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Rutasia provided all necessary accommodations for migrants from the perspective of International LawAlfurna does not fall under the jurisdiction of the court Jurisdiction of the Court always consist of three elements ratione temporis, ratione materiae and ratione personae. The third one deals with the subjects that may be parties of the case in front of the Court, which the question that arises in this case. According to the Article 93 of the Charter of UN all Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.[25] The Charter also defines that only States can be members of the UN. Alfurna joined UN in 1947, but UN Secretary-General announced thatAlfurna’s status as a state and its continuing entitlement to participate in the United Nations will be considered by the International Court of Justice.[26] Article 34 of the Statute of ICJ declares that only states may be parties in cases before the Court.[27] As Alfurna cannot be considered a State anymore as was noticed above, the Court has no jurisdiction over this case.
B. RUTASIA HAS NOT VIOLATED INTERNATIONAL LAW IN ITS TREATMENT OF THE MIGRANTS FROM (FORMER) ALFURNA AND, IN ANY EVENT, ALFURNA IS FORECLOSED FROM MAKING CLAIMS WITH RESPECT TO THOSE INDIVIDUALS BECAUSE OF ITS FAILURE TO TAKE AVAILABLE AFFIRMATIVE STEPS TO PROTECT THEM 1. RUTASIA FULFILLED ALL OF ITS DUTIES REGARDING MIGRANTS 1.1. Status of Alfurna’s migrants in Rutasia Rutasia provided all necessary accommodations for migrants from the perspective of International Law ALFURNA HAS NO LEGAL GROUNDS TO MAKE CLAIMS ON THE TREATMENT OF THE MIGRANTS BY RUTASIA 2.1. Alfurna’s government failed to fulfill its obligations concerning citizens of Alfurna 2.2. Alfurnans fled from buried under water territory of their State thus they rejected the protection of Alfurna’s government
B. RUTASIA HAS NOT VIOLATED INTERNATIONAL LAW IN ITS TREATMENT OF THE MIGRANTS FROM (FORMER) ALFURNA AND, IN ANY EVENT, ALFURNA IS FORECLOSED FROM MAKING CLAIMS WITH RESPECT TO THOSE INDIVIDUALS BECAUSE OF ITS FAILURE TO TAKE AVAILABLE AFFIRMATIVE STEPS TO PROTECT THEM 1. RUTASIA FULFILLED ALL OF ITS DUTIES REGARDING MIGRANTS 1.1. Status of Alfurna’s migrants in Rutasia Due to the climate change situation in Alfurna Rutasia accepted 2,978 Alfurnans in the Woeroma Cente, 1,492 of them were Nullatree Cove villagers, who previously refused to be evacuated by Alfurna’s government.[28] Rutasia treats persons held in the Woeroma Centre as migrants who illegally tried to cross the state’s border. Alfurna’s government evacuated its citizens when islands of Batri and Engili were covered with water. 1,492 Nullatree Cove villagers refused to be evacuated, the reasons the rest of migrants held in Woeroma Centre were not evacuated stays unknown. People who were intercepted in Rutasia’s territorial waters (territorial sea) got there illegally, without proper permission. According to the Article 1 of the Convention on the Territorial Sea and the Contiguous Zone: “The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.”[29] Consequently, Alfurnan’s breached Rutasia’s laws and were brought to the Woeroma Center. Alfurnans cannot be considered refugees under International law, therefore they do not have possibility to enjoy special rights of refugees. Under the Convention Relating to the Status of Refugees and Protocol relating to the status of refugees a refugee is a person who owns well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. [30] None of the migrants kept in the Woeroma Centre falls under the requirements provided by the Convention Relating to the Status of Refugees, they have no such fears. The reason those people left their homes was climate change that led to the permanent submerging of their homeland. International law does not provide the definition of a climate migrant. People who were forced to leave their homes due to climate conditions are given different names in literature: climate refugees, climate migrants, environmental displacees, environmentally displaced persons; none of these terms has legal background. The United Nations University’s Institute for Environment and Human Security (UNU-EHS) defines a “forced environmental migrant” as “a person who “has” to leave his/her place of normal residence because of an environmental stressor … as opposed to an environmentally motivated migrant who is a person who “may” decide to move because of an environmental stressor.”[31] Those scientific definitions are not legally enforceable, so cannot be used towards Alfurna’s migrants. Impossibility to enforce the Convention Relating to the Status of Refugees, as they have no such fears toward migrants kept in Woeroma Centre may be supported by the decisions of the immigration service that dealt with such migrants. Appeals against the decisions of a refugee status officer of the Refugee Status Branch of the New Zealand Immigration Service (“the RSB”), declining the grant of refugee status to each of the above appellants, all citizens of Tuvalu from 17 August 2000 was dismissed due to “the appellants’ respective appeals are prima facie manifestly unfounded or clearly abusive” and the official who heard the case found that none of the appellants are refugees within the meaning of Article 1A(2) of the Refugee Convention.[32] 2,978 people left their homes only because their further life in Alfurna would lead to their death. Alfurnans came to Rutasia to find a shelter as their houses were destroyed; they had no place to go. Theory of International Law operates one more term that can be used towards migrants from Woeroma Centre – “an asylum seeker.” This term as many others cannot be found in any Act. The wider meaning of the term “asylum seeker” is a person who fled whom the country of his/her citizenship or country of his/her place of living to seek an asylum abroad. The narrower meaning is widely used by researchers; an asylum seeker can be referred as a person in transit who applying for sanctuary in some other place than his/her native land.[33] Alfurnan migrants cannot be considered asylum seeker in narrower meaning as they did not apply for the status of refugee in Rutasia. As to the wider meaning it does not differ much from the term “migrant” and Alfurnans kept in Woeroma Centre can be referred to in both ways.
