Item 82: Report of the International Law Commission

Chapter VI: Expulsion of Aliens

Mr Chairman,

The Netherlands welcomes the issuing of the Second and Third Report on the Expulsion of Aliens by the Special Rapporteur, Mr. Maurice Kamto, as we consider this topic as an important one. We share the opinion expressed earlier by 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 cannot be considered absolute. It is regulated by several instruments of international law to which a State may be a Party, and by rules of customary international law.

Mr Chairman,

The Special Rapporteur submitted a revised version of draft Articles 1 and 2. Both these draft Articles are much clearer than their predecessors and the Netherlands would like to express its satisfaction with the improvements of the texts. Some remarks still have to be made however; starting with draft Article 1. That draft Article defines the scope of the provisions ratione personae and does refer to nationals of the expelling State. We are wondering how this relates to draft Article 4, regarding the non-expulsion of nationals.

Regarding draft Article 2 on Definitions, the Netherlands agrees with the Special Rapporteur that it should be clear what is understood under the terms used such as ‘expulsion’, ‘refugee’ and ‘stateless person’, and welcomes a draft Article on definitions. The Netherlands observes that the Special Rapporteur has re-drafted this Article. It welcomes the new draft, but still sees some room for improvement.

We note that the draft Article does not give specific definitions of the terms ‘stateless person’ and ‘refugee’. Although stateless persons and refugees fall under the definition of “alien” in new draft Article 2, the Netherlands is of the opinion that these terms should also be included separately in this draft Article. After all, some draft Articles specifically deal with those categories of persons.

Mr. Chairman,

In the view of The Netherlands the definition of ‘expulsion’ is too broad and may lead to confusion, as the extradition of an alien now also falls under the concept of expulsion. We would suggest that reference could be made to the definition used by the European Court of Human Rights. In - amongst others – the case of A.B. v. Poland the European Court determined that expulsion is involved when ‘a person is obliged permanently to leave the territory of the state without being left the possibility of returning later’. This definition of ‘expulsion’, especially the use of the words ‘permanently’ and ‘without being left the possibility of returning later’, distinguishes extradition from expulsion.

Regarding the term ‘refugee’, we agree with the Special Rapporteur to follow the definition of a refugee given by the 1951 Geneva Convention relating to the Status of Refugees. This should also be mentioned in the draft Article though.

With regard to the term ‘stateless person’, the Convention relating to the Status of Stateless Persons defines this as a person who is not considered a national by any state under the operation of its law. The definition under that Convention may serve as an example for a definition in the draft Articles. We consider it is necessary to ensure that the draft Articles will not be at odds with this important normative instrument.

Finally, regarding the term ‘collective expulsion of aliens’, the definition of this term is currently to be found in draft Article 7, second paragraph. That paragraph should be included in the definitions provision as currently contained in draft Article 2.

Mr Chairman,

Let me now come to draft Article 3, regarding the right of expulsion

As I stated before, the Netherlands agrees that a State has the right to expel an alien from its territory, but this right is not unlimited. The Special Rapporteur refers to the fundamental principles of international law, and more particularly to the international obligations of a State concerned. There is no need to specifically refer to Article 13 of ICCPR as there are other relevant rules such as the ECHR and its Protocols, as well as other regional instruments.

When it comes to draft Article 4 on the non-expulsion of nationals, the Netherlands shares the view of the Special Rapporteur that a State may as a general rule not expel its own nationals. It welcomes the use of the term ‘expulsion’ rather than ‘exile’, as exile is a word pregnant with meaning.

The right of the individual to return to his own country has been formulated long ago in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and in regional instruments. For instance, article 3 paragraph 2 of Protocol no. 4 to the European Convention on Human Rights reads “(N)o one shall be deprived of the right to enter the territory of the state of which he is a national”. The current formulation of draft Article 4, third paragraph states that the right of a national to return to his state only applies at the request of the receiving State. We would urge the Special Rapporteur to clarify this element of “at the request of the receiving State”, as we have trouble understanding what the legal basis is for this additional criterion not found in contemporary human rights law.

Mr. Chairman,

Coming now to draft Article 5 on the non-expulsion of refugees. This is a very complex and sensitive matter. First and foremost, The Netherlands shares the view of the Special Rapporteur that the notions of ‘refugee’ and ‘asylum seeker’ need to be clearly differentiated. The notions of refuge and territorial asylum are different and dissociated in legal terms. We agree that asylum status is determined by the national legislation of a State, unlike the status of refugee, which is in the first place governed by international law. Furthermore, we also agree that following the definition of a refugee given in the 1951 Geneva Convention relating to the Status of Refugees, and in particular article 33 of that Convention, the issue is not expulsion, but rather non-expulsion, since expulsion is only permitted on certain limited grounds.

Regarding draft Article 6, the Netherlands considers it important to pay attention to the issue of the non-expulsion of stateless persons. We agree that asylum and statelessness are non comparable situations and that this should be reflected in the wording of the rules. Furthermore, we agree that stateless persons, who in principle enjoy only the rights granted to foreigners in the country of their residence will have serious difficulties in finding a host state. The Netherlands supports the recommendation of the Special Rapporteur that the intervention of the expelling state in the search for a host state for the stateless person to be expelled may be deemed necessary.

The Netherlands once more observes that this draft Article should be in accordance with article 31 of the 1954 Convention on the Status of Stateless persons. The first paragraph of that Article reads: “The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order.”

Mr Chairman,

Let me finally come to draft Article 7 on collective expulsion.

The Netherlands shares the opinion of the Special Rapporteur that the collective expulsion of aliens should be prohibited. Even in times of armed conflict foreign nationals of enemy states, or of a third party to the armed conflict should not be subject to measures of collective expulsion. Should an individual alien demonstrate hostility towards the receiving state he may be expelled, but only after and on the basis of a reasonable and objective examination of the individual case.

The effect of draft Article 7 depends largely on the interpretation of the word ‘collective’. In this light, the Netherlands welcomes the view of the Special Rapporteur that draft Article 7 is not aimed at prohibiting the expulsion of all aliens residing in a given state, but Article 7 means to prohibit any expulsion of aliens as a group.

The prohibition of collective expulsion of aliens is also contained in Article 4 of Protocol 4 to the European Convention on Human Rights. We note that the second phrase of draft Article 7, first paragraph, is in accordance with the case law of the European Court of Human Rights on this question. In the case of Conka v. Belgium the Court gave the following definition of ‘collective expulsion of aliens’: “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group”.

Thank you, Mr Chairman.