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International legal regulation of the status of the persons forcedly moved as a result of adverse consequences of change of a climate

Migration in connection with adverse consequences of change of a climate has the dual character including both a voluntary element, and an element of the forced migration, for example, in a case if as a consequence of change of a climate will act not only state territory immersing under water, but also natural disaster or the accident which is key factors in decision-making of the population about resettlement.

Each state «has the sovereign right to define, whom to suppose on the territory taking into account the international obligations of this state» [456 [457] [458] [459]. In international law there is a small amount of groups of persons by which other states are obliged owing to the obligations taken up on international law to give protection: refugees, stateless persons, the persons requiring additional protection. Whether inhabitants of the disappearing states forcedly moved as a result of adverse consequences of change of a climate enter into one of these groups?

Loss of the place of residence as a result of state territory immersing under water as adverse consequence of change of a climate, also, as well as migration for the ecological reasons as a whole, admits a legal blank a mode of the international protection. Blank presence in international legal regulation of the given question has been recognised for the first time in 2010 in Report UVKB the United Nations «Blanks in international legal protection and reciprocal measures. Session 1: Blanks within the limits of the international protection and in its realisation». UVKB the United Nations

Has noticed, that «it is impossible to establish the international legal status of some categories of persons, it, first of all, concerns the persons moved as a result of change

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Climate ».

As marks in D.K.Bekjashev's this occasion, «ecological migrants have no legal status and accordingly cannot count on any help or protection of their rights». In international law there is no direct international

The obligation for any state concerning settlement in its territory of such migrants. Even if to assume, that such persons can be recognised by refugees, not

Exists universally established duty of the states to accept all refugees and

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To give them citizenship.

In the conditions of legal vacuum of the law of persons, moved as a result of adverse consequences of change of a climate, can be broken, they can experience difficulties in the form of restriction in a freedom of movement, holding in custody, inability to found a job, have the property or even base medical aid, etc. [460 [461]

It is interesting to note the following moment, considering, both interstate, and transboundary character of considered migration: for lack of the international protection of the persons moved as a result of change of a climate, as refugees, nevertheless, in case of their moving on territory of the state, they can count on certain protection as internally displaced persons. The given question is regulated by Supervising principles of the United Nations on internal moving of 1998 They are reflected in two international treaties: the Pact about safety, to stability and development around Great Lakes with reports to it (2006), the African convention on protection and the help internally to displaced persons in Africa (the Kampalsky convention) (2009).

At present, the international law does not carry the persons forcedly moved in connection with adverse consequences of change of a climate, to any identified group which rights are directly designated (for example, children, women, workers-migrants, refugees, the radical people, stateless persons, etc.) and does not give them a special separate legal status as requiring special protection [462]. Considering that fact, that the disappearing states are developing states, their economic resources will not allow them to cope with the given problem alone.

What status of this population in case of such forced migration will be? Considering the blank designated above in international law concerning regulation of the status of such population, whether probably to apply any effective standards of international law by analogy to a considered situation? The existing international law allows to reveal some possible variants (international law of refugees, additional protection, a mode of stateless persons), speech about which will go further.

Problem of application of international law of refugees to the persons forcedly moved as a result of adverse consequences of change of a climate

Let's consider the first variant assuming possibility of application

International law of refugees to the persons forcedly moved as a result of adverse consequences of change of a climate.

Many authors name the persons, forced to move as a result of adverse consequences of change of a climate, «ecological refugees» [463]. According to Francois Zhermena, the term ecological refugees have been used for the first time in 1948 by V.Vogtom in its work «Road to a survival» [464], then in L.Brown's work in 1976 [465], but the maximum attention to this problem, having used the term «ecological refugees», has involved Essam the Ale-hinnavi in its report to the United Nations Program on environment «Climatic refugees» in 1985 Though definition «ecological refugees» formally is not recognised, it is very often used in the international legal literature [466 [467] [468]. However it is too weak argument in favour of granting to such persons of the status of refugees.

The term «ecological refugees» is often criticised for the discrepancy to rules of law. So, other authors approve, that the given term to ecological migrants

Let's apply cannot be owing to that ecological migrants do not fall under definition of refugees under the Convention on the status of refugees of 1951 (further the Convention of 1951) [469]. According to the professor G.Kibreaba, this term "it is directed in any measure on

depolitizirovanie the moving reasons that would allow the states to recede from the obligations on refuge granting ».

The president of Kiribati denies terminology of refugees with reference to its population which, in its opinion, has passive and viktimnyj character instead of representing its population as potential konkurentno to the capable worker

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Forces which can make the essential contribution to economy of the accepting states.

Even definition of "refugee" of the Convention of 1951 covers not all categories of the persons having the right to granting of protection. As mark in D.V.Ivanov and D.K.Bekjashev's this occasion: « Experts UVKB the United Nations recognised, that it is necessary for international community to develop and accept universal definition of concept "refugee" which would be based on the Convention 1951, Report 1967, Convention OAE 1969 and the Kartahensky declaration 1984... The Most successful would be the formulation including a maximum quantity of possible situations, considerable streams of refugees involving occurrence "[470 [471] [472]. However not all states are located to accept such wide formulation. So, Nju - the Jorksky declaration on refugees and the migrants, accepted on September, 19th, 2016 on plenary session of high level of HECTARES of the United Nations for the decision of a problem of movings of the big groups of refugees and migrants, has not expanded conventional definition of refugees, and has expressed aspiration of the states to provide protection of the rights of all refugees and migrants, irrespective of their status, and has drawn a line between them kasaemo obligations of the states: The obligations concerning separately of refugees, and separately the obligations, concerning migrants [473].

(1) Analysis of international legal certificates and the "soft" right about possibility of application of norms of international law of refugees to the persons forcedly moved as a result of adverse consequences of change of a climate

The right to a refuge represents special international legal institute which consists in rendering of protection by the state to the person, forced to leave the country of the citizenship or stay [474]. In modern international law the mode applied to refugees, is defined on the basis of the Convention of 1951 and the Report to it from January, 31st, 1967 the Refugee - «this person who owing to quite proved fears to become a victim of prosecutions on the basis of race, creed, citizenship, an accessory to certain social group or political convictions is out of the country of the civil accessory and cannot use protection of this country or does not wish to use such protection owing to such fears; or, not having certain citizenship and being out of the country of the former usual residence as a result of similar events, cannot or does not wish to return to it owing to such fears» [475 [476].

Obviously, the Convention of 1951 directly does not fix the status of refugees for the persons, forced to move in connection with adverse consequences of change of a climate. There are some positions concerning interpretation of a word of "prosecution" in a context of application of the given definition to the persons, forced to move in connection with adverse consequences of change of a climate, however they carry doktrinalnyj character, and we will address to them later. Here for fuller analysis of the given definition in this document we will address also to additional means of interpretation of the given Convention, the "soft" right, practice of the states and in more details to the doctrine

International law.

According to ch. 2 items 31 of the Viennese convention on the right of international treaties of 1969 for contract interpretation «a context are covered also by any document constituted by one or several participants in connection with making contract and accepted by other participants as the document, concerning the contract». As one of examples we will analyse Recommendation E of the Final act of Conference of plenipotentiaries which is applied on the Convention of 1951 It expresses hope, that the Convention of 1951 «will exemplify, leaving for contractual frameworks, and that all states will be guided by it and, how much it is possible, will create for the persons who are in their territory as refugees and not falling under positions of the Convention, the mode provided in the given Convention». The given position was

It is offered delegation of the Great Britain which has explained subsequently, that «Recommendation E urges to cover people upon being refugees legal regulation

Conventions of 1951, but as a whole being behind article frameworks 1A »[477]. Recommendation E provides« expansion of positions of the Convention so that it covered the additional categories of the refugees which have been not provided by positions of article 1A (2) Conventions of 1951 »[478 [479] [480].

According to J. MakAdam, value of Recommendation E is very great, as it encourages distribution of conventional protection for persons who not completely answer criteria of definition of "refugees" of the Convention of 1951, and also recognises, that a source of the threat, forcing persons to move, does not influence their status. Besides, according to comments to the Convention of 1951: «to the persons who have been not covered by this Convention, the additional status should be given not, and positions of the Convention should be expanded by United Nations HECTARES».

Recommendation E to the Convention of 1951 is a component of the Final act of the international Conference. The final act of the international conference represents its official result. He establishes only political intentions of the states, instead of rules of law, expresses the consent of the states on concrete questions or offers questions for the further discussion. Considered Recommendation E represents the certificate of the "soft" right and does not create international legal obligations for the states [481]. Considering the aforesaid, political intention of the states to expand concept of refugees yet has not found the realisation in a legal plane, therefore to say that conventional definition of refugees extends on the persons moved as a result of adverse consequences of change of a climate, at present it is impossible.

