Mr. President, Your excellencies, may it please the court.

I am Leo-Aries Wynner Santos, counsel for Rutasia.

We are here before you today to uphold Rutasia’s sovereignty as an independent state in the conduct of its affairs.

My co-counsel has established that Alfurna is no longer a state, and that Rutasia acted appropriately in collecting, as compensation, for the debt of Alfurna, the funds in its possession.

For my part, I will demonstrate that Rutasia upheld the human rights of the migrants from the former Alfurna, and was acting for their best interest when Rutasia decided to transfer the migrants to Saydee.

If it pleases the court, I would like to proceed to my first submission.----------

These last two of our submissions hinge on one simple contention: Under the Refugee Convention, the controlling law on refugee status, signed by both Rutasia and the applicant Alfurna, the migrants from the former Alfurna detained in Rutasia are not refugees. There is no way to construct the law they to recognize them as refugees. There is also no extant law that obliges Rutasia to grant the migrants refugee status.

Under the 1951 Convention relating to the status of refugees, A refugee is a person who is forced to flee across international borders because of persecution or the threat of persecution.

This is so because of one simple reason: the migrants from the former Alfurna are not fleeing from persecution or the threat of persecution.UNHCR operations handbook: persecution being central to the refugee definition.

Expert Guy S Goodwin Gill: The requires that the basis of the persecution--whether as a reason for flight or as a reason for fear--must be by reason of “race, religion, nationality, membership of a particular group, or political opinion.”These qualifications for the term ‘persecution’ are explicitly mentioned by the Convention and the Protocol amendment, and make use of the language of non-discrimination of various instruments.

expressio unius est exclusion alterius, highlighted in Prosecutor v Delalic

The logical conclusion must be that to be considered a refugee, one must be fleeing from persecution, or a well-grounded fear of persecution, and that for the purposes of invoking the refugee convention, it is only persecution if it is due to race, religion, nationality, membership of a particular group, or political opinion.

The applicants contend that there is a customary law that expands the definition of refugees, but even adding up all the signatories OAU Convention with the adopters of the Cartagena Declaration, that does not even total to a quarter of the world’s nations, and is limited to only two continents. Your excellencies, forced migration is a problem the world over. There is a reason that not everyone who is forced to flee is considered a refugee: doing so will devalue the status of actually being a refugee by unduly expanding the breadth and scope of the refugee law beyond what was intended.

Even assuming that the 1984 Cartagena declaration and the 1969 OAU Convention do evidence customary law expanding the refugee definition to include persons forced to flee because of disturbances to public order, such cannot be applied in this case, your excellencies. This is because the term disturbances to public order as used in both instruments are unspecified, and following the rule on interpretation of laws, ejusdem generis,it must be given a meaning that would put it in the same class as the other terms it appears with. Being that the words “events seriously disturbing public order” appear with the words external aggression, occupation, and foreign domination136--all intentional acts of man--in the OAU definition, the disturbance to public order contemplated by the law must be man-made. Similarly, the Cartagena Declaration has grouped the words “circumstances which have seriously disturbed public order” with the words generalized violence, foreign aggression, internal conflicts, and massive violation of human rights; taken together, it can be said that the Declaration only expands the definition of “refugee” to instances where the reasons for flight are due human acts.

These definitions are supported by contemporaneous construction by the people involved in applying the instruments. In construing the OAU definition of the term refugee, African group, through the UNHCR, have expressed the fact that the biggest causes of displacement in Africa is armed conflict, and that the OAU Convention does not refer to those who cross borders because of economic reasons or poverty. The construction of the Cartagena Declaration by the Latin

American group, on the other hand, explicitly states that “‘other circumstances which have seriously disturbed public order’, must be man-made and cannot constitute natural disasters. They may, however, amount to no more than situations of internal disturbance and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as long as they seriously disturb public order.

These constructions are provided for by African and South American leaders and experts in an official clarificatory communication to the UNHCR (UNHCR ‘Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees Submitted by the African Group and the Latin American Group, published April 1992)

Assuming without conceding that Alfurna is still a state, its actions and that of its migrants prohibit any claims of refugee status. A refugee is given refugee protection precisely because it does not enjoy the protection of its state of origin. Assuming that Alfurna is still a state, able and willing to protect its nationals by asking for their repatriation to Nasatima Island142 and by making calls for better treatment,143 then its nationals can be said to still be under the protection144 of the state of Alfurna, and therefore cannot be considered refugees.

Rutasia has treated the migrants from the former Alfurna in a manner befitting their status as aliens. It is conceded that when a state permits the entry of aliens onto its premises it must treat them in accordance with the international minimum standard. (Akehurst) All that can really be expected is the right to life and some elementary liberties.

Rutasia more than exceeded this; it has provided every possible protection within its legal framework, given the circumstances, to the migrants from the former Alfurna. The bad faith and malice necessary to claim that the international minimum standards have been breached are simply not attendant in this case, and in any event, have never been established by the applicant.

