It’s that time, as it is every five years, for the U.N. Human Rights Committee (UNHRC) to review the status in the U.S of the rights protected by the International Covenant on Civil and Political Rights (ICCPR) — including the right to travel.

The Identity Project is taking part in this process by informing the UNHRC about the ways the US has violated the right to travel, and making recommendations for issues related to the right to travel which the UNHRC should raise with the US during its review.

On December 28, 2012, as part of a joint submission to the UNHRC by the U.S. Human Rights Network, the Identity Project submitted our recommendations for issues related to freedom of movement that we think the UNHRC should take up with the U.S., questions that should be asked by the UNHRC, and recommendations that the UNHRC should make to the US in its concluding observations:

1. Handling of complaints of violations of U.S. obligations pursuant to the ICCPR
2. Requirements for government-issued travel documents
3. Detention, interrogation, and search of travelers (co-signed by the Consumer Travel Alliance)
4. Permission-based government controls on air and surface travel
5. Surveillance and monitoring of travelers (co-signed by the Consumer Travel Alliance)

In 1948, the U.S. cast one of 48 votes in the U.N. General Assembly to approve the Universal Declaration of Human Rights. (There were no votes in opposition. Six Soviet and allied countries, South Africa, and Saudi Arabia abstained.)  Article 13 of the UDHR declares as follows:

1. Everyone has the right to freedom of movement and residence within the borders of each state.
2. Everyone has the right to leave any country, including his own, and to return to his country.

In 1992, these principles of common international law became treaty law binding on the U.S., with the same status as the U.S. Constitution, when the U.S. ratified the International Covenant on Civil and Political Rights.  Article 12 of the ICCPR provides as follows:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.

As a party to the ICCPR, the U.S. government is required to ensure that these rights are protected, and prohibited from restricting them except in accordance with the provisions of the treaty.

With respect to air travel in particular, these principles have been given effect by 49 USC § 40101 and 49 USC § 40103, which recognize the “public right of freedom of transit through the navigable airspace” and require federal agencies to take that right into consideration when they issue regulations. Travel is a right, not a mere “privilege”. There is a specific right to travel by a specific means, by air, in addition to the general right to travel. These rights are explicit in federal law as well as well as in international human rights treaty law.

Because of the special status of travel as a recognized and protected right, an airline isn’t like an ordinary business which can say, “We reserve the right to refuse service.”  For an airline or other common carrier to refuse service to anyone willing to pay the fare and comply with the terms in its published tariff would be a violation of the conditions of its operating license.

Restrictions on the right to travel are subject to strict scrutiny. As the U.N. Human Rights Committee has discussed in its General Comment No. 27 on freedom of movement, such restrictions are “necessary”, as that term is used in the ICCPR, only if they are actually likely to be effective for a permissible purpose, are the least restrictive measure which could accomplish that purpose, and are proportionate to that purpose.  It’s not sufficient for the government merely to claim that restrictions are intended to serve a permissible purpose, without a demonstration of actual effectiveness, proportionality, and the absence of any less restrictive but at least equally effective alternatives.

In the U.S., the right to travel is only implicit, not explicit, in the Constitution. So we are accustomed to thinking about the right to travel as a prerequisite to the exercise of other fundamental rights — the right to assemble, the right to associate with others, the right to petition the government for redress of grievances, and so forth — rather than as a fundamental right in itself. But Article 12 of the ICCPR makes clear that in international law, your right to travel is not dependent on who you are, where you are going, the purpose of your journey, or anything else. You do not need to show some other, consequential harm to establish a violation of your rights. Restrictions on travel are per se human rights violations, regardless of their consequences or whether they also result (as, of course, they often do) in violations of other human rights.

These principles have, equally obviously, been ignored by the U.S. government. Travel has, increasingly, been treated as a specially restricted, inherently suspicious activity. Restrictions on travel have been subjected to reduced regulatory and judicial scrutiny, if any, rather than to heightened or strict scrutiny.

Fortunately, the ICCPR doesn’t rely entirely on the ability of national governments to police themselves. Every five years, each party to the ICCPR must report to the U.N. Human Rights Committee on its implementation of the ICCPR, and appear before the UNHCR to be reviewed.

The U.S. is in the midst of this periodic review process:

On December 30, 2011, the U.S. made its fourth periodic report to the UNHRC on its implementation of the ICCPR. During 2012, human rights activists in the U.S. and around the world have been reviewing the U.S. report, and preparing “shadow” reports [complete index of submissions to the UNHRC, including ours, related to its review of the U.S.] on the inaccuracies and omissions from the U.S. report, to aid the UNHRC in its review.

What happens next?

At its March 2013 session (tentative schedule), the UNHRC will decide on a list of priority issues related to compliance with the ICCPR to be discussed with the U.S. government. After receiving further written input on these issues from the U.S. government and interested organizations and individuals, the UNHRC will hold a public meeting to question representatives from the U.S. government about the U.S. human rights record during its October 2013 session. Normally the UNHRC travels to New York for one of its four sessions each year. But this year, to save money, it’s holding all of its sessions at its permanent headquarters in Geneva, where its secretariat is based. Following this public dialogue, the UNHRC will publish written “concluding observations” including recommendations to the U.S. for improving its compliance with the treaty.

As this description of the process should make clear, the UNHRC has no enforcement power. But it’s the only independent entity before which the U.S. is required to appear, and which is entitled to cross-examine the U.S. government, publicly, concerning its human rights record. As such, the UNHRC has a powerful pulpit for “naming and shaming” of human rights violators.

We’ll be following the process through the coming year, and we’ll keep you posted.