Continuing the analysis of certificates of the "soft" right, we will notice, that according to the Report of the Social forum of 2010 at the sixteenth session of Council about human rights, its participants recommended «to pay attention to position of the population which have appeared moved under the influence of change of a climate... Blanks in a mode of a legal protection of the population moved through borders should be eliminated, including on the basis of application of principles of international law of refugees» [482]. However the given document has recommendatory character and does not create obligations for the states, therefore also cannot serve as a legal ground of a recognition of the persons moved as a result of adverse consequences of change of a climate, refugees according to conventional definition of refugees.

According to the Management on procedures and criteria by definition of the status of refugees UVKB the United Nations «a legal regime defined in these two documents [the Convention of 1951 and the Report to it of 1967], we will apply not only to persons who are considered in quality of"refugees"according to the definition, containing in article 1 of the Convention 1951» [483]. However in these supervising principles UVKB the United Nations are excluded a victim of adverse consequences of change of a climate as candidates for reception of the status of refugees. « Management on procedures and criteria of definition of the status of refugees »- the document which does not have the status legally obligatory for states, but now used by the majority of the states in the national procedures for definition of the status of refugees. According to this Management,« for an establishment of the status of the refugee the estimation of the petition of the applicant, instead of judgement about conditions which have developed in the country of its origin »[484] is required, first of all. Among the circumstances forcing the person to leave a place of the residing, are absent such, as hunger or acts of nature.« However the other motives taken as a whole, can concern also process of definition of the status of the refugee »[485]. In other words, if there are also other reasons named in definition of the refugee in the Convention of 1951, the persons forcedly moved in connection with adverse consequences of change of a climate, can be recognised by refugees [486].

Position UVKB the United Nations in the given question is unequivocal enough: such persons cannot be qualified as refugees [487 [488]. So, UVKB the United Nations has noticed, that unlike refugees who cannot take advantage of protection from the state, the persons moved as a result of adverse consequences of change of a climate, are not deprived such protection from the state which can develop and realise

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Various programs on prevention of consequences of change of a climate.

In spite of the fact that UVKB the United Nations do not consider the given persons as refugees, they do not remain without the help and support. Body which is authorised to prosecute subjects of the population which have appeared moved under the influence of change of a climate, is UVKB the United Nations. Since 70th years of the last century under the offer of the Secretary general of United Nations UVKB of the United Nations participates in humanitarian operations of the United Nations, and also supports various groups which the United Nations but which require protection do not fall under mandate UVKB. The number of such groups includes also the people, appeared moved as a result of adverse consequences of change of a climate.

Thus, the analysis of international legal certificates and the "soft" right, and also official position UVKB allows to conclude the United Nations, that conventional definition of refugees does not extend on the persons moved as a result of adverse consequences of change of a climate.

(2) Analysis of practice of the states concerning application of norms of international law of refugees to the persons forcedly moved as a result of adverse consequences of change of a climate

In practice of the states there are examples of granting of the status of refugees at incomplete conformity to definition of the Convention of 1951 the Refugee problem after the Hungarian revolt of 1956 is the first example of extensive interpretation of the Convention of 1951 the Hungarian refugees mismatched time requirements of conventional definition of refugees, however High Commissioner UVKB has considered the United Nations, that as occurrence of the Hungarian refugees has been connected with last events and the political changes occurring from the end of the Second World War, they should be considered as falling under conventional definition. Austria after this the statement has granted a refuge to 180 000 Hungarian refugees, officially having allocated with their status of refugees. The Great Britain also has given them the same rights, as to conventional refugees. The same was made by Norway and Germany.

The president of Kiribati Anote Tong in 2014 has declared, that its population will be never recognised by refugees, nevertheless, if a situation leads to migration, they should migrate adequately [489 [490]. At conference of the United Nations which devoted to the prevention of consequences of acts of nature and have passed on May, 25th, 2017 in Cancun, the president of Kiribati Taneti Mamau has declared, that first of all it is necessary to activate as much as possible efforts on struggle against consequences of change of a climate at interstate level here again the basic problem is a shortage of money resources. [491]

In 2000 the Appeal body concerning refugees of New Zealand has declared: «as to shortage of potable water and absence of sewer systems, medical products and appropriate access to medical institutions in Tuvalu they are tested by all citizens of Tuvalu, instead of it is concrete applicants on the status of refugees and it is impossible to tell, that these forms of harm are caused by a political or civil accessory of appellants» [492].

The majority of the states do not recognise ecological migrants as refugees. Sweden and Finland remained until recently an exception [493]. However Sweden in the summer of 2016 has approved of the amendment to the migratory legislation and has toughened it, now the mode of the refugees [494] is not given to ecological migrants, too most in May, 2016 Finland [495] has made also. In 2013 Council about the rights of refugees of Australia has enquired the Government of Australia officially to recognise ecological refugees [496], however till now it has not been made.

In practice of national vessels of some states there are examples in which the court concluded, that definition of refugees does not extend on victims of climatic accidents even if their government not in forces them to protect [497]. So, in May, 2014 the Appeal court of New Zealand in business «Tejtiota against the Ministry of innovations and employment» has dismissed the claim of the citizen of Kiribati living in New Zealand on the expiration of the working visa, about a recognition its ecological refugee. The court has come to a following conclusion: « Anything in the present decision should not be considered as underestimation of importance of change of a climate. Climate change is one of the cores to those, concern of the international community on which only grows. The basis for the given decision is that fact, that change of a climate and its influence on such countries as Kiribati, is inappropriate to consider within the limits of the Convention on the status of refugees »[498]. According to one more business [499] in August, 2014 a family from Tuvalu have arrived to New Zealand and have sent the statement to the authorities of New Zealand with the request to give them residence permit, having declared, that harmful influence of change of a climate causes pollution of potable water because of the risen inflow that does impossible their returning. The tribunal has given up to them in granting of the status of refugees, not having counted their forced migrants. However the statement has been satisfied for humanitarian reasons as, «considering exclusive circumstances of the given family, would be unfair and severe to return them in Tuvalu» [500]. The decision of New Zealand to accept a family from Tuvalu has been based exclusively on humanitarian reasons and that fact, that the family had close connections with New Zealand.

J. MakAdam notices, that in all cases when citizens of Tuvalu or Kiribatis tried to be recognised as refugees in other states because of climate change, they failed [501 [502] [503]. Judges, giving reason for the position, noticed, that «applicants are faster not are unfortunate victims of prosecutions on an individual basis, and all population of their state face problems of environment up to

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Before full disappearance of their territory ».

Thus, practice of the states on consideration of statements of such persons on granting of the status of refugees is characterised for the present moment by refusals almost in 100

About / 504

% Cases.

(3) Doctrine of international law about possibility of application of norms of international law of refugees to the persons forcedly moved as a result of adverse consequences of change of a climate

In the doctrine of international law a number of scientists are inclined to believe, that the population of the disappearing states nevertheless enters into one of the categories requiring the international protection, namely: refugees. Accordingly, scientists were divided on two groups: adhering to that point of view, that the persons forcedly moved as a result of adverse consequences of change of a climate, correspond to definition of the refugee on

Conventions 1951 [504] - their minority, and adhering to the opposite point of view [505] - those the majority.

Let's consider the first position. Climate change as it has been noted above, can be the reason of flooding, hurricanes, fires and droughts which destroy the agriculture which is key sector in economy of the majority of the disappearing states that can lead to full inability of the population to support. Theoretically, if the state government not in a condition to supervise the persons who are carrying out emissions in environment of fouling substances, and does nothing at the international level to reduce this harm the population of the given state, having moved on territory of other state, have the right to approve, that their government is a prosecution source according to conventional definition of refugees [506]. According to the professor So-called JUdinoj, «when actions on environment destruction, such as a poisoning of sources, burning of crops or drainage of marshlands, are deliberately used for prosecution, intimidation or moving of certain groups of the population, in these cases the suffered population leaving the native land in search of protection in other state, obosnovanno it can quite be considered as refugees» [507]. However we will remind, that population shift of the disappearing states is connected not with deliberate injury to the climatic system which has entailed immersing of territory under water, and with industrial anthropogenous activity and plus to it with a number of the natural not anthropogenous factors which not dependent to the full from actions of the governments are of the disappearing states.

Among scientists there is an opinion what not the government it is possible to consider as "persecutor" within the limits of conventional definition of refugees, and the phenomenon of change of a climate. So, professor Karli Marx, investigating migration in Papua-new Guinea as a result of the ecological degradation caused by works on gold mine Tolukuma (Tolukuma) during the period with 1999 on 2006, and considering this situation through a prism of the Convention on the status of refugees of 1951, comes to conclusion, that such cases of moving fall under definition of the Convention and that «the international law directly does not forbid to consider as prosecution climate change» [508]. Karli Marx refers to the Management on procedures and criteria of definition of the status of refugees [509] in which absence of the conventional definition of concept "prosecution" is underlined that grants the right, in its opinion, to interpret loosely this word. Further she also refers to examples from practice of the states about granting of the status of refugees to persons not to the full falling under conventional definition of refugees, and also certificates of the "soft" right about expansion of concept of the refugee, resulted by us in the given research above [510 [511].

