanding between India-Nepal and India-Bhutan not to require any passport and visa from the citizen of one country visiting another country. For the entry of foreign travellers into India the government recognises passports and travel documents which satisfies the condi­ tions prescribed under the passport ( Entry into India) Pet 19 20, and are issued by or under the authority of the government of a foreign councry. Foreigners who hold a passport of the country of their nationality and seek to visit India are required to apply for a visa or entiry permit to the diplomatic or consular representative of India in their own country. These authorities will issue him visa indicating that the bearer ^sY enter in India. Passports are issued by the Ministry of External Affairs, Government of India in the name of President of India requesting to all those whom it may convem to allow the bearer to pass freely without let or hinderence, and to afford him or her, every assistance and protection of which he or she may stand in need. An ordinary Indian passport is valid for a period of ten years. A diplomatic or official passport ceases to be valid as soon as the holder completes his assignment in the foreign country. 113

References

1, Willi^ns, David W, , 'British Passports and the Right to Travel', International and Comparative Law Quarterly, Vol.23, 1974, p.642, 2» British Digest of International Law, Part: VL,. Vol, 5, p.309. 3. William, op.cit. l,p. 648. 4. Ibid. p. 651. 5. Goodv/in, Gill, 'International Law and the Movements of Persons Between States', Clarendon Press, Oxford, 1978, p. 106. 6. Simmonds, R»P» 'Immigration Control and the free Movement of Labour : A problem of Hermonisacion, ICLC, Vol.21, 1972, p. 313. 7. B, Sen, *A Diplomats Hand Book of International Law & Practice • Martinus Nijhoff, The Hague, 1979,p.350. 8. Turack, Daniel C, 'The passports in International Law' Lexington Books, Massachussets, 1972, pp.65-70. 9. AOIL, Vol.63, 1959, pp. 85-90, 10. Ehrlich, Thomas, 'Passports', Stanford Law Review , (1966-67), P. 132. 11. Goodwin, op. cit. p. 32. 12. ibid, pp. 27-28. 114

13. ibid. p. 34. 14. AIR 19 59 S.C. 1315. 15. Turack, op. cit. p. 8. 16. "Ml Jindia Reporter, 19 67• Supreme Court, 1836. 17. Nanbiar, K.R. 'The Right to a Passport' , Indian Journal of Intecnatipnal ^aw^ 1967# p.529. 18. AIR 19 67 S.C. 1836. 19. ibid. S.C. ,1836. 115

CONCLUS ION

Travel has been an ancient phenomenon. Earlier it was inconfielous a^d often confined within the boundaries of the Empire, Foreign travel was unknown in those days. Wich the passage of time travel gained momentum for one reason or the Ocher and crossed the national boundaries of the countries. Owing to the technological revolucion in transport and communication it reached its zenith in the present century. Itoday the world has become very small indeed. Places where it was impossible to reach only a few centuries ago is now only a matter of few hours. People visit foreign countries for various reasons. They may like to see the world, to study abroad, to undergo medical treatment, to collaborate in scientific research, to develop their mental horizon in different fields and such others. Foreign travel helps the development of the body, mind and spirit of man .

Till the coming of the present century people went freely wherever they wished to go. Due to the lack of transport facility the number of people undertaking travel Was quite small to put any danger to the economic and social conditions of the visiting countries. Therefore the 116

states had generally not imposed any restriction on-the entry of foreigners. Wich the gradual development of transport and communication facilities people started moving in large numbers from one country to an-other for various reasons. With this the theory of nationalism also gained ground. This made the states feel obliged to restrict the entry of aliens to prevent their social agglomeration. They required from the entring aliens to produce some document indicating their nationality. So that they can be deported to the country of their nationality if it was considered necessary to do so at any time after entering the country. This document often took the form which came to be known as 'passport'. Thus the compulsory passport system was introduced.

The passport remains the most widely accepted and recognised international travel and identity document in use today. As the world continues to be compressed in traveling time and as the planet's population increases, the passport will increase In iTportance because of the international practice whereby the issuing state will readmit the bearer. Consequently, any movement for abolition 117

of passports, on a universal scale would appear to be impractical. From a purely pragmatic point of view, the passport is the document by which deplom?tic and consular representatives of a state recognise bearers as persons entitled to recei^/e protection from the state. Unless these representatives are acting under extraordinary instructions, they request presentation of the national passport or document issued in lieu thereof, before undertaking any official acts on behalf of the individual. Aside from the demand of most states that the potential traveller present a national passport to the Immigration authorities as a warrant for exit from its territory, international custo­ mary lev^ recognises the right of nations to regulate admi­ ssion and sojourn in its territory. Tto comply with these conditions, the travellers normally require a passport.

Passports serve a useful purpose to the issuing state in ascertaining the travel trends of its citizens,Statis­ tics of this nature are useful in gauging the amounts of currency being spent abroad. Migration and emigration statistics can also be gathered on the basis of the passport. States restricting the amount of their currency 118

to go abroad utilize the passport by affixing a note indicpting whether the bearer has met his quota. Ifthe quota stands exhausted , the bearer can not takeout or convert any further currency. At tixnes, the passport is the only identity document in the traveller's possession which will be accepted in another state to claim regist­ ered mail, cash cheques, establish credit, or change money at banks. The passport is also used to obtain discounts at most duty-free shops located at international airports. Other functions of the passport have been associated with the foreign relations between states, such as the documents role in deportation and recognition. An international assessment of the utility of the passport has never been carried out , although the matter was raised during the 19 26, Passport conference. It is submitted that discussions on this question at an international forum could open new vistas for use of the passport. Some international under­ standing could enhance the status of the passport as a conclusive international document of nationality.

The international type of passport, introduced by the League of Nations Passport Conference of 19 20, and 119

Improved as a consequence of the League-sponsored 19 26, Passport Conference, the United Nations 19 47 Meeting of Experts on Passports, and the 19 63. United Nations Conference on Travel and Itourisin, is in widespread use today. A country experiencing difficulty with respect to the forgery of its passports or finding its passport procedures inadequate should not be loath to study the passport laws and procedures appurtenant thereto of other countries. Also a beneficial and hitherto untatped source of experience can be drawn from those international orga- nisatiorfewhich issue their own travel documents.

Despite the continuous world wide everyday usage of the passport, there is no compilation of the passport and Immigration laws of the different countries. This hiatus prevents any study of the international regime of pass­ ports and curtails any comparative investigation by coun­ tries Wanting to revise and Improve their own system. Moreover, there is scant attention taken by states^of the travel document issued by international organisations. An inspection of the practices and travel documents 120

issued by these institutions will reveal excellent quality documents and streamlined procedures which preclude abuse of the documents use. Obviously the degree of collabora­ tion required f xx>m states to make their procedures and documents available for study would require some interna­ tional agreement which could be negotiated through the United Nations,

Unfortunately, there are still inequitable practices amongst nations as regards freedom of movement. Although international action has fostered recognition of the right to travel as a human right through its inclusion in international instruments such as Article 13(2) of the Universal Declaration of Human Rights (19 48) and, on the universal plane, in Article 12 of the international Covenant on Civil and Political Rights (I966) , and, on a regional level, in Article 2 of the Fourth Protocol to the Council of Europe's Convention for the protection of Human^-Rights (1963), this vital human liberty is denied to many people today. Formulation of the principle as a legal right must be subject to certain direct limitations such as public 121

order, national security, public health, and during times of national and international emergencies. However these limitations are not always defined in sufficient detail, or there is an absence of effective international punitive machinery to render the state accountable to the intematL. onal community. International public policy has had lictle success in remedying the situation when a state steers upon a course in deviation to the recognised standard. As in the Case of South African Policy of apartheid, international Sanctions or public policy proved ineffective for long to change that stateSrpractice.

