<<
>>

population moving on a constant residence in other state

(1) Features of voluntary migration as decisions of the problems connected with disappearance of the state territory

If for any reasons for the disappearing states it will not be possible to reconstruct the islands by means of dams and various designs or to get new territory, the population of the disappearing states as a result of gradual migration as it has been noted earlier, can move on territory of other state.

In practice of the states there are such examples. So, in 1940th because of destruction of one of islands Kiribatis - Banaba - its population has moved on island Rabi to Fidji. Histories also are known migration examples vaitupuantsev from Tuvalu to Fidji in 1947, inhabitants of Gilbert islands (Kiribati) on islands Solomonovy during the period between 1955 and 1964 In all these cases the moved population at first coped the independent

884

Administration, and then it was completely naturalized in the accepting state.

Besides, at the given variant the accepting state can consider the problem on granting of certain volume of independence, to declare territory on which the population will take places, an autonomy, a place of compact residing of the given ethnic group etc. we Will notice, that if the accepting state will agree to accept the population of the disappearing states and to give them territory for moving, it will mean all the same, that the disappearing state will lose the statehood, the accepting state will represent it on international scene and to carry out the sovereignty concerning the left territory, and also jurisdiction within sea zones of the left territory until it will not plunge completely under water. Considering, that territory immersing under water occurs slowly, within decades as it has been noted above, such counter granting can motivate other states to help to solve a problem of the disappearing states and to receive their population. [875 [876] [877]

The disappearing states do not wish to move the population on territory of other states with the subsequent assimilation with local population and consider migration as an extreme measure as she all the same does not solve a problem (statehood preservation), and creates new, aggravating the old. At the population of the island states very strong cultural contact with a place of their residing. It is important to them to keep the national and cultural identity.

Tuvalu and Kiribati, speaking about possible moving of the population as an extreme measure in such states as Australia or New Zealand, underline that is very important to consider the population of the disappearing states as valuable members of a society who can bring the positive contribution to its development.

Professor F.Birmann and I.Boas believe, that at migration following conditions should be observed:

• the persons moved as a result of adverse consequences of change of a climate, should acquire the right on constant, instead of temporary residence in the accepting state;

• the given mode should be focused on group of the moved

885

Persons, instead of the separate individual.

If the given variant is inevitable also the population of the disappearing states will be forced to migrate, at a choice of the state for migration, in our opinion, in an ideal it is necessary, that following criteria were considered: a geographical position, employment possibility, presence of a cultural contact.

One more criterion at a choice of the state for resettlement - granting of citizenship by it (a dual citizenship on a transition period) or at least such status which will guarantee to the arrived population principle observance nevysylki, protections of human rights, granting to all of them of the rights including the rights to self-determination, observance of the unanimity of a family, etc. For safe population shift of the disappearing states is necessary to solve not only a question about possible grantings of the earth by it and social conditions for residing, but also to consider features of their culture, customs, traditions for the best and prompt socialisation and assimilation with the population of the accepted state. For young men grants at universities and institutes of the accepting state, financed in common accepting and disappearing the states, or within the limits of the international funds of the money resources resulted as examples earlier, for example, can be provided. [878]

The given scenario (voluntary migration without acquisition of own territory) has a number of lacks. First, the statehood of the disappearing states is lost. Secondly, in the conditions of absence of a duty of the states to accept in the territory such population, such permission to residing can have only a temporality. In - the third, the legislation of the accepting state can include not so favorable legal regime for such population, as in some other states (it was considered earlier). And, at last, not clearly, as for lack of regulation by international law of a question of disappearance of the states, that fact, that were earlier the independent states, the disappearing states become dependent in relation to the accepting states as it corresponds with a principle of 7 Declarations on declaration of independence to the colonial countries and the people of 1960 According to which «all states should observe strictly and honesty positions of the Charter of the United Nations Organization, the General Declaration of human rights and the present Declaration on the basis of equality, non-interference in

Internal affairs of all states, respect of sovereign rights of all people and territorial

886

Integrity of their states ».

Moreover, there are some doubts concerning successful realisation of such scenario in connection with a lack of political will of other states to receive migrants. So, the president of Kiribati worries, that, «if the population of its state is forced to migrate and will be recognised by refugees, other states will be them, so to say,« otfutbolivat », especially it concerns aged people of 50-60 years» [879 [880] [881].

