Eleanor Finch
Freedom of movement is a fundamental right in many countries, though how each country interprets and applies this right varies. The US Constitution, for example, protects travel within the United States as an unenumerated fundamental right. The Supreme Court has identified three aspects of the right of persons to travel within the country: the right to enter and leave each state, the right to be treated equally to residents of each state, and the right to be treated equally to native-born citizens. In contrast, Freedom of Movement within North Korea is limited, as citizens are restricted in their movement inside the country. The Syrian Constitution also states that its citizens have the right to liberty of movement within the country unless prohibited by a court order or public health and safety regulations.
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What You'll Learn
The right to travel
In the United States, the right to travel is protected by the Constitution, specifically under the Fifth Amendment, which states that citizens cannot be deprived of their liberty without due process of law. The Supreme Court has interpreted this liberty to include the right to travel, asserting that freedom of movement is closely related to freedom of association and expression. The Court has identified three key aspects of the right to travel within the US: the right to enter and leave each state, the right to be treated equally to residents of each state, and the right to be treated equally as native-born citizens.
Other countries also guarantee freedom of movement in their constitutions. For example, Italy's Constitution (Article 16) states that "every citizen has the right to reside and travel freely in any part of the country," except for limitations established by law for health or security reasons. Similarly, Article 27 of the Russian Constitution grants everyone legally present in the country the right to free travel and choice of residence, while also ensuring the right to leave and return to the country for citizens.
However, it is important to note that the interpretation and application of the right to travel can vary widely among countries. For instance, while Sweden's constitution guarantees the right to access the natural environment, it does not explicitly mention freedom of movement. In contrast, countries like France do not specifically mention freedom of movement in their constitutions, while others, like Syria, may impose restrictions on travel despite constitutional protections.
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Freedom of association
The right to freedom of association allows individuals to join or establish groups, such as trade unions, religious organisations, or political parties, without interference from the state. It is closely linked to freedom of assembly and freedom of speech, as it enables individuals to collectively express their beliefs and opinions.
While the right to freedom of association is not explicitly mentioned in the First Amendment of the United States Constitution, the Supreme Court has interpreted it as an implicit right protected by the First Amendment. The Court has held that the freedom to associate is essential for the exercise of other First Amendment rights, such as freedom of speech and religion. This interpretation has been applied in cases such as NAACP v. Alabama (1958), where the Court recognised the right of civil rights activists to associate freely without state interference.
In addition to the First Amendment, the Fourteenth Amendment's Due Process Clause has been invoked to protect the right to intimate association, as seen in Roberts v. United States Jaycees (1984). In this case, the Court upheld the state's interest in eradicating gender discrimination over the right of male members in social clubs to associate exclusively with males.
The freedom of association is also recognised in the South African Constitution's Bill of Rights, which states that "everyone has the right to freedom of association" and "everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions". Similarly, the Italian Constitution guarantees the freedom of association in Article 18, which states that citizens have the right to form associations freely for any purpose that is not forbidden by criminal law.
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Freedom of expression
Freedom of movement is a right recognised by several constitutions around the world. In the United States, freedom of movement is primarily governed by the Privileges and Immunities Clause of the United States Constitution, which states that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The US Supreme Court has also acknowledged that freedom of movement is closely related to freedom of expression.
The Syrian Constitution guarantees freedom of movement within its territory unless prohibited by a court order or public health and safety regulations. Similarly, the Russian Constitution states that anyone legally present in the country has the right to free travel and choice of residence, and Russian citizens have the right to freely leave and return to the country.
Freedom of movement is also enshrined in the Italian Constitution, which guarantees the right to reside and travel freely within the country, except for limitations established by law for health or security reasons. The South African Constitution, under Section 21 of Chapter 2, also contains express freedoms of movement.
Now, focusing on freedom of expression, this right is protected by the First Amendment of the United States Constitution, which states, "Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." This amendment ensures that individuals in the United States have the right to express themselves without governmental interference.
The right to freedom of expression includes the freedom to speak out against the government, discuss ideas, share information, and seek knowledge. It encompasses various forms of expression, such as verbal statements, written publications, symbolic speech, and artistic expressions. This freedom is not absolute and has some limitations, such as restrictions on speech that incites violence or promotes illegal activities.
The interpretation and application of freedom of expression have been the subject of numerous court cases in the United States, helping to define the scope and boundaries of this right. For example, in West Virginia Board of Education v. Barnette (1943), the Supreme Court upheld the right of students not to salute the flag, recognising their freedom of expression. In Tinker v. Des Moines (1969), the Court protected students' rights to wear black armbands to school to protest a war, stating that students do not lose their constitutional rights in the schoolhouse gate.
