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Freedom of movement within state territory

The right of freedom of movement is a fundamental human right, to be accorded to all individuals within States. Migrants exercising this right may however be subject to restrictions in their movements on entering a State of which they are not yet permanent residents or nationals. Article 13 (1) of the Universal Declaration of Human Rights, (1948) (UDHR), states that "everyone has the right to freedom of movement and residence within the borders of each State”. Article 12 (1) of The International Covenant on Civil and Political Rights, (1966) (ICCPR), a legally binding instrument, provides for the right to liberty of movement and freedom to choose ones residence for those ‘lawfully’ within the territory of a State. This would therefore exclude irregular migrants entering a State, of which they are not a national, although migrants whose status has been regularised would be considered to be lawfully within the territory for the purposes of Article 12. A number of national constitutions reflect this provision of international law and provide citizens with the right to freedom of movement within the State. However this right may not be fully extended to migrants present within the territory who may be restricted to residing in certain parts of the country.

The OSCE has made a number of human dimension commitments to freedom of movement. The participating States in Helsinki (1975) declared their intention to simplify and administer flexibly procedures for exit and entry and to ease regulations concerning the movement of citizens from other participating States in their territory. In 1989, in Vienna, further commitments were made in this area, including the commitment to respect fully the rights of everyone to freedom of movement and to protect their rights under Article 13, of the Universal Declaration of Human Rights to: freedom of movement and residence within the borders of each State and the right to leave any country, including ones own and to return to it. The participating States declared that they would ensure that the exercise of these rights would not be subject to arbitrary restrictions not provided for in law or consistent with international obligations under UN law such as the UDHR and the ICCPR.

In Copenhagen in 1990 the OSCE States reaffirmed their respect for freedom of movement and stated that any restrictions on this right should be necessary to respond to a specific public need or pursue a legitimate aim and must be proportionate to that aim. They also acknowledged that freer movement is crucial for the protection and promotion of human rights and fundamental freedoms, and made commitments to implement procedures for entry without unjustified delay and process visa applications as quickly as possible. In 1991, in Moscow, the OSCE States committed themselves to remove legal and other restrictions on travel within their territories for their own nationals, foreigners, and with respect to residence for those entitled to permanent residence, other than those necessary for military, safety, ecological or other legitimate government interests, in accordance with the law and other obligations.

The OSCE maintains these commitments through a number of means including: sharing information and responding quickly to requests for information by other participating States and holding bilateral meetings to examine particular questions or issues which may be brought to the attention of the participating States through diplomatic channels.

Analysis provided by Anisa Niaz, LLM (Public Law), United Kingdom.

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