reasons put forward by States to justify detention […] must be clearly defined and exhaustively
enumerated in legislation. […] The detention of minors […] requires even further justification. 407
360. Furthermore, in the Court’s opinion, States may not use the deprivation of liberty of
children who are with their parents, or those who are unaccompanied or separated from
their parents as a precautionary measure for the purposes of immigration proceedings;
nor may they base this measure concerning non-compliance with the requirements to
enter or remain in a country on the fact that the child is alone or separated from his or her
family, or on the purpose of ensuring family unity, because States can and should order
less harmful alternatives and, at the same time, protect the rights of the child
comprehensively and as a priority. 408
B.1.4. The prohibition of collective expulsions
361. In addition, the inadmissibility of collective expulsions stems from the considerations
on due process of law in immigration proceedings (supra paras. 356 to 358), and is
established in Article 22(9) of the Convention, which expressly prohibits them. 409 This
Court has found that the fundamental factor to determine the “collective” nature of an
expulsion is not the number of aliens included in the expulsion order, but that this order is
not based on an objective analysis of the individual circumstances of each alien. 410 The
Court, referring to the observations of the European Court of Human Rights, has
determined that a collective expulsion of aliens is “any measure compelling aliens, as a
group, to leave a country, except where such a measure is taken on the basis of a
reasonable and objective examination of the particular case of each individual alien of the
group.” 411
362. Similarly, in its General Recommendation No. 30, the United Nations Committee on
the Elimination of Racial Discrimination indicated that the States parties to the
International Convention on the Elimination of All Forms of Racial Discrimination 412 must
“[e]nsure that non-citizens are not subject to collective expulsion in particular in situations
where there are insufficient guarantees that the personal circumstances of each of the
persons concerned have been taken into account.” 413
407
United Nations, Report of the Working Group on Arbitrary Detention, A/HRC/13/30, 18 January 2010,
paras. 59 and 60.
408
Cf. Rights and Guarantees of Children in the Context of Migration and/or in Need of International
Protection. OC-21/14, para. 160.
409
In this regard, different international human rights treaties are consistent in prohibiting collective
expulsions in terms similar to the American Convention, Cf. Protocol 4 to the European Convention, article 4:
“The collective expulsion of aliens is prohibited”; the African Charter on Human and Peoples’ Rights, article 12(5):
“The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national,
racial, ethnic or religious groups,” and the International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families, Article 22(1): “Migrant workers and members of their families shall not
be subject to measures of collective expulsion. Each case of expulsion shall be examined and decided
individually.”
410
Case of Nadege Dorzema et al. v. Dominican Republic, paras. 171 to 172.
411
Cf. Case of Nadege Dorzema et al. v. Dominican Republic, para. 171. Cf. ECHR, Case of Andric v. Sweden.
Application No. 45917/99. First Chamber. Decision of 23 February 1999, para. 1, Case of Conka v. Belgium.
Application No. 51564/99. Third Chamber. Judgment of 5 February 2002, para. 59. Also cf. Committee of
Ministers of the Council of Europe, “Twenty Guidelines on Forced Return.” Guideline No. 3 establishes the
prohibition of collective expulsion. It indicates that “A removal order shall only be issued on the basis of a
reasonable and objective examination of the particular case of each individual person concerned.”
412
Dominican Republic ratified the International Convention on the Elimination of All Forms of Racial
Discrimination on May 25, 1983.
413
Cf. Committee on the Elimination of Racial Discrimination, General recommendation No. 30, para. 26.
117
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