Summaries of the Work of the International Law Commission
Expulsion of aliens
See also: Analytical Guide | Texts and Instruments
At its fiftieth session, in 1998, the Commission took note of the report of the Planning Group identifying, inter alia, the topic of expulsion of aliens for possible inclusion in the Commission’s long-term programme of work.1 The topic was subsequently included in the long-term programme at the fifty-second session, in 2000,2 and a syllabus describing the possible overall structure of, and approach to, the topic was annexed to that year’s report of the Commission.3
At its fifty-sixth session, in 2004, the Commission decided to include the topic “Expulsion of aliens” in its programme of work and to appoint Maurice Kamto as Special Rapporteur for the topic.4
The General Assembly, in resolution 55/152 of 12 December 2000, took note of the topic’s inclusion in the long-term programme of work and, in resolution 59/41 of 2 December 2004, endorsed the decision of the Commission to include the topic in its agenda.
At its fifty-seventh session, in 2005, the Commission had before it the preliminary report of the Special Rapporteur,5 providing an overall view of the subject while highlighting the legal problems which it raised and the methodological difficulties related to its consideration. The report also proposed a draft work plan and outline.
At its fifty-eighth session, in 2006, the Commission had before it the second report of the Special Rapporteur6 and a study prepared by the Secretariat.7 The Commission considered the second report, dealing with the scope of the topic and definitions (two draft articles), at its next session, in 2007,8 together with the third report of the Special Rapporteur9, which addressed certain general provisions limiting the right of States to expel aliens (five draft articles).10
In its resolution 62/66 of 6 December 2007, the General Assembly invited Governments to provide information to the International Law Commission on the topic.
At its sixtieth session, in 2008, the Commission considered the fourth report of the Special Rapporteur,11 the first part of which dealt with the issues raised by the expulsion of persons having dual or multiple nationalities, and the second part of which addressed the question of loss of nationality and denationalization in relation to expulsion. Following the debate on the fourth report, the Commission established a Working Group, chaired by Donald M. McRae, to consider these two issues.12 At the same session, the Commission approved the Working Group’s conclusions13 and requested the Drafting Committee to take them into consideration.
At the sixty-first session, in 2009, the Commission considered the fifth report of the Special Rapporteur,14 dealing with the protection of human rights of aliens expelled or being expelled. Later during the session, the Special Rapporteur presented to the Commission a new version of the draft articles on this question, revised and restructured in the light of the debate in the Commission,15 as well as a new draft work plan with a view to restructuring the whole set of draft articles on the topic.16
In its resolution 64/114 of 16 December 2009, the General Assembly invited once again Governments to provide information regarding practice in respect of the topic “Expulsion of aliens”.17
At the sixty-second session, in 2010, the Commission considered the revised draft articles on the protection of human rights,18 as well as the sixth report and addendum thereto presented by the Special Rapporteur,19 which addressed a number of issues such as collective expulsion, disguised expulsion, extradition disguised as expulsion, the grounds for expulsion, detention conditions for aliens subject to expulsion, and expulsion proceedings.
At the sixty-third session, in 2011, the Commission considered a second addendum to the Special Rapporteur’s sixth report,20 which completed the consideration of the expulsion proceedings and addressed the legal consequences of expulsion, as well as the Special Rapporteur’s seventh report,21 providing an account of recent developments in relation to the topic and proposing a restructured summary of the draft articles.