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Limitations on freedom of movement
Freedom of movement is a fundamental right in many countries, but it is not absolute and may be limited in certain situations. Here are some examples of limitations on freedom of movement:
National Security and Public Health:
Countries may restrict the freedom of movement to protect national security and public health. For instance, the Syrian Constitution allows the government to restrict movement through court orders or public health and safety regulations. Similarly, Russia limits freedom of movement in certain areas near its international borders and in closed cities, mainly involving nuclear research centers.
Public Order and Safety:
Freedom of movement can be restricted to maintain public order and ensure the safety of citizens. For example, the United States Supreme Court upheld Maryland's motor vehicle statute, which was deemed necessary for public safety and order regarding the operation of motor vehicles on its highways.
Criminal Justice:
The freedom of movement of individuals charged with or convicted of crimes is often restricted. This includes individuals on probation, parole, or bail, as well as those imprisoned or under criminal investigation.
International Travel Restrictions:
Governments commonly impose restrictions on international travel, such as limiting the length of stay for temporary visitors or requiring special visas for exit or entry, as seen in the case of Syrian citizens needing special visas to exit the country.
Historical Discrimination:
Historically, certain groups have faced limitations on their freedom of movement due to discrimination. This includes restrictions based on race, gender, and social group membership, such as the pass laws during apartheid that limited the freedom of movement for non-whites.
Financial and Legal Obligations:
Financial obligations, such as being in arrears on child support, can result in the suspension of certain types of driver's licenses, impacting an individual's freedom of movement. Additionally, individuals facing bankruptcy may be required to surrender their passports, restricting their ability to travel internationally.
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Freedom of movement in specific countries
Freedom of movement is a human right, and as such, it is provided in the constitutions of numerous states and in documents reflecting norms of international law. For example, Article 13 of the Universal Declaration of Human Rights asserts that:
> Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country.
However, the interpretation and implementation of freedom of movement vary from country to country. Here are some examples of how freedom of movement is addressed in specific countries:
United States: In the United States, freedom of movement is primarily governed by the Privileges and Immunities Clause of the United States Constitution, which states that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The Supreme Court has acknowledged that freedom of movement is closely related to freedom of association and expression. However, the Court has also held that the federal government does not have the power to protect freedom of movement. Instead, this authority is given to the states.
European Union: The European Union (EU) guarantees freedom of movement for its citizens. Family members of EU residents generally have the same freedom to travel as the resident they are with, although they may need a short-stay visa. No EU citizen can be permanently banned from entering any EU country.
Italy: In Italy, freedom of movement is enshrined in Article 16 of the Constitution, which states:
> Every citizen has the right to reside and travel freely in any part of the country, except for such general limitations as may be established by law for reasons of health or security. No restriction may be imposed for political reasons. Every citizen is free to leave the territory of the republic and return to it, notwithstanding any legal obligations.
Russia: Article 27 of The Russian Constitution guarantees the right to free travel and choice of residence within Russia. It also states that citizens of the Russian Federation have the right to freely leave and return to the country. However, there are several legal limitations to freedom of movement within Russia, including closed cities, areas near international borders, and areas under a state of emergency.
Syria: The Syrian Constitution provides for freedom of movement within the country, stating that "every citizen has the right to liberty of movement within the territory of the State unless prohibited therefrom under the terms of a court order or public health and safety regulations." However, Syrian citizens are prohibited from exiting the country without special visas issued by government authorities.
Canada: Canada's Social Union Framework Agreement, made in 1999, affirms that freedom of movement for Canadians to pursue opportunities within the country is an essential element of citizenship. The agreement pledges that no new barriers to mobility will be created in new social policy initiatives.
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Frequently asked questions
Freedom of movement in the United States is governed primarily by the Privileges and Immunities Clause of the United States Constitution.
The US Constitution protects travel within the United States as an unenumerated fundamental right. The US Supreme Court has identified three aspects of the right of US citizens to travel within the country:
- The right to enter and leave each state, fundamental to the founding of the United States.
- The right to be treated equally to residents of each state, protected by Article 4, Section 2 of the Constitution.
- The right to be treated equally to native-born citizens.
The Syrian Constitution states that "Every citizen has the right to liberty of movement within the territory of the State unless prohibited therefrom under the terms of a court order or public health and safety regulations."
In Italy, freedom of movement is enshrined in Article 16 of the Constitution, which states: "Every citizen has the right to reside and travel freely in any part of the country, except for such general limitations as may be established by law for reasons of health or security. No restriction may be imposed for political reasons. Every citizen is free to leave the territory of the republic and return to it, notwithstanding any legal obligations."
