Human Rights and the International Law Commission's Draft Articles on the Expulsion of Aliens
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Human Rights and the International Law
Commission's Draft Articles on the
Expulsion of Aliens
Gerald L. Neuman'
The completion of the project of the International Law Commission
(ILC) on the expulsion of aliens2 marked an important stage in the devel-
opment of international law relating to migration. The resulting Draft Ar-
ticles on the Expulsion of Aliens3 reflect the joint effort of the ILC's
distinguished experts on public international law, from all regions of the
world, to enunciate principles that regulate states' exercise of a power that
is frequently abused. The product of this multi-year effort deserves the at-
tention and engagement of other experts in the field. of international migra-
tion, regardless of the cold reception it has initially received from states.
The international law regarding expulsion of aliens is influenced by cen-
turies-old interstate rules on responsibility for injury to another state's na-
tionals as well as modern rules of human rights law, which I will construe
here as including refugee law. The Draft Articles may someday serve as the
basis for a multilateral treaty regulating the expulsion of aliens, and in the
meantime they offer themselves as a reference for identifying states' interna-
tional responsibilities within the scope of the topic. The introductory gen-
eral commentary and the commentary on draft article 3 point out that the
Draft Articles involve both codification of existing international law and
exercises in progressive development of international law-twin aspects of
the ILC's mandate.4
The goal of this Essay is to examine the Draft Articles from the human
rights perspective. One should ask, to what extent do the Draft Articles
measure up to existing human rights standards, to what extent do they fall
short of those standards, and to what extent do they progress beyond the
status quo in human rights law? This short Essay cannot be comprehensive,
1. J. Sinclair Armstrong Professor of International, Foreign and Comparative Law, and Co-Director
of the Human Rights Program, Harvard Law School. The author is deeply grateful to all the partici-
pants in the symposium for their insights.
2. As the ILC was aware, the term alien is traditional but has problematic connotations. I use it
in this Essay because of its ubiquity in the ILC's text and commentary.
3. The Draft Articles, including text and commentary, are included in the 2014 Annual Report of
the ILC. See Int'l Law Comm'n, Rep. on the Work of Its Sixty-Sixth Session [hereinafter ILC Draft
Articles], draft art. 3(e), U.N. Doc. A/69/10, 17, 45 (2014).
4. ILC Draft Articles, 1; id, draft art. 3, 2.](ViewImageLocal?handle=hein.journals/hhrj30&div=4&collection=&method=preview&ext=.png&size=3)
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Human Rights and the International Law Commission's Draft Articles on the Expulsion of Aliens
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