Rutasia provided all necessary accommodations for migrants from the perspective of International Law As Alfurna’s migrants entered the country illegally and they should be treated in accordance with Rutasia’s laws. International experience provides the way of dealing with illegal migrants deportation, that might be preceded by admistrative detention. As Alfurna lies under the water deportation is not an option. Rutasia could not allow migrants to enter the State, so they had to put them in the specially accommodated center. The term “administrative detention” has been used in the Report of the Special Rapporteur on the Human Rights of Migrants at the United Nations Commission on Human Rights in December 2002.[34] Unlike prisoners, administratively detained immigrants are not detained as a result of committing a crime. Immigration detainees are not accused or convicted criminals, they are immigrants in irregular situations and asylum seekers. The former category of immigrants lack the necessary documents required by national law and this has entailed deportation. The objective of administrative detention is to serve the execution of the deportation order. Detention is not a sanction or a punishment, but a coercive administrative measure that is aimed at facilitating the implementation of the removal (deportation or expulsion).[35] Rutasia just followed its own law by putting migrants into the Woeroma Centre; none of their rights were abused. Concerning asylum seekers’ right to liberty, it was lawfully limited. European Court of Human Rights in the judgment of Amuur v. France case noted that detention may be considered lawful only in accordance with national law of the State, but the provisions given in the Article 5 of the European Convention on Human Rights and Fundamental Freedoms namely to protect the individual from arbitrariness.[36] “Everyone has the right to life, liberty and security of person … No one shall be subjected to arbitrary arrest, detention or exile” – the right to liberty is found in different wording in the most of international treaties concerning human rights.[37] Under Art.9 (1), ICCPR, “no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”. The Human Rights Committee, in its General Comment No8 on Article 9 of the ICCPR, expressly points out that paragraph 1 applies to all deprivations of liberty, including the ones related to immigration control. According to Article 5 (1) (f), ECHR, detention is only justified “to prevent (a person’s) unauthorized entry into the country” or where “action is being taken with a view to deportation or extradition”. Examining these documents, two categories of cases where immigration detention can be justified emerge: 1) persons at the frontier seeking unauthorized entry and 2) persons pending deportation or extradition. This is acknowledged by UNHCR in the UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, 1999, Guideline 2.[38] Accordingly, as detention was used towards persons at the frontier seeking unauthorized entry, such measures were legal. Alfurnans that are kept in the Woeroma Centre are stateless persons as their State have ceased when lost all of its territory and neither Rutasia’s, nor international legislation provide any course of actions regarding such special kind of migrants, Rutasia chose all the only way to provide people with all necessary accommodations. In the respect of other rights provided by international treaties, Rutasia has never been in the breach of any of them. Alfurna’s migrants were sent to the two blocks of Woeroma Centre regarding their right of self-determination, as Nullatree Cove villagers were placed together in the Block A, as such right is stipulated in the International Covenant on Civil and Political Rights.[39] Three of the Alfurnan migrants in Block B committed suicide and this provoked concerns in the international community. Article 6 of the ICCPR declares that everyone has a right to life.[40] The Alfurnans faced terrible challenges, their homes were destroyed, and they were forced to permanently leave their homeland. Such events might have caused psychological trauma that lead to their decision to end their lives. Rutasia cannot bear responsibilities for the state of mental health of the migrants as there were too many factors that could result in such tragedy. In October 2011, the Immigration Ombudsman, an independent review authority within the Rutasian government, issued a report on conditions at the Woeroma Centre and stated that conditions in the Block B, should be improved. Rutasia’s Immigration Department dismissed the concerns raised by the Ombudsman as factually inaccurate. On November 2011 the earthquake caused crack in the wall o Block A and later asbestos was found there. Block A was not suitable for habitation anymore. The design and construction of new facilities would take two years, and would cost at least USD 110 million.[41] Rutasia cannot provide proper living conditions for immigrants anymore and even if it starts constructing new centre for them it will take too much time and too much money and Rutasia appeared in the severe debts. In the conclusion Rutasia provided migrants with all proper accommodations available and took measures when living conditions worsened, finding them new place of living and taking all the costs.