The role of the passport in relation to freedom of movement is of cardinal Imfortance. As the issue of pass­ ports is ordinarily a discretionary power excercised by a government officer, the right to a passport should be a justiciable right. States should indicate in their laws and regulations the procedure for obtaining a passport and the grounds on which a passport will be refused. When denied the issue, extension or renewal of a passport, or when a passport is withdrawn or cancelled by the issuing authority, the individual should have recourse to an 122

independant adraiAistrative or judicial review of his case with the right of appeal to the highest court in his country. National policies directing restricted travel do little to promote international understanding among the peoples of the world. Geographical restrict­ ions should be used sparingly and predominantly for the protection of the individual.

Although passports are readily recognised for the purpose of aillowing nationals of a friendly nation to enter other states for non employment activities without previ­ ous agreement, the contrary is true whenever some other document is substituted. Bilateral and multilateral agree­ ments provide for recognition of identity and travel documents when used in lieu of passports. The policies behind the introduction of these substitute documents are not always obvious or even discernible after much reflection. Generally, these bilateral agreements are meant to further good relations and better understanding between nationals of the contracting parties and to promote tourism , Adjacent or neighbouring states are encouraged to enter into these arranganents. But these policies are more perceptible with regard to multilateral agreements. 123

The Council of Europe, the OEEC and the CECD were motivated by the desire to bring about Europiaan integration and a Europian rather than a national identity. To a great extent, these organisations have achieved their aspirations. Not oiy have these organisations paved the way for freer mobility of Europeans, but they have also been instrumental in the simplification of frontier formalities for the benefit of non-Europian visitors.

The successful operation of a number of passport unions such as Benelux, Scandivania and the United Kingdom- Ireland Agreement have been noted. The conditions giving rise to these unions have differed, although the coiumon factor to the three has been the mobility of labour,A common labour market usually removes major obstacles affecting border crossing privileges between participa­ ting countries.

The contemporary development of special international travel documents for different categories of persons has been reviewed. Due to the nature of their calling, interna­ tional officials, air crew members and seamen have 124

acquired the use of distinctive travel documents. In each of these instances, international organisations have created travel documents and invited their membership to give mature consideration to their acceptance. In addition to the principal functions performed by these documents as substitutes for pessports, their scope encompasses other purposes. The neer universaly recognised travel documents developed by ICAC for air crew members allow international flight schedules to function smoothly. Efforts by the II'CC on the same line resulted in the recognition of the se-farer's national identity cards for their temporary shore leave.

Certain international officials require special travel facilities if they are to meet the functional demands of their office and preserve the independence of the organisation from its membership. Consequently, Lalseez -Dasser were deviled to accomplish these ends. Most member countries of the internatisnal organisation issuing these documents recognised and accepted them in lieu of passports.

As part of the growth of international humanitarian law^ travel documents have been developed to aid refugees 125 and stateless persons. They were the first special categories of people to be singled out as beneficiaries of this unique travel document , This innovation has often meant the begi^ nndLng of a new life. The outstanding figure during the early period of international refugee works was unquestionably Dr. Nonsen .Through his unfailing zeal the first legal instrument was evolved which gave refugees a kind of reco­ gnition, a kind of identification which they had never, possessed until that time, i number of agreements and con­ ventions providing the refugees with a travel document was achivcd under the auspices of the league of Nations. The most comprihensive one was achieved in 1951 under the auspices of the United Nations . It was supplemented by the protocol of 19 67 and provides for a travel document to all the present and future refugees.

Finally* this study drev/ attention to a number of aspects concerning passports drawn from contemporary and state practices.Our knowledge of state passports practice depends directly on the policy of the state to make its practices public. Unfortunately, the attitude in this particular area, with few exceptions, is to remain reti­ cent. That is why only the passport practices of of U.K., U.S.A. and India have been presented in the present study. 126

ftppendlx »1

SCHEDULE Paragraph-1 1, The travel document referredto in Article 28 of this Convention shall be similar to the specimen annexed hereto. 2. The document shall be made out in at least two languages, one of which shall be English or French,

Paragraph-2 Subject to regulations obtaining in the country of issue, children may be included in the travel document of a parent or in exceptional circumstances of another adult refugee. Paragraph-3 The fees charged for issue of the document shall not exceed the lowest scale of charges for national passports.

Paragraphs4 Save in special or exceptional cases, the documents shall be made valid for the largest possible number of countries. Paragraph-5 The document shall have a validity of either one or two years at the discretion of the issuing authority. 127

Paragraph 6

1, The renewal or extension of the validity of the document is a matter for the authority which issued it , so long as the holder has not established lawful residence in another territory and resides lawfully in the territory of the said authority. The issue of a new document is under the same conditions^ a matter for the authority which issued the fonner document,

2, Diplomatic or consular authorities specially autho­ rized for the purpose, shall be empowered to extend, for a period not exceeding six months, the validity of travel dccutnents issued by their Governments,

3, The Contracting States shall give sympathetic consideration to renewing or extending the validity of travel documents or issuing new documents to refugees no longer lawfully resident in their territory who are unable to obtain a travel document f.rom the country of their lawful residence,

Pargraph 7 The Contracting States shall recognize the validity of the documents issued in accordance with the provisions 128

of Article 28 of this Convention. Paragraph-8 The competent authorities of the country to which the refugee desires to proceed shall, if they are prepared to admit him and if a visa is required, affix a visa on the document of which he is the holder. Paragraph-9 1. The contracting States undertake to issue transit visas to refugees who have obtained visas for a territory of final destinacion. 2, The issue of such visas may be refused on grounds which would justify refusal of a visa to any alien.

Paragraph-10 The fees for the issue of exit, entry or transit visas shall not exceed the lowest scale of charges for visas on foreign passports. Paragraph-11 When a refugee has l?wfully taken up residence in the territory of another Contracting State, the responsibility forthe issue of a new document, under the terms andi.conditions of Article 28, shall be that of the competent authority of that territory, to which the refugee shall be entitled to apply. paragrap]i-.12 129

The authority issuing a new document shall withdraw the old document and shall return it to the country of issue, if it is stated in the document that it should be so returned: otherwise it shall withdraw and cancel the document,

Paragraph-13 1, Each Contracting State undertakes that the holder of a travel document issued by it in accordance with Article 28 of this Convention shall be re-admitted to its territory at any time during the period of its validity,

2, Subject to the provisions of the preceding sub­ paragraph, a Contracting State may require the holder of the document to comply with such formalities as may be prescribed in regard to exit from or return to its territory,

3, The Contracting States reserve the right, in exc€pt:ional cases, or in cases where the refugee's stay is authorized for a specific period. When issuing the document, to limit the period during which the refugee may return to a period of not less T:han chree months.

Paragraph-14 Subject only to the terms of paragraph 13, the provi­ sions of T:his Schedule in no way affect the laws and regul­ ations governing the conditions of admission to^ transit through, residence and establishment in and c'ep;=.rture from, the territories of the Contracting States, 130

Paragraph-15

Neither the issue of the document nor the entries made thereon determine or effect the status of the holder, particulariyasJ^egards nationality.

Paragraph-16 The issue of the document does not in any way entitle the holder to the protection of the diplomatic or consular authorities of the country of issue, and does not confer on these authorities a right pf protection. Appendix -2 aec ^^^ SCHEDULE Paragraph-1 1. The travel document referred to in article 28 of this Convention shall indicate that the holder is a stateless person under the tenns of the Convention of 28 Secterrber 19 54. 2, The document shall be made out in at least two languages, one of which shall be English or French.

3» The Contracting States will consider the desirability of adopting the model travel document attached hereto.

Paragraph-2 Subject to the regulations obtaining in the country of issue, children may be included in the travel documentof a parent or, in exceptional circumstances, of another adult.

Paragraph-3 The fees charged for issue of the document shall hot exceed the lowest scale of charges for national passports.

Paragraph-4 Save in special or exceptional cases, the document shall be made valid for the largest possible of dountries. Paragraph-5 The document shall have a validity of not less than three months and not more than two years. 132

Paragraph-6 1. The renewal or extension of the validity of the document is a matter for the authority which issued it, so long as the holder has not established lawful residence in another territory and resides lawfully in the territory of the said authority. The issue of a new document is, under the same conditions, a matter for the authority which issued the former document. 2. Diplomatic or consular authorities may be authorized to extend, for a period not exceeding six months, the validity of travel documents issued by their Governments. 3. The Contracting States shall give sympathetic consideration to renewing or extending the validity of travel documents or issuing new documents to stateless persons no longer lawfully resident in their cerritory^ who areunable to obcain a travel document from the country of their lawful residence.