G.S.Goodwin-Gill, employee UVKB the United Nations for a number of years, believes, that definition of concept the "refugee", resulted in Charter UVKB the United Nations, suffers a number of lacks and «from UVKB the United Nations throughout all period of its activity the flexible approach in the refugee problem decision was required and as a result there was an essential change« concepts

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Refugees ». In 1957 of HECTARES of the United Nations for the first time has authorised the High Commissioner to render

The help to refugees which did not fall to the full under Charter definition but which position «caused concern of the international community» [512].

The professor M.Foster notices, that: «moving for the hunger and poverty reasons also can be carried to refugees» [513 [514]. As German international lawyer K.Hejlbronner marks, «at such expansion of concept the prosecution basis does not act on

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The foreground ».

The European council about refugees into which enters more than 65 European non-governmental organisations, has concluded, that «practically each project of articles of the Convention of 1951 formulating definition of refugees, included position that the category of refugees can be expanded in the future according to recommendations of HECTARES of the United Nations» [515 [516].

Thus, supporters of qualification of the persons moved as a result of change of a climate, as refugees build the position on following arguments:

1. Absence of the conventional definition of concept the "prosecution" giving the basis to consider by prosecution change of a climate or to consider the state ignoring a problem of change of a climate, as the persecutor;

2. Auxiliary means of interpretation of the Convention of 1951 testify to intention of parties to the convention to expand concept of refugees;

3. Intention of the international community to equate the status of such persons to the status of refugees exists in the soft right;

4. Practice of the states contains examples of granting of the status of refugees at incomplete conformity to definition of the Convention of 1951;

5. Persons the body (UVKB the United Nations) which competence includes protection of refugees is engaged in the fact sheet.

Let's consider the second position which adhere the majority of scientific - foreign affairs specialists. Definition of refugees in the Convention of 1951 demands, that prosecution was carried out on the certain bases among which climate change is not named. Such regional dogovory as the Convention of 1969 on concrete aspects of refugee problems in Africa, Kartahensky declarations on refugees of 1984, the Declaration of member states OAG accepted in San Jose in 1960 also do not contain direct positions about victims of adverse consequences of change of a climate. To the given position adhere the majority of scientists-foreign affairs specialists (G.S.Goodwin-Gill, J. MakAdam, D.V.Ivanov, etc.), proving the position the above-stated argument, they consider, that the status of the refugee to the population of the disappearing states is inapplicable. Some doubt possibility of application of such status to them and in the future. So, J. MakAdam also says that

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The states are not inclined to expand definition of refugees of the Convention of 1951

J. MakAdam says that climate change cannot be carried to "prosecution" within the limits of definition of refugees of the Convention of 1951 "Prosecution" in the given definition

Means gross infringement of human rights. But in this case it is impossible to establish the infringer of human rights, that is "persecutor". So, the government of Kiribati and Tuvalus do not bear as a whole responsibility for climate change as for all the phenomenon in whole, they cannot be considered as "persecutors". Further it specifies: it would seem, it would be possible to name the most developed states which have made the greatest negative contribution to change of a climate, "persecutors" in this case, however definition of refugees assumes, that refugees are rescued from the governments or persons from which their government cannot protect, and in a case with displaced persons as a result of adverse consequences of change of a climate, there is a situation when the given persons are rescued just in territory of these most developed states - so to say, the "originators" of their flight who has made the greatest negative contribution to change of a climate [517 [518].

The mode of protection of refugees in itself does not carry constant character and stops, when conditions in country of origin have changed. The population of the disappearing states, possibly, any more will not have a possibility to return on territory of the states in connection with its flooding, therefore, according to some scientists, other, constant status is necessary for them. According to K.K.Moberg, «in spite of the fact that the states have the right to use existing in international and the national law of definition of the refugee for protection of the persons, appeared moved under the influence of adverse consequences of change of a climate, it is improbable, that they so will arrive, because legal mechanisms of realisation of the rights of refugees do not approach for effective protection of such persons. On the population which has appeared moved under the influence of change of a climate, the right of refugees should not extend. The separate legal status and a mode is necessary for such people» [519 [520].

Besides, there is a position what even refugees does not guarantee a recognition of such persons to such persons of granting of protection necessary for them. So, according to G.S.Goodwin-Gilla, «many states are not ready to incur the formal legal obligation to grant a refuge (in sense of long-term or long residing in the territory) even that who are recognised by refugees». According to the professor of J.

Hatauej, «the governments publicly declare adherence to observance of the right to a refuge, and in practice use the best efforts not to drop refugees on territory of the countries». There is a probability, that those persons who completely fall under definition, can be refused in reception of the status of the refugee in connection with a considerable quantity of those to whom have already granted a refuge, and not to receive at all protection.

Thus, the basic arguments of opponents of investment of the persons moved as a result of adverse consequences of change of a climate, the status of refugees, the following is:

1. The convention of 1951 directly does not name victims of adverse consequences of change of a climate as refugees;

2. Such regional dogovory as Convention OAE, Kartahensky declarations, Declarations of San Jose do not contain direct positions about victims of adverse consequences of change of a climate though develop positions of the Convention of 1951 in other relations;

3. Official position UVKB is unequivocal: such persons cannot be qualified as refugees. The management on procedures and criteria by definition of the status of refugees UVKB the United Nations, now used by the majority of the states in the national procedures for definition of the status of refugees, directly excludes such persons from applicants for the status of refugees.

(2) Problem of application of other principles and norms of international law to the persons forcedly moved as a result of adverse consequences of change of a climate

That fact, that the status of the persons forcedly moved as a result of adverse consequences of change of a climate, is not settled by international law and that they do not fall under definition of refugees of the Convention of 1951 does not mean, that to them will not be rendered any help and that they are at all deprived protection on international law. According to UVKB the United Nations, all states bear the general duty to give the international protection according to their international obligations [521 [522] [523]. Even in those situations when in granting of the status of the refugee refuse, the states provide alternative forms upravomochivanija long stay, recognising requirement for protection at the international level, it can be granting of the status of additional protection, protection on the humanitarian bases (in some states (for example, in the Russian Federation) it is included into institute of additional protection of what it will be a question further), protection granting ad hoc at the discretion of the accepting state. We will consider possibility of granting any of them to the persons forcedly moved as a result of adverse consequences of change of a climate, caused ecological disaster or accident.

International legal certificates and the "soft" right which can be applicable to the persons forcedly moved as a result of adverse consequences of change of a climate, caused ecological disaster or accident

The term «additional protection» (complementary protection) does not meet in one international treaty, besides, in international law there is no universal legally obligatory document on additional protection which would provide the legal base to its beneficiaries equivalent to the Convention 1951 [524 [525] However, in the conclusion United Nations Executive committee UVKB has noticed, that UVKB the United Nations define additional protection as the legal mechanisms of protection established for persons, requiring international the protection, but not falling under definition of the refugee of the Convention on the status of refugees of 1951, however which cannot be considered as refugees but who, nevertheless, require the international protection, on a basis

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The international documents under human rights.

The given term is used for a designation of various modes of protection which differ depending on region under the name and the legal maintenance:

• Africa - Convention OAE regulating separate aspects of refugee problems in Africa 1969 (Addis Ababa, on September, 10th, 1999) [526 [527] [528] - contains the expanded definition of refugees;

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• America - the Kartahensky declaration of 1984 and the Declaration of San Jose on refugees

530

And displaced persons of 1994;

• Asia - Bangkok principles of 1966;

• the European Union - «auxiliary protection» - Recommendations of Committee of ministers of EU (2001 18 [529] [530] [531] and "the Qualifying instruction" [532].

From Convention OAE of 1969, the Kartahensky declaration of 1984, the Declaration of San Jose 1994, Bangkok principles of 1966, and also from Instruction ЕС2004/83/ЕС and the Recommendation of Committee of Ministers of EU of 2001 directly does not follow, that they can be applied to the persons moved as a result of adverse consequences of change of a climate.

In EU despite acceptance on nadnatsionalnom level of documents,

Systematising the given institute, a legal regime of "auxiliary protection» differs in each of member states. As a rule, such legal status is less wide in comparison with what is given by the Convention of 1951 the Mode of "auxiliary protection» in the majority of EU member states provides lower level of protection of the persons moved in connection with adverse consequences of change of a climate, than a mode of protection of refugees [533] because provides smaller volume of the rights, than it is provided Conventions of 1951 the Convention of 1951 provides the following rights which are absent in a mode of "auxiliary protection» majority of EU member states: maintenance of unity of a family (the Recommendation "In" Conference of plenipotentiaries for preparation of the Convention of 1951) ; The right to the employment which are bringing in the income (item 17-19); the right to social insurance (item 24); the right of reception of certificates and travel papers and their big duration (item 2, 3 items 25, item 27, 28); the right to naturalisation (item 34). Besides, positions about «auxiliary protection» contain wider list of exceptions of a principle nevydvorenija than in the Convention of 1951 In addition to the exceptions containing in the Convention of 1951, according to norms about «auxiliary protection» on the person the interdiction nevydvorenija does not extend, if such person «represents threat for a society or for safety of the state, in which it is» (item 17 (1) (d)) EU Instructions).

