The Right to Leave Any Country and the Interplay between Jurisdiction and Proportionality in Human Rights Law

Abstract

This article shows the importance in human rights law of the right to leave any country, particularly in the light of increasing efforts by European countries of destination to prevent departures, and to contain movement by enrolling countries of origin and transit to act as gatekeepers. The article highlights the autonomous nature of the right and clarifies the challenges in triggering its application. The opposability of the right to countries of destination is explored, which requires clarifying the difficulties in meeting the jurisdictional threshold in human rights law, and the complications in operationalizing the proportionality test under this qualified right. The article explains the interplay between these difficulties. It argues that the jurisdictional threshold expresses a political and legal relationship between the duty-bearer (the state) and the right-holders (the individuals). This relationship enables the operationalization of the substantive analysis as to whether measures limiting rights are in accordance with the law and are proportionate.

Keywords: jurisdiction, ECHR, the right to leave, proportionality