CYIL 2014

455

THE INTERNATIONAL LAW COMMISSION AT THE MIDǧPOINT OF ITS QUINQUENNIUM

31 draft articles,

together with commentaries thereto, on the expulsion of aliens.

In accordance with article 23 of its Statute, the Commission recommended to the

General Assembly to take note of the draft articles annexed to its resolution by which

it would recommend draft articles to Member States, and, at a later stage, to envisage

an elaboration of international convention based on the draft articles.

The draft articles stem from the idea that although the expulsion is a sovereign

right of the State, it brings into play the rights of an alien subject to expulsion and

the rights of the expelling State in relation to the State of destination of the person

expelled.

The draft articles are divided into five parts. Part One, entitled “General provisions”,

delimits the scope of articles (Art. 1) and defines the two key terms “expulsion” and

“alien” (Art. 2). In addition, Article 3 sets forth that a State has the right to expel

an alien form its territory, but only in accordance with the present draft articles an

without prejudice to other applicable rules of international law, in particular those

relating to human rights. Article 4 provides for the requirement for conformity of

an expulsion decision with law. Article 5 reminds that the decision shall state the

grounds for expulsion.

Part Two of the draft articles deals with various cases of prohibited expulsion.

First, Article 6 confirms that the present draft articles are without prejudice to the

rules of international law relating to refugees. In particular, a State shall not expel a

refugee lawfully present in its territory save on grounds of national security or public

order, and a State shall not expel or return a refugee in any manner whatsoever to the

frontiers of territories where the person’s life or freedom would be threatened (

non-

refoulement

). The cases of prohibited expulsion also include deprivation of nationality

for the sole purpose of expulsion (Art. 8), collective expulsion (Art. 9), disguised

expulsion (Art. 10), expulsion for the purpose of confiscating of assets (Art. 11) and

resort to expulsion in order to circumvent an ongoing extradition procedure (Art. 12).

Part Three addresses the question of protection of the rights of aliens subject

to expulsion. Its Chapter I (Articles 13 to 15) includes general provisions, such

as obligation to respect the human dignity and human rights of aliens subject to

expulsion, prohibition of discrimination and treatment and protection of vulnerable

persons. Chapter II then deals more specifically with the protection required in the

expelling State (Articles 16 to 20), including protection of the right to life of an alien,

prohibition of torture or cruel, inhuman or degrading treatment or punishment,

respect of the right to family life, conditions of the detention of an alien for the

purpose of expulsion and protection of the property of an alien subject to expulsion.

Chapter III sets rules on protection in relation to the State of destination, in particular

obligation not to expel an alien to a State where his or her life would be threatened

(Art. 23) or where there are substantial grounds for believing that he or she would be

See doc. A/CN.4/L.837 (2014).

See doc. A/CN.4/L.837/Add.1/Rev.1 (2014).

Ibid., p. 2, § 1 of the commentary.