1. Introduction 

At present, inevitable question two or more Eritrean youths meeting outside Eritrea ask each other is how each one of them left Eritrea - ‘Bhgawi dika kab Ertra wetsika’ which means ‘did you exit Eritrea legally’. It is a question with an obvious answer but it has been nonetheless asked. It serves as a starter anyway; and most often leads to a common experience. The rights to leave and to return to Eritrea and to be provided with passport or any other travel document of thousands of Eritrean youths and other ‘politically undesirables’ – a right clearly provided by Article 19(9) of the Eritrean Constitution and other sacrosanct international human right documents – is severely curtailed together with other fundamental rights. Leaving Eritrea legally, as opposed to ‘illegally’ has become the exception of the exception for Eritrean youths. ‘Cross giere ember wetsie’, they proudly respond. To the contrary, those few who exited Eritrea ‘legally’ tend to feel mortified for getting the rare ‘favour’ from the government in Asmara.

Whenever met with other fellow Eritrean youths, the author has always been asked how he left Eritrea and invariably redirected the same question to their authors. From the fact that they describe their exit as ‘illegal’ and that they are very proud of doing so, a stranger might sense contradiction which does not actually exist. Considering the moral blame they entail to the doer, crimes are classified in to two – malum in se and malum prohibitum. For a reasonable offender, the commission of the first entails some degree of moral culpability. Murder is one example. The latter are mere statutory prohibitions that an offender is not morally haunted if not feels happy when he or she infringes them. Traffic rules are good examples. Thus, fraught by the overall repression of human rights, in spite of severe restrictions which some asylum determining tribunals around the world have described as ‘draconian’<!--[if !supportFootnotes]-->[1]<!--[endif]-->, Eritrean youths are however fleeing Eritrea in thousands every year with no possibility of return in the near future and they are happy of what they did because they have noted that the prohibitions are indeed draconian to say the least.

The author concurs very strongly. Indeed, oh brethren, you are not a felon but a victim of severe curtailment of your rights. Hereunder follows an analysis of the twin rights to leave and to return to one’s country provided in two international treaties binding upon Eritrea and the Universal Declaration of Human Rights, with a particular focus on the permissible limitation.  

2. The rights to leave and to return from historical perspective

An early expression of the right to leave one's birthplace appeared in the Crito, where Plato has Socrates proudly explain: ‘we further proclaim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him’.<!--[if !supportFootnotes]-->[2]<!--[endif]--> Early formal acknowledgement of the right to freedom of movement in national law can be found in the Magna Carta, a documented dated 1215. The Magna Carta provided that ‘it shall be lawful in the future for anyone ... to leave our Kingdom and to return, safe and secure by land and water ...’<!--[if !supportFootnotes]-->[3]<!--[endif]--> A general right to free movement is also reflected in the writings of 16th century publicists of international law. According to the Spaniard Francisco de Vitoria, ‘it was permissible from the beginning of the world for anyone to set forth and travel wheresoever he would’.<!--[if !supportFootnotes]-->[4]<!--[endif]--> During the 17th century Hugo Grotius postulated the principle that ‘every nation is free to travel to every other nation’.<!--[if !supportFootnotes]-->[5]<!--[endif]-->

Some writers have indeed found justification for the contemporary rights to leave and to return to one’s country in ancient human history and have thus concluded the right is innate to human being.<!--[if !supportFootnotes]-->[6]<!--[endif]--> Nevertheless, as Hannum<!--[if !supportFootnotes]-->[7]<!--[endif]--> has rightly observed, whatever theory one adopts to explain the original source, the right to movement has now acquired the status of positive law through the widespread acceptance of the international covenants and numerous other international agreements.<!--[if !supportFootnotes]-->[8]<!--[endif]-->

