The Flying Dutchman Dichotomy: The International Right to Leave v. The Sovereign Right to Exclude

Penn State International Law Review Volume 9 Number 2 Dickinson Journal of International Law Article 7 1991 The Flying Dutchman Dichotomy: The International Right to Leave v. The Sovereign Right to Exclude Suzanne McGrath Dale Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the International Law Commons Recommended Citation Dale, Suzanne McGrath (1991) "The Flying Dutchman Dichotomy: The International Right to Leave v. The Sovereign Right to Exclude," Penn State International Law Review: Vol. 9: No. 2, Article 7. Available at: http://elibrary.law.psu.edu/psilr/vol9/iss2/7 This Comment is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact . The Flying Dutchman Dichotomy: The International Right to Leave v. The Sovereign Right to Exclude' I. Introduction The Flying Dutchman is a mythic figure who is condemned to roam the world, never resting, never bringing his ship to port, until Judgement Day. Cursed by past crimes, he is forbidden to land and sails from sea to sea, seeking a peace which forever eludes him. The Dutchman created his own destiny. His acts caused his curse. He is ruled by Fate, not man-made law, or custom, or usage. But today, thanks to man's laws and man's ideas of what should be, there are many like the Dutchman who can find no port, no place to land. A dichotomy of law has developed which effectively prevents these newer Dutchmen from finding a harbor. Traditional international law rules that people must be free to move about the world without undue hinderance, coming and going with reasonable freedom. At the same time, the concept of the sovereign nation includes a right to say who will enter the nation's borders, who will be barred. These two principles are at odds with each other: who is to say that because one may travel freely, any given nation must allow that person to enter? It is conceivable that no nation may allow the traveller to enter. There is no law or right which dictates that every traveller must be guaranteed a welcoming destination or even one which is of the person's own choice. This dichotomy, the right to leave versus the right- to exclude, has created a modern class of Dutchmen, presently typified by the Irish. Citizens of the Republic of Ireland are free to leave as they choose, but where may they go? Sovereign nations which traditionally received outflows of Irish immigrants have exercised their right to exclude. -Australia, Canada, New Zealand and the United States no longer have 'open door' policies for immigrants. England accepts the Irish, but they are barred from citizenship. Driven by economic crisis, these newest Dutchmen are caught in the dichotomy: free to leave, no place to go. I. This Comment gratefully acknowledges the kind assistance of Michael C. LeMay, Professor of Political Science, Frostburg State University; Seton Stapleton, Chief, Immigrant Visa Control Division, U.S. Department of State; and Denis Sheehan, Administrative Officer, Embassy of Ireland. DICKINSON JOURNAL OF INTERNATIONAL LAW II. [Vol. 9:2 The International Right to Leave The western world has recognized a need for free flow of peoples that extends back to 1215 and the Magna Carta.2 Section 42 provides for the liberty to enter or leave England. It shall be lawful in the future for anyone to leave our kingdom, and to return, safely and securely, by land or by water, and without violating our trust, but not during war or for some other brief period, nor if the good of the kingdom will be affected 3 The only exceptions listed were prisoners, outlaws, natives of a country which was at war with England, and merchants who were provided for in an earlier section." The principle of freedom of travel continued to be accepted in Western Europe. In 1539, Francisci de Victoria utilized the principle in an attempt to justify the Spanish colonization of South America.' He asserted it was permissible from the beginning of the world (when everything was in common) for any one to set forth and travel wheresoever he would. Now this was not taken away by the division of property, for it was never the intention of peoples to destroy by that division the reciprocity and the common user which prevailed among men .... 6 Utilizing this philosophy, he argued that the Spanish had a right to travel into South America and "sojourn there" because the natural law of nations (the "jus gentium") dictated that it was only good 7 manners to welcome visitors and treat them courteously. Nearly two centuries after de Victoria, Emmerich de Vattel, a Swiss diplomat and writer, explored the principle of the right to travel, specifically the right to leave one's own country. 8 He declared that one might travel on business when his native state was not in 2. MAGNA CARTA (1215), reprinted in W.S. MCKECHNIE. MAGNA CARTA, A COMMENTARY ON THE GREAT CHARTER OF KING JOHN (1905) (trans. S. McGrath Dale) (hereinafter MAGNA CARTA]. 3. 4. Id. art. 42. Id. For the provision relating to merchants, see infra note 54 and accompanying text. 5. R. PLENDER, INTERNATIONAL MIGRATION LAW 63 (1988). 6. F. DE VICTORIA, DE INDIS ET DE lURE BELLI RELECTIONES (The Classics of International Law No. 1964). Victoria was a sixteenth century theologian and Dominican friar of some renown. A Spaniard by birth, he studied in Paris and later held the prestigious chair of theology at the University of Salamanca. His writings and philosophy strongly influenced both his contemporaries and later legal scholars. 7. Id. 8. E. DE VATTEL, THE LAW OF NATIONS OR THE PRINCIPLES OF NATURAL LAW (The Classics of International Law, 1964). Vattel spent his diplomatic career in the service of the Elector of Savoy. His writings expressed the philosophy of his time. Today, THE LAW OF NATIONS continues to be regarded as a valid expression of international law. See infra, note 19 and accompanying text. Spring 1991] THE FLYING DUTCHMAN DICHOTOMY need of his services. 9 He also concluded there were circumstances under which a citizen had the absolute right to "renounce his allegiance to his country and abandon it."'10 These circumstances were 1) if one could not find work in his own country, 2) if society or the sovereign failed in its obligations to the people, and 3) if society or the sovereign sought to establish laws a citizen found repugnant." Examples of the latter circumstance included establishment of a state religion or a change in government from a democracy to a 2 monarchy.' De Vattel found the right to emigrate derived from a variety of sources. The right might be derived from the laws of nature as according to the standards of civilized society. 3 It might also be a result of state law or be voluntarily granted by the sovereign."' The right might also be the result of a treaty such as those (...truncated)