Climate change and disappearing states

The ‘disappearing States’ or ‘sinking islands’ phenomenon has become the litmus test for the dramatic climate change impacts on human society.

Atlantis-style predictions of whole countries disappearing beneath the waves raise fascinating legal issues.

As a purely academic exercise, pondering the dissolution of a State because of climate change rather than conflict, cession, merger or succession entails novel questions that go to the heart of legal rules on the creation and extinction of States.

However, much of this deliberation is taking place in the abstract, such that the premises for why, when and how States might ‘disappear’, and the consequences of this, do not always sit comfortably with the empirical evidence.

This may lead to the adoption of well-intentioned but ultimately misguided policies.

This paper will look at a case study of the small Pacific island States of Kiribati and Tuvalu, which have become emblematic of the so- called ‘sinking States’ and ‘climate refugee’ phenomenon.

It argues that the focus on loss of territory as the indicator of a State’s disappearance may be misplaced, since small island States such as Kiribati and Tuvalu will become uninhabitable long before they physically disappear.

In legal terms, the absence of population, rather than of territory, may provide the first signal that an entity no longer displays the full indicia of statehood.

In doing so, it examines mechanisms such as the government in exile as a means of enabling the State to continue even when the territory is uninhabitable, and briefly considers alternatives to full statehood, such as a self-governing territory in free association with another State.

The classic formulation of statehood is contained in article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, regarded as customary international law.

The four elements of statehood are: a defined territory, a permanent population, an effective government, and the capacity to enter into relations with other States. While all four criteria would seemingly need to be present for a State to come into existence, the lack of all four may not mean the end of a State.

This is because of the strong presumption of continuity of existing States,which may account for the fact that since the establishment of the United Nations Charter in 1945, there have been very few cases of extinction of States and virtually none of involuntary extinction.

It is also significant that so-called ‘failed States’ have continued to be recognised as States even during the period when they were objectively failing.

However, the precise point at which a State loses its legal identity as a State is unclear.

International law sees the formal dissolution of the State in cases of absorption (by another State), merger (with another State) and dissolution (with the emergence of successor States).

The potential extinction of a State because of climate change is markedly distinct, however, because the territory it abandons will not (cannot) be assumed by any other State.

While ‘defined territory’ is one criterion of statehood, and though territory ultimately may disappear as a result of rising sea levels, it is more probable that the other indicia of statehood—a permanent population, an effective government, and the capacity to enter into relations with other States—will have been challenged prior to this occurrence.

For low-lying islands such as Tuvalu and Kiribati, insufficient fresh water, as the water lens shrinks, has been cited as the most probable trigger for rendering these countries uninhabitable in the longer term.Climate change threatens to reduce habitable land in other ways as well, including through coastal erosion and increased salination of the soil. This will impact upon agricultural capacity and, in turn, is likely to lead to greater urbanisation (as people move from the outer islands) and increased pressure on an already poor labour market.

There are also negative health consequences as people become increasingly reliant on imported processed foods. It is therefore likely that long before the land disappears, the bulk of the population will have moved.

Migration is, and has long been, a natural human adaptation strategy to environmental variability. As Bedford notes, it is a normal response. But whereas Pacific islanders could once freely move to other islands in times of resource scarcity or climate change, the legal (and sometimes physical) barriers to entry imposed by States today considerably restrict freedom of movement.

Accordingly, a key policy of both the Tuvaluan and Kiribati governments is to enhance existing migration options to developed countries in the region, primarily Australia and New Zealand, thereby building up ‘pockets’ of their communities abroad.

Though international law contemplates the disappearance of States, it does so within the context of State succession. The conventional ways in which a State can become extinct—through voluntary absorption by another State, merger with another State, extinction by dissolution (voluntary or involuntary) all presuppose that a successor State begins to exist on, or assumes control over, the territory of the previous State.

Indeed, the two treaties on State succession define this as ‘the replacement of one State by another in the responsibility for the international relations of territory’. As Marek observes in her leading work on the identity and continuity of States, a State’s extinction entails a succession and prevents any further continuity of that State; a ‘miraculous resurrection’ is impossible.

In the present context, unless the territory of Tuvalu or Kiribati were ceded to another State, the normal rules on State succession would not apply.

For Crawford : ‘States are territorial entities.’But do they need to remain so in order to preserve their legal status?