Really, crisis of refugees in Europe 2015-2016 when in June, 2016 the population of the Great Britain, substantially motivirovannoe the problems opened with this crisis, has voted for an exit of their state from EU is not met yet. Also, for example, in January, 2017 the termination for uncertain term of reception of the Syrian refugees in the country, and also freezing for 120 days the program of reception of refugees from other countries was one of the first orders who was made by Donald Tramp after the inauguration on a post of the US president. But as a whole, we will notice, that such exclusive and not numerous examples do not block the general tone of acceptance which render to refugees, first of all the adjacent states, at the moment of need.

(2) Features of the forced migration as variant of the decision of problems of the population connected with disappearance of the state territory

In case of ecological disaster or accident there can be such interval of time at which there will be a population evacuation, we have designated it earlier as a transition period. In evacuation of the population till the moment of its settled way of life in the territory got at other state, there are three variants of the international legal personality for the disappearing state: its statehood will stop automatically from the moment of the evacuation beginning; it will continue to be the state, or will be considered gosudarstvopodobnym as formation (the person sui generis). The scenario at which the statehood of the disappearing states will proceed, is represented to us to more probable as at United Nations level as it was marked earlier, there is a position, that the statehood does not stop, if loss of the state territory or population resettlement carries a temporality, that is it is applicable, when the population forcedly moves on territory which already belongs or will belong to the disappearing state on the basis of rent or cession.

In the international law doctrine usually it is offered three variants of the decision of a problem of absence of universal international legal regulation of the status

889

The population of the disappearing states in case of their forced transboundary resettlement:

1. To make amendments to definition "refugee" of the Convention of 1951 or to accept the new

-890

The report to it;

2. To accept [882 [883] [884] report to RKIK the United Nations [885 [886];

3. To accept the separate contract and to create absolutely new mechanism.

Kasaemo the first variant at the state level, for example, in 2006

Government Maldiv has suggested to make the amendment to the Convention on refugees of 1951, extending definition of "refugees" of the item 1А (2) that it included the ecological

Migrants [887 [888]. In December, 2009 on the threshold of conference on change of a climate in Copenhagen the Minister of Finance of Bangladesh as has declared: «the Convention on refugees can be reviewed, that in the fullest image to give protection». A network of the Bangladesh

MNPO have called for creation of the new report to RKIK the United Nations with a view of maintenance of social, cultural and economic rehabilitation of climatic refugees by means of their recognition in quality «universal physical persons» (“Universal Natural Persons») [889 [890] [891]. In support of the given initiative in September, 2010 the Prime minister of Bangladesh, Sheikh Hasina, has suggested to organise the joint South Asian initiative on maintenance of social, cultural and economic rehabilitation of climatic refugees, and in 2011 it at the fourth meeting of participants of the intergovernmental organisation «Process of Colombo» (Colombo Process) has stated idea to bring up this question on United Nations level. However the initiative

898

Has not received the further development.

In Australia the Labour party, has suggested to create a coalition of Pacific region to include ecological migrants in definition of refugees and to lobby in the United Nations an appropriate recognition of ecological refugees in existing conventions, or by creation of the new convention on climate change. When the senator from Green party has suggested to extend granting of visas to ecological refugees in June, 2007 [892 [893], the Labour party has refused, having noticed, that without the joint adjusted actions with other states, such obligation would be the unilateral certificate and, hence,

- -900

It will not be adjusted with idea of the international relations.

In the international law doctrine also there are many supporters of necessity of modification of the Convention 1951 [894] For example, professor B. Harvad

Marks: «Recognizing existence of the ecological reasons for moving of refugees, it is time to review understanding of the Convention on the status of refugees and to include this growing group

902

Displaced persons in it ».

Non-governmental international organisation Living Space for Environmental Refugees network (LiSER - for a life of ecological refugees) has created Space working group for that studying how to include ecological refugees in the Convention 1951 [895 [896] But their initiative has not been supported at the international level.

Maldives in 2006 have suggested to make the amendment to the Convention on the status of refugees of 1951 and to extend definition "refugee" in the item 1А (2) so that it included ecological refugees [897]. V.I.Evtushenko [898] adheres to the Same position.

However not all representatives of the doctrine of international law positively concern such idea. For example, according to K.K.Moberg, expansion of concept "refugee" in the Convention of 1951 will be discretionary for the countries ratifying the Convention on the status of refugees and the Report to it as, joining the given documents, the state expressed the consent to obligation acceptance in those formulations in which they have been registered in the Convention. Distribution of definition "refugee" of the Convention of 1951 will undermine the concept of protection of the rights of refugees [899]. Definition expansion will increase quantity requiring protection within the limits of programs for refugees, and, accordingly, the quantity of the conventional refugees having possibility to pass under this program will decrease [900]. Programs on protection of the rights of refugees will work more slowly.