In its modern sense, freedom of movement contains internal and external aspects: freedom of movement within a country and between States respectively.<!--[if !supportFootnotes]-->[9]<!--[endif]--> The latter aspect is usually referred to as the rights to leave and to return to one’s country. It is the external aspect which is the focus of this paper. While the rights to leave and to return are closely connected, in that the existence of one allows for the effective exercise of the other, they respectively respond to different needs of the individuals exercising them. The person leaving his or her country may be doing so out of a desire to travel, to emigrate, or to seek refuge; while the person seeking to return to his or her country is usually motivated by a desire to return home, to the place where he or she belongs, to his or her roots.<!--[if !supportFootnotes]-->[10]<!--[endif]--> This ‘natural desire for a base or homeland’ has been said to demonstrate ‘the logical connection’ of freedom of movement with the right to a nationality and the right to property.<!--[if !supportFootnotes]-->[11]<!--[endif]-->

These and other factors could therefore lead to different standards applicable to the right to leave and the right to return. The right to leave one’s country does not for example grant an automatic right to enter other alien country.<!--[if !supportFootnotes]-->[12]<!--[endif]--> This fact coupled with the growing proportion of economic migration to the west which the western world has not been welcoming, and that illegal immigrants face deportation and numerous violations, could tempt third world state to, for example, make exit visa dependent upon securing entry. Regardless of this scenario, Harvey and Barnidge however argue that ‘the right to leave one’s own country remains significant in international human rights law’.<!--[if !supportFootnotes]-->[13]<!--[endif]-->

3 The rights under treaty law

Out of the many treaties<!--[if !supportFootnotes]-->[14]<!--[endif]--> and soft laws which provide for the rights to leave and to return, this paper focus on two treaties Eritrea has ratified<!--[if !supportFootnotes]-->[15]<!--[endif]--> - the African Charter on Human and Peoples’ Rights (ACHPR)<!--[if !supportFootnotes]-->[16]<!--[endif]--> and the International Covenant on Civil and Political Rights (ICCPR),<!--[if !supportFootnotes]-->[17]<!--[endif]--> - and on the Universal Declaration of Human Rights (Universal Declaration) which is binding on Eritrea because the Declaration have arguably attained the status of customary international law.<!--[if !supportFootnotes]-->[18]<!--[endif]-->

Article 12(2) of the African Charter on Human and Peoples' Rights (ACHPR) provides that ‘every individual shall have the right to leave any country including his own, and to return to his country’. Article 13 of the Universal Declaration provides that ‘everyone has the right to leave any country, including his own, and to return to his country’. Article 12(2) of the ICCPR provides, in relevant part that ‘everyone shall be free to leave any country, including his own’; and article 12(4) provides that ‘no one shall be arbitrarily deprived of the right to enter his own country’.

4 The boundaries of the rights

In this world that often experiences worst dictatorial governments taking terms such as democracy and justice as their names, and in the context of such governments often claiming of being respectful of the twin rights to leave and to return, it is indeed important to discuss the permissible limitations of these rights. 

Three approaches of limiting rights can be identified. With some constitutions, there is no expressed limitation clause on rights. Nevertheless, as all rights are not absolute, courts have read-in certain limitation in rights.<!--[if !supportFootnotes]-->[19]<!--[endif]--> With other constitutions and human rights instruments, a qualifier clause by which limitation of non-absolute rights is regulated is attached and there is no general limitation clause. Such qualifiers are often referred as internal limitations or clawback clauses. Or rights are stated in seemingly absolute terms and then there is a general limitation clause applicable to the non-absolute rights.<!--[if !supportFootnotes]-->[20]<!--[endif]--> A third category of constitutions and human rights instruments not only attach an internal limitation but also provide for a general limitation clause – thus seemingly subjecting rights to double limitation.<!--[if !supportFootnotes]-->[21]<!--[endif]--> Derogation<!--[if !supportFootnotes]-->[22]<!--[endif]--> from rights during state of emergency situations is differently treated by different constitutions.<!--[if !supportFootnotes]-->[23]<!--[endif]--> It seems however, although there could be certain procedural implications,<!--[if !supportFootnotes]-->[24]<!--[endif]--> the distinctions are more theoretical and all approaches tend to meet at the end result.

Under the Universal Declaration, the twin rights to leave and to return are subject to general limitation provided in article 29:

1.         Everyone has duties to the community in which alone the free and full development of his personality is possible. 