Paragraph-7 The Contracting States shall recognize the validity of the documents issued in accoirdance with the provisions of article 28 of this Convention.

Paragraph -8 The competent authorities of the country to which the stateless person desires to proceed shall, if they are prepared toadrnit him and if a visa is required, affix a visa on the document of which he is the holder. 133

Paragraph 9

1, The contracting States undertake to issue transit visas to stateless persons v;ho have obtained visas for a territory of final destination,

2. The issue of such visas may be refused on grounds which would justify refusal of a visa to any alien.

Paragraph 10

The fees for the issue of exit , entry or transit visas shall not exceed the lowest scale of charges for visas en foreign passport.

Paragraph 11 ^.^Tnen a stateless person has lawfully taken up resid-<- ence in the territory of another Contracting State,the responsibility for the issue of a new document under the terms and conditions of article 28, shall be that of the competent authority of that territory, to which the stateless person shall be entitled to apply. 134

Paragraph 12

The authority issuing a new document shall withdraw the old document and shall return it to the country of issue, if it is stated in the document that it should be so returned otherwise it shall withdraw and cancel the document.

Paragraph 13 1. A travel document issued in accordance with article 28 of this Convention shall, unless it contains a statement to the contrary, entitle the holder to re-enter the territory of the issuing State at any time during the period of its validity. In any case the period during which the holder may return to the country issuing the document shall not be less than three months, except when the country to which the stateless person proposed to travel does not insist on the travel document accor<3ing the right of re-entry,

2. Subject to the provisions of the preceding sub-paragraph, a Contracting State may require the holder of the document to comply with such formalities as may be prescribed in regard to exit from or return to its territory.

Paragraph 14

Subject only to the terms of paragraph 13, the provisions of this schedule in no way affect he laws and 135

regulations governing the conditions of acinission to, transit through, residence and establishment, in , and departure from, the territories of the Contracting states.

Paragraph 15

Neither the issue of the document nor the entries made thereon determine or affect the status of the holder, particularly as regards nationality.

Paragraph 16

The issue of the document does not in any way entitle the holder to the protection of the diplomatic or consular authorities of the country of issue, and does not ipso facto confer on these authorities a right of protection. BIBLIOGRAPHY 136

BOOKS :

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Hertly, T»C, ; EEC Immigration Lew, North-Holland Publishing Company, Amsterdam, New York, Oxford, 1978. Hathawary, J.C, . The Law of Refugee Status, Butterworths, Canada, 1991, Holbo-rn, Louise W; Refugees? A problem of our time ? The International Refugee Organisation, Its History and Work (19 51-72), Oxford University. Press, London, 1975. Jacob, F,G,; The European Convention on Human Rights, Clarend on Press, Oxford, 1975. Joseph, Cuthbert; Nationality and Diplomatic Protection; The Corrjnonwealth of Nations, Sijthoff, Leiden, 1970. Kaul, R.N,. Dynamics of Tourism, Vol.1, Sterling Publishers, New Delhi, 1985. Kane, R.M. and Vose A, D.; Air Transportation , Sixth edition Kandall/Hunt Publishing Company, Dubuque, Iowa, 1979. Likorish, L. o. and Kershaw, A.G. > The Travel Trade, Practical Press Ltd., London,1958. 139

