Statement by Dr. Johan G. Lammers, Legal Adviser of the Ministry of Foreign Affairs of the Kingdom of the Netherlands

Mr. Chairman,

The Netherlands considers the assessment of this topic by the International Law Commission of considerable importance. Likewise, the Netherlands welcomes the issuing of the Preliminary Report on the Expulsion of Aliens by the Special Rapporteur, Mr. Maurice Kamto. It sees the Preliminary Report of the Special Rapporteur as a first step in a process that probably will take several years.

Mr. Chairman,

The issue of the expulsion of aliens connects a series of very important aspects, like aspects of state sovereignty, humanitarian aspects and legal aspects at national and international level. The Netherlands shares the opinion of the Special Rapporteur that a state’s right to expel aliens is a right which is inherent in the sovereignty of that state, but that this right can not be considered absolute. After all, this right is regulated by various instruments of international law to which a state is party, or by rules of customary international law. These instruments and rules to a great extent provide a balance between the afore mentioned legal and humanitarian aspects.

The Netherlands is not at forehand of the opinion that draft articles concerning this issue should be developed, but does not want to rule this out at forehand either. It is of the opinion that this question should be approached with an open and unprejudiced mind. The Netherlands therefore agrees with what has been said by the International Law Commission last July and what the ILC sees as its task. This means that first it should be carefully considered which rules already exist on this topic in customary international law, in treaties and other international instruments, as well as in national laws and state practice. After this, it could be considered whether it would be possible or appropriate to develop these rules further and to codify them for clearer and better application. In doing this, the values that are involved in cases of expulsion of aliens should be assessed and a picture should be drawn of the considerations and factual problems which are connected with the expulsion of aliens in practice. This would be helpful to determine the intended direction of such a possible instrument.

It should be clear that the outcome, in whatever form, should have an added value in relation to already existing rules and regulations. It should fill in a gap and should not be at odds with the already existing international instruments. Furthermore, it should address the problems and questions states have or may have in practice. This means for instance that the Netherlands at forehand would consider it useful to pay attention to the issue of expulsion of stateless persons. On the other hand, the approach should not be too broad and should leave out elements which may be only of theoretical interest.

The Netherlands is not engaged in the collective expulsion of aliens, and would like to subscribe to the earlier discussion in the ILC in which it was stated that although an expulsion may involve a group of people sharing similar characteristics, the decision to expel should be taken at the level of the individual and not the group. The Netherlands could foresee the reflection of such a basic rule in the possible draft rules.

In conclusion, the Netherlands is satisfied that this issue is on the agenda of the ILC and that the Special Rapporteur set with his Preliminary Report a first step in an important and hopefully extensive discussion.

Thank you, Mr. Chairman.