2.         In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 

3.         These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Although the ACHPR is known for its trademark of not allowing derogation from its rights even during state of emergency, Professor Heyns for example has convincingly argued that article 27(2) of the ACHPR which states the ‘rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest’ will increasingly be used by States as a general limitation in addition to the internal limitations.<!--[if !supportFootnotes]-->[25]<!--[endif]--> Article 12(2) of the ACHPR contains internal limitation by subjecting the rights to leave and to return to ‘restrictions, provided for by law for the protection of national security, law and order, public health or morality’.

The only limitation to the right to return as provided in article 12(4) of the ICCPR is that the right is not absolute but subject to derogation in accordance to article 4.<!--[if !supportFootnotes]-->[26]<!--[endif]--> Although article 12(2) of the ICCPR provides that ‘everyone shall be free to leave any country, including his own’, on top of the possibility of derogation in accordance to article 4, article 12(3) allows for additional restrictions of the right to leave in so far as such restrictions ‘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’. Thus, under ACHPR the twin rights to leave and to return; and under the ICCPR the right to leave are subjected to limitations at two stages.<!--[if !supportFootnotes]-->[27]<!--[endif]-->

Two requirements a limitation to be permissible have to meet can be identified with the ACHPR, the ICCPR and the Universal Declaration: (1) the procedural (provided for by law) and (2) the substantive requirement (the purposes for which limitation is permitted). The discussion below looks at the detailed meaning of both the procedural and substantive requirements and explores the preparatory works of the above instruments, other interpretative guides and interpretation of the rights by relevant bodies in the form of General Comments and cases. 

4.1 Procedural requirements 

There is no much documentation on the development of the provision of the ACHPR that can help in the interpretation of the rights to leave and to return. If ‘provided for by law’ is to mean any domestic law, many writers decried that it would mean what has been provided under international treaties can be withered away by laws States can pass – at the end making rights contained in international treaties illusory.<!--[if !supportFootnotes]-->[28]<!--[endif]--> Fortunately, the African Commission has not followed this literal interpretation and it is now settled that the phrase ‘provided for by law’ is taken as referring to international human rights standards:<!--[if !supportFootnotes]-->[29]<!--[endif]-->

According to Article 9(2)<!--[if !supportFootnotes]-->[30]<!--[endif]--> of the Charter, dissemination of opinions may be restricted by law. This does not mean that national law can set aside the right to express one’s opinions; this would make the protection of the right to express one’s opinions ineffective. To allow national law to have precedence over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law.

The same is true with the Universal Declaration. When the Universal Declaration was debated in the General Assembly, the U.S.S.R. proposed an amendment to Article 13(2) that would have added after the phrase ‘to leave any country, including his own’ the words ‘in accordance with the procedure laid down in the laws of that country.’<!--[if !supportFootnotes]-->[31]<!--[endif]--> The U.S.S.R. and Eastern bloc delegates defended the amendment as an accurate statement of ‘existing realities,’ as ‘movement within a given country or across its frontiers’ was a matter of domestic law.<!--[if !supportFootnotes]-->[32]<!--[endif]--> The Soviet amendment, however, was strongly opposed by many nations and was defeated, and the U.S.S.R. was subsequently the only nations to vote against the final wording of Article 13. The United States summarized the stated views of other nations:<!--[if !supportFootnotes]-->[33]<!--[endif]-->

During the discussion on the other articles, it had been recognized that in certain circumstances individuals had to be guaranteed protection, even against their own government. The article under discussion seemed to impose such an obligation … The amendment submitted by the U.S.S.R. delegation would render the article valueless. To state that freedom of movement should be granted only in accordance with the laws of each country would be equivalent to limiting the fundamental rights of the individual and increasing the powers of the State.

The drafting history of Article 12 of the ICCPR also establishes the intent of the member states to recognize and protect the right to emigrate. As submitted to the General Assembly by the Commission on Human Rights, the right to emigrate, set out in Article 12, was preceded by a limiting paragraph:<!--[if !supportFootnotes]-->[34]<!--[endif]-->

Subject to any general law of the State concerned which provides for such reasonable restrictions as may be necessary to protect national security, public safety, health or morals or the rights and freedoms of others, consistent with the other rights recognized in this Covenant 

Although the delegates generally agreed with the substance of the proposed Article 12, they also felt that the drafting needed revision to make the principles of freedom to emigrate clear and paramount.<!--[if !supportFootnotes]-->[35]<!--[endif]-->Thus, the initial order of the provisions of Article 12 was amended so as to stress the principle rather than the exceptions and article 12 took its current shape. The amendment was immediately supported by many delegations, and was especially praised for its revised form stressing the rights of the individual.<!--[if !supportFootnotes]-->[36]<!--[endif]--> The drafting history of the ICCPR also shows that the requirement for limitation to be provided by law is necessary to curb executive discretion.<!--[if !supportFootnotes]-->[37]<!--[endif]-->

There are also numerous guidelines showing the boundaries of permissible limitations and the procedures States should follow in limiting the rights to leave and to return. These include General Comment No. 27, the Siracusa Principles,<!--[if !supportFootnotes]-->[38]<!--[endif]--> the Uppsala Colloquium’s Declaration,<!--[if !supportFootnotes]-->[39]<!--[endif]--> Draft Principles on Freedom and Non-Discrimination in respect of the Right of Everyone to Leave Any Country, including His Own<!--[if !supportFootnotes]-->[40]<!--[endif]--> and the Strasbourg Declaration.<!--[if !supportFootnotes]-->[41]<!--[endif]-->

In order to give content to the drafters' intent to prohibit arbitrary restrictions on the twin rights, the above principles and declaration further provide that laws shall guarantee procedural safeguards. In his seminal 1963 study on the implementation of the Covenant's statement of the rights to leave and to return, Judge Ingles, whose position is also supported by the Uppsala Colloquium’s Declaration,<!--[if !supportFootnotes]-->[42]<!--[endif]--> the Draft Principles on Freedom and Non-Discrimination<!--[if !supportFootnotes]-->[43]<!--[endif]--> and the Strasbourg Declaration,<!--[if !supportFootnotes]-->[44]<!--[endif]-->required the following procedural safeguards to protect the rights to leave and to return:<!--[if !supportFootnotes]-->[45]<!--[endif]-->

(a) Everyone denied a travel document or permission to leave the country or to return to his country is entitled to a fair hearing. In particular, he shall have the possibility of presenting evidence on his own behalf, of disputing evidence against him and of having witnesses examined. The hearing shall be public except when compelling reasons of national security or the personal interests of the applicant require otherwise. (b) The decision of the competent authorities to grant, deny, withdraw or cancel the required permission or travel document shall be made and communicated to the individual concerned within a reasonable and specified period of time. (c) If the required travel document or permission is denied, withdrawn or cancelled, the reasons for the decision shall be clearly stated to the individual concerned. (d) In case of denial, withdrawal or cancellation of the required permission or travel document, the aggrieved individual shall have the right of appeal to an independent and impartial tribunal.

4.2 Substantive requirements

It is convenient to analyse the substantive requirements by dividing them into three components: (1) are necessary (2) for the protection of national security, law and order, public health or morality, securing due recognition and respect for the rights and freedoms of others and the general welfare in a democratic society, and (3) are consistent with the other rights recognized in international standards.<!--[if !supportFootnotes]-->[46]<!--[endif]-->    

4.2.1 Drafting history (travaux préparatoires)

There is no much information on the drafting history of the ACHPR on the particular rights to leave and to return. There is however substantial information on article 12 of the ICCPR. After agreeing on an acceptable form, the General Assembly focused on the specific terms of Article 12(3) of the ICCPR, especially on those terms that in some way limited the rights established. As originally drafted by the UN Commission on Human Rights, Article 12 contained a long list of limitations on the right to emigrate than it has now; but the formula was eventually rejected, in part, because the restrictions were ‘too broad and required further qualification while providing no real protection against the enactment of arbitrary legislation.<!--[if !supportFootnotes]-->[47]<!--[endif]--> Concern was voiced that far-reaching restrictions could be justified under such a vague expression.<!--[if !supportFootnotes]-->[48]<!--[endif]--> The drafting history and the wording used in Article 12 make it clear that restrictions on freedom of movement were intended to be entirely exceptional. This position has been reinforced by the various declarations and principles mentioned above, General Comment No 27 and case law of the Human Rights Committee. Although it can be said that these interpretative guides are applicable to the ICCPR, they are however equally applicable to the other instruments because of similarities of their relevant provisions. In addition, the African Commission has also found violations of the twin rights to leave and to return in few cases. 

4.2.2 General Comment No 27

In the course of its life the monitoring body of the ICCPR, the Human Rights Committee, has issued commentaries on the interpretation of the rights contained in ICCPR – commentaries commonly referred as General Comments.<!--[if !supportFootnotes]-->[49]<!--[endif]-->

General Comment No. 27 adopted in 1999 specifically provides detailed principles to guide states in securing the freedom of movement generally. Paragraphs 1 and 2 affirm that ‘liberty of movement is an indispensable condition for the free development of a person’ and the ‘permissible limitations which may be imposed … must not nullify the principle of liberty of movement, and are governed by the requirement of necessity … and by the need for consistency with the other rights recognized in the Covenant’. Paragraph 8 explains that freedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country or the State of destination. Since international travel usually requires appropriate documents, in particular a passport, paragraph 9 requires that the right to leave a country must include the right to obtain the necessary travel documents from the State of nationality of the individual; and the refusal by a State to issue a passport or prolong its validity for a national residing abroad may deprive a person his or her right to leave and to travel elsewhere.

Paragraph 13 clearly requires States to always be guided by the principle that the restrictions must not impair the essence of the right; the relation between right and restriction, between norm and exception, must not be reversed and the laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution. Paragraph 14 and 15 further stress that it is not sufficient that the restrictions serve the permissible purposes - they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected. The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. Paragraph 18 clearly requires that, to be permissible, restrictions need to be consistent with the fundamental principles of equality and non-discrimination. Thus, it would be a clear violation of the Covenant if the twin rights to leave and to return are restricted by making distinctions such as on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

4.2.3 Other interpretative guides

A limitation is ‘necessary’ when it, assessed objectively, responds to a pressing public or social need, pursues a legitimate aim and is proportionate to that aim.<!--[if !supportFootnotes]-->[50]<!--[endif]--> ‘National security, public order (ordre public), public health or morals or the rights and freedoms of others’ are the most fluid justifications states often rely on to shield their actions.<!--[if !supportFootnotes]-->[51]<!--[endif]--> Responding to this concern, the Siracusa Conference stresses that national security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force and cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order or as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exist adequate safeguards and effective remedies against abuse.<!--[if !supportFootnotes]-->[52]<!--[endif]--> Judge Ingles observed that a ‘general policy of not permitting anyone to leave the country is never justifiable except in time of war or national emergency’.<!--[if !supportFootnotes]-->[53]<!--[endif]-->

Article 6 of the Uppsala Colloquium’s Declaration further provides that a ‘person's right to leave a country shall be subject only to such reasonable limitations as are necessary to prevent a clear and present danger to the national security or public order, or to comply with international health regulations; and only if such limitations are provided for by law, are clear and specific, are not subject to arbitrary application and do not destroy the substance of the rights’.<!--[if !supportFootnotes]-->[54]<!--[endif]--> The kinds of limitations considered permissible under this view of national security would include those necessary to prevent espionage, to protect military secrets, and to regulate the movement of members of the military.<!--[if !supportFootnotes]-->[55]<!--[endif]--> 

4.2.4 Cases before the Committee

General Comments and the other guidelines, although detailed, contain yet abstract principles that provide guidance in understanding a right. Cases (communications) demonstrate how a right has been interpreted when states have allegedly breached their legal obligations. There are many cases in which the right to leave and to return featured. Lauri Peltonen v Finland<!--[if !supportFootnotes]-->[56]<!--[endif]--> in particular squarely applies to the situation in Eritrea. 

In Lauri Peltonen Finland notes that Section 7, paragraph 1, of the Constitution Act (94/1919) provides for the right of a Finnish citizen to leave his/her own country which is further spelled out in the Passport Act (642/1986) and Passport Decree (643/86), which regulate the right to travel abroad. Furthermore, Section 75, paragraph 1, of the Constitution Act regulates the obligation of Finnish citizens to participate in the defense of the country; this is spelled out in the Military Service Act (452/50) and the Non-Military Service Act (1723/91).

