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The Right to Leave and Return in International Law and Practice

Author(s): Hannum, Hurst.
ISBN: 90-247-3445-2

Price: Not Available

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About This Publication

The Right to Leave and Return in International Law and Practice is without question the most thorough analysis and systematic critique of this right to appear. Although, in the past, freedom of movement has been regarded in some quarters as not a fundamental, but rather a secondary, right, in the contemporary world it constitutes a most important civil right. Despite the fact that individuals and governments frequently invoke it — witness Soviet Jews wishing to leave the USSR or Chilean exiles hoping to return to their country — heretofore its reach and limitations, and especially its implementation in actual practice, have received scant attention in most international bodies, much less in the literature. The author of this book has amply rectified the situation. Furthermore, in a lengthy part of conclusions and recommendations, he has suggested a number of considered, specific steps that international bodies, national governments and nongovernmental organizations should take to guarantee the effective realization of this basic human right.

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About The Author(s)

Hurst Hannum is Professor of International Law at The Fletcher School of Law and Diplomacy of Tufts University. A graduate of Boalt School of Law at the University of California, Berkeley, he served as Executive Director of The PAIL Institute from 1980 to 1989 and was a Jennings Randolph Peace Fellow of the United States Institute of Peace. He has served as counsel in cases before the European, Inter-American, and UN human rights bodies and has been interviewed frequently by national and international media on human rights and international legal issues.

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Table of Contents

Foreword by Richard B. Lillich						IX
Preface						IX
PART ONE: INTRODUCTION						1
	-	International Formulation of the Right				7
PART TWO: CONTEMPORARY LEGAL CONTENT						17
	-	General Principles of Interpretation				21
	-	Article 12 of the Covenant on Civil and Political Rights				24
		-	'provided by law'			24
		-	'necessary'			26
		-	'national security'			27
		-	'public order (ordre public)'			29
			1.	The State or collectivity as ultimate guarantor and beneficiary of rights		32
			2.	Limitations on the right to leave based on economic considerations, including the 'brain drain'		34
			3.	Migration and population policies		40
		-	'public health or morals'			40
		-	'rights and freedoms of others'			42
		-	'consistent with the other rights recognized in the present Covenant'			43
		-	'arbitrarily'			44
	-	The Evolving Jurisprudence of the Right to Leave and Return				46
	-	The Right to Emigrate				46
	-	Refugee Issues and the Right to Seek Asylum				49
	-	The Right to Travel				52
	-	The Right to Return to One's Country				56
		1.	'one's own country'			56
		2.	Citizenship			60
		3.	Exile and Expulsion			63
	-	Refugee Issues and the Right to Repatriation				66
PART THREE: STATE PRACTICE						69
	-	General Observations				71
	-	Asia and the Pacific				75
	-	Australia, Canada, New Zealand and the U.S.A.				82
	-	Latin American and the Caribbean				85
	-	Western Europe				92
	-	Eastern Europe and the U.S.S.R.				96
	-	Middle East and North Africa				105
	-	Africa				109
PART FOUR: CONCLUSIONS AND RECOMMENDATIONS						119
APPENDICES						135
A.		Country reports under Article 40 of the Covenant on Civil and Political Rights which refer to rights guaranteed under Article 12 of the Covenant				136
B.		National constitutional provisions guaranteeing the right to leave and/or return				139
C.		Draft Principles on Freedom and Non-Discrimination in respect of the Right of Everyone to Leave Any Country, including His Own, and to Return to His Country, by Judge Jose Ingles, Special Rapporteur, 1963				142
D.		Draft Principles of Freedom and Non-Discrimination in respect of the Right of Everyone to Leave Any Country, including His Own, and to Return to His Country, as amended by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, 1963				146
E.		Declaration on the Right to Leave and the Right to Return, adopted by the Uppsala Colloquium, 1972				150
F.		Strasbourg Declaration on the Right to Leave and Return adopted by the Meeting of Experts in Strasbourg, 1986				154
NOTES						159
INDEX						185