Droit international Question 1: Ukrainian Refugees and International Court Jurisdiction

« IAPA 1205: International Law 12/13/2022 Final Exam Question 1: Ukrainian Refugees and International Court Jurisdiction Part A: Does international law precludes Ruritania’s deportation of Andriy and Daryna Melnyk (AM and DM)? Ruritania could argue that their legal obligations do not preclude the deportation of AM and DM because the 1951 definition of refugees does not include people who fled war.

Indeed, Article 1(A)(2) of the 1951 Refugee Convention states that someone must fear persecution for reasons of race, religion, nationality, membership of a particular social group (PSG), or political opinion in order to be considered a refugee.

Yet, it appears that AM and DM fled Ukraine because of war, not for one of the five listed reasons.

Because of this, Ruritania could rightfully argue that they are within their right to deport the siblings.

In this situation, Ruritania would be asserting its belief that sovereignty and state positivism are the guiding principles of international law.

Indeed, their priority would be to protect their borders, not individuals’ safety. On the other hand, AM and DM could argue that Ruritania’s legal obligations preclude their deportation for three reasons.

First, they could claim refugee status on the grounds of nationality.

Second, each of the siblings could argue that they qualify for other accepted grounds. Third, because of the treaties to which Ruritania could be a party.

In this interpretation, human rights and the protection of individuals are the goals of international law, and refugee law is an example of the application of this goal. The first argument that AM and DM could make is that they are entitled to refugee status in Ruritania because they fit the definition of a refugee in Article 1(A)(2) of the Refugee Convention on the grounds of nationality, assuming that Ruritania is a party to the Refugee Convention.

Article 1(A)(2) of the Refugee Convention outlines four conditions to qualify for 1 Rita Slaoui IAPA 1205: International Law 12/13/2022 Final Exam refugee status: (1) have a well-founded fear of being persecuted; (2) on the basis of race, religion, nationality, membership of a PSG or political opinion; (3) to be outside the country of their nationality; (4) to be unwilling or unable to avail themselves of the protection of that country.

The siblings can easily prove criteria 3 and 4: they are in Ruritania so outside of their country, and Ukraine is willing but unable to protect them from Russian persecution because of the context of the war.

Additionally, they can argue that they have a well-founded fear of being persecuted on the basis of their nationality because Russia claims that Ukraine does not exist, and they thus risk denationalization.

Within this argument, AM and DM are entitled to refugee status on the grounds of nationality, and Ruritania’s deportation is illegal because Article 33 of the Refugee Convention prohibits the refoulement of a refugee. However, the international community might reject this argument because it would broaden the definition of a refugee beyond the initial intentions of the drafters of the Refugee Convention.

By accepting this argument, the international community would effectively amend the interpretation of the Refugee Convention to count as refugees anyone fleeing any war where there is an invasion of one state by another with the goal of annexation.

Indeed, under Article 31(2)(b) of the Vienna Convention on the Law of Treaties, treaties should be interpreted in light of “any subsequent practice in the application of the treaty.”1 Thus, if put into practice, this argument would amend the interpretation of the Refugee Convention.

It would push international law toward the protection of individuals at the expense of the state positivist vision that many nations hold. To counter this potential objection, AM and DM could argue that each one of them fits the definition of a refugee under other grounds outlined by Article 1(A)(2) of the Refugee Convention.

DM could make the argument that she is seeking asylum on the grounds of the 1 Vienna convention, 13 2 Rita Slaoui IAPA 1205: International Law 12/13/2022 Final Exam persecution that she would face because of her perceived political opinion, assuming that the historical novels that she writes about Ukraine.... »