The International Law Commission held its sixty-fourth session in Geneva from May 7 to June 1, and from July 2 to August 3, 2012, under the chairmanship of Lucius Caflisch. (1) The session marked the first year of a new quinquennium (2012-2016), with the Commission having completed its work during the prior quinquennium (2007-2011) on four major topics: transboundary aquifers, effects of armed conflict on treaties, reservations to treaties, and responsibility of international organizations. (2)
The central topic under discussion during the sixty-fourth session concerned the expulsion of aliens, which led to the adoption on first reading of thirty-two articles, together with commentaries, regarding a state's power to remove nonnationals coercively from its territory. Work also proceeded on the other topics already on the Commission's agenda (the protection of persons in the event of disasters, the immunity of state officials from foreign criminal jurisdiction, the obligation to extradite or prosecute, treaties over time, and the most-favored-nation clause), and two new topics were added to that agenda (the provisional application of treaties and the formation and evidence of customary international law).
EXPULSION OF ALIENS
Expulsion of aliens is an important and controversial issue in the politics of many nations. In 2004, the Commission included this topic on its agenda and appointed Maurice Kamto (Cameroon) as its special rapporteur. (3) Kamto has submitted eight reports analyzing the law in this area and proposing a series of draft articles that partly codify and partly progressively develop the law. After several years of development through discussions in the Commission's plenary sessions and in its drafting committee, thirty-two articles were adopted, as noted, on first reading during the sixty-fourth session, together with commentaries. (4) The draft articles recognize a general right of a state to expel aliens from its territory but only "in accordance with the present draft articles and other applicable rules of international law, in particular those relating to human rights." (5)
The draft articles define alien as "an individual who does not have the nationality of the State in whose territory that individual is present," (6) thus covering both a person with a foreign nationality and a stateless person. The alien must be present within the territory of the state, (7) which excludes aliens who enter an embassy, consulate, military base, or other facility of the state located abroad, as well as aliens stopped on vessels located outside territorial waters. An alien includes a person who is displaced across a border, (8) perhaps due to a famine or an internal armed conflict. Byway of example, during the past two years more than 525,000 Syrians have fled into Jordan, Iraq, Lebanon, and Turkey to escape the violence in Syria; (9) they would be covered by these articles, whether or not they are classified as refugees or whether or not they legally entered these states.
Expulsion is defined as "a formal act, or conduct consisting of an action or omission, attributable to a State, by which an alien is compelled to leave the territory of that State...." (10) At the same time, expulsion of a person "does not include extradition to another State, surrender to an international criminal court or tribunal, or the non-admission of an alien, other than a refugee, to a State." (11) This last exclusion means that persons who are stopped at the border of a state or at a port of entry (such as an airport) and who are identified as ineligible to enter the country lawfully may be sent back by immigration authorities to the place from where they came without being regarded as "expelled," even though physically present (temporarily) in the state, unless they are "refugees," within the meaning of relevant international treaties. (12) In addition, the draft articles do not apply to persons who enjoy privileges and immunities under international law, such as diplomats or military personnel covered by a status of forces agreement. (13) Such persons may be expelled by the state in accordance with whatever rules apply under the regime through which they receive their privileges and immunities.
Though the draft articles do not cover situations of nonadmission, they do cover aliens who are unlawfully present in the state, (14) whether by entering the state legally but then becoming illegal (perhaps by overstaying the term of a visa) or by entering the state illegally (perhaps by crossing a border undetected). (15) The protections accorded to illegal aliens are almost identical to those accorded to legal aliens, such as those who have resided in the state for many years. By granting to illegal aliens largely the same protections as are accorded to legal aliens, the draft articles move beyond the national laws of many states and the European Union (16) and beyond provisions on expulsion contained in widely adhered-to human rights instruments that differentiate between the two groups. (17)
As noted above, a state may expel an alien but only "in accordance with the present draft articles and other applicable rules of international law, in particular those relating to human rights." (18) That language suggests that a state must comply with obligations identified in both the draft articles and "other applicable rules," such as multilateral treaties to which it is a party. Left unsaid in the draft articles is what should happen if the draft articles conflict with or reflect an approach different from "other applicable rules." For example, several major human rights instruments set forth obligations relating to expulsion (19) but also allow for derogation from those obligations in a time of emergency. (20) The draft articles, by contrast, contain no provision allowing for derogation in a time of emergency, so it appears possible that, in certain situations, the draft articles might impose upon the state certain obligations relating to expulsion in circumstances where the "other applicable rules" would not. One technique for dealing with such situations might be to choose the norm set that is most favorable to the alien, although this option would mean setting aside some very fundamental rules in widely adhered-to treaties. Yet the current Commission commentary to this article seems to indicate otherwise, by stating that "other applicable rules" include rules on derogation in times of emergency, implying that, in the event of a conflict, even other norms less protective of the alien should apply. (21) Greater clarity may be necessary on this point; as noted above, several treaties that address expulsion accord protections only to persons "legally present" in a state's territory, while denying such protections to persons not legally present. If those "other applicable rules" govern in the event of conflict, then coverage of illegal aliens by these draft articles may be largely illusory.
A state wishing to expel an alien who falls within the scope of the draft articles must do so "only in pursuance of a decision reached in accordance with law," (22) and that decision must be based upon a ground for expulsion that is provided for in that state's law, which "shall be assessed in good faith and reasonably." (23) Thus, if the national law allows for expulsion of an alien because he procured his admission improperly, such as by marriage fraud, or because he has committed a serious crime, then the alien may be subject to expulsion.
Once an alien is identified as subject to expulsion, the state must accord to him or her a range of procedural protections, including the right to receive notice of the decision to expel, to challenge the decision before a competent authority, and to be represented before that authority, if necessary with the assistance of an interpreter. (24) These procedural protections, however, can be disregarded if the alien has been unlawfully present in the territory for less than six months, (25) a somewhat arbitrary deadline selected out of a recognition that many states do not accord such procedural rights when expelling illegal aliens. Moreover, only appeals lodged by aliens lawfully present in the state have a "suspensive effect" on the expulsion until the appeal is resolved. (26) All aliens, however, if detained, must be kept separate from the normal prison population. (27) The detention cannot be punitive or for an unrestricted duration, must be reviewed at regular intervals, and must normally end if the expulsion cannot be carried out. (28)
Various types of expulsions are flatly prohibited. The state cannot expel a refugee (or a person who has applied for refugee status) or a stateless person "except on grounds of national security or public order." (29) The state cannot "make its national an alien, by deprivation of nationality, for the sole purpose of expelling him or her." (30) The state cannot collectively expel aliens as a group, though it may expel all enemy aliens in time of armed conflict, when permitted under the jus in bello (31) The state cannot engage in "disguised expulsion," by which is meant committing acts or omissions with the intent of indirectly forcing the alien to depart. (32) (This form of expulsion is often referred to in English as "constructive expulsion," but that term does not translate well into other languages.) The state cannot expel an alien "for the purpose of confiscating his or her assets" (33) or for the purpose of "circumvent[ing] an ongoing extradition procedure." (34)
Even if expulsion is permissible, it must be undertaken with humanity, with respect for the alien's dignity, (35) without discrimination based on various categories (such as race and sex), (36) and with regard for "vulnerable persons" (such as pregnant women). (37) Various human rights are asserted as applying to aliens who are subject to expulsion, including the right to life, the right not to be...