According to the Commissioner by the rights of refugees UVKB the United Nations, expansion of definition of refugees can cause change of all Convention that can lead

To deterioration of a mode of protection of refugees as a whole [901 [902]. However on the other hand, «limiting interpretation of definition of"refugee"will not help to reduce quantity of the migrants who are not falling under the status of the refugee which search for refuges; in the same way refugees not

909

Will cease to be afraid of prosecution and other risks in their countries of origin ».

Let's notice, that UVKB the United Nations usually at national level do not recommend to the states acceptance of the separate act regulating a legal regime of persons, moved as a result of adverse consequences of change of a climate, and instead suggest to introduce additional forms of protection by entering of additions/changes into laws on refugees, that is encourage formation of norm of usual international law on this question.

Kasaemo the second variant, at first sight, the international ecological right can be more perspective from the point of view of possibility of prevention of problems of the disappearing states in a context of change of a climate. Atmosphere is the general resource which is of interest for all mankind [903]. The international ecological right demands from the states to carry out programs of reduction of emissions of hotbed gases [904 [905], for prevention, struggle against pollution of air atmosphere both the sea environment, and preservation of a biodiversity [906].

Preamble RKIK the United Nations refers «to positions of the resolution of the United Nations of 44/206 HECTARES from December, 22nd, 1989 about possible adverse consequences of rising of sea level for islands and coastal areas, in particular nizinnyh coastal areas» [907]. However RKIK the United Nations only designate a problem of disappearance of the small island developing states as a result of change of a climate and do not contain the positions regulating the international legal status of persons, moved as a result of adverse consequences of change of a climate, and have no the special programs directed on protection of such persons.

RKIK the United Nations directly regulate a question of change of a climate, but do not regulate a question of movings of the population caused by change of a climate. She does not establish obligations of the states in relation to the population moved as a result of change of a climate, it provides measures of preventive character rather than than the measures providing elimination of adverse consequences of change of a climate, the status of the persons moved as a result of change of a climate does not establish. The report conclusion to RKIK the United Nations is improbable for the reason, that its mandate does not provide remedies at law of the persons moved as a result of change of a climate, historically developed unwillingness to include questions of human rights in dogovory about change of a climate [908].

Nevertheless, there are also supporters of modification of it. So, Group MNPO of Bangladesh has urged to accept the new report to RKIK the United Nations with a view of maintenance of social, cultural and economic rehabilitation of climatic refugees by means of their recognition «Universal Physical persons» (“Universal Natural Persons") [909].

According to senior lecturers D.K.Bekjasheva and D.V.Ivanov [910 [911], the small island developing states «are included into group of especially vulnerable states which require rendering assistance on the basis of RKIK the United Nations, including measures on adaptations and efforts on softening

- 918

Consequences of change of a climate ».

Kasaemo the third variant group of scientists-lawyers of University of Limoges in France have published the project of the convention on the international status ecologically -

919

Displaced persons.

According to B.Gorlika if in this question will not be engaged UVKB the United Nations it is necessary to generate the commission of the United Nations which will report directly ahead of the UN Security Council. And the states which actually carry out bolshee quantity of emissions of fouling substances in environment, should recognise them "an ecological debt" and responsibility for the population of the developing countries which have suffered from consequences of pollution.

J. MakAdam considers, that acceptance of the new contract will not solve a problem as for its execution the political will of the states which now is not present is required. It tends to regional mechanisms which can solve a problem in concrete geographical region [912 [913] more.