2. ALFURNA HAS NO LEGAL GROUNDS TO MAKE CLAIMS ON THE TREATMENT OF THE MIGRANTS BY RUTASIA2.1. Alfurna’s government failed to fulfill its obligations concerning citizens of Alfurna If Alfurna still considers itself a State it should have obligations before its citizens. Mr. Dugard, a Special Rapporteur said that the State has not only the right but also an obligation to defend the rights of its citizens and the State unable to defend its nationals was of no use to them.[42] Thus each State takes responsibility upon them to protect and defend the rights of its citizens within and outside of the state borders. While the right of every state to exercise sovereignty and jurisdiction within its territory over all persons within it is recognized, foreign nations retain over their citizens abroad a protective surveillance to see that their rights as individuals receive the just measure of recognition established by the principles of international law.[43] Each legal entity that is considered a State should take a proper care of their citizens. A State cannot leave people at the mercy of fate. The assurance of the welfare of individuals, therefore, is a primary function of the state, accomplished internally by the agency of municipal public law, and externally through the instrumentalities of international law and diplomacy.[44] Alfurna claims to be a State, which means that it should have all rights and responsibilities of a State. Alfurna failed to protect rights of the migrants kept in Woeroma Centre. Alfurnan government showed no interest in those migrants until international community revealed their concerns towards living conditions of the detendees. Alfurna did not react in any way when the migrants were captured in the Rutasia’s territorial sea; it kept silent when they were placed in the Woeroma Centre; no reaction followed after the deaths and deceases of detendees; Alfurna ignored the situation around the Block A and worsening of the living conditions of Alfurnan migrants. Only after the plea of several international organizations Alfurnan government discovered some interest in the future of its citizens. Alfurna left 2,978 of its citizens unevaluated, it did not take any care of their fate, it did not take any measures to improve their living conditions. Rutasia took all the responsibilities and all costs concerning those people. Neither Alfurna , nor other States provided any help to Rutasia. Nowadays when Rutasia cannot provide proper accommodations for migrants it accepts assistance of a willing to help State, to fulfill its international duties in respect of climate migrants. Rutasia does not recognize Alfurna as a State anymore and considers that it has no right to interfere in its treatment of the migrants, and even if Alfurna had such right it has failed to protect its migrants.
[1] Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: I.C. J. Reports 1949, p. 174 [2] M. Mrak. Succession of States, 1999, p.4 [3] Compromis [4] Compromis [5] Convention [6] R. Rayfuse and E. Crawford. Climate Change, Sovereignty and Statehood, Legal Studies Research Paper No. 11/59, 2011, p.5/ [7] W.W. Willoughby, Fundamental Consept of Public Law 64. [8] G.W. White, Nation, State, and Territory: Volume 1: Origins, Evolutions, and Relationships [9] Justus Reid Weiner & Diane Morrison, Legal Implications of ‘Safe Passage’ Reconciling a Viable Palestinian State with Israel’s Security Requirements, 22 CONN. J. INT’L L. 233, 246 (2007) [10] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) Prelim. Objs., 1996 I.C.J. Reps. 595 (July 11). [11] The Island of Palmas Arbitration (Netherlands v United States) (1928), 2 RIAA 829, [839]. [12] Also, a State may become extinct and people may lose their territory as a result of natural development. For instance, two small islands forming part of the Republic of Kiribati drowned and several other islands of that Republic and the Republic of Tuvalu are threatened as a result of rising sea levels. See South Pacific Regional Environmental Programme, Center for Pacific Islands Studies, University of Hawaii, Pacific Islands Report, 3 Nov. 1998; Islands Disappear Under Rising Seas, Reuter, 14 June 1999. [13] M. Fabry. Recognizing States:International Society and the Establishment of New States Since 1776, 2010 [14] Security Council, Official Records, 383rd Meeting, 2 December 1948, p. 41, See further Alexander, International Law Quarterly, 4 (1951), pp. 23-30; Halderman, Law and Contemporary Problems, 33 (1968), pp. 78-()6; and the works cited supra, p. 93 n. 4. [15] UNHCR Report, supra note 16, at 1-2. [16] G.A. Res. 63/213, supra note 16 (“[T]he adverse effects