Human Rights and the International Law Commission’s Draft Articles on the Expulsion of Aliens (Gerald L. Neuman, 2016)

The completion of the project of the International Law Commission (ILC) on “the expulsion of aliens” marked an important stage in the development of international law relating to migration. The resulting Draft Articles on the Expulsion of Aliens 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 attention and engagement of other experts in the field of international migration, regardless of the cold reception it has initially received from states. The international law regarding expulsion of aliens combines influences from centuries old interstate rules on responsibility for injury to another state’s nationals and 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’ international responsibilities within the scope of the topic. The introductory “general 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. 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