Section 3, paragraph 1, of the Passport Act provides that a Finnish citizen shall obtain a passport, unless otherwise stipulated in the Act. In addition, a passport [may be denied to persons aged 17 to 30 if the requesting citizen cannot show its issuance (by implication leaving Finland) would not be used to evade  military service].<!--[if !supportFootnotes]-->[57]<!--[endif]--> In such cases, a request for a passport should be accompanied by various documents that show either the requesting individual is exempted or has completed or can be trusted to honour his/her duty to complete the service (Section 4 of the Passport Decree). A Finnish citizen living abroad, and falling into the category of Section 9(1)(6), must obtain a statement from the police of his last place of residence in Finland, showing that he is not liable for military service.

As to the authorities' discretion to give or deny a person a passport, Finland points out that, when considering a passport application from a person falling within the category of Section 9(1), consideration must be given to ‘the significance of travel related to the applicant's family relations, state of health, subsistence, profession and other circumstances’, in accordance with Section 10 of the Act. In this context, the State party refers to the ratio legis of the Passport Act as explained in Parliament, where it was noted that the decision to grant a passport is taken by legal discretion, based on acceptable objective grounds. Furthermore, according to a circular of the Legal Office of the Ministry for Foreign Affairs of 22 June 1992 (No. 0IK-4, 1988/1594/68.40), an Embassy must consider its decisions in Section 9(1) cases on the basis of the statement obtained from the police of the applicant's last residence in Finland, and must take into account the circumstances of the case and the grounds referred to in Section 10. Thus, Finland contended, the Embassy's discretion to grant a passport is not unlimited, since the Passport Act contains clearly specified grounds for rejecting a request for a passport.

As regards to the time dimension, it is submitted by Finland that the [denial of a passport]<!--[if !supportFootnotes]-->[58]<!--[endif]--> cannot be limited solely to the period of a person's actual military service, but it necessarily covers a more extensive period before and after such service, in order to secure that a conscript really performs his military service. Finland explained that, for a person who has participated in his call-up for military or alternative service, [or] who has been granted a deferral (for up to three years, for example) of performance of such service, a passport is generally granted up to 28 years of age.<!--[if !supportFootnotes]-->[59]<!--[endif]--> Once the person liable for military service has reached the age of 28, the passport is generally granted for a shorter period of time, so that by the age of 30, he must perform his military service. Generally, citizens are not called for military service after the age of 30.

The complainant - Lauri Peltonen - is a Finnish citizen born in 1968, residing in Stockholm, Sweden, since 1986. In June 1990, the complainant applied for a passport at the Finnish Embassy in Stockholm. The Embassy refused to issue a passport, on the ground that Mr. Peltonen had failed to report for his military service in Finland on a specified date. The complainant appealed against the Embassy's decision to the Uusimaa Provincial Administrative Court, invoking his right to leave any country. By decision of 22 January 1991, the Court upheld the Embassy's decision. The complainant then appealed to the Supreme Administrative Court, which confirmed the previous decisions on 19 September 1991. Subsequently the complainant in 23 December 1991 filled a communication with the Committee.

The complainant notes that the administrative and judicial instances seized of his case did not justify the denial of a passport. In its decision, the complainant contended that the Supreme Administrative Court merely observed that the Embassy had the right, under Section 9, subsection 1(6), not to issue a passport to the complainant because he [was subject to a conscription and had failed to prove that by getting passport he was not planning to evade].<!--[if !supportFootnotes]-->[60]<!--[endif]-->The complainant contends that the interpretation by the Supreme Court of the words ‘may be denied’ in Section 9, subsection 1(6), means that Finnish Embassies around the world have full discretion to deny passports to Finnish citizens until they reach the age of 30. The duration of the denial of a passport is likely to exceed by far the period of ‘eight to eleven months’, as it did in this case.<!--[if !supportFootnotes]-->[61]<!--[endif]-->

The complainant acknowledged that failure to report for military service is an offence under the Finnish Military Service Act. The complainant did not challenge Finland's position that a State must have some means at its disposal to secure that conscripts actually perform their military service. He observes, however, that the Finnish authorities could have instituted criminal or disciplinary proceedings against him; failure to do so is said to further underline that the denial of a passport was and continues to be used as a de facto punishment. Thus the complainants submitted that the denial of a passport pursuant to Section 9, subsection 1(6), of the Passport Act is a disproportionate punishment in relation to the offence of failure to report for military service and thus amounts to a violation of his right under article 12 of the Covenant. Counsel for the complainant argued that Finland ‘cannot use denial of passport as a legal means of forcing citizens to carry out the military service which is 8 to 11 months’. The contention of counsel is that the ramification of denial of passport is too disproportional to the interest that is intended to be served.

Finland further notes that when requesting for a passport the complainant did not show he was not trying to evade his liability for military service. Finland notes that Mr. Peltonen did not react to his military call-up in 1987<!--[if !supportFootnotes]-->[62]<!--[endif]-->, and that he has disregarded all subsequent call-ups. Finland further refers to the conduct of the complainant which it seems to show that the complainant was reluctant to start his service. Furthermore, Finland contends, no mention was made in his request for passport of any of the grounds referred to in Section 10 - the significance of the intended travel of the complainant which the complainant seem not to rebut. Finland contended that the restriction is a permissible restriction under article 12(3) of the ICCPR.

In paragraph 8.3 the Committee concluded that pursuant to the requirements of article 12(3), states could 'impose reasonable restrictions on the rights of individuals who have not yet performed such [mandatory national] service to leave the country until service is completed'. Thus, national service obligation laws that 'reasonably restrict' the right to leave will not be held to violate article 12.  At the same time, national service obligation laws that undermine the essence of the right to leave, or exceptions that violate the rule, will be contrary to article 12.

Quoting Jagerskiold<!--[if !supportFootnotes]-->[63]<!--[endif]--> as stating that 'if there is a mandatory national service requirement, individuals who have not yet served may be prohibited from leaving until service is completed' and Nowak<!--[if !supportFootnotes]-->[64]<!--[endif]--> who asserted that '[o]nly in special cases may persons who have not fulfilled their military service be prohibited from leaving the country' and comparing with certain Concluding Observations<!--[if !supportFootnotes]-->[65]<!--[endif]--> in which the Committee stated that it ‘is further regretted that all individuals who have not yet performed their national service are excluded in principle from enjoying their right to leave the country', Harvey and Barnidge rightly highlight contradictions and seem to suggest that the decision of the Committee need to be construed very strictly as a bad case.<!--[if !supportFootnotes]-->[66]<!--[endif]-->

Nevertheless, un rebutted contention of Finland shows that if the significance of the desired travel is explained and found to be convincing, it seems that a passport can be granted even to a citizen subject to conscription. It also seems that if the desired travel is for visiting family members or health, subsistence, profession and other circumstances of the traveller, passport (permission to leave) can be granted. Assuming that the complainant failed to mention any of such significance of his travel, it can be concluded that the Committee was right to find the proportionality equation in favour of limiting the right of the complainant.

In Loubna El Ghar v Socialist People’s Libyan Arab Jamahiriya the complainant, a resident of Morocco with Libyan nationality, had applied for a Libyan passport at the Libyan Consulate.<!--[if !supportFootnotes]-->[67]<!--[endif]--> Over three years after date of application, Libyan authorities informed the Complainant (Loubna El Ghar) without explanation that she could only be given a travel document, a laissezpasser, to return to Libya (para 7.2). As of the date of the decision, 29 March 2004, the complainant had yet to have in her possession a Libyan passport. The Committee found a violation of the right to leave because Libya denied the complainant a passport<!--[if !supportFootnotes]-->[68]<!--[endif]--> ‘without any valid justification and subjected [her] to an unreasonable delay, and as a result … prevented [her] from travelling abroad to continue her studies’.<!--[if !supportFootnotes]-->[69]<!--[endif]-->

In Sophie Vidal Martins v Uruguay the complainant, a Uruguay national living in Mexico at the time of decision, had applied to confirm the validity of her passport and for a new passport over a period of several years in the late-1970s.<!--[if !supportFootnotes]-->[70]<!--[endif]--> Uruguay declined the complainant’s applications.<!--[if !supportFootnotes]-->[71]<!--[endif]--> The complainant alleged that this refusal stemmed from the fact that she used to work for a Uruguayan newspaper that was banned in Uruguay.<!--[if !supportFootnotes]-->[72]<!--[endif]--> The Committee found a violation of the right to leave of the complainant because the complainant ‘was refused the issuance of a passport without any justification therefore, thereby preventing her from leaving any country including her own’.<!--[if !supportFootnotes]-->[73]<!--[endif]-->