Nadnatsionalnye norms of EU do not extend «auxiliary protection» on the persons moved as a result of adverse consequences of change of a climate. EU commission planned to include ecological accidents as the basis for granting of additional protection, however the idea has not been supported [534 [535] [536]. J. MakAdam doubts, that

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It sometime will occur.

Kasaemo norms of the "soft" right we will notice, that in the beginning of 2011 UVKB the United Nations were held by Meeting of experts on change of a climate and population moving in Belladzhio (Italy) on which has put before experts following questions:

Whether • the existing legal base and political tools Are

Sufficient for regulation position of the persons moved as a result

Adverse consequences of change of a climate?

• If is not present, whether there is a necessity for additional tools for protection of the persons moved as a result of adverse consequences of change of a climate?

• What legal and institutsionalnye measures can be applicable in relation to the disappearing states? [537 [538]

Though experts also have not reached a consensus on these questions, they have come to a following conclusion: has ripened necessity for working out of the universal Management regulating questions on transboundary moving of persons, the 1951 not specified in the Convention, as a result of ecological accidents. UVKB the United Nations and to other international organisations are recommended to study this question. The basic role in work on the given question belongs UVKB the United Nations.

The question on legal nature, volume, procedures of granting of additional protection in international law for today is opened. It is connected with development of protection of human rights and the right of refugees, in particular.

The status given benefitsiaram of additional protection, reflects the fundamental laws fixed in the international and regional contracts on protection of human rights (the Convention against tortures and kinds of the reference another severe, brutal or degrading advantage and punishments of 1984, the International pact about the civil and political rights of 1966, the International pact about the economic, social and cultural rights of 1966, etc.) [539]. But the mode of additional protection is based not on everything, and on concrete positions of the basic universal contracts on the protection of human rights, containing bases of a fundamental principle nevysylki: item 3 of the European Convention on protection of human rights and fundamental freedoms 1950 [540]; International pact item 7 about the civil and political rights (an interdiction for application of tortures) 1966 [541 [542]; item 3 of the Convention against tortures and others

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Kinds of the reference severe, brutal or degrading advantage and punishment of 1984 (an interdiction for compulsory returning). So, the committee of the United Nations on human rights [543], the European court under human rights [544] recognised, that the principle nevysylki extends not only on the right to life (International pact item 6 about the civil and political rights of 1966, item 2 of the European Convention on human rights of 1950), but also on the right to freedom from tortures or the reference severe, brutal or degrading advantage or punishment (International pact item 7 about the civil and political rights, item 3 of the European Convention on human rights, item 37 of the Convention on the rights of the child).

Let's notice, that whereas the mode of additional protection in some states includes also other bases for residing according a right in territory of any state and is not limited nevysylkoj, the mode of additional protection is not equivalent under the maintenance to a principle nevysylki. Moreover, the national legislation of some the states provides wider list of the bases of granting of additional protection, than regional norms of international law of what more it will be a question in the given paragraph further more in detail.

Thereupon it is necessary to analyse the following: if regional rules of law about the additional protection, containing in the documents named above, directly do not extend it on the persons forcedly moved as a result of adverse consequences of changes of a climate, whether the given persons can be protected from dispatch in view of risk of application of tortures or infringement of their right to life?

Possibility of application of protection against tortures to considered persons (if at all it will be possible to speak about possibility at the population of the disappearing states to return to the states - if the territory does not disappear completely) is ambiguous and is criticised for following reasons.

First, adverse consequences of change of a climate do not satisfy to international legal definition of tortures [545], as according to item 1 of the Convention against tortures and kinds of the reference another severe, brutal or degrading advantage and punishment of 1984, «torture is an action to which to any person the strong pain or suffering is deliberately caused, physical or moral to receive from it or from the data or recognition third party, to punish it for action which was made by it or the third party or of which fulfilment it is suspected, and also to intimidate or force it or the third party, or for any reason based on discrimination of any character when such pain or suffering are caused by the state official or other person acting in official quality, or on their instigation, or from their permission or a tacit consent» [546]. In a context of the disappearing states, obviously, it is impossible to speak about designedness of injury to the population of the disappearing states.

Secondly, practice of judicial tribunals of some the states has limited value of "the reference brutal or degrading advantage», having defined, that it cannot be used as means from general poverty, unemployment or shortage of resources, or medical aid, except as in the most exclusive circumstances [547].

On the other hand, the European court under human rights recognised, that bad conditions of a life can bring up a question on a liability of infringement of item 3 of the European Convention on protection of human rights and fundamental freedoms of 1950 if they have reached a minimum level of cruelty which can include absence of any social protection [548]. Nevertheless, considering attempts as disappearing states, and nebezrazlichie to their destiny of all international community as a whole of what it was a question above, at the moment do not allow to establish absence of any social protection in relation to the population of the disappearing states.

Kasaemo possibilities of application of a principle nevysylki in view of breach of law for a life we will notice, that, for example, the Interamerican Commission of Human Rights recognised, that right to life realisation (the International pact containing in item 6 about the civil and political rights of 1966) Depends on environment [549]. The committee on human rights in the comment № 31 has noticed, that the right to life provided by a number of international treaties, attracts the obligation nevysylki [550]. So, J. MakAdam believes, that item 2 and 3 European Conventions on human rights of 1950, and also item 6 and 7 International pacts about the civil and political rights of 1966 are a legal ground for protection of displaced persons as a result of change of a climate [551]. The position of J. MakAdam proves that the Committee of the United Nations on the rights of the child has noticed that the principle nevysylki should be applied in each case when there are strong reasons to believe, that there is an inevitable risk of "irreparable harm" for the person in case of its dispatch in other state [552]. Professor B.G. Ramcharan assumes, that the right to life means the right to environment and the accompanying obligation of the states "to accept effectual measures on prevention of ecological dangers which human lives» [553] threaten. However in our opinion, in absence of territory for dispatch - if it completely will plunge into ocean the question on dispatch cannot be put if the territory is - is not has left completely to a supply and is suitable for a life - that right to life can be realised.

Senior lecturers D.K.Bekjashev and D.V.Ivanov also notice, that Traditionally European court under human rights recognises, that «if in the country where the applicant is sent, it will undergo to tortures or the cruel treatment forbidden by item 3 of the European Convention on protection of human rights and fundamental freedoms of 1950 the state should not send it» [554]. In their opinion, «theoretically presence of ecologically adverse factors can be considered as cruel treatment» [555]. However such statement, really while has only theoretical character, and in our opinion, is applicable only in a situation if life conditions in disappearing territory are really unacceptable for a life and will cause a strong physical both moral pain and suffering in the population.

However we will notice, that development of international law of human rights leads to that arguments against protection rendering more and more exercise the wit, and the tendency consists in expansion, instead of protection narrowing. Humanitarian necessity of granting of protection to such persons stimulates the states all the same to give them protection at own discretion [556 [557] of what it will be a question more in detail further.

Thus, for lack of the uniform international agreement regulating a mode of additional protection, regional norms about additional protection also do not include as the bases of granting of such protection ecological disasters and accidents, including caused by climate change. For the present moment two international treaties under human rights mention a rendering assistance theme to special groups of people, victims from ecological accidents and disasters:

• article 11 of the Convention about the rights of invalids of 2006 establishes the obligation of the agreeing states to provide protection and safety in case of act of nature,

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• article 25 of the African charter of the rights and bases of well-being of the child of 1990 demands from the state-participants that the child received appropriate protection and the humanitarian help.

Given articles establish the general duty to assist, based on the humanistic beginnings, and do not concretise concrete measures and the actions, which states are obliged to carry out concerning such people. Besides, group benefitsiarov such help narrow enough - only invalids and children. Moreover, they, abundantly clear, do not determine a question of the international legal status of such persons.

As to the international treaties devoted specially a theme of rendering assistance to people in case of disasters, it is possible to allocate the following:

• the Convention of Tampere on granting of telecommunication resources for

Softening of consequences of disasters and realisation of operations on rendering assistance of 1998 (item 1 item 6).

• the Frame convention on rendering assistance in the field of a civil defence of 2000

(The item in"item 1).

In the given universal international treaties natural and technogenic accidents under the uniform term of "disaster" [558 [559] [560] are consolidated, but also they do not regulate a question of the international legal status of considered persons. As a whole, «at universal level there is no the multilateral agreement, maintenance of safety concerning the general aspects in case of disasters in which communication between international law of human rights and disasters» [561] would be defined.

There is also a number of documents in the field of ecological accidents, but they are not obligatory for the states, and represent norms of the "soft" right: the Sendajsky frame program on decrease in risk of disasters on 2015-2030 [562]; Operative supervising positions under human rights and acts of nature (IASC Operational Guidelines on Human Rights and Natural Disasters (Brookings-Bern Project on Internal Displacement 2006)) [563]; the Management on simplification and regulation of the international help at extreme situations and assistance in initial restoration (Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (IFRC 2007)) [564]; Management UVKB the United Nations on time protection or placing mechanisms (Guidelines on Temporary Protection or Stay Arrangements (TPSAs)) [565], Supervising principles of Oslo 2007 [566] Conclusion of Executive committee UVKB of the United Nations from 1981 number 22 "Protection of the persons searching for refuges in situations of mass inflow" [567] also has established key rules of the reference with the given category of persons.

