Report of the International Law Commission on the work of its sixty-second session (Agenda item 79)
Chap. V. Expulsion of aliens; Chap. VI. Effects of armed conflict on treaties; Chap. VII. Protection of persons in the event of disasters
On the topic "Expulsion of aliens", this year the International Law Commission has again examined the draft articles on the protection of the human rights of persons who have been or are being expelled, which were the subject of the fifth report by Mr. Maurice Kamto, Special Rapporteur for the topic. At the Commission’s request, Mr. Kamto was asked to present a new version of the drafts in the light of the plenary debate. The Commission also examined the new workplan proposed by the Special Rapporteur and the sixth report dealing with the procedural rules for expulsion.
Before presenting France’s observations on the work carried out this year, please note that commentaries on this topic related to European Union law will be presented by the European Union.
When the ILC’s work was examined in the Sixth Committee in 2009, my delegation opted not to make any detailed observations on the fifth report. However, I expressed France’s concern at the excessively general nature of some of the proposals put forward and at the lack of practice to prove their customary nature. I regret that this year I must again raise the same concerns with regard to subsequent developments in work on this topic.
Turning first to the references to French practices and legislation contained in the report, may I say, leaving aside the fact that the information comes from non-government sources, that many items of information do not correspond to the reality of the situation. I will not list here every point on which we have difficulties. We will not fail to transmit all our remarks to the Special Rapporteur. To give an example, however, I would merely point out that, contrary to what is stated in paragraph 270 of the sixth report, the duration of detention in France may easily be calculated. It is between 2 and 32 days, one of the shortest in Europe. It is also wrong to speak in paragraph 36 of "forcible humanitarian returns", referring to arrangements on a strictly voluntary basis, and the information on the material conditions of detention mentioned in paragraph 218 is not up-to-date.
France is pleased that some of the proposals put forward in the report have already been fully endorsed by domestic legislation and practice relating to expulsion. In that context, I can only support the Special Rapporteur’s decision to apply procedural safeguards to aliens both lawfully and unlawfully present. My delegation also considers that the procedural safeguards listed in draft articles C and A1 are entirely relevant. I would emphasise that they are indeed guaranteed in France.
I would like to underline the importance that should be given to a better definition of some of the terms used in the report, especially that of "disguised expulsion", the subject of draft article A. We wonder exactly what the notion embraces. While we see no difficulty in keeping the provision in the draft articles provided that it is better defined, we have more trouble with the notion of "disguised extradition" in draft article 8. We consider this provision to be out of place in a draft relating to expulsion of aliens, especially as on this point the European Court of Human Rights did not confirm its Bozano case law in Oc