There’s a report on our work on the front page of the current summer 2011 issue of “Human Rights Now!”, the newsletter of the Meiklejohn Civil Liberties Institute. MCLI has long been in the vanguard of efforts to bring the U.S. into compliance with international human rights law, and we thank them for bringing the attention of their community of human rights advocates to the issue of freedom of travel and movement as a human right.
The full article is below the fold, and we’ll be reporting further on this work in the near future:
Freedom of Movement for U.S. Citizens
by Edward Hasbrouck
Attacks on the right to travel have been in the forefront of post-9/11 attacks on human rights. The Identity Project (www.PapersPlease.org), part of the Oakland-based First Amendment Project, has been working to challenge these and other ID requirements and ID-based restrictions.
The right to travel is not only implicit in the U.S. Constitution, but is explicit in international treaty law. Enforceability of international law is thus crucial to defense of the right to travel.
Article 12 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the right to leave any country, to return to one’s own country, and to move freely within any country where one is a lawful resident. Standards applicable to rules which restrict these rights — including measures adopted in the name of national security or defense against terrorism — have been specified by the UN Human Rights Committee in General Comment No. 27 on Freedom of Movement in Article 12 (Feb. 11, 1999).
Violations of ICCPR include the “Advanced Passenger Information System (APIS) program for international flights in 2008, and the Secure Flight system for domestic flights in 2010, which require all airline passengers to provide evidence of their identity. Also, Department of Homeland Security (DHS) directives have forbidden airlines from issuing a boarding pass to any passenger for whom the airline has not received affirmative, individualized, permission from DHS prior to each flight.
Passports — previously a convenience rather than a requirement, at least in theory — have been made obligatory even for travel by land to and from Mexico and Canada. Withholding of a passport now constitutes categorical denial of permission for a US citizen to leave or return to their own country, violating ICCPR.
Executive Order 13107 requires each Federal agency to (1) perform its functions (presumably including agency rulemaking) so as to respect international human rights treaty obligations, (2) designate a single point of contact for human rights treaty compliance, and (3) respond to complaints of human rights treaty violations.
The Identity Project filed comments in numerous DHS and State Department rulemakings, objecting to proposed regulations as violations of Article 12 of the ICCPR. When those comments were ignored, we requested that our complaints be forwarded to the designated departmental contacts (per Executive Order 13107). In August 2010, after months of correspondence with the DHS, we were eventually told the person designated for this purpose by the DHS is the Officer for Civil Rights and Civil Liberties (OCRCL).
So far as we can tell, this is the first time any Federal department has publicly identified its designated single point of contact for human rights treaty compliance. It’s unclear whether other departments have made the required designations, but it’s clear that no other designations have been made public.
Once we were informed of this designation, we forwarded our unanswered complaints — some of which have now been pending for almost 5 years — to the DHS OCRCL. At first, they appeared confused as to how to handle them, and admitted that they were not accustomed to receiving such complaints. Eventually, however, we were informed that our complaints had been docketed as complaints of human rights treaty violations by the Department, and would be responded to.
We have yet to receive the promised responses from DHS, and we are still trying to identify the State Department’s point of contact. But we are optimistic that our persistence has helped prompt what may be the first ever development of procedures by a Federal agency for fulfilling its obligations to consider human rights treaty compliance in agency rulemaking, designate a public point of contact, and respond to complaints.
Edward Hasbrouck works with the The Identity Project (PapersPlease.org) on travel-related civil liberties and human rights issues.