Also at its sixty-third session, the Commission took note of an interim report by the Chair of the Drafting Committee, informing the Commission of the progress of the work on the set of draft articles on the expulsion of aliens which had been referred to the Drafting Committee since 2007, and which were being finalized with a view to being submitted to the Commission at its sixty-fourth session, in 2012, for adoption on first reading.22
At the sixty-fourth session, in 2012, the Commission had before it the eighth report of the Special Rapporteur, providing, inter alia, a survey of the comments made by Governments and the European Union on the topic of expulsion of aliens during the debate on the report of the Commission in the Sixth Committee at the sixty-sixth session of the General Assembly.23 The Commission subsequently adopted, on first reading, a set of 32 draft articles on the expulsion of aliens, together with the commentaries thereto.24 The Commission decided, in accordance with articles 16 to 21 of its Statute, to transmit the draft articles, through the Secretary-General, to Governments for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 January 2014.25
At the sixty-sixth session, in 2014, the Commission had before it the ninth report of the Special Rapporteur,26 containing proposals for reformulating the draft articles adopted on first reading in light of the comments and observations of Governments.27 The Commission subsequently adopted the entire set of draft articles on the expulsion of aliens, on second reading, together with commentaries thereto.28 The Commission decided, in accordance with article 23 of its Statute, to recommend to the General Assembly: (a) to take note of the draft articles on the expulsion of aliens in a resolution, to annex the articles to the resolution, and to encourage their widest possible dissemination; (b) to consider, at a later stage, the elaboration of a convention on the basis of the draft articles.29
The final draft consists of thirty-one draft articles divided into five parts: Part One. General provisions (articles 1–5); Part Two. Cases of prohibited expulsion (articles 6–12); Part Three is composed of four chapters. Chapter I. General provisions (articles 13–15), Chapter II. Protection required in the expelling State (articles 16–20), Chapter III. Protection in relation to the State of destination (articles 21–24), Chapter IV. Protection in the transit State (article 25); Part Four. Specific procedural rules (articles 26–28); and Part Five. Legal consequences of expulsion (article 29–31).
By resolution 69/119 of 10 December 2014, the General Assembly took note of the recommendation of the Commission and decided that the consideration of the recommendation of the Commission would be continued at the seventy-second session of the General Assembly.
By resolution 72/117 of 7 December 2017, the General Assembly took note of the articles on the expulsion of aliens, acknowledged the comments expressed by Governments in the Sixth Committee at the seventy-second session of the General Assembly and decided that the consideration of the recommendation of the Commission would be continued at the seventy-fifth session of the General Assembly.
By resolution 75/137 of 15 December 2020, the General Assembly acknowledged the comments expressed by Governments in the Sixth Committee at the seventy-fifth session of the General Assembly. It also decided to include in the provisional agenda of its seventy-eighth session, in 2023, the item entitled “Expulsion of aliens”, with a view to examining, inter alia, the question of the form that might be given to the articles or any other appropriate action.
1 See Yearbook … 1998, vol. II (Part Two), para. 554.
2 See Yearbook … 2000, vol. II (Part Two), paras. 726–728 and 729(4).
4 See Yearbook … 2004, vol. II (Part Two), para. 364.
5 See Yearbook … 2005, vol. II (Part One), document A/CN.4/554.
6 See Yearbook … 2006, vol. II (Part One), document A/CN.4/573.
7 Document A/CN.4/565 and Corr.1.
8 See Yearbook … 2006, vol. II (Part Two), para. 252.
9 See Yearbook … 2007, vol. II (Part One), document A/CN.4/581.
10 See Yearbook … 2007, vol. II (Part Two), para. 15.
11 See Yearbook … 2008, vol. II (Part One), document A/CN.4/594.
12 See Yearbook … 2008, vol. II (Part Two), paras. 170 and 171.
13 The conclusions were as follows: (1) the commentary to the draft articles should indicate that, for the purposes of the draft articles, the principle of non-expulsion of nationals applies also to persons who have legally acquired one or several other nationalities; and (2) the commentary should include wording to make it clear that States should not use denationalization as a means of circumventing their obligations under the principle of the non-expulsion of nationals; ibid., para. 171.
14 See Yearbook … 2009, vol. II (Part One), document A/CN.4/611.
15 See ibid., document A/CN.4/617.
16 See ibid., document A/CN.4/618.
17 Comments and information received from Governments in relation to this topic were compiled by the Secretariat into documents A/CN.4/604, reproduced in Yearbook … 2009, vol. II (Part One), and A/CN.4/628 and Add.1, reproduced in Yearbook … 2010, vol. II (Part One).
18 See Yearbook … 2009, vol. II (Part One), document A/CN.4/617.
19 See Yearbook … 2010, vol. II (Part One), document A/CN.4/625 and Add.1.
20 See ibid., document A/CN.4/625/Add.2.
21 See Yearbook … 2011, vol. II (Part One), document A/CN.4/642.
22 See Yearbook … 2011, vol. II (Part Two), para. 214.
23 See Yearbook … 2012, vol. II (Part One), document A/CN.4/651.
24 See Yearbook … 2012, vol. II (Part Two), paras. 41 and 42.
26 See Yearbook … 2014, vol. II (Part One), document A/CN.4/670.
27 See ibid., document A/CN.4/669 and Add.1.
28 See Yearbook … 2014, vol. II (Part Two) and Corr.1 (English and Spanish only), paras. 39 and 40.