Yearbook of European Law - Vol. 10

By Francis Geoffrey Jacobs | Go to book overview

Legal Aspects of the Movement of Persons in Greater Europe*
FRITS W. HONDIUS
I. Introduction
The purpose of this article is to present an overview of the state of international law in Europe in the Spring of 1991 with regard to the movement of persons. It deals essentially with the entry and sojourn of aliens, but it will also touch on certain aspects of the law governing these matters in respect of the nationals of European States in matters of identity and travel documents.The basic legal rules in this field belong to the corpus of human rights law and constitute jus cogens which takes precedence over domestic law. Article 13 of the Universal Declaration of Human Rights of 1948 declares that:
1. 1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. 2. Everyone has the right to leave any country, including his own, and to return to his country.

These provisions have been amplified by Article 12 of the International Covenant on Civil and Political Rights of 1966. This Article has in particular added a provision to the effect that 'Nobody shall be arbitrarily deprived of the right to enter his own country', a provision which helps to discourage discrimination vis à vis returning political dissidents or exiles. The implementation of the Covenant is ensured both by the general provisions of the Covenant on its monitoring by the United Nations Human Rights Committee and by those of the Optional Protocol on individual complaints. The vast majority of European States are parties to the Covenant and many have accepted the Protocol.

The freedom of movement is one of the few rights proclaimed by United Nations texts which was originally not included in the European Human Rights Convention. Whether this lacuna was due to the fact that during the first years after World War II, when the European Convention was being drafted, Europe still laboured under the problem of displaced persons and

____________________
*
© Dr Frits W. Hondius, 1991. Deputy Director of Legal Affairs of the Council of Europe in Strasbourg and Visiting Fellow to St Cross College, Oxford. Opinions expressed in this article, which is an updated version of a report presented to the New York Conference of the International Bar Association in September 1990, are strictly personal.

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