By Giulia Borsa
Climate change is hindering lives and livelihoods around the world. Some examples are Bolivia, Haiti, Tuvalu, Kiribati, Uganda, Alaska, Nepal or Bangladesh among many others. This is due to stronger extreme weather events, sea-level rise, desertification or ocean acidification, among many others. In particular, some atoll islands are on the frontline of severe climate change impact. These island nations may disappear in the next decades due to slow-onset sea-level rise causing its nationals to become stateless. This paper gives an overview of current Public International Law provisions to prevent statelessness, and human rights instruments which can protect forced migrants in the context of climate change induced state disappearance.
If global warming reaches 1.5°C or more, the impacts of changing climatic conditions would be devastating for many populations. Some of these impacts include extreme weather events, increased acidity and temperature of the ocean, and sea-level rise. Consequently, water-stress, food insecurity or worsened diseases, among other negative impacts will force people to move from their areas of residence (Hoegh-Guldberg et al. 2018).
Small Islands Developing States (SIDS) are in the frontline of severe climate change aftermaths (UNDP, 2014). For instance, islands like Tuvalu and Kiribati, which do not protrude more than 3 to 4 meters sea level, are at risk of disappearance due to inundations and land degradation caused by saltwater (Hoegh-Guldberg et al. 2018). Likewise, Solomon Islands, Maldives or Fiji among others, are also threatened. Sea level is predicted to rise at the average rate of five millimetre per year, from 0.09 meters to 0.88 meters by the end of this century (Ralston et al 2004). This vulnerability is compounded by SIDS’S isolation from other nations and the global economic market, and factors such as insufficient financial, technical and institutional capacities to mitigate and adapt to the impacts of climate change (Benjamin and Thomas, 2018). The eventual submersion of these states could amount to the statelessness of its citizens.
Under the premises of the Convention relating to the Status of Refugees of 1951 and the Protocol relating to the Status of Refugees of 1967, refugee status may be granted on the basis of persecution for reasons of race, religion, nationality, political opinion, or membership of a particular social group. Therefore, climate change is not explicitly applicable as persecution (Refugee Convention 1951; Refugee protocol 1967). This paper builds on the assertion that there is no legal terminology such as climate change refugees. Rather than analyzing International Refugee Law, this paper will brief current Public International Law provisions to prevent statelessness, and human rights instruments that can be used to protect forced migrants in the context of state disappearance due to climate change.
Statelessness: Meaning and implications
Stateless is a term applied to a person who is not considered a national by any country under national law (Convention Relating to the Status of Stateless Persons 1954). People become stateless when they do not acquire a nationality at birth, their state of origin does not exist anymore, or their country is not willing to accept them as citizens. Citizenship establishes a person’s right to participate in a country’s political decisions, intervene with its opinions and enjoy the protections and rights offered by a nation. Thus, statelessness is produced by governments, not an individual’s action (Milbrandt 2011).
There are two manners in which a person could become stateless. First, de jure statelessness is the case when a State is no longer recognized by the international community and thus, the person cannot claim its nationality and citizenship. This may be the case of a country that ceases to exist, and no other state replaces its position (Milbrandt 2011).
Second, de facto statelessness is a situation when a person has a genuine right to claim citizenship of a state but cannot access it due to practical considerations such as expenses, circumstances of civil disorder, or fear of persecution. This also applies to those inside the country of their nationality (Milbrandt 2011).
If citizenship is not granted, whether due to De Jure or De Facto statelessness, people cannot achieve human security (Blitz et al 2009). Accordingly, economic, social, cultural, civil and political rights are affected. For instance, a stateless person cannot access birth registration, identity documentation, education, health care, property ownership or participate politically. It may also drive people to seek any possibility of employment even in illegal or unethical trades (Milbrandt 2011). Stateless children may be turned away by schools or, in some countries, be forced to work to survive. Similarly, stateless women are likely to end up in prostitution, sexual trafficking or convenience marriage (Weissbrodt and Collins 2006; Milbrandt 2011).
Would the population of states disappeared by climate change be considered stateless?
According to Article 1 of the Montevideo Convention on the Rights and Duties of States of 1993, the four elements of statehood include the following aspects: first, a defined territory; second, a permanent population; third, an effective government and fourth, the capacity to enter into relations with other states (Montevideo Convention 1993). This Convention is recognized to be part of customary international law. However, no internationally agreed definition of the state exists (McAdam 2012). This lack of precision in assessing statehood is due to the fact that very few cases of state disappearance have happened thus far. Moreover, states prefer to maintain their liberty to recognize new states, not only in case it applies in reverse against them in the future, but also to preserve their strategic relationships with other states which may not be willing to accept the disappeared state as a real one (McAdam 2012).
For instance, when Slovenia and Croatia declared their independence, they were still considered as the whole Republic of Yugoslavia, which prevented them to be protected by the prohibition of intervention and the use of force according to international law (Hillgruber 1998).
The four elements above would supposedly be required for a state to exist. However, the absence of one of them, may not suppose the end of statehood. In fact, there is a high presumption of continuity of state existence. There are just a few cases in which statehood extinction was voluntary due to political succession (McAdam 2012; Park 2001). As there is no precedence of State disappearance in the context of climate change, it is not clear what would happen in the case of natural disappearance of a state’s territory, whether or not its population and government are in exile. Even if air space and the territorial sea physically remain, these are considered appurtenances to the land territory and, would therefore disappear with the land (Park 2001).
There are some requirements if the presumption of continuity of the state was to be adopted. First, as Park (2001) points out, there is the need to consider the typical elements of statehood in conjunction with the level of disappearance of a state’s land. Second, whether or not other countries and international organisations continue to recognize a disappearing state matters. For instance, continuity of state existence has been recognized despite the fact that a loss of authority occurred. In fact, during World War II, some governments in exile continued to provide national passports to their citizens without being questioned by the International community (Park 2001). On the other hand, UNHCR outlined that even if continuity of the state can be presumed, citizens of disappearing states residing in other nations could remain unprotected and be considered de facto stateless by those nations (McAdam 2012). Thus, it remains to be determined if and what internationally agreed position on the status of nationals of disappeared states would be adopted.
In customary international law, the right to nationality does not exist. However, there is a high presumption of the prevention of statelessness in any change of nationality or state succession. While article 15 of the Universal Declaration of Human Rights proclaims the Right to nationality, but it does not impose a duty of States to confer it (UDHR 1948). By contrast, the International Covenant on Civil and Political Rights does not even refer to such a right (ICCPR 1966). In addition, there are two treaty bodies of relevance in relation to statelessness. One is the Convention relating to the status of Stateless Persons of 1954 which provides a formal definition of statelessness and describes rights for stateless persons who are not refugees. This Convention has been poorly ratified by just 80 States. Secondly, the Convention on the Reduction of Statelessness of 1961 imposes a duty to prevent statelessness. However, with just 55 signatories, it counts even fewer ratifications (Statelessness Convention 1961). These two international conventions do not consider physical statelessness explicitly, which is the problem that disappearing states would face. The 1961 Convention stands out in its resolution appended to the Final Act that persons who are de facto stateless, shall be considered, at least, as they were de jure stateless in order to guarantee them the possibility to acquire an effective nationality (McAdam 2012).
In sum, it would be naïve to think about a new legally binding agreement to protect stateless people in the context of climate change. The narrow juridical focus of these conventions does not allow broader interpretations to address the situation of people whose country is at risk of disappearing. Moreover, it is not clear which position the international community would adopt; that is, whether or not the international community would recognize the continuity of statehood of a disappeared state. If statehood is not recognized any longer, then the obligations to prevent and diminish statelessness by states bound by the Conventions would be applicable (Borsa 2018).
