Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 151als, are beyond the scope of this Guide. However, it should be noted thatthe substantive human rights obligations considered in Chapter 2 applyto extradition in the same way as to any other removal from the territory.As noted by the ILC Special Rapporteur on expulsion of aliens, MauriceKamto, “expulsion does not necessarily presuppose a formal measure,but it can also derive from the conduct of a State which makes life in itsterritory so difficult that the alien has no choice other than to leave thecountry”. 497 As will be seen below, practices of harassment, incentivesor any other practice of the authorities which leave the alien with noother choice but to leave the country, amount to expulsion.II. What procedural protections apply toexpulsion?In international human rights law, the general procedural protectionapplicable to expulsion procedures varies considerably depending onthe human rights treaty. There are two approaches. The ICCPR and theECHR omit the applicability of general fair hearing protection to expulsionproceedings, but provide specific procedural guarantees to non-nationals“lawfully in the territory of a State Party”, leaving undocumentedmigrants relatively unprotected (ICCPR, ECHR Protocol 7). Article 26.2of the Arab Charter on Human Rights (ArCHR) also provides proceduralguarantees for non-nationals lawfully on the territory of a State Party.The African and the Inter-American systems provide that expulsion proceduresmust observe the guarantees provided for by the right to afair trial to all those potentially subject to expulsion measures (ACHR,IADRDM, ACHPR). Even where fair hearing standards are not applicable,however, some procedural rights may be derived from the principle ofnon-refoulement, the right to respect for family life, or other substantiverights that may be engaged by the expulsion, as well as from theright to an effective remedy.A common principle is that expulsions must not discriminate in purposeor effect on grounds of race, colour, sex, language, religion, political orother opinion, national or social origin, property, birth or other status. 498Under international human rights treaties, the obligation derives fromthe principle of non-discrimination read together with the guarantees of497 Maurice Kamto, UN Special Rapporteur of the International Law Commission, Sixth report onthe expulsion of aliens, UN Doc. A/CN.4/625, 19 March 2010 (ILC Sixth Report”), para. 37.See also, paras. 38–39, and fn. 23 and 24, citing international arbitral awards of the Iran-USA Claims Tribunal and the Eritrea-Ethiopia Claims Commission upholding this definition ofexpulsion.498 CCPR, General Comment No. 15, op. cit., fn. 30, paras. 9–10.