CYIL 2012

PAVEL ŠTURMA CYIL 3 ȍ2012Ȏ adopt the complete draft articles on “Expulsion of aliens” and made progress (mainly through the Drafting Committee) in the topic “Protection of persons in the event of disasters”. 4.1 Expulsion of aliens Concerning this topic, the ILC had before it the eighth report of Special Rapporteur M. Kamto (Cameroon), which provided an overview of comments made by States and by the European Union on the topic during the debate on the Report of the ILC in the Sixth Committee of the General Assembly in 2011. The report also contained final observations by the Special Rapporteur. 9 Since the Commission was not able to complete the work in 2011, the Drafting Committee resumed its work on a number of draft articles sent to it the last year. After two weeks of intensive work, influenced also by the participation of new members who did not remember the earlier debate, the Committee finalized the work and recommended draft articles for adoption to the plenary. As a result, the Commission adopted on the first reading a set of 32 draft articles on the Expulsion of aliens, together with commentaries thereto. The draft articles consist of five parts. Part One includes general provisions, such as definitions and the scope of the draft articles. The term “alien” means an individual who does not have the nationality of the State in whose territory that individual is present (Art. 2b). The draft articles do not apply to aliens enjoying privileges and immunities under international law (such as diplomats or staff members of international organizations) but otherwise apply to all other aliens, including refugees and displaced persons (Art. 1). The draft articles clearly confirm that a State has the right to expel an alien from its territory but it shall be in accordance with the present draft articles and other applicable rules of international law, in particular those relating to human rights (Art. 3). A State may only expel an alien on grounds provided by law, including national security and public order. The grounds for expulsion shall be assessed in good faith and reasonably. (Art. 5) Part Two deals with cases of prohibited expulsion. The first one is a prohibition of the expulsion of refugees (Art. 6). A State shall not expel a refugee lawfully present in its territory save on grounds of national security or public order. This shall also apply to any refugee unlawfully present in the territory of the State who has applied for recognition of refugee status, while such application is pending. In addition, paragraph 3 deals with the obligation of non-refoulement . Similarly, there is a prohibition of the expulsion of stateless persons save on grounds of national security or public order (Art. 7). The rules applicable to the expulsion of aliens are without prejudice to other rules on the expulsion of refugees and stateless persons provided for by law (Art. 8). A State shall not make its national an alien, by deprivation of nationality, for the sole purpose of expelling him or her (Art. 9). Another rule refers to the prohibition of collective expulsion of aliens, without prejudice to the rules 9 See doc. A/CN.4/651 (2012).

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