Also it is necessary to note Principles and rules of carrying out of operations of the Red Cross and the Red Half moon on rendering assistance at acts of nature and accidents 1995 [568 [569] [570], the Declaration of the Red Cross on principles of rendering of the international humanitarian help

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To civilians in situations of disaster of 1969, the resolution of the Council of Europe on measures

Precautions on a case of spontaneous and other disasters and about planning and granting

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The emergency help at the disasters, accepted in 1972, and the Code of behaviour International

Movements of the Red Cross and Red Half moon and non-governmental organisations at realisation of operations of the help in case of disasters and the accidents, accepted in 1995 [571 [572]

KMP the United Nations since 2007 have included in the agenda a question on protection of persons in a case

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Disasters. In 2014 at 66th session KMP the United Nations have accepted the text of projects of articles about protection of people in case of disasters [573].

According to item 3 of the Project of articles about protection of people in case of disasters "Disaster" means catastrophic event or a series of events which lead to mass  destruction of people, to the big human sufferings and troubles either scale material, or to an ecological damage, seriously breaking thereby society functioning. According to J. MakAdam, this project of articles is applied to instant accidents, but not to

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To situations of gradual ecological deterioration - territory leaving under water - that is, accordingly, in a context of a considered situation only in case the ecological disaster or accident becomes a consequence of change of a climate not only gradual immersing of territory under water, but also.

The given documents regulate questions of cooperation of the states, international intergovernmental and non-governmental organisations with a view of reduction of risk of disasters and consequences of such disasters, regulate granting of the humanitarian help. However in a context of adverse consequences of change of a climate the given documents can be applicable only in case of sudden accident or the disaster, caused by climate change. Moreover, they in any way do not solve a problem of the international legal status of the persons moved as a result of adverse consequences of change of a climate and deprived of possibility to return to the country of the residing.

United Nations management on coordination of humanitarian questions and Management of the United Nations concerning reduction of danger of disasters assist the persons who have suffered from ecological disasters and accidents. UVKB the United Nations notice, that, assisting the persons who have sustained as a result of ecological accidents, it operates not within the limits of the mandate, and within the limits of the request of the Secretary general of the United Nations for granting humanitarian помощи576. So, activity UVKB the United Nations on rendering assistance to the people moved as a result of tsunami Boxing Day, do not fall under its official mandate, and represent «the humanitarian help limited on time» at the desire of the Secretary general of the United Nations more likely. So, UVKB the United Nations has incurred responsibility for the help to victims after a tsunami in Indian ocean in 2004, even in spite of the fact that it has not been authorised to do это578. In 2010 more than to two million the persons moved in connection with natural disasters, UVKB the United Nations have been given the help. According to the internal informal report of 2017 UVKB

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The United Nations in 2014 UVKB the United Nations were organised by resettlement suffered from flooding in Kakume

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McAdam J. Climate Change, Forced Migration, and International Law. 249.

576

577

Oxford University Press, 2012. - THE RIVER

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The resolution of the United Nations of 1992 of 47/105 HECTARES//UN Doc. A/AC.96/1008, on July, 4th 2005. Note on International Protection//UN Doc. A/AC.96/1008 (4 July 2005), para 36.

Indian Ocean earthquake - Tsunami emergency [the Electronic resource]. - the Mode

доступа:http://www.unhcr.org/4492678911.pdf (reference Date: 22.01.2018).

579 UNCR Global trends, 2010 [the Electronic resource]. - the Mode

Access: www.unhcr.org/4dfa11499.html (reference Date: 22.01.2018).

580 UNHCR Climate Change and Disaster Displacement: An Overview of UNHCR’s Role, 2017 [the Electronic resource]. - an access Mode: https://tinyurl.com/yc7lrxcw (reference Date: 24.08.2017).

(Ghana) on more raised territory. As a whole, since 1993 on 2017, UVKB the United Nations has given the help in 43 cases of various ecological disasters and accidents [574 [575].

Let's note also one more step to work UVKB the United Nations of the disappearing states and their population. UVKB the United Nations together with the Brukingsky project on internal movings and Institute of Dzhordzhtaunsky university on studying of the international migration have organised expert consultations on planned resettlement as a result of ecological disasters and climate change: Consolidation of the advanced practice and preparation for the future (San Remo, Italy, on March, 12-14th, 2014). In the total report the following position is reflected: in a case if persons have crossed frontiers, and places of their origin become unsuitable for residing planned, their resettlement in other states can become the long-term decision of a problem.

Let's note, by the way, that for the present moment on international scene there is no authorised body which direct competence would include protection of the persons moved as a result of adverse consequences of change of a climate. This problem mentions variety of aspects: human rights, environment protection, rendering of the humanitarian help and other questions which are in conducting various bodies, specialised agencies of the United Nations and the international organisations, any of which does not give the universal regulation of moving of people connected with adverse consequences of change of a climate [576].

In 2011 of the government of Norway and Sweden together with UVKB the United Nations, the International organisation on migration, Institute of University of the United Nations Organization on

To environment and safety of the person, non-governmental organisation Refugees International have created the new mechanism - «Initiative Nansena». The new international

The humanitarian organisation with office in Geneva is named in honour of Fritofa Nansena, the polar researcher of the beginning of the XX-th century and the first High Commissioner of League of the Nations on affairs of refugees. The initiative gives recommendations concerning moving and migration within the limits of RKIK the United Nations. The main objective of initiative Nansena consists in consensus creation between the interested states on adequate reaction to calls of transboundary moving in a context of disasters, including adverse consequences of change of a climate. « Initiative Nansena »provides a wide spectrum of measures of the help to the people who have suffered from acts of nature. They include delivery of humanitarian visas, the help in resettlement, granting of the status of refugees in unusual cases, delivery of work permits, the help in working out of bilateral and regional agreements on free movement of persons [577 [578]. UVKB the United Nations play the given organisation the important role - it is included into Steering committee on working out of a universal legal mechanism.

Since 2012 «Initiative Nansena» works in three directions:

- The international cooperation of the states, whence suffered from elements comes, and those states to which victims have moved;

- Working out of norms on reception of forcedly moved;

- Rendering assistance to such people and the mentioned states from the international community.

Initiative Nansena publish the reports and recommendations about movings as a result of ecological disasters and accidents [579], but they also have recommendatory character.

UVKB the United Nations, along with the Council of Europe and the European Union, support the approach of uniform procedure of granting of a refuge [580]. It means, that the person should hand in only one general statement for protection while migratory bodies will analyze first of all business of the applicant on conformity to definition of the refugee, and in case of impossibility of its application - to define, whether there are reasons for granting of additional protection. The legal status given to persons, officially not recognised as refugees, but nevertheless requiring the international protection, should provide protection of the basic civil, political, social and economic rights on a level with the persons who have received the status of refugees according to the Convention 1951 [581 [582]

In any case even if there is no norm of international law of the universal or regional character, regulating a legal status of the persons forcedly moved as a result of adverse consequences of changes of a climate, the worthy reference according to norms of international law of human rights should be given such persons.

Communication between environment and human rights has been officially recognised after

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Acceptances of the Stockholm declaration in 1972 As were declared in 1997 by the judge International

Vessels of the United Nations of K.Viramantri in the business, concerning project Gabchikovo-Nadmarosh (Hungary against Slovakia) 1997: «environment Protection is the important part of the modern doctrine of human rights for it is a necessary condition for maintenance of many human rights, such as the right to health and the right to life» [583]. According to professor D.Zartner, «human rights and environment are interconnected, therefore necessity of protection of the persons moved as a result of adverse consequences of change of a climate, already represents norm of usual international law [584 [585].

The international law of human rights has special value in a context of movings of the population caused by adverse consequences by change of a climate for following reasons. It establishes the minimum standards of human rights, obligatory for all state-participants of participants of pacts about human rights and other conventions, which states, both the disappearing states, and the states accepting their population, are obliged to recognise, observe and protect concerning the persons who are in their territory

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Or under their jurisdiction, and also gives means of an estimation of what human rights are under the threat as a result of the adverse consequences caused by change of a climate, and what national bodies bear the basic responsibility for reaction to infringement of such rights. To the disappearing states it will be difficult also it is practically impossible to provide to the population the minimum protection of human rights. Loss of all territory will lead to deprivation of means of subsistence for all their population.

In a situation of the disappearing states following human rights can be broken:

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• the right to life;

„„ 594

• the right on sufficient vital level;

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• the right to a sufficient food;

• the right to safe potable water [586 [587] [588] [589] [590];

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• the right to sufficient level of public health services;

• a right to housing [591 [592];

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• the right to nation self-determination;

• the right to citizenship [593].