Certainly, there is no minimum amount of territory that needs to be held, and loss of some territory should not affect the legal status of the entity, since it is not necessary for a State to have precisely defined boundaries. ’

Such territory does not have to be contiguous, and ‘[l]ittle bits of States can be enclaved within other States.’

What matters is exclusive control over it.Lowe argues that the concept of a State ‘is rooted in the concept of control of territory’,

Jessup argued that the rationale for a State needing to possess territory was that ‘one cannot contemplate a State as a kind of disembodied spirit ... [T]here must be some portion of the earth’s surface which its people inhabit and over which its Government exercises authority.’

And yet, States can continue to function even when their governments operate from outside national territory.

The mechanism of the government in exile has enabled governments to function extraterritorially, although always temporary and exceptional.

Furthermore, it assumes the continued existence of a permanent population on the State’s territory (although the government in exile also retains jurisdiction over nationals abroad as well).

Indeed, the general requirement that States have ‘a certain coherent territory effectively governed’ assumes that there remains a population on that territory to be governed.

Just as international law does not require a State’s territory to be a minimum size, nor is there minimum population requirement.Tuvalu is the second smallest State by population (after the Vatican). A ‘permanent’ population simply means that it cannot be transitory.

The question is whether a State stops meeting this criterion of statehood when a large proportion—or all—of its population lives outside the State’s territory.

There are already a number of Pacific countries with very large populations outside their territory, and yet this does not affect their ability to continue to function as States. For example, 56.9 per cent of Samoans and 46 per cent of Tongans live outside their own country.

Thus, the proportion of population living on the territory does not seem to be affect a state. But if an exodus of population happens with loss of territory, can it exist by retaining its own outpost on the territory (as is being contemplated in Kiribati) or elsewhere (as a government in exile or on territory that another State permits it to use)?

The existence of a government also means independence. Crawford says government is the most important criterion of statehood, ‘since all the others depend upon it.

States may nonetheless choose to recognise an entity as a State even where it is doubtful that the full signs of statehood exist. For example, in 1960 Congo was widely recognised as a State and was accepted as a UN member without dissent, even though it lacked an effective government.Crawford concludes that this was because the requirement of government may be less stringent than thought, and, importantly, that it has two aspects: ‘the actual exercise of authority, and the right or title to exercise that authority.’

In that case, the conferral of independence by the former colonial power Belgium meant that there was no State against which the recognition of Congo could be unlawful, and the assumption followed that where a former sovereign grants full independence then the new State has the right to govern its territory.

The case of secession is different because the seceding State has to establish its adverse claim, which includes demonstrating effective and stable exercise of governmental powers.

Indeed, this may explain why the presumption of continuity is so strong. First, premature recognition of another State could be seen as unlawful interference in the domestic affairs of the original State, which itself might undermine international stability.

Secondly, and related to the first point, there would otherwise be a void in international relations in which States would ‘find it difficult or impossible to continue many mutually advantageous economic, administrative and technical relations with other nations’.54

Arguably, the case of ‘disappearing islands’ is more akin to the former, in that there is no competing claim and the presumption of continuity will apply until States no longer recognise the government (which may be in exile).

It is important to distinguish between independence as an ‘initial qualification’ for statehood, and its role for a State’s ‘continued existence’.

Crucially, for present purposes, the strong presumption of continuity of existing States means that other States may continue to treat it as such despite a lack of effectiveness, or even a ‘very extensive loss of actual authority’.

As Thürer notes in the context of so-called ‘failed States’:

Even when States have collapsed, their borders and legal personality have not been called in question. Such ‘fictitious’ States have not lost their membership of international organizations and, on the whole, their diplomatic relations have remained intact. Though they are unable to enter into new treaty obligations, the international law treaties they have concluded remain in force.

Similarly, when a government operates in exile, the State continues to exist but its governmental functions are ( temporarily) unable to be performed from within its own territory.

Since the principle of territorial sovereignty means that a government may only act as a government in exile with the consent of the State in which it is located,the powers of such a government are necessarily more circumscribed than when it operates within its own territory.

For example, in cases concerning the scope of jurisdiction of the courts of governments in exile within Britain in the 1940s, it was observed that ‘the sovereignty of any State is unrestricted on its own territory only, while on foreign territory it naturally yields to the sovereignty of the foreign State’,

"‘this jurisdiction [of Dutch service courts] is only possible so far as it is authorised by the British legislature and can only be exercised in accordance with the statutory provisions referred to and subject to the conditions and safeguards specified by statute’.

