Travel is a right, not a privilege

by Edward Hasbrouck on January 9, 2013

Human_Rights_Committee

One of the most important principles that protects consumers of travel services is that travel is a right. Your right to travel (both in general and specifically by air) is recognized by U.S. law and by international human rights treaties.

That’s why an airline isn’t like an ordinary business, which can say, “We reserve the right to refuse service to anyone.”  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.

That’s a good thing, since otherwise you’d need a yacht or a private plane to get to or from Hawaii, Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, the Northern Marianas, the Aleutians, or any of the other discontiguous U.S. territories, if airlines decided to refuse you service.

That’s also why restrictions on the right to travel are subject to “strict scrutiny,” and must be “necessary.” As the U.N. Human Rights Committee has discussed, that means restrictions on travel must be likely to be effective for a permissible purpose, must be the least restrictive measure which could accomplish that purpose and must be proportionate to that purpose.

It is not sufficient for the government merely to claim that restrictions are intended to serve a permissible purpose (such as “national security” or “prevention of terrorism”), 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.

However, Article 12 of the International Covenant on Civil and Political Rights (ICCPR) makes clear that in international law, the right to travel is not dependent on who the traveler is, where they are going, the purpose of the journey or anything else. Travelers do not need to show some other, consequential harm to establish a violation of their 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, international human rights law 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 UNHRC to be reviewed.

The U.S. is in the midst of this periodic review process: On December 30, 2011, the US 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 on the inaccuracies and omissions from the U.S. report, to aid the UNHRC in its review.

On December 28, 2012, as part of a joint submission to the UNHRC by the U.S. Human Rights Network, the Consumer Travel Alliance submitted recommendations, in conjunction with the Identity Project, for issues related to freedom of movement that we think the UNHRC should take up with the U.S. Our submissions include questions and recommendations concerning U.S. detentions, interrogations, and searches of travelers and U.S. government surveillance and monitoring of travelers.

In March 2013 the UNHRC will decide on a list of priority issues related to U.S. compliance with the ICCPR. In October 2013 the UNHRC will hold a public meeting to question representatives from the U.S. government about these issues.

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.

Photo: United Nations Geneva

Print Friendly
Be Sociable, Share!

  • bodega3

    Air travel is a priviledge.

  • AKFlyer

    How is air travel a privilege (correct spelling) when US citizens in my state and others cannot even get to other parts of their own state except by air? There are no roads and travel by boat does not work when you live inland where the nearest river is frozen for eight months a year. We don’t have the option of driving if we get put on the “do not fly” list, refuse invasive screening procedures, or simply don’t like the price of flying. Many of us can’t even get to a hospital without flying.

  • bodega3

    You decided to live there.

  • AKFlyer

    You’re kidding, right? That’s like saying it’s OK to discriminate against African Americans living in, say, the Deep South because they decided to live there. Not the version of the Constitution I learned in law school. A fundamental principle underlying our Republic is that the citizens of all states are equal (you don’t have a different set of rights based on where you live) and that interstate commerce is federally protected and regulated.

  • bodega3

    Get real! Air travel isn’t a right and there is nothing discriminating about your location. You picked it knowing the difficulties, just like I picked where I live knowing the lack of certain basics that city dwellers have. When we bought property, having running water wasn’t a right, but something we needed to make sure we could get before we signed on the dotted line.

  • TonyA_says

    If it was a RIGHT then should it would be FREE? Not unless I grow wings :-)

  • TonyA_says

    Drinking Clean Water is a right, correct?
    But I need to have a deep well dug costing many thousands and run my pump with (paid) electricity.
    So most rights are only rights if you can afford it.

  • James Penrose

    Out of curiosity, where do you derive both statements? Freedom of movement/travel is a very basic right. Safety seems a bit more esoteric. If you have the right to not be hit by falling airplanes (sems a reasonable right does it not?), should they not be banned to protect that right?

    If not, who decides if it is OK for you to travel anywhere by ay means and by what standards do they make that decision.

    And what level of “safe” is your right? Planes fall out of the sky sometimes due to many things. Who will enforce your rights at that point? Must a physician and array of emergency equipment be on every flight to protect your right to be safe on a plane since you might have a heart attack or stroke or embolism?

    I think you may be misunderstanding the words “right” and “privilege” so perhaps you can explain your position with more than a thirteen word sound bite?

  • bodega3

    By not flying doesn’t prevent your freedom of movement as you call it. You have two legs, that is you first option. After than, any thing else is gravy.
    I won’t argue with you on the term safe. You can figure it out.

  • AKFlyer

    You’re right, I wasn’t born in AK. But thousands of US citizens were, as were their ancestors going back 10,000 years. You seem to begrudge them their civil rights. Why? Do you think this will somehow make your life better?

    We’re not talking about dealing with “difficulties.” (I’ve lived in NYC and dealt with one type; now live in AK and deal with another.) Mr. Hasbrouck’s article is about government-protected rights that, among other things, are subject to international treaties.

    I guess in your universe “get real” means “agree with me because I say so.” Time to stop confusing you with facts that are beyond your capacity or willingness to understand.

  • bodega3

    No carrier is going to be able to fly on a regular basis where many of those Alaskan natives live. Weather is a factor for many locales, including mine. There is no civil right to an airport that I am aware of unless you can provide me with something that states it, which I would be happy to read.
    Stop confusing rights to wants. There is a difference.

Previous post:

Next post: