custody. They may prevent a victim from
returning home until certain requirements, such
as providing testimony against traffickers, have
been met.
The Trafficking Principles and Guidelines contain
a specific reference to freedom of movement in
the context of protecting established rights:
States … should consider … protecting the
right of all persons to freedom of movement
and ensuring that anti-trafficking measures
do not infringe upon this right (Guideline
1.5).
When considering the human rights impact
of a particular anti-trafficking measure, it
is important to acknowledge that freedom
of movement and related rights are not
absolute. For example, under the terms of the
International Covenant on Civil and Political
Rights (art. 12 (1)), freedom of movement is
only guaranteed, as a matter of law, to those
who are lawfully within the territory of the
relevant State. Freedom of movement and the
right to leave can also be subject to lawful
restrictions on the grounds of national security,
public order, public health or morals, or the
rights and freedom of others.144 This caveat
could conceivably provide legal justification
for restrictions on freedom of movement that
aim, for example, to secure witnesses for a
prosecution or to protect trafficked persons from
retaliation and intimidation. Such claims would
need to be tested on their merits. It would also
be important to ascertain independently that the
claimed restrictions do not separately violate
other recognized rights, for example,
International Covenant on Civil and Political Rights,
article 12 (3). In relation to the right to leave one’s country,
both the European Convention on Human Rights, article 3,
and the American Convention on Human Rights, articles
22-23, provide that such restrictions must be “necessary
in a democratic society”. The American Convention on
Human Rights lists the scope of restrictions at article 30.
144
the prohibition on discrimination, explored in
detail above.145
The Human Rights Committee, in considering
the application of this exception, has noted
that freedom of movement is “an indispensable
condition for the free development of a
person”.146 Any restrictions on this right “must be
provided by law, must be necessary… and must
be consistent with all other rights” (para. 11).
The Committee has also noted that:
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 (paras.
14-15).
In deciding whether a restriction on freedom
of movement is lawful, it is therefore necessary
to ask whether the relevant restriction is: (i)
provided for by law; (ii) consistent with other
rights (such as the prohibition on sex-based
discrimination); and (iii) necessary to protect the
individual concerned. These requirements must
all be fulfilled. For example, even if a State is
able to argue that its emigration restrictions are
based on a need to preserve public order or
public morals through preventing trafficking, and
that the measures taken are both necessary and
in proportion to their stated aim, that same State
On the issue of compatibility between restrictions on
freedom of movement and compatibility with other rights
protected in the International Covenant on Civil and
Political Rights, see Nowak, op. cit., pp. 273-274.
145
Human Rights Committee, general comment No. 27:
Freedom of Movement, para. 1.
146
COMMENTARY
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