Assuming without conceding that the migrants from the former Alfurna were mistreated at the detention center, such does not constitute an internationally wrongful act on the part of Rutasia. The Articles on State Responsibility, in codifying what constitutes an international wrongful act of state, prescribes two elements that must be satisfied: (1) that the act or omission in attributable to the state under international law; and (2) that the act or omission constitutes a breach

of an international obligation of the state. (Case concerning United States Diplomatic and Consular Staff in Tehran (US v. Iran) [1980])

While the treatment of the detainees may not be the most ideal, it was not caused by fault, culpability, negligence or want of due diligence, which must be established before an act can be attributable to Rutasia. In this case, Rutasia was not intentionally maltreating the Alfurnan migrants, but it was necessary to detain them as provisional measures while they were being processed at Woeroma Center. Incidentally, and with allegations of its substandard nature in mind, the Woeroma Center is the only immigration processing facility of its kind in Rutasia. The Compromis will show, in para 33, that there was no other facility in Rutasia where the Alfurnan migrants could be detained and processed.

The former Alfurna cannot make claims on behalf of its migrants. Essentially, Alfurna is invoking diplomatic protection. But only states are allowed to claim diplomatic protection. The Articles on Diplomatic Protection provide that “Diplomatic protection consists of resort to diplomatic action or other means of peaceful settlement by a state adopting in its own right the cause of its national in respect of an injury to that national arising from an internationally wrongful act of another state.” (legislative intent of the draft articles on state responsibility) This is because it is fundamental in the principle of state sovereignty that a state cannot be sued by an individual. But Alfurna is no longer a state, hence it has no personality to adopt the cause of its former citizens.Assuming without conceding that Alfurna is still a state, it failed to exhaust local remedies, precluding the resort to international law. Customary international law provides that local remedies must be exhausted first. (shaw)

2nd minor submission: THE PROPOSED TRANSFER TO SAYDEE IS LEGAL. Non-refoulement does not apply to the Alfurnan migrants.

In order for the principle of non-refoulement to apply, the threat to the life or freedom of the person concerned must be on account of his race, religion, nationality, membership of a particular social group or political opinion. (33 Refugee Convention)

As established previously in the 2nd major submission, there is no well-founded fear of persecution or threat to the life or freedom of the Alfurnan migrants. In order that “well-founded fear“ exists, it requires a subjective element, that which is the existence of fear of persecution in the mind of the person, and an objective element, which is the valid basis of fear.(multiple immigration cases of asylum

seekers, led by INS v Cardozo-Nicaraguan citizen, claims fear prevents his return, seeks asylum, claims brother was tortured for political activity, granted; Arriaga v INS- Guatemalan citizen, entered US, released military man fears opposition and military, disappearance of brothers, failed to meet burden of proof). There must be a real chance178 or reasonable possibility of persecution based on an objective situation proved by evidence.

Rutasia has the right to expel or transfer the Alfurnan migrants.The right of expulsion is based on the principle of territorial sovereignty. States are granted wide discretion in expelling foreigners from their territory or admitting them only in exceptional cases. Expulsion is an inherent attribute of State sovereignty. Conceding that the right of expulsion can only be exercised in proper cases, the Refugee Convention provides that grounds of national security or public order only apply to legal refugees (Article 32(1)). A state may expel refugees “lawfully in their territory” on the basis of national security or public order. This presupposes admission of the refugee to the receiving state in accordance with the state’s immigration law. National security or public order as grounds for expulsion only applies to refugees who legally entered the country of refuge, and not to those who entered the country of refuge without authorization. Hence, illegal entrants may be expelled even if there is no threat to the national security or public order of the receiving state.( Paul Kuruk, ‘Asylum and the Non-Refoulement of Refugees, expert on culture and diversity issues in law, Univ of Ghana)

Rutasia acted in good faith and without arbitrariness as required by international law in deciding to transfer the Alfurnan migrants. The transfer to Saydee was necessary because the continued detention of the Alfurnan migrants posed health risks in Woeroma Center as a result of the damage caused by an earthquake, and the construction of new facilities will take time and will be expensive.(compromise 38) This necessitated temporary relocation after the discovery of asbestos in Block A of Woeroma Center.(clarification5) Also, a judicial proceeding was conducted to determine the propriety of the transfer, and Saydee promised to invest fresh funds to remedy the situation. (clarification 10) Hence, Rutasia acted in good faith and without arbitrariness.

In any event, Alfurna cannot protect the migrants in case of repatriation or return to Nasatima. At this point, we would like to point out once again, your excellencies, that the calls for repatriation of its citizens by the former Alfurna contradict the very essence of the claim for refugee status. But in any event, the repatriation or return to the country or territory of origin must be safe and dignified in accordance with the standards of international law. There must be adequate

assistance and security in the place where the person will be returned or repatriated. (UNSC Res No 564, (18 September 2004) At this point Nasatima is but a mere nature reserve with no civilized infrastructure (Compromis 29). How can they be better off there?

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With all the laws, customs, general principles, judicial decisions and commentaries under international human rights, we reiterate our submissions that Alfurna is no longer a state, and accordingly the Court lacks jurisdiction over Alfurna’s claims, and my country’s conduct with respect to Alfurna’s assets is also consistent with international law.

Mr. President, your excellencies, if you are no longer in need of my services, I shall now cede the podium. Thank you for your time. May it please the court.