As a result, scholars have turned to discussing more practical, ad-hoc solutions. First, state cessation of its territory has been considered in order to facilitate the continuity of the disappearing state (Toscano 2015). The second option revolves around a purchase of land by the disappearing sate, as it has been done by Kiribati, which bought some land in Fiji (Caramel 2014). A third idea is the unification of the disappearing State with an existing one, either creating a new one or the latter absorbing the former (Toscano 2015).
Nonetheless, these are just solutions to solve statehood disappearance per se. Although these approaches would likely also determine the status of the citizens, they are not a comprehensive and detailed protection mechanism for statelessness in the context of climate change. At this point, creating soft-law mechanism alongside guidance and recommendations to address statelessness in the context of climate change seems to be the most feasible option.
Human Rights Law
Due to the weak protection offered by the aforementioned Conventions regarding statelessness, the role of International Human Rights Law becomes essential as a basis for complementary protection to respond to forced migration in the context of climate change (McAdam 2012).
States have to respect human rights and take appropriate measure to guarantee their effective enjoyment by the people in their jurisdiction (McAdam 2012). As mentioned earlier, being stateless automatically jeopardizes the effective enjoyment of human rights. For instance, the right to be protected from cruel, inhuman and degrading treatment, the right to health, the right to food and water, and even the right to life which is considered an ius cogens norm of International law, and its derogation is forbidden even in situations of state emergency. These rights are protected under the Universal Declaration of Human Rights of 1948 and both International Covenants on Civil and Political Rights and on Economic, Social and Cultural rights of 1966 (UDHR 1948; ICCPR 1966; ICESCR 1966). Further, the right to life and the right not to be subjected to torture, cruel, inhuman or degrading treatment lead to the international customary norm of non-refoulement, (McAdam 2012), the ius cogens norm which obligates states not to return a person to the borderlines of a territory where their life or freedom is threatened (Refugee Convention 1951). This is of particular relevance as it applies to every case when the integrity of a person is in danger if returned or expulsed, regardless of whether refugee status has been granted or not (Goodwin-Gill 1986).
States are obligated under International Human Rights Law to protect climate change-induced forced migrants in their jurisdiction. An effective way to ensure their enjoyment of human rights would be to provide a nationality before the state in question disappears. In that case, dual nationality may be allowed at least for a transitional period, or stateless persons may be required to resign their nationality (McAdam 2012). In fact, one of the key areas of the Nansen Initiative Protection Agenda (currently followed up by the Platform on Disaster Displacement) is precisely the creation and implementation of standards for the treatment of climate change affected populations. This includes allowing admission and granting status to forced migrants affected by climate change.
This paper has outlined the deficiencies to effectively address statelessness in the worst-case scenario of state disappearance due to climate change. International law establishes clearly what elements need a state to be so. However, there is no assertion that the absence of one of these elements would provoke the extinction of statehood per se. This is rather a grey area. Moreover, if people from disappeared states where to be considered stateless, then, seeking protection in the two existing conventions would not be likely to adequately address protection need and mitigate the risks of statelessness.
Currently, only International Human Rights Law would confer rights to the forced-displaced people and require the receiving states to maintain the enjoyment of human rights by climate change forced migrants. This is not to say there is a universal obligation to confer a nationality to those affected. But indeed, conferring a nationality would secure the effective enjoyment of human rights of the citizens of disappearing or disappeared states. In line with human rights obligations, a complementary soft-law mechanism could possibly pave the way towards a more comprehensive response to offering protection for those affected by climate change.
Giulia Borsa is an International Human Rights jurist. She holds a bachelor’s degree in law from the University Autonoma of Barcelona and an LLM in International Human Rights Law from Oxford Brookes, with a dissertation written on climate change related displacement. Giulia has been working as a postgraduate researcher for the past two years, collaborating with organizations such as CLISEL or GNDR. She has also been coordinating the division on Climate Change and Human Rights of the International Organization for Least Developed Countries (IOLDCs) in Geneva and she is currently working at EcoVadis. Before, Giulia also volunteered for 5 years in a small Spanish NGO providing adequate nutrition to people without resources. She speaks 5 languages and has won several awards, including the Ideas that Change the World Competition in Oxford.
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