United Nations A/CN.4/565 General Assembly Distr.: General 10 July 2006 Original: English International Law Commission Fifty-eighth session Geneva, 1 May-9 June and 3 July-11 August 2006 Expulsion of aliens Memorandum by the Secretariat Summary The present study was prepared to assist the International Law Commission in the consideration of the topic of the expulsion of aliens. The study endeavours to provide a comprehensive analysis of the possible issues which may require consideration in the context of the present topic. It further provides an analytical summary of the relevant legal materials contained in treaty law, international jurisprudence, other international documents, national legislation and national jurisprudence. It surveys relevant materials adopted at the international level, the regional level as well as the national level. It also reproduces the relevant extracts of the various legal materials for ease of reference. The study is based on the premise that every State has the right to expel aliens. However, this right is subject to general limitations as well as specific substantive and procedural requirements. Traditionally, the right of expulsion was subject to general limitations such as the prohibition of abuse of rights, the principle of good faith, the prohibition of arbitrariness and standards relating to the treatment of aliens. Contemporary international human rights law has had a significant impact on the law relating to the expulsion of aliens in terms of the development of more specific substantive and procedural requirements. Recent trends in national law and practice with respect to the expulsion of aliens suspected of involvement in international terrorism may raise issues with respect to compliance with these requirements. The study approaches the topic first from the perspective of the expulsion of aliens in general in relation to the grounds and other considerations relating to the decision to expel an alien, the procedural requirements for the expulsion of an alien, and the implementation of the decision to expel an alien by means of voluntary departure or deportation. The study then turns to the special considerations that may apply to the expulsion of specific categories of aliens, such as illegal aliens, resident aliens, migrant workers, minor children, refugees and stateless persons. The study also 06-26029 (E) 271206 *0626029* A/CN.4/565 addresses questions relating to the deprivation of nationality and the expulsion of former nationals as aliens. The expulsion of enemy aliens who are nationals of an opposing State during an armed conflict is considered under the relevant jus in bello, including international humanitarian law, as well as the human rights standards for the expulsion of aliens which continue to apply in armed conflict. At the conclusion of the consideration of the expulsion of individual aliens, the study provides a brief overview of the possible forms of reparation for unlawful expulsion based on State practice. The study then turns to the question of the collective expulsion and the mass expulsion of aliens. The individual expulsion, the collective expulsion and the mass expulsion of aliens may be viewed as being governed by separate legal regimes and are treated as such for purposes of the present study. A State has a broad discretionary right to expel aliens from its territory when their continuing presence is contrary to its interests subject to certain limitations and requirements. In contrast, the collective expulsion of a group of aliens as such (even a small group) is contrary to the very notion of the human rights of individuals and is therefore prohibited. The collective expulsion of a group of aliens does not take into account the consequences of the presence, the grounds and other factors affecting the expulsion, the procedural requirements for the expulsion or the rules relating to the implementation of the expulsion decision with respect to a single one of these aliens. The decision concerning expulsion is made with respect to the group of aliens as a whole. Mass expulsion involves the expulsion of a large number of aliens within a relatively short period of time. Mass expulsion may be viewed as an abuse of the right of expulsion and as imposing an excessive burden on the receiving State. Mass expulsion is prohibited except in very exceptional circumstances involving a change in the territory of a State or armed conflict. Even in such cases, the expulsion of a large number of aliens must comply with the general limitations as well as the substantive and procedural requirements for the expulsion of individual aliens to the extent possible under these exceptional circumstances. The collective expulsion or the mass expulsion of aliens may also violate the principle of non- discrimination and therefore constitute an additional violation of international law or an aggravated form of the prohibition of collective expulsion or mass expulsion. The study consists of Parts I to XII as well as Annexes I and II. General aspects of the study are addressed in Parts I and II. Part I provides a general introduction to the topic of the expulsion of aliens. Part II provides general background information concerning the increasing phenomenon of international migration on a global level in order to facilitate the consideration of the present topic in the light of the contemporary situation and challenges with respect to the presence of aliens in the territory of States. Part III addresses the scope of the topic which raises a number of important issues such as whether the Commission should consider: (1) the special rules that may apply to specific categories of aliens; (2) the similar measures that may be taken by States to compel the departure of aliens; (3) the expulsion of aliens in time of armed conflict; and (4) the collective expulsion and the mass expulsion of aliens. Part IV draws attention to the potential relevance of a number of terms for purposes of the consideration of the present topic. Some of these terms relate to the notion of “alien” and specific categories of aliens, including: illegal alien, resident alien, migrant worker, family, refugee, asylee, asylum seeker, stateless person, former national and enemy alien. The other terms relate to the action taken by a State to compel the departure of an alien. The paper suggests a functional approach to the 2 A/CN.4/565 notion of “expulsion” notwithstanding the different terms that may be used in national legal systems for measures which perform the same function. The paper also suggests distinguishing between the expulsion of an alien in terms of the decision to expel and the implementation of the decision by means of voluntary departure or deportation. National legal systems vary in the use of the terms “expulsion” and “deportation”. The two terms are used for purposes of the present study to facilitate the consideration of the substantive and procedural requirements that apply to the expulsion of an alien and the implementation of the decision to expel. Parts V to IX address the right of a State to expel an alien from its territory, the general limitations on the right of expulsion under traditional and contemporary international law as well as the more specific substantive and procedural requirements concerning the grounds and other considerations relating to the decision to expel an alien, the procedural requirements for the expulsion of an alien, and the implementation of the expulsion decision by voluntary means or deportation. Part X deals with the special considerations that may apply to the expulsion of specific categories of aliens, such as illegal aliens, resident aliens, migrant workers, minor children, refugees, stateless persons, former nationals and enemy aliens in time of armed conflict. Part XI briefly discusses the possible forms of reparation for the unlawful expulsion of aliens based on State practice, including restitution, compensation and satisfaction. It also briefly discusses issues relating to the burden of proof in such cases. Part XII provides a general overview of the issues and relevant materials relating to the collective expulsion and the mass expulsion of aliens in contrast to the expulsion of one or more individual aliens to facilitate the decision as to whether such expulsions should be included within the scope of the present topic. Given the significant differences in the legal regimes governing individual expulsions, collective expulsions and mass expulsions, the Commission may wish to consider addressing them in separate parts or chapters of its work if it decides to undertake these aspects of the topic. Annex I contains an extensive selected bibliography of the relevant materials that were used in the preparation of the study, including: treaties and similar documents; international jurisprudence; the practice of international organizations, regional organizations and treaty-monitoring bodies; the national laws of States; the national jurisprudence of States; literature; and reports of non- governmental organizations. Annex II provides a list of the abbreviations for the national laws of various States which are cited throughout the study. 3 A/CN.4/565 Contents Paragraphs Page I. Introduction ....................................................................................... 1-5 14 II. Factual background ............................................................................ 6-21 16 III. Scope of the topic .............................................................................