The right to leave and return and Chinese migration law
- Publication Type:
- Thesis
- Issue Date:
- 2005
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The Right to leave and return (RLR) has been affirmed as a fundamental human right in several international instruments. While being a fundamental human right, each State has the sovereign right to regulate RLR in accordance with its own laws. The regulation of RLR, however, is not only an attribute of sovereignty but an issue with important political, economic and security implications for the State. Given its significance, it is understandable and desirable that States regulate RLR. The regulation must however take account of both the interests of the State and the human rights dimension of the right. This is an issue of balance.
In the case of China, the country's communist political system has significantly affected the development of RLR and the country's approach to it. As a rule China's approach is restrictive. As part of its reform and 'opening up' policies, China has embarked on a range of reforms to liberalise RLR, but the reforms lack cohesion and focus, and remain restrictive. Given its peculiar past and complex social and economic conditions, China may have some justifications for its approach, but on balance, has more to gain from adopting a more liberal approach. The issue of RLR in China is crucial both for the future of China, and for development of RLR in the world.
China's current policy's on RLR still reflects a closed culture. A more open policy is not only consistent with international human rights norms, but also a useful infrastructure for the country's place in the global economy. Great achievements over the last 25 years and encouraging developmental trends demand acceleration of reforms to protect RLR in China. A careful and well-coordinated migration strategy with a well-defined RLR focus could enhance China's economic progress as well as its international human rights image. When designing the reform strategy, the balance of the Western experience and Chinese realities needs to be finely kept.
This thesis will explore the Chinese regulatory regime governing RLR to determine its consistency with international standards. The thesis is divided into 15 chapters. It investigates RLR in international migration law and practice; analyses RLR in the context of China, and identifies its driving factors; investigates the conditions and practical concerns relevant to the protection of RLR; and concludes with recommendations on how the Chinese regulatory regime governing RLR can be improved.
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