Nevertheless, the international community is on the threshold of working out and acceptances of the new international tool/initiative regulating questions of migration including persons, moved as a result of adverse consequences of change of a climate. Within the limits of 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, it has been accepted the New York declaration, ordering to develop the global international tool («Global compact») and «to provide, that the global contract on the safe, lawful and ordered migration was based on a recognition of that to all migrants, irrespective of their status, protection, respect and realisation of their human rights, according to nine basic international documents in the field of human rights and the norms connected with them, including all corresponding conventions the SQUANDERER should be provided; To include in the contract concrete measures for maintenance based on observance of human rights of regulation of migration, such as elimination of the factors causing dangerous migration, strengthening of safe and regular channels of migration and acceptance of measures on settlement of the status of illegal migrants; and to provide, that all corresponding parties in interest, including UVKPCH the United Nations, remedial mechanisms of the United Nations and a civil society, including groups of migrants, to the full participated in working out of such contract »[914 [915]. The positive moment of such contract is presence of obligations to undertake measures on prevention of such migration. However a lack is, in - the first, that in an English-speaking variant global compact it is not so obligatory the international treaty on sense of the Viennese convention on the right of international treaties of 1969 Secondly, the developed international tool according to its project fixed in the New York Declaration does not concern directly ecological migrants and will guarantee fundamental laws of the person of the forced migrants as a whole, but does not equalise such migrants with refugees, that is can provide smaller quantity of competences for beneficiaries of the mode provided for them. Thirdly, even if the necessary maintenance will find the specified forms, and forms will be contractual, unfortunately, there is no unequivocal guarantee of that practice of the states will go on the same way, that the ambitions declared in the New York Declaration, will be realised, and that this agreement will not repeat destiny of the Convention of the United Nations about protection of the rights of all workers-migrants and members of their families of 1990 which any significant state of reception has not joined and which therefore is most inefficient of the basic remedial contracts of the United Nations. So, for example, dots. E.V. Kiselyov doubts successful realisation of the planned purposes: «Hardly probable the appeal to working out by 2018 of two frame contracts on problems of migration and refugees, accordingly, will come to the end with creation of effective working international legal base

922

In such conditions ».

Nevertheless the small island developing states through international governmental and non-governmental organisations actively advance idea of inclusion of regulation of persons considered in the present dissertation in the given global contract. At Asian-Pacific regional preparatory meeting within the limits of process on development of the Global contract of the United Nations about the safe, ordered and legal migration, passed on November, 6-8th, 2017 In Bangkok (Thailand) within the limits of the Economic and social commission for Asia and Pacific ocean (the regional commission of Economic and Social Council of the United Nations) the representative of Fidji Sima CHand has declared, that the migration problem should dare at the international level, and the global contract on the safe, lawful and ordered migration should reflect at least a consensus of that those unique problems which the disappearing states face, should receive the adequate answer from the international community [916 [917] [918] [919]. The representative of New Zealand Dzhessika Russell has underlined, that the global contract on the safe, lawful and ordered migration should reflect unique features of population shift of the small island developing states. It is interesting to notice, that though the representative of the Russian Federation Oleg Shamanov has offered that the global contract on the safe, lawful and ordered migration provided reaction to the situations connected with emergency mass arrival of foreign subjects, he especially has underlined, that such contract should have character of the political declaration and should not be legally obliging. At the summit which has passed on December, 4-8th to Fidji, organised by Association of non-governmental organisations of Pacific islands (Pacific Islands Association of nonGovernmental Organisations) representatives international nepravitelsvennyh the organisations and a civil society have called the international community by working out of the global contract on the safe, lawful and ordered migration to recognise climate change

926

The reason causing population shift.

Thus, the tendency of the international community in favour of a variant of working out of the new international tool/initiative which in case to the disappearing states for any reasons will not be possible to reconstruct the islands was outlined or to get new territory, will regulate process of the forced migration of their population, whether however there will be a given agreement effective and on what way practice of the states at present while to predict difficult enough will go.

3.4.

<< | >>
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

More on topic population moving on a constant residence in other state:

  1. 3.4.2. Studying of a state of health of commodity fishes in conditions astayotichnogo and constant termorezhnmov in UZV.
  2. 5.1. Interrelation of a state of health of students of medical college with their mediko-social characteristics taking into account a residence
  3. the International legal status of the population of the disappearing states in a context of disappearance of the state territory
  4. 2.2.1. The contract on definition of a residence of the child
  5. 4.4.3. A work and residence place.
  6. the analysis of speed of moving of actuating medium at mechanical affecting
  7. 3.3. Methods of separation of expenditures on variables and constant components.
  8. § 6.1. Features of moving alan the Kislovodsk hollow in II-IV centuries
  9. § 7. Moving of fists on the special ground areas
  10. typical sources of the information on a summer residence - bribe reception
  11. realisation of freedom of the will at a summer residence of special testamentary dispositions
  12. 1.4.2. A question on qualification of a constant epithet and its types
  13. Creation of Constant chamber of the international justice. Its competence
  14. § 6.4. Moving during an epoch of the developed Middle Ages (X-XII centuries).