The African charter of human rights and the people 1981 [594] contains «the right to the general satisfactory level of environment» (item 24), and the Additional report to

The American convention on human rights in the field of the economic, social and cultural rights 1988 [595 [596] contains «the right to favorable environment» (item 11). However the basic international treaties on human rights do not contain similar positions, but include the formulations of the general character allowing sometimes to interpret such position to practising lawyers flexibly enough.

In turn Council of the United Nations about human rights in the Resolution 10/4 «Human rights and climate change» from March, 25th, 2009 has noticed, that «connected with change of a climate a number of consequences, have both direct, and the indirect relation to effective realisation of human rights».

According to the post card of the High Commissioner of the United Nations under human rights «Protection of the rights of migrants and refugees in a context of scale movings», presented on plenary session of high level of HECTARES of the United Nations for the decision of a problem of movings of the big groups of refugees and the migrants, taken place on September, 19th, 2016 in New York: «irrespective of the reasons, inducing persons to move, the accepting states are obliged to observe the rights

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The person of such persons ».

The High Commissioner of the United Nations under human rights in the Report to Council about human rights «Encouragement and protection of human rights of migrants in a context of movings of the big groups» recommends to the states and other parties in interest to accept, as required, following measures: «to recognise, that all persons in a context of movings of the big groups are carriers of the rights, and to incur obligations on full protection of their human rights and fundamental freedoms irrespective of their status or other circumstances» [597].

In the New York declaration accepted on plenary session of high level of HECTARES of the United Nations for the decision of a problem of movings of the big groups of refugees and migrants, taken place on September, 19th, 2016 in New York [598], the states have expressed the readiness to protect human rights of all refugees and migrants irrespective of their status. She has established, that «though for regulation of an order of the reference with refugees and migrants the separate is standard-legal base is established, they possess the same universal human rights and fundamental freedoms, as other people» [599].

UVKB the United Nations believe, that «standards of the reference within the limits of additional protection should be equalised whenever possible with the standards applied concerning refugees according to the Convention of 1951 as level of the rights should be based on requirements» [600 [601]. UVKB the United Nations suggest to enter for the persons who have received the status of additional protection, in general, the same privileges and standards in circulation, as well as what the persons who have received the status of the refugee according to the Convention, in particular, rather use:

• advantages of an official legal status with the certain rights and duties;

• the documentation confirming this status; and also

• period of validity of the permission to stay in a host country.

The given rights and advantages should be based on the actual

Requirements of beneficiaries, instead of the bases on which their requirement for the international protection has been established.

In sphere of the civil and political rights especially important are:

• protection against exclusion and exile;

• absence of discrimination;

• a freedom of movement and

• access to vessels and power executive organs.

Protection should include the base social and economic rights, in particular:

• access to adequate habitation;

• access to the help in employment;

• access to medical services if it is necessary, and

• access to initial and to secondary education.

It is necessary to pay also corresponding attention to a principle of integrity of a family, that is

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To maintenance and strengthening of its unity.

UVKB the United Nations doubt, that the international law comprises the norms, establishing selective granting of the international protection depending on a category requiring in it [602]. Some adhere to the Same position also NPMO and Councils about affairs of refugees of some states [603].

In the New York declaration accepted on plenary session of high level of HECTARES of the United Nations for the decision of a problem of movings of the big groups of refugees and migrants, taken place on September, 19th, 2016 in New York, the states have expressed determination to conclude in 2018 the international treaty about the safe, ordered and adjustable migration which will include regulation as well moving of persons considered by us [604] (further in work).

Practice of the states and judicial tribunals under the reference with the persons forcedly moved as a result of adverse consequences of change of a climate

At national level the legislation on additional protection exists, for example, in following states: Australia [605], Canada [606], New Zealand [607], Russia [608], the USA [609], Finland [610], Sweden [611], etc.

However the legal regime of additional protection in the different states is various: in any states it provides bolshee quantity of competences, in any the smaller.

So, for example, proceeding from the comment of the Select committee of New Zealand under the bill of immigration, in New Zealand the mode of additional protection provides narrower list of competences than as it will be considered further, in other states: « The convention on the status of refugees establishes obligations under the minimum standards of the reference with refugees, such as discrimination bar of claim by lapse of time, providing of access to employment, habitation, formation, legal proceedings. The convention against tortures and kinds of the reference another severe, brutal or degrading advantage and punishments of 1984 and the International pact about the civil and political rights of 1966 does not demand from New Zealand to give such rights to protected persons. And the legislation of New Zealand does not contain the norm, demanding to give an equal legal status with conventional refugees. The unique obligation of New Zealand following from the Convention against tortures and kinds another severe, brutal or degrading advantage of the reference and punishment on 1984 and the International pact about the civil and political rights of 1966, - not to return people in the country where their concrete human rights will be broken. Therefore the bill should specify clearly, that protection it is given only from returning of persons in the country where they can be subjected tortures, any deprivation of life or cruel treatment, and he does not guarantee granting of the special immigration status and does not prevent exclusion in other states, where the such

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Persons are not threatened with such danger ».

At regional level within the limits of EU the tendency of expansion of a mode of additional protection is observed. So, the European commission recommended to make amendments to the legislation of EU member states, establishing the uniform status for all «the persons using the international protection». At national level of EU member states the higher appeal courts of France, Germany, Belgium, the Great Britain and Southern Africa recognised, that even if the person has no official immigration status in their territory, it is allocated by the right to the minimum public health services and other social services [612 [613] [614]. In judiciary practice of the Great Britain, it has been recognised, that any infringement of human rights according to the European convention on human rights can become the basis of occurrence of the obligation nevydvorenija [615]. In most cases in practice there is other situation because the absolute interdiction for exclusion of the person is established in case it will be subjected the reference brutal or degrading advantage, and also under the Convention of 1951 lawfully living on territory of the accepting state of refugees (item 32), and in the countries where them «the life or freedom is threatened with danger owing to their race, religion, citizenship, an accessory to certain social group or political convictions» (item 33), and the states are authorised in all other cases of infringements of human rights to find on the discretion balance between interests of the person and the state. The absolute interdiction for exclusion is applicable only in exclusive circumstances [616], in other cases this question is left to the discretion of the states. Until recently the legislation of Finland and Sweden provided the reference with such people as with refugees [617], however with nabiraniem popularity of the concept of "meted responsibility» about which speech in 2.4 will go. The present chapter, these countries have toughened the migratory legislation [618]. Besides, the legislation of Belgium, Greece, Italy, the Great Britain, Denmark - provides granting of the permission to stay in their territory to persons who cannot be deported for humane reasons - which groups of people fall under the given basis is not registered and depends on a concrete case [619]. In Denmark, for example, such status is given to persons who mismatch conditions of the Convention of 1951 Or to the status of the refugee de facto provided that position in which there is such person, demands for delivery of the given status to take into consideration reasons of humanitarian character (for example, families with juvenile children from regions of military actions or heavy conditions of residing: risk the starvations sick of AIDS or a cancer, etc.) [620].

In the Russian Federation the institute of the time refuge provided by item 12 FZ «About refugees» 1993, is the form of additional protection [621], and provides granting of the humanitarian status «for the persons who are not citizens of the Russian Federation, not recognised as refugees but to whom it is accorded a right time stay to territories of the Russian Federation (on these persons the principle non-refoulement) as at returning in the state of the origin of their life direct danger in a kind can threaten, for example, external aggression, occupation, events in which result internal political conditions in the country of their origin» [622] can seriously be broken extends. Provided podp. 2 items 2 of item 12 of the given Federal act the basis of granting to the foreign subject or the stateless person of a time refuge are concretised in item 7 of the Governmental order of the Russian Federation from April, 9th, 2001 N 274 "About granting of a time refuge in territory of the Russian Federation”: the time refuge can be given in case of existence of the humane reasons demanding time stay of the person in territory of the Russian Federation (for example, a state of health), before elimination of such reasons or change of a legal status of the person. The domestic doctrine specifies as well in following reasons: « Real threat for a life or freedom of the person owing to the internal or international conflict (civil war or a confrontation), covering all territory, other objective causes of the long character interfering in terms established by the legislation realisation of exclusion (deportation) »[623]. In practice, nevertheless,« the circle of the specified reasons is reduced exclusively to illness of the person searching for a refuge »[624]. Thus, the given institute in the Russian Federation does not include movings because of adverse consequences of change of a climate and the ecological bases as a whole.

Thus in the world there is a number of the states which legislation contains norms about granting of additional protection in case of ecological disasters and accidents, that is their legislation expands the bases of granting of additional protection. So, in the USA there is a form of additional protection specially, provided for victims of ecological accidents [625]. Practice of granting of the given status in the USA is wide enough. In 1998 after hurricane Mitch the given status has been given citizens from Honduras and Nicaragua, in 2001 after two earthquakes - to citizens from the Ale of El Salvador, in January, 2010 after earthquake in Haiti - to citizens of Haiti [626]. However in a considered case as it has been noted above, territory immersing under water, deterioration of conditions of a life and possibility of planning of the applicable decisions preventing or reducing adverse consequences of such phenomenon is a question, first of all, about gradual. Speech about sudden extreme ecological accident in a considered context can go only in case of occurrence of such accident in connection with climate change, that by some estimations of experts can occur, but the probability of it is not absolute. Accordingly, the given status can be applicable in a narrow context, instead of to all persons considered by us moved as a result of adverse consequences of changes of a climate. Besides, it carries a temporality, that is cannot be applicable to persons, whose territory of residing more is not suitable for a life.

