Forthcoming in the Max Planck Yearbook of United Nations Law (27)
In this article, I give a detailed assessment of the engagement of the ILC with three
main areas of international migration law: asylum, nationality and statelessness, and expulsion
of non-nationals. The focus is on draft articles concluded by the Commission in the exercise of
its mandate,4 as well as codification conventions that were later adopted in diplomatic
conferences. However, in a bid to paint a comprehensive picture of the Commission’s
interactions with the field, reference will also be made to discussions, reports, studies, and
different forms of outcome adopted by the ILC.
The article sets out by examining the Commission’s early efforts to codify the law on
the right of asylum, in an attempt to identify the reasons behind, and the lessons one may learn
from its failure to do so. The article then discusses the work of the ILC on the law of nationality,
including on the elimination and reduction of statelessness, state succession, and finally
diplomatic protection. At last, it assesses the Commission’s attempts to codify the law on
admission and sojourn of non-nationals in its 2014 Draft Articles on Expulsion of Aliens.
Incidentally, the article paints a more complicated picture about the need for a delicate balance
between codification and progressive development in such a contested and at times uncertain
area of the law. While the Commission has been helping to consolidate and clarify the position
of international law on migration, its engagements with the field have laid bare the many
political sensitivities associated with the subject.
Before delving into the substantive part of the article, a methodological clarification
seems in order. The expression ‘international migration law’ can encompass various legal
aspects of migration and displacement, and it seems necessary to explain how the term is being
used here. The focus of the present article is not only on the rules regulating ‘the movement of
4
UNGA Res. 174 (II), ‘Statute of the International Law Commission’ (21 November 1947), at Art. 1.
3
Electronic copy available at: https://ssrn.com/abstract=4816199