of climate change and sea-level rise present significant risks to the sustainable development of small island developing States, that the effects of climate change may threaten the very existence of some of them and that adaptation to the adverse effects of climate change and sea-level rise therefore remains a major priority for small island developing States”); see also G.A. Res. 63/281, U.N. Doc. A/RES/63/281 (Jun. 11, 2009) (“[D]eeply concerned that the adverse impacts of climate change, including sea level rise, could have possible security implications”). [17] Noemi Gal-Or and Michael J. Strauss. INTERNATIONAL LEASES AS A LEGAL INSTRUMENT OF CONFLICT RESOLUTION: THE SHAB’A FARMS AS A PROTOTYPE FOR THE RESOLUTION OF TERRITORIAL CONFLICTS, TOURO INTERNATIONAL LAW REVIEw, Vol. 11 2008, p.106 [18] Compromis [19] S.K. Verma. An Introduction To Public International Law p.127 [20] A/48/957, Request for the inclusion of an Additional Item in the Agenda of the Forty-Eighth Session, 29 June 1994, according to which sixty-four member states of the united Nations have recognised the Order's 'full sovereignty as an equal member of the international community', see also Oððenheit's International Law, p. 329 (fn. 7. implicitly): Shaw, lnternational law, p. 171. [21] A Astraudo, ‘Saint-marin et l’Ordre de Malta’ (1935) La Revue Diplomatique 7; G. Cansacchi, Il diritto di legazione attivo e passivo dell’Ordine de Malta (1940) 65. [22] Association of Italian Knights of the Order of Malta v. Piccoli, Italian Court of Cassation, 6th June 1974, in 65 ILR (1984), pp.308-312. [23] A/RES/48/265 Observer status for the Sovereign Military Order of Malta in the General Assembly [24] Cox, Noel, The Acquisition of Sovereignty by Quasi-States: The case of the Order of Malta, p.6 [25] Charter of the UN [26] Compromis [27] Statute ICJ [28] Compromis [29] Convention on Territorial Sea [30] Convention Relating to the Status of Refugees [31] Fabrice Renaud et al. (2007): Control, Adapt or Flee. How to Face Environmental Migration? Bonn: UNU- EHS, available at: http://www.ehs.unu.edu/file/get/3973 (consulted on 10.10.2011). [32] Refugee Appeal Nos. 72189/2000, 72190/2000, 72191/2000, 72192/2000, 72193/2000, 72194/2000 & 72195/2000, Nos. 72189/2000, 72190/2000, 72191/2000, 72192/2000, 72193/2000, 72194/2000 & 72195/2000, New Zealand: Refugee Status Appeals Authority, 17 August 2000, available at: http://www.unhcr.org/refworld/docid/4d08cf7f2.html [accessed 4 January 2013] [33] D.J.Whittaker. Asylum Seekers And Refugees in the Contemporary World [34] Report of the Special Rapporteur on the Human Rights of Migrants at the United Nations Commission on Human Rights, E/CN.4/2003/85, 30 December 2002; also in the Observation and Position Document of the Jesuit Refugee Service, Detention in Europe. Administrative Detention of Asylum-seekers and Irregular Migrants, 17 October 2005, www.detention-in-europe.org [35] V.Ilareva. Immigration Detention in International Law and Practice (In search of solutions to the challenges faced in Bulgaria) [36] Amuur v. France, European Court of Human Rights, case number 17/1995/523/609, judgment as of 20 May 1996, Paragraphs 50, 53 and 54; Reiterated in Dougoz v. Greece, European Court of Human Rights, Application number 40907/98, judgment as of 6 March 2001, Paragraph 55 [37] Art.3 and 9, Universal Declaration of Human Rights /UDHR/; Art.9 (1) and 10, International Covenant on Civil and Political Rights /ICCPR/; Art.5, European Convention on Human Rights and Fundamental Freedoms /ECHR/; Art.6, Charter of Fundamental Rights of the European Union /EU/, Art.7, American Convention of Human Rights /ACHR/; Art.6, African Charter on Human and Peoples’ Rights /ACHPR/; Art.5, Convention on Human Rights and Fundamental Freedoms adopted by the Commonwealth of Independent States /CIS/; Art.14, Arab Charter on Human Rights adopted by the Arab league /AL/; Art.16, United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families [38] V.Ilareva. Immigration Detention in International Law and Practice (In search of solutions to the challenges faced in Bulgaria) [39] International Covenant on Civil and Political Rights [40] ICCPR [41] Compromis [42] Yearbook of the International Law Commission, summary records of the meetings of the fifty-second session 1 May – 9 June and 10 July – 18 August 2000, p. 52 [43] Address before the American Society of International Law, April 29, 1910, Proceedings of the Fourth Annual Meeting, p. 46; Heilborn, op. cit., p. 64 [44] E.M. Borchard. DIPLOMATIC PROTECTION OF CITIZENS ABROAD, 1914, p.32 Date: 2016-01-14; view: 1624
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