However, provided the government in exile’s functions are not interfered with, or controlled by, the host State (or any other), its independence is preserved.

There is a strong presumption in international law that States continue to exist even if there is a period without a (or an effective) government.

It might also suggest that States are willing to tolerate a hiatus between the loss of indicia of statehood and acknowledgement that a State has ceased to exist

History is replete with examples of governments of a State being able to operate as a government in exile in the territory of another State.

The institution is most common in the case of belligerent occupation or illegal annexation.
Traditionally, it has operated on the assumption that it is a time-bound mechanism which enables a government to operate outside its territory until it once again becomes possible for that government to reassert its control there.

The fact that governments can operate in exile suggests that the existence of territory, while essential to the original constitution of that entity as a State, is not integral to the exercise of certain governmental functions. As the French Foreign Minister wrote in 1814: ‘A sovereign whose States are conquered ... by the conquest only loses de facto possession and consequently retains the right to do everything that does not require that possession.’

Though a government’s absence from its State does not automatically suspend or terminate existing treaties,if it has to operate in exile then certain treaties may be terminated (or suspended) for reasons such as impossibility of performance or a fundamental change of circumstances.

Functions that governments have continued to perform in exile include treaty-making, maintaining diplomatic relations, and conferring immunities, privileges and jurisdiction over nationals.In particular, the exercise of diplomatic protection has included the provision of consular representation, the lodging of protests, arranging deportations of nationals, the conclusion of amnesty agreements and the provision of passports and identity documents to prevent nationals from being treated as stateless persons.This last function is of particular relevance to the climate-displacement context. In this regard, however, it is interesting to note that such documents have also been validly issued or extended by authorities in exile recognised in a lesser capacity than a government.

The government in exile idea is premised on there still being an identifiable population over which the government has jurisdiction. In the conventional case, the majority of those people will continue to reside in the State’s territory, from which the government is temporarily severed.

In the ‘disappearing State’ scenario, the need for the government to operate in exile is premised it being inhabitable Accordingly, given that the bulk of the population will be residing in other sovereign States, they will be subject to the laws and jurisdiction of those States. The role of the home State therefore becomes the same as the jurisdiction that any State can exercise with respect to its nationals abroad (predominantly diplomatic protection). Once people begin to acquire dual nationality, then the presumption of diplomatic protection may gradually favour the State in which the person resides (on the assumption that this is where nationality is more ‘effective’).

Over time, the function of the government in exile will wane. In particular, if the government in exile over time merged with the organs of the host State, especially if done voluntarily,then this would normally result in the first State’s extinction (provided ‘there is no other perceived international interest in asserting the continuity of the State’).

As Kälin notes, it is unlikely that small island States will readily relinquish their claims to statehood.

State practice suggests that the international community would be willing to continue to accept maintenance of the status quo (recognition of on-going statehood) even when the facts no longer seem to support the State’s existence. Furthermore, the point at which a State such as Tuvalu or Kiribati could be said to have finally ceased to exist would depend not just on isolated acts of non-recognition by individual States, but their cumulative effect.

In this regard, we are looking for ‘a general acceptance by the international community as a whole that the situation has been resolved’, rather than any particular length of time passing.Accordingly, ‘[a] State is not necessarily extinguished by substantial changes in territory, population or government, or even, in some cases, by a combination of all three.’ Indeed, its legal identity may be preserved to a degree even if it becomes a protectorate with some international legal personality.

If the State does cease to exist, then what is the legal status of its (prior) population? In the absence of having acquired a new nationality, could its people be considered ‘stateless’ as a matter of international law?

Even when a State becomes extinct according to conventional international law, the resultant legal status of the population on the territory is unclear. There is no general right to nationality in customary international law, although there is certainly ‘a strong presumption in favor of the prevention of statelessness in any change of nationality, including in a state succession.’

Although article 15 of the Universal Declaration of Human Rights contains a right to a nationality, it lacks a correlative duty on the State to confer nationality.

Indeed, the absence of a right to nationality in the International Covenant on Civil and Political Rights has been ascribed to the complexity of the issue and States’ inability to agree on its inclusion in the treaty.The closest one comes to locating such a duty is the ‘negative duty’ arising under the statelessness treaties.

