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Expulsion of Aliens – Statement by Dr. Rohan Perera, Legal Advisor, Member of the International Law Commission – 59th Session of the International Law Commission – 25th July 2007
I wish to join the previous Speakers in thanking Mr. Maurice Kamto, Special Rapporteur on the topic ‘Expulsion of Aliens’ for his very substantive and thought-provoking Third Report and for the comprehensive presentation made last morning.
In his Third Report the Special Rapporteur moves onto the substantive Principles of International Law governing the expulsion of aliens and explains the underlying rationale and approach to the draft articles as one involving the building of a structure that strikes a balance between the right of expulsion as a sovereign attribute of States on the one hand and the exercise of that right in a manner consistent with considerations of human rights and human dignity, on the other.
Draft Article 3 clearly reflects this attempt to strike a balance between the substantive Right of Expulsion and the manner of its exercise. I am in general agreement with this draft Article.
Concerning draft Article 4, I am very much inclined to the view expressed by some members, that the principle of non-expulsion by a State of its own nationals must be reflected as categorical and absolute, which does not permit any exceptions. Cases of extradition or surrender of nationals must be carefully distinguished from the exercise of a right of expulsion.
What would be worthy of exploration in this respect is the suggestion made by some members in the debate yesterday, to deal with the issue of dual nationality – a growing phenomenon in current practice of States giving rise to questions of some complexity. This issue may either be addressed within the parameters of Draft Article 4 or as suggested by Prof. Pellet, as a separate draft Article.
Draft Articles 5 and 6 establish the rule that Refugees and Stateless Persons cannot as a general rule, be expelled. The Articles are consistent with the general protection afforded to these categories of persons in terms of the 1951 Convention on the Status of Refugees and the 1954 Convention on the Status of Stateless Persons. I am in principle in agreement with their inclusion.
This brings us to the scope of the exceptions to this rule. The 1951 and 1954 Conventions explicitly sets out two grounds as exceptions to the rule – namely
(i) National Security or (ii) Public Order. As pointed out by the Special Rapporteur these grounds have long been recognized through state practice, as exceptions to the rule.
The critical issue raised in the Report is the possible inclusion for specific treatment as an additional ground, the involvement of a refugee or stateless person in acts of terrorism, taking into account the grave threat posed by the phenomenon to the present day international community – a threat which did not exist certainly in its present forms and manifestations in the 1950s when the two Conventions were drafted.
The Special Rapporteur, while conceding that terrorism could be included in the notions of security and public order, makes a cogent case for its separate treatment. Reference is made to the specific provisions of S.C. Res. 1373 adopted under Ch. VII of the UN Charter, imposing binding obligations on States both before and after granting refugee status to ensure the non-involvement of the asylum seeker in the planning, facilitation or participation in terrorist acts.
The origins of this obligation to prevent the abuse of refugee status for terrorist purposes, in fact go back to the 1996 UN Declaration to supplement the 1994 Declaration on measures to eliminate International terrorism (GA Res.51/210), which for the first time set forth the obligation on States to ensure before granting refugee status, that the asylum seeker has not participated in terrorist acts and after granting refugee status to ensure that the status is not allowed for perpetration of terrorist acts against other states or their citizens. These obligations are of course, subject to the observance of international human rights standards.
Almost identical provision is found as draft article 7 in the draft comprehensive convention on International Terrorism currently under negotiation, obliging Member States to ensure that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed an offence within the scope of the convention.
Thus, if one were to approach the issue as a matter of progressive development, there is a clear emerging trend in state practice as expressed in General Assembly Declarations, Security Council Resolutions and Draft Conventions under negotiation on the abuse of refugee status in relation to acts of terrorism.
In the current context, however, I am conscious of the fact that the use of the generic term “terrorism” as a ground for derogation without reference to specific offences of a grave nature, could give rise to more problems than it would solve.
There are perhaps two options that may be considered in this regard:
(i) An approach using the term ‘terrorism’ in relation to specific offences as defined in and within the scope of generally accepted multilateral conventions on Suppression of Terrorism, OR
(ii) the less ambitious and straight forward approach of integrating the concept within the elements of ‘national security or public order' with a detailed commentary on the emerging trends in state practice on the abuse of refugee status in relation to acts of terrorism.
This would be a useful aid to the interpretation and explanation of the term “national security and public order” as derogations to the principle of non-expulsion of refugees, in the context of current developments, since the adoption of the 1951 and 1954 Conventions.
On Draft Article 7, the Special Rapporteur has presented in his Report, extensive and useful material on the application of the Principle of Prohibition of Collective Expulsion, both in times of peace and in times of war.
The specific reference made in this Report to “Migrant Workers and their families” is certainly to be welcomed in the light of the protection to this category provided in terms of Article 22 of the International Convention of the Protection of the Rights of All Migrant Workers and Members of their Families.
In view of the special vulnerability and the need for a higher level of protection of this category of persons, I would certainly agree with the suggestion made by Prof. Esceramia yesterday, to include a separate Article on the prohibition of Collective Expulsion of Migrant Workers and their Families, in keeping with Article 22 of the Migrant Workers Convention
Finally, I wish to reiterate my appreciation to the Special Rapporteur, Mr. Maurice Kamto for the valuable work accomplished in the Third Report on Expulsion of Aliens. We look forward to his continuing efforts with regard to the future work on this topic.