Deportation as a Global Phenomenon: Reflections on the Draft Articles on the Expulsion of Aliens (2016, Daniel Kanstroom)

Critical appraisal of the International Law Commission’s Draft Articles on the Expulsion of Aliens (“Draft Articles”) demands a conceptualization of contemporary expulsion or deportation as a global phenomenon. Deportation may be functionally defined as a powerful government assertion of high stakes sanctions in low formality settings aimed at the most powerless and marginalized members of society. In the United States context, deportation has been described by a prominent immigration judge as equivalent to the “death penalty . . . in a traffic court setting.” Though analogies are always perilous, the analogy to the death penalty is disturbingly apt, if complex. As once famously described by Justice Stewart, the penalty of death differs from all other forms of criminal punishment, “not in degree but in kind.” It is “unique in its total irrevocability . . . in its rejection of rehabilitation . . . [a]nd . . . in its absolute renunciation of all that is embodied in our concept of humanity.” One must also, of course, add that it is invariably applied in racially problematic, if not invidious, ways.