While treaty law aims to prevent the inhabitants of an existing State from becoming stateless when a new State emerges on that territory, there is divergent practice on whether nationality automatically changes or whether further provision has to be made by the new State for that to occur.

Crawford believes that the better view, in line with the decision of the Permanent Court of International Justice in the Question concerning the Acquisition of Polish Nationality, is that, subject to any stipulation to the contrary, people habitually resident in the territory of the new State acquire its nationality, for all international purposes, and lose their former nationality, although the new State may choose to delimit further who it will regard as its nationals.

While the issue of State succession does not apply to the Kiribati or Tuvalu context, the relevant point here is that existing international law lacks uniform practice in satisfactorily resolving the issue of nationality when one State ceases to exist. Though poorly ratified, the 1961 Convention on Reduction of Statelessness obliges States to ensure that any transfer of territory does not render people stateless.

The two international treaties on statelessness do not envisage the eventuality of literal, physical statelessness.In any event, the legal definition of ‘statelessness’ only applies to de jure statelessness—premised on the denial of nationality through the operation of the law of a particular State. It does not even extend to the situation of de facto statelessness—where a person formally has a nationality, but which is ineffective in practice, although the non-binding Final Act of the 1954 Convention relating to the Status of Stateless Persons suggests that ‘persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality’. Thus, the instruments’ tight juridical focus leaves little scope for arguing for a broader interpretation (unless, of course, the State formally withdrew nationality)

UNHCR’s mandate to prevent and reduce statelessness encompasses de facto statelessness as well.In the ‘sinking State’ context, UNHCR has argued that even if the international community were to continue to acknowledge a State’s its population could be regarded as de facto stateless. From an institutional perspective, UNHCR is empowered to engage with States about preventing statelessness and therefore advocating on behalf of affected populations. In this regard, it has suggested that multilateral comprehensive agreements would facilitate planned and orderly movement to other States, and that the early introduction of educational and other measures to prepare people for displacement could not increase their resilience and adaptability once they move, but also while they remain on their islands.

Furthermore, the 1954 Convention’s drafting history reveals that while its authors recognised that many de facto stateless persons were in the same position as de jure stateless persons (because despite legally being nationals of a particular State, they could not derive any benefits from it), their reluctance to include the latter class within the definition of a stateless person stemmed in part from the difficulty in proving loss or lack of nationality in such cases.

Arguably, in the case of Tuvalu and Kiribati, at a certain point the objective evidence will make clear that continued habitation in those territories is imminently impossible. However, the Convention only binds States that have ratified it, and only in relation to stateless persons within their territory. Few States even have a status determination procedure to identify stateless persons, by contrast to refugees. Accordingly, its practical application may be limited. Attention would therefore be better focused on States’ duty as outlined by UNHCR in the present context: To prevent temporary statelessness, acquisition of an effective nationality should be foreseen prior to the dissolution of the affected State. Dual nationality may therefore need to be permitted at least for a transitional period. As well, a waiver may be required of formal requirements for renunciation or acquisition of nationality which might be difficult to fulfil for affected populations. Such arrangements would need to provide inter alia for the right of residence, military obligations, health care, pensions and other social security benefits. Citizens of affected States that might have been displaced earlier, possibly to third States not party to the agreement, may also need to be considered.

As a matter of principle, there is nothing in international law that would prevent the reconstitution of a State such as Kiribati or Tuvalu within an existing State, such as Australia (although the political likelihood of this happening today seems remote). Theoretically, too, it would be possible for one State to ‘lease’ territory from another, although one might query the extent to which power could then be freely exercised sufficiently to meet the other requirements of statehood in such a case: while a State might be afforded jurisdiction over that territory, it would not be unencumbered by the ‘landlord’ State’s territorial jurisdiction unless expressly obtained from the previous sovereign.

A related issue, and one perennially discussed in the ‘sinking State’ context, is the en masse relocation of a State’s population to another country. Both Kiribati and Tuvalu have raised this on occasion with Australia and New Zealand,but most recently, and most vocally, it has been embraced by the President of the Maldives who, on coming to office, boldly stated that he was seeking to purchase land in India or Australia to which to relocate his nation.Subsequently, although it is unclear whether this was in direct response, the Indonesian Maritime Minister announced that Indonesia was considering renting out some of its 17,500 islands to ‘climate change refugees’.