In Carlos Varela Nunez v Uruguay, the complainant alleged that Uruguay had revoked his passport without justification or notice as a punitive measure because of his harsh criticism of the Uruguayan government.<!--[if !supportFootnotes]-->[74]<!--[endif]-->In considering the case, the Committee decides to base its views on uncontested facts that Carlos Varela Nunez is a Uruguayan citizen living in New York City since 1973; that in 1980, his passport (valid then until November 1981) was revoked by the Uruguayan Government which so notified foreign Governments in June 1980; that he never received any written notice of the revocation, nor any statement of the reason for that decision, from the Uruguayan Government and that his written inquiry regarding his passport sent by registered mail to the Uruguayan consulate in New York, remained unanswered.<!--[if !supportFootnotes]-->[75]<!--[endif]--> The Committee found that the facts ‘disclose a violation of article 12 of the Covenant, because the passport of Carlos Varela Natchez was revoked without any justification, thus preventing him from fully enjoying the rights under article 12 of the Covenant’.<!--[if !supportFootnotes]-->[76]<!--[endif]-->

The Committee has been particularly concerned with alleged violations of the right to leave in the context of political dissidents. In Samuel Lichtensztejn v Uruguay, the complainant was a Uruguayan national who had formerly been Director and Dean of the Faculty of Economic Sciences and Administration and Rector of the University of the Republic of Uruguay, but who, at the time of the communication, lived in Mexico.<!--[if !supportFootnotes]-->[77]<!--[endif]--> As an outspoken political dissident in Mexico, he criticized the lack of academic autonomy and independence in, and the human rights record of, Uruguay.<!--[if !supportFootnotes]-->[78]<!--[endif]--> Uruguayan authorities in Mexico refused to renew his passport, giving no explanation for this refusal.<!--[if !supportFootnotes]-->[79]<!--[endif]--> The Committee found that Uruguay had violated article 12.<!--[if !supportFootnotes]-->[80]<!--[endif]-->

4.2.5 Cases before the African Commission

In a communication before the African Commission against Burkina Faso, it was alleged that on 6th August 1995, Mr. Nongma Ernest Ouédraogo, Secretary General of the political party known as Bloc Socialiste Burkinabé was prevented from leaving the national territory, following the publication by the said party of a statement on the situation in the country. Information available to the Commission does not point to any threat to public security or morality that either the journey or even the person of the said Mr. Ouédraogo could have represented. Therefore, the African Commission found that there was violation of Article 12(2).<!--[if !supportFootnotes]-->[81]<!--[endif]-->

In John K. Modise v Botswana the complainant, a citizen of Botswana, was deported four times from Botswana and faced plights as a result of these acts. In this circumstance, the African Commission found that the said deportations had greatly jeopardised the complainant's right to freedom of movement as a citizen of Botswana and also infringed upon his rights to leave and to return to his country guaranteed by Article 12(2) of the ACHPR.<!--[if !supportFootnotes]-->[82]<!--[endif]-->

5 Conclusions

International agreements signed by Eritrea and virtually by every state have recognized the twin rights to leave and to return as fundamental rights and have cemented their core into the fabric of international law, elevating them above the exclusive realm of domestic law.  Although it is accepted that there may be restrictions, as an international rights their limitation are subject to international standards. In so far as national laws supplement gaps, they shall be consistent with international law. Limitations are the exception rather than the norm and must be provided by law which provides for procedural safeguards; are strictly necessary in terms of proportionality, appropriateness to achieve their protective function and should be least intrusive. The purposes which limitations aspire to serve are the protection of national security, law and order, public health or morality, securing due recognition and respect for the rights and freedoms of others and the general welfare in a democratic society. Limitation may not be imposed for any other reason. Since international travel usually requires appropriate documents, in particular a passport, the rights to leave and to return one’s country includes the right to obtain the necessary travel documents from the State of nationality of the individual.