Statement by Legal Adviser Wasum-Rainer in the 6th committte on expulsion of aliens

Nov 2, 2010

(check against delivery)

Madam Chair,

This year, the ILC has discussed the 6th report of the Special Rapporteur on the expulsion of aliens, dealing with the procedural rules of expulsion. Expulsion remains a particularly difficult and sensitive topic and is a real challenge for the ILC. We are aware of the criticism several states have articulated and we hope that the ILC will be able to address this properly.

Before discussing expulsion, I would like to refer briefly to the latest report of the Special Rapporteur on state practice regarding detention. The description of German practice, going back to the 19th century and devoting only one sentence to the current legal situation, is misleading and does not accurately reflect current practice.

Last year Germany provided the Commission with a detailed description of the legal situation in Germany regarding grounds for expulsion and conditions of detention. I was therefore surprised to see that this description had not been considered by the new report. If necessary, I can provide the Commission with another copy or any other information it might need.

Please allow me to come back to what I said last year. When we talk about expulsion, we have to reach a common understanding on whether we are talking about state’s right to expel – i.e. to oblige an alien to leave the country – or a state’s right to deport an alien – i.e. to enforce his or her departure from the country. This distinction is important as the right to expel derives from the principle of state sovereignty, which includes the right to decide on the access of aliens to the State’s territory. When it comes to actual deportation, however, a state’s discretionary power is far more limited. Hence, the situation and the group of people about which we are talking does indeed make a difference.

I would, therefore, like to renew my petition that the ILC firstly address the distinction between the right to expel and the right to deport before going into detail. Otherwise, it will not be possible to develop a coherent approach to the topic.

Moving on to this year’s discussion, I fully agree that procedural rights are essential for non-citizens who are subject to expulsion – and deportation. However, in my understanding, only aliens who reside illegally in a certain country (having the obligation to leave) can actually be deported. Legal residents are entitled to remain in a country – legally – as long as there is no legally valid decision on their expulsion (the latter making their stay illegal). Hence, when we talk about expulsion, we are talking mainly about illegal aliens and their rights. Therefore, it cannot be appropriate to fail to recognize any of their procedural rights, as Draft Article A1 (2) seems to suggest.

A definition of legal and illegal aliens for the purpose of the draft articles would be most helpful in this context.

Coming back to the protection of human rights, I would like to emphasise that every human being, residing legally or illegally in a country, is entitled to the protection of human rights in all situations. States willing to expel or deport an alien are bound by all international human rights instruments to which they are a party – such as the International Covenant on Civil and Political Rights, the Convention against Torture and the Geneva Convention relating to the status of refugees. These instruments include the guarantees mentioned in the draft articles and go beyond them. Therefore, in our view, a general reference to them would seem to be the most appropriate approach.

Another point I would like to raise is the following:

In December 2008, the EU adopted the directive on common standards and procedures in Member States for returning illegally staying third-country nationals (the Return Directive). This directive was adopted in response to a request from the European Council for clear, transparent and fair common rules concerning return, removal, use of coercive measures, detention and re-entry, which take full account of respect for the human rights and fundamental freedoms of the persons concerned. This directive introduces a common minimum set of legal safeguards on decisions relating to return in order to guarantee the effective protection of the interests of the individuals concerned. At present, EU Member States are transposing the directive into national law. This directive not only sets common, legally binding standards as a prerequisite for the return of aliens, but also includes a catalogue of material and procedural rights for the persons facing return, including the protection of human rights and the rights of refugees. This directive may thus serve as an important example for the ILC.

As far as I can see, this directive has not been considered by the Special Rapporteur in his latest report or been the subject of this year's discussions in the ILC. I would therefore strongly encourage the Commission to use it as a further example of state practice.

Thank you.

© StV