Along with the USA the legislation of following states provides position about refuge granting in their territory in case in the country of residing of applicants there was an ecological or humanitarian accident: Canada [627], New Zealand [628], Argentina [629]. Obviously, given norms also will be applicable to the population of the disappearing states only in case of the forced migration, instead of gradual immersing of territory under water.

Meanwhile the states continue to give the humanitarian status on an individual basis (ad hoc) in concrete circumstances to persons who are not considered requiring the international protection under the Convention of 1951, to a mode of additional protection or owing to other reasons of granting of protection. So, the African Union has offered victims from earthquakes in 2010 to Haitians a refuge, the states of Caribbean basin have granted a refuge to the persons living near to mountain Montserat, Australia has let out special ad hoc visas to persons from East Timor [630]. Belgium has created special procedures for the persons who have sustained in the conflict in the former Yugoslavia and Ruanda [631].

Existence of distinctions in regulation of additional protection in this or that state can create possibility to choose the state for residing with the most favourable and convenient legal regime (forum shopping) and to increase quantity of appeals

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Applicants.

Thus, the legal regime of additional protection in the different states is various. The majority of the states such reasons as do not include in the bases of granting of additional protection ecological disasters and accidents.

Only the small amount of the states was included by ecological disasters and accidents as the basis for granting of additional protection at legislative level (the USA, Canada, New Zealand, Argentina). In these states to the persons forcedly moved as a result of adverse consequences of change of a climate, protection on the basis of their legislation can be given.

Thus even in absence of legislative regulation some states give the humanitarian status allowing temporarily to live in territory of the given state to persons, injured with ecological disasters and accidents, on an individual basis (ad hoc).

The international law doctrine about application of other norms of international law to the persons forcedly moved as a result of adverse consequences of change of a climate

To the persons forcedly moved as a result of adverse consequences of change of a climate, in the international law doctrine not enough attention is given questions of application of other norms of international law, and in the domestic doctrine we are forced to establish absence of the works devoted as a whole to these subjects.

Allocation of a mode of additional protection is often criticised in the foreign doctrine of international law. So, J. MakAdam notices, that positive aspect of additional protection is kodifitsirovanie internal the expert of EU member states on granting of additional protection, however the negative moment - she unreasonably spends distinction between the status provided by the Convention of 1951, and the status benefitsiarov additional protection. Professor Dzh adheres to the same position. Hetauejja. It criticises a position of the High Commissioner of the United Nations on affairs of refugees which simultaneously and keeps development of a mode of additional protection, and reminds that more and more extending use of auxiliary forms of protection on the basis of national legal acts as means of restriction of granting of a refuge, not [632]

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Releases the states from their obligations on international law; full, universal and dynamical interpretation of the Convention of 1951, in the light of its purposes and problems, minimises requirement for existence of a mode of additional protection. J. Hetauejja notices, that the High Commissioner of the United Nations on affairs of refugees takes of an inconsistent position: «on the one hand, it supports according a right to refugees on worthy protection, and with another — actually supports national and international initiatives which undermine this principle, offering other forms of protection».

J. MakAdam comes to conclusion, that the mode of additional protection provides wider legal concept of granting of protection but as that cannot be an example for imitation at the international level. Further she says that the documents regulating the status of additional protection, codify existing international law, and are not progressive development of international law. On the essences, at all of them distinctions, as well as the status of the refugee, and the status of additional protection is a respect of a principle nevozvrashchenija and a number of social rights and guarantees which allow the foreigner who has found refuge to live in territory of the foreign state, not losing the human advantage. Basing the position on the analysis of national judiciary practice and practice of the states, Jane MakAdam believes, that to the persons moved as a result of change of a climate, the equivalent status and a mode with conventional refugees [633 [634] [635] [636] [637] should be given. It explains, that international law of the human rights, differing extensiveness of formulations, and also mechanisms of protection of the universal human rights, characterised insufficient implementatsiej at national level, approach for a legal protection of the persons, forced to move as a result of adverse consequences of change of a climate, than norm lex specialis to the Convention of 1951 And the term additional protection less, in its opinion, substantially has descriptive character and has the weak standard importance. J. MakAdam explains occurrence of additional protection by unwillingness of the states to carry out of the international obligations bona fide in a combination to absence of mechanisms of compulsion to execution of these obligations [638], and the primacy of the international obligations accepted by the states, in particular, urges to observe Conventions of 1951; not to wash away its framework fastening at national level of new forms of the protection especially providing smaller volume of the rights, than it is provided Conventions 1951 [639] It also notices, that allocation of the separate group of persons, providing smaller volume of the rights, than the Convention of 1951 provides, contradicts Recommendation E because she says that there are no bases for creation of two legal systems of protection only in view of razlichnosti threat sources. She also is afraid, that the differentiation can lead to that the states will encourage forms of auxiliary protection by definition of categories of persons which technically fall on item action 1А (2) Conventions of 1951, instead of granting of a full spectrum of the rights provided for refugees according to this Convention [640]. In other words, the risk of the differentiated reference is connected by that the underestimated standards within the limits of additional protection can serve as indirect stimulus for the states at its choice as the protection form in a damage of the protection given on the basis of the Convention of 1951 as the basic international legal document in the field of the international protection.

Tracing development of institute of the international protection, J. MakAdam approves, that from the point of view of international law, a legal status of the persons, forced to move in connection with adverse consequences of change of a climate, it should be equivalent to the status, which is given according to the Convention of 1951, which should be applied to all persons who are under protection of a principle of inadmissibility of compulsory returning (non-refoulement principle), that is obligations of the state not to return the person there where it can be subjected to prosecution or risk of causing of other corresponding harm [641]. The convention of 1951 is lex specialis for all people requiring the international protection on whom the principle of inadmissibility of compulsory returning irrespective of, in what form the state has assumed liability to carry out this principle [642] extends. However the Convention of 1951 It is not settled by a principle nevysylki, and to speak about Convention application as a whole to any persons only owing to presence in it of a principle containing and in other documents, having universal character, it is represented doubtful.

So, J. Hetauejja adheres just to an opposite position: hardly the governments will give the status to the persons moved as a result of change of a climate, equivalent to the status of conventional refugees [643].

Nevertheless, there are still supporters of a position which divides J. MakAdam. So, according to B.Soula, «creation of the new form of protection along with protection of refugees undermines principles of granting of the international protection and gives to the states a field for maneuvering for leaving from the obligations by the right of refugees» [644].

In the domestic doctrine of international law absence of necessity of granting of any separate status for such migrants also is marked. According to M.I.Petrovskoj, «acceptance of any new status for the given categories is inexpedient, by it the time refuge» [645 [646] (for humanitarian reasons) should be granted.

Professor A. Edwards notices, that «a duty of the states to give protection to the persons moved as a result of ecological accidents, is based on norm of usual international law about time protection for humanitarian reasons, instead of on

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To contractual norm of international law ».

The mode of additional protection is exposed to criticism for following reasons:

1. Absence of regulation of the given mode at universal level;

2. Creation of the new form of protection along with protection of refugees undermines principles of granting of the international protection and gives to the states a field for maneuvering for leaving from the obligations by the right of refugees;

3. Distinctions in a legal regime of the status of additional protection in the different states can create situations when applicants try to choose the most successful jurisdiction for the reference, and to increase in quantity of appeals of applicants.

Thus, the doctrine of international law has no unequivocal approach to a question on other norms and principles of international law, applicable to the persons forcedly moved as a result of adverse consequences of change of a climate: one scientists speak about superficial allocation of a separate mode of the international protection under which such persons can fall, and about distribution on them of a mode of refugees, others speak about impossibility of such expansion of a mode of refugees and, not denying necessity of granting to such persons of protection, offer other bases (usual norm of international law about time protection for humanitarian reasons).

(3) Persons moved as a result of adverse consequences of change of a climate, and stateless persons

Above we have considered situations, prezjumirujushchie preservation of statehood of the disappearing states at least throughout all period of resettlement of their population. However the situation of loss of statehood the disappearing states also is probable also a legal status of their population in such situation also comes under mezhdunarodnopravovomu to the analysis.

If the state ceases to exist, citizenship of such state also stops. So, KMP the United Nations in the comment to item 23 «the Project of articles about citizenship of physical persons in connection with assignment of the states» have concluded, that «state disappearance involves also disappearance of its citizenship» [647]. Besides, «unresolved situations de facto statelessness, in particular during two and more generations, can lead de jure to statelessness» [648].

The case of the disappearing states differs from the majority of historical cases of statelessness as there is no the assignee providing granting of new citizenship after disappearance of the state.

