Rutasia has not violated international law in its treatment of the migrants from (former) Alfurna.

A. Alfurnans do not have status of refugees.

Alfurnans do not have characteristic of refugee to be considered as a refugee.

i. Status of Alfurnans does not complies of the definition given in the Convention Relating to the Status of Refugees 1951.

«The definition of a refugee was set out in the 1951 United Nations Convention Relating to the Status of Refugees (“Refugee Convention” or “Convention”)»[1]. «Over fifty years later, this definition has been adopted, often verbatim, by most countries implementing their refugee statutes»[2]. «The definition requires (i) a fear, (ii) that is well-founded, (iii) of persecution (iv) based on reasons of race, religion, nationality, membership in a particular social group, or political opinion»[3].

“Environment” and “climate change” are not one of the five accepted grounds, and Tuvaluans do not count as “refugees” under the Convention definition[4]. «Tuvalu's chosen plan of action, international migration of the entire nation, depends largely on their receiving refuge elsewhere». «While, as mentioned above , they have requested environmental refugee status from New Zealand and Australia, they have not found a satisfactory or sufficient solution». «This is mainly because, while they are popularly coined “environmental refugees” and “climate change refugees” because they flee from very terrible events that threaten their human rights and lives, they do not qualify under the traditional legal definition of a “refugee».” «Thus, “climate change refugee” is actually an international misnomer, with potentially dire consequences for Tuvalu».

«There are a number of obstacles that make it very difficult to argue that people displaced by the impacts of climate change are refugees within the meaning of the Refugee Convention. (p. 43) ».

«First, the refugee definition only applies to people who have already crossed an international border»[5].

«Secondly, there are difficulties in characterizing ‘climate change’ as ‘persecution’».

«Although adverse climate impacts such as rising sea levels, salination, and increases in the frequency and severity of extreme weather events (eg storms, cyclones, and floods) are harmful, and in some cases fatal, they do not meet the threshold of ‘persecution’ as this is currently understood in international and domestic law»[6].

«Finally, even if the impacts of climate change could be characterized as ‘persecution’, the Refugee Convention requires such persecution to be for reasons of an individual's race, religion, nationality, political opinion, or membership of a particular social group». «Persecution alone is not enough»[7].

«In recent times, a growing number of organizations and commentators have employed the notion of ‘environmental refugees’ or ‘climate refugees,’ a concept used to refer to people who are obliged to leave their usual place of residence as a result of long-term climate change or sudden natural disasters». «UNHCR has serious reservations with respect to the terminology and notion of environmental refugees or climate refugees». «These terms have no basis in international refugee law».

«The phrase ‘refugee’ is a legal term». «A person who has been determined a refugee will have satisfied the criteria under the 1951 Refugee Convention, the 1969 OAU Convention, or UNHCR’s mandate». «For this reason, just as a reference to an ‘economic refugee’ is not a reference to a recognized term under international law, neither are ‘climate refugee’ nor ‘environmental refugee’»[8]. «While often used, particularly in the media, it would be incorrect to give the words a legal meaning that has not been endorsed by the legal community».

Defending the mandate of the UNHCR, the High *626 Commissioner noted, a few months after her statement to the UNCED, that the loss of national protection is the key element of the definition of “refugees” and international protection is based on this fact[9]:

«Using the term “environmental refugee” to refer to all people forced to leave their homes because of environmental change loses the distinctive need of refugees for protection. It blurs the respective responsibilities of national governments towards their citizens and of the international community towards those who are without protection. It also impedes a meaningful consideration of solutions and action on behalf of the different groups. Therefore, UNHCR believes the term “environmental refugee” is a misnomer»[10].

B. Rutasia reserves of rights to deal with the migrants in accordance with own national laws, because they arrived in Rutasian’s sovereign waters illegally.

«There is no such thing as a ‘climate change’ migration or protection visa in the immigration law of any country»[11].

«There is no internationally recognized term to date to define the people moved for environmental reasons».[12] «Terms and concepts such as environmental migration, climate change-induced migration, ecological or environmental refugees, climate refugees, climate change migrants, and environmentally induced forced migrants are found scattered throughout the emerging literature». «The authors interpret these terms haphazardly *758 based on their own concepts and the protection mechanisms they suggest».[13] «The variety of terms interchangeably used by the researchers and policymakers thwarts progress on the recognition of and legal protection for environmentally displaced persons».[14]

So, state practice is regional and not uniform. Thus it is not possible to find practice. There are not custom.

[1] Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (1954) [hereinafter Refugee Convention] (entered into force Apr. 22, 1954), available at http:// www2.ohchr.org/english/law/refugees.htm.

[2] See Jessica B. Cooper, Student Article, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. Envtl. L.J. 480, 480 (1998) [hereinafter Cooper] (describing how the U.N. definition of a “refugee” remains the “functional core of international refugee jurisprudence”).

[3] Refugee Convention, supra note 41, art. 1.

[4] For a discussion on why environmentally displaced persons should not count under the traditional refugee definition and laws as they stand see Kara K. Moberg, Extending Refugee Definitions to Cover Environmentally Displaced Persons Displaces Necessary Protection, 94 Iowa L. Rev. 1107, 1113 (2009). “[E]nvironmental migrants are unlikely to benefit from the definition of refugee and [there are] dangers in construing the law to allow [them] to fall under the pre-existing refugee definition.” Id.

[5] Climate Change, Forced Migration, and International Law, Jane McAdam

[6] Goodwin-Gill and McAdam, 90–134.

[7] Climate Change, Forced Migration, and International Law, Jane McAdam

[8] UNHCR The UN Refugee agency Climate change, natural disasters and human displacement: a UNHCR perspective António Guterres, UN High Commissioner for Refugees

[9] See Sadako, supra note 72.

[10] Id.

[11] Climate Change, Forced Migration, and International Law, Jane McAdam

[12] Int'l Org. for Migration, Migration, Climate Change and the Environment 4 (IOM Policy Brief, 2009).

[13] Frank Laczko & Christine Aghazarm, Migration, Environment and Climate Change: Assessing the Evidence 1 (2010), available at http:// publications.iom.int/bookstore/free/migration_and_environment.pdf.

[14] Tina Acketoft, Comm. On Migration, Refugees, & Population, Council of Eur. Parliamentary Assembly, Environmentally Induced Migration and Displacement: A 21st Century Challenge 2 (2008), available at http:// assembly.coe.int/Documents/WorkingDocs/Doc08/EDOC11785.pdf; Hermen J. Ketel, Global Warming and Human Migration, in Climate Change, Human Systems and Policy 1 (Antoaneta Yotova ed., 2004); see also Falstrom, supra note 27, at 1, 3.

Date: 2016-01-14; view: 1053