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 Rutasias 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 nondiscrimination 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 worlds 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
states 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?
---------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 Alfurnas claims,
and my countrys conduct with respect to Alfurnas 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.