In 1996 of HECTARES of the United Nations has allocated UVKB the United Nations with the universal mandate on statelessness. UVKB it was offered to take part in protection of stateless persons and in actions on prevention of statelessness [649]. This mandate has been confirmed and has received the further development in a number of resolutions of HECTARES of the United Nations [650].

In the report «Change of a climate and a statelessness problem: the review» 2009 prepared at support of the International organisation on and the Norwegian council about affairs of refugees for Special working group on long-term combined action within the limits of RKIK the United Nations, in a context of the "sinking" states UVKB of the United Nations approves, that even if the international community will continue to recognise state existence, despite full absence at it statehood signs, its population can be considered as de facto stateless persons »[651]. This point of view is caused by that the government of such states, during the first time which is in exile, will face very wide spectrum of various problems, hence, the population of such states will appear practically in position bezgrazhdan as though the state has ceased the existence [652]. The given position has been confirmed also in the Letter of the Sixth committee of HECTARES of the United Nations from October, 8th, 1947 [653 [654]

Besides, at the meeting of experts organised UVKB the United Nations in of Prato, Italy, on May, 27-28th, 2010, experts have concluded: «In situations when the state does not exist according to international law, persons owing to the fact (ipso facto) are considered as stateless persons if only they do not have citizenship of other country. The persons, not capable to return to the country of the civil accessory, also will be always de facto stateless persons, even if they can partially or take advantage completely of protection of the country of the civil accessory during the stay in a host country (i.e. Diplomatic protection and the help)». 1 osudarstvo on which territory will move

The population of the disappearing state and its government, presumes to carry out to the government of the disappearing state personal jurisdiction concerning the population of the disappearing state in the form of consular and diplomatic protection, but can, is final, not to allow to carry out ordering jurisdiction, that is to pass laws and other regulatory legal acts, obligatory for the population of the disappearing state [655].

The international law does not establish a duty of the states to denize, but at the same time a number of the international documents provide the right to citizenship [656] (the General Declaration of human rights of 1948 (item 15), the International convention on liquidation of all forms of a racial discrimination of 1965 (item 5), the International pact about the civil and political rights of 1966 (item 24), the Convention on the rights of the child of 1989 (item 7), the Convention on liquidation of all forms of discrimination concerning women of 1979 (item 9), the Convention on citizenship of the married woman of 1957, the Convention on the rights of invalids of 2006 (item 18), etc.), therefore the population of the disappearing states are under the threat to become stateless persons.

The international mode of protection of stateless persons not being refugees consists of the Convention on reduction of statelessness of 1961 and the Convention on the status of stateless persons of 1954 Number of the state-participants of the Convention of 1954 is still rather low.

In item 1 of the Convention of 1954 about the status of stateless persons definition of the stateless person in international law is resulted: that is the person, "which is not considered by the citizen any state owing to its law". This definition also admits now custom international law. The persons falling under this definition, have the rights and the duties defined in the Convention of 1954 the Convention are not regulated by a legal status of stateless persons de facto which conventional definition in international law is absent. Two above the named international treaty about statelessness [657] do not extend on de facto bezgrazhdan, therefore the persons moved as a result of change of a climate, cannot count on the international mode of protection of statelessness. In the international law doctrine there is an opinion, that for the present moment «in international law there is a legal blank in protection de facto bezgrazhdan» [658]. Nevertheless it does not mean, that such persons have not the right to protection within the limits of international law of human rights. In international law in particular in the Convention on reduction of statelessness 2006 [659] necessity to avoid statelessness is established.

So, item 10 of the Convention on reduction of statelessness 2006 [660 [661] [662] provides: «any international treaty between the Agreeing States, providing territory transfer, should join decisions which would guarantee, that no person becomes the stateless person as a result of such transfer».

At meeting of experts UVKB the United Nations on May, 27-28th, 2010 "Concept" of the stateless person »on international law (« Conclusions of Prato »), stateless persons de facto have been defined as follows are the persons who are outside of the state of the civil accessory who cannot or for the weighty reasons do not wish to take advantage of protection of this state.

The final act of the Convention of 1961 connects two concepts de facto and de jure bezgrazhdan, recommending «how much it probably to concern de facto stateless persons in the same measure, as well as to de jure stateless persons to give the chance to them to receive the valid citizenship». The Final act of the international conference

Represents its official result. He establishes only political intentions of the states, instead of rules of law, expresses the consent of the states on concrete questions or offers questions for the further discussion and does not create international legal obligations for the states. However it is also auxiliary means of interpretation of the contract, and sometimes the final act text includes the text of the most international

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Contracts.

If the statehood of the disappearing states depends on a recognition of their continuation by other states the population of the disappearing states in any countries will be considered as citizens of the disappearing states, and in any stateless persons.

Thus, we will agree with authoritative position UVKB the United Nations that the population of the states which cease to correspond to the criteria of statehood containing in the Convention of Montevideo, will be considered de facto as stateless persons in spite of the fact that the international community can continue to recognise such states.

Considering active struggle of the government of the disappearing states against adverse consequences of change of a climate, working out and realisation of adaptable plans and attempt to draw attention of all international community, described above, we doubt, that the situation of a recognition of the population of the disappearing states stateless persons or de facto aliens will arise.

Thus, immersing under water of variety of the states as a result of climate change reveals some blanks and problems in the international law, connected with their population:

1. Absence of the legal status accepted at universal level and a legal regime of the persons moved as a result of adverse consequences of change of a climate;

2. Absence of a uniform universal legal designation, the term for the persons moved as a result of adverse consequences of change of a climate;

3. Absence of the international obligation for any state to accept in the territory of such persons and to give them citizenship;

4. Absence of the authorised body which direct competence would include protection of the persons moved as a result of change of a climate;

5. Absence of the assignee providing granting of the new

Citizenship after state disappearance.

6. A problem of infringement of human rights of the persons moved as a result of adverse consequences of change of a climate.

7. A blank in international legal regulation de facto bezgrazhdan.

Population shift of the disappearing states can have the first time

Interstate character, and subsequently, considering threat of full immersing of territory under water or its transformations in unsuitable for a life, uninhabited, such migration will have transboundary character.

Population shifts of the disappearing states has the dual nature at which two groups of migrants are allocated: (1) voluntary - the government and the population has a possibility in advance to plan such migration if the question on it in general rises, and (2) forced - in case of ecological disasters and the accidents which are not assuming possibilities to plan migration, both having sudden and extreme character.

Regulation of voluntary migration of the persons moved as a result of adverse consequences of change of a climate, occurs in bolshej degrees at regional and bilateral level. The disappearing states already have considerable operating time as in the field of internal policy on adaptation to adverse consequences of change of a climate, and external - cooperation of the states in the field of resettlement of the population of the disappearing states, expressed as on sale of territory by a number of the states, and delivery of the working visas providing and permanent residence.

International legal regulation of the second group of considered persons allows to speak about several possible variants (international law of refugees, additional protection, a mode of stateless persons).

Despite existence of some powerful arguments in favour of a recognition of the persons moved as a result of change of a climate, refugees, for the present moment the international law does not contain the norms of the "firm" right directly giving the similar status to such persons. Political intention of the states to expand concept of refugees yet has not found the realisation in a legal plane, therefore to say that conventional definition of refugees extends on the persons moved as a result of adverse consequences of change of a climate, at present it is impossible. Practice of the states also confirms the given statement. The majority of scientists of the doctrine of international law also adhere to that point of view, that the persons forcedly moved as a result of adverse consequences of change of a climate, correspond to definition of the refugee under the Convention of 1951 However if there are also other reasons named in definition of the refugee in the convention of 1951 The persons, forced to move in connection with adverse consequences of change of a climate, can be recognised by refugees.

The legal regime of additional protection in the different states is various. The majority of the states such reasons as do not include in the bases of granting of additional protection ecological disasters and accidents. Only the small amount of the states was included by ecological disasters and accidents as the basis for granting of additional protection at legislative level (the USA, Canada, New Zealand, Argentina). In these states to the persons forcedly moved as a result of adverse consequences of change of a climate, protection on the basis of their legislation can be given. Besides, on such persons the principle nevysylki, in view of risk of infringement of their right to life, as one of the bases of granting of a mode of additional protection, in case of absence of territory in a kind of its full immersing can extend. Protection of their fundamental laws of the person will be provided in that case with the states in which territory they sojourn, at the expense of a principle that the states are obliged to observe the obligations in the field of human rights concerning all people who are in limits of their territory or under their jurisdiction.

Thus even in absence of legislative regulation some states give the humanitarian status allowing temporarily to live in territory of the given state to persons, injured with ecological disasters and accidents, on an individual basis (ad hoc).

Besides, for lack of norms of international law of the universal or regional character, the persons regulating a legal status forcedly moved as a result of adverse consequences of change of a climate, the worthy reference according to norms of international law of human rights should be given such persons.

2.3.

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A source: Vasileva Anastas Andreevna. INTERNATIONAL LEGAL CONSEQUENCES of DISAPPEARANCE of TERRITORY of the STATES. The DISSERTATION on competition of a scientific degree of the master of laws. 2018 Moscow. 2018

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