Lambert, S, Richard; The Fortunate Trgveller, Andrew Melrese Ltd., London, 1950, Lansing, J.B. and Blood, D.M,; The Chancing Tr?v6l Market, Miching Bruf i6ld Inc. ^nn. Arbor, 19 64. Lowenstien, E.; The Alien and the Inunigration Law, Oceana, New York, 1958. Lester,B, Orfield and Edw?rd D. Re. ; Cases and Materials on Intecnational Law, The bobbs- Merrill Company, Inc. Publishers, Indianapolis, 1955. Mcintosh, R.M,; Tourism ; Principles^ Practices and Philosophies, Ohio Grid,1977. Moore, J.B.; A Digest of. International Law, Vol. Ill, Washing­ ton, 190 6. Nerval, A.O.; The Tourist Industry; A National and International Trave 1, Sir Issac Pitman and Sons Ltd; London, I936, Negi, J.M.S.; Iburism and Development, Gitanjali Publishing House, N«w Delhi, 1982. Owen, Wilford; Strategy for Mobility,Brooking Institute, Washington D. C. , I964. Openhien ; International Law ; Vol. I, 8th edition, 1955. Plotarch ; Makers of Rome, Penguin Classes, 19 58. Peters, Micheal ; International Tourism : The Economics and development of the International Tourist Tradey Oxford University Press, London, 1974. 140

Plender R,; International Hiqration Law^ Sijthoff, Leiden, 1972. Proudfoot, Malcolm i European Refugee (1929-52) t Aw ^:r in ~—Forced Population Movements Northwestern University Press, Evanston, Illinoise ,195C. Parry, Clive ; A British Digest of International Law, Vol.5, London, 1965. Sharma, Vivek ; Tourism in India, Arihant Publishers, Jaipur, 1991. Seth, Prem Nath; Successful Tourism Management. Sterling Publishers, New Delhi, 1978. Satish Chandra* International Documents of Human Rights, Mittal Publication, New Delhi, 1990. Street, HerrY> Freedom^ the Individual and the Law, Pelican Books, London, 1963. Turack, Daniel C.; The Passports in International Law, Lexington Books, Kassachussets, 1972. we is, Paul; Nationality and Statelessness in International Law, Stevens, London,1956. Walters, P.P.; A History of the League of Nations, Vol.11, Oxford University Press, London, 1952. Vernant, Tacques > The Refugee in the Post War World , George Allen and Unwin Ltd., London, 1953. 141

ARTICLES

Brownlie, Ian; "The Relations of Nationality in Public International Law ", British Year Book of Incernati^"^1 Law , Vol. 39/19 63. £hrlich/ Thomas ; "Passports", Stanford Law Review, Vol.19, 19 66-67. Kolborn, Louise v;, • "The Legal Status of Political Refugees (19 20-19 38) ", Anerican Journal of International Law, Vol, 32, No. 4, 19 38. Jennings, R. Ygwdall; "Some International Law Aspects of the Refugee Question", British Year Book of International Law, Oxford University Press, London, 19 39. Krenz, F. E, , "The Refugee as a subject of International Law; International and Comparative Law Quarterly, Vbl. 15, 1966. Nambiar, K.R.; "The Right to a Passport", Indian Journal of International Law, 19 67. Parker, R. • "The Right to go abroad: to have and to hold a Passport" Virginia Law Review , Vol. 40,1954. Slxrmonds, F.R.> "Immigration Control and the Free friovemei-t of Labour ; A Problem of Hormonisation", International and Comparative Law Quarterly, Vol,21,1972. We is, Paul; "Legal Aspects of the Convention of 28-ch July 1931/ Relating to the Status of Refugeej", British Year Book of International Law, Vol. 30,1953, 142

W^ls, Paul; "The International Protection of Refugees *, American Journal of International Lav, Vo.48, No,2,

1954. Williams, David W. . "Britisn Passports and the Right to Travel", International and Comparative Law Quer1:£..-v, Vol, 23,1974.

ORIGINAL SOURCES : All India Reporter, 1959, Supreme Court, 1315, ; 19 67, Supreme Court, 1836. "Collection of International Instruments Concerning Refugees' Office of the United Nations High Commission fo : Refugees , Geneve, 1979, - League of Nations Treaty Series , Vol, 13,89. - United Nations Treaty Series, Vol, 65, 158, 199, 11,189, - Travel Information Manual , The Neitherlands, 1975.

ENCYCLOPAEDIA :

Encyclopaedia of Social Sciences, The Macmillan Company, -

Vol.12, PP, 13-16.19 62,.