At work on a new article discussing the failures of international human rights law to adequately protect undocumented migrants, I was delighted to learn that the United Nations International Law Commission has been at work for nearly ten years on draft articles relating to the expulsion of aliens. Provisionally adopted by the Drafting Committee in 2012, and drafted under the guidance of Special Rapporteur (and past ILC Chairman) Maurice Kamto, the articles represent a bold departure from important aspects of human rights law relating to undocumented migrants and immigration proceedings.
Even starting with the term “expulsion” proceedings rather than a euphimism such as “removal” proceedings or a more facially neutral “immigration” proceedings suggests a fresh take on the issue. Up front and center, draft article 1 notes that the draft articles apply with equal force to non-citizens lawfully and unlawfully present. Given that the text of the International Covenant on Civil and Political Rights distinguishes between non-citizens lawfully and unlawfully present (Art. 13) and that the text of the UN Convention on the Elimination of All Forms of Racial Discrimination explicitly permits”‘distinctions, exclusions, restrictions or preferences” between citizens and non-citizens (Art. 1(2)) (and therefore presumably between non-citizens lawfully and unlawfully present), this represents significant progress.
Moreover, draft article 26 enumerates specific procedural rights that must be accorded to non-citizens subject to expulsion, including the right to notice and a hearing, the right to representation, and the right to free interpretation. These rights do not apply to undocumented migrants present in the relevant State for less than six months. Given that the Human Rights Committee has determined that the procedural due process rights outlined in Article 14 of the ICCPR do not apply to immigration proceedings at all, this is again an important step forward.
Of course, like comprehensive immigration reform in the United States, the progress of the articles appears to be slow and heavily politicized. One can almost hear Special Rapporteur Kamto getting cranky in his most recent report as he discusses the United States’ objections to incorporating the non-refoulement principle into the draft articles. He states, “[t]he Special Rapporteur responded to this concern, which had been expressed more than once [in footnotes to the draft articles.] In light of current international human rights law, he has nothing to add to these clarifications.” Here’s hoping he is successful in convincing the ILC to submit these articles to the General Assembly for codification.
(hat tip to ILC member Sean Murphy)