Those who move need to know that they can remain and re-enter the new country, enjoy work rights and health rights there, have access to social security if necessary, be able to maintain their culture and traditions, and also what the status of children born there would be. Unless individuals personally acquire such rights there is little in international law that would prevent a host country from expelling them should it wish to do so. It is only with formal cession of land at the State-to-State level that one State acquires the lawful international title to it and nationals can move to that area as part of their own national territory. The likelihood of this happening today is remote. Thus, if en masse relocation to another country is to be considered as a permanent solution, then issues other than land alone need to be considered in order to provide security for the future.

Concerns about the maintenance of identity, culture, social practices and land tenure are very real to those whose movement is proposed, and these may not be readily understood by outsiders.
In the 1960s, as a result of the immense environmental destruction caused to that island by phosphate mining, it was proposed that the population of Nauru be resettled in Australia.113 Sites were originally investigated in and around Papua New Guinea but did not meet the three necessary requirements: ‘employment opportunities enabling Nauruans to maintain their standard of living; a community which would accept the Nauruans; and willingness and

On 12 October 1960, the partner governments of Australia, New Zealand and the United Kingdom agreed to offer permanent residence and citizenship in those countries to any Nauruans willing ‘to transfer to those countries and are likely to be able to adapt themselves to life there’. While Australian government documents state that: ‘It was envisaged that the transfer should take place gradually over a period of 30 or more years and that some material assistance to that end would be given’, the Nauruan view was that ‘[i]t was never envisaged that all Nauruans would take up the offer. Many would stay, and it was understood that Nauru would always remain a spiritual home for those resettled.’

The resettlement offer was rejected by the Nauru Local Government Council on the basis that the very nature of the scheme ‘would lead to the assimilation of the Nauruans into the metropolitan communities where they settled’. The Nauruans instead requested an island of their own in a temperate zone, and in 1963 Australia offered them Curtis Island (near Gladstone, Queensland). The Nauruans were to be given freehold title; pastoral, agricultural, fishing and commercial activities were to be established; and ‘and the entire costs of resettlement including housing and community services such as electricity, water and sewerage etc would be met out of funds provided by the Governments of Australia, New Zealand and the United Kingdom. It was estimated that the cost would be in the region of 10 million pounds.

While Australia made clear that ‘Australian sovereignty would not be surrendered over any mainland or island location’, those resettled would ‘be enabled to manage their own local administration and to make domestic laws or regulations applicable to their own community’, subject to their acceptance of ‘the privileges and responsibilities of Australian citizenship’.
Nauru again rejected the offer, deeming these political arrangements unsatisfactory. The Nauruan representatives feared that they would not be able to maintain their distinct identity and would be ‘assimilated without trace into the Australian landscape.’

Relocation does not, of itself, necessarily preclude claims that the State continues to exist, especially if some of the original population remains in the home State.Indeed, one of the ideas proposed by the President of Kiribati is the establishment of a small government outpost on the State’s only high ground, Banaba Island, so as to retain the State and its control over resources, such as those generated by its extensive exclusive economic zone (EEZ).

A more radical alternative, however, would see the deliberate, earlier dissolution of the independent, sovereign State, but with the aim of preserving the ‘nation’—as an identifiable national, linguistic and cultural community—for longer.For many Tuvaluans and i-Kiribati, the issues of key importance to them are the retention of ‘home’—land, community, identity— rather than preserving the political entity of the State itself.Indeed, a claim to self- determination does not necessarily involve a claim to statehood and secession.

There are a number of ways in which a move away from fully-fledged statehood to a self- governing alternative could be undertaken. One option considered is one based on a well-established model within the Pacific: self-governance in free association with another State. The rationale behind this model is to respect ‘the individuality and the cultural characteristics of the territory and its peoples’ and give the associated territory ‘the right to determine its internal constitution without outside interference’,while certain functions (such as defence) are carried out by another State. Crawford describes association as ‘one of the more significant possibilities of self-government communities (especially island communities) that are too small to be economically and politically viable standing alone.’It is also familiar in the Pacific context, being the relationship of the Cook Islands and Niue vis-à-vis New Zealand.

That there is no single concept of self-governance is borne out in the different approaches of Niue and the Cook Islands.The Cook Islands has continually stressed its independence,138 while Niue has resisted being treated like an independent State139 (indeed the constitution of Niue commits New Zealand to provide it with ‘necessary economic and administrative assistance’). Nonetheless, both are separate administrative entities within the Realm of New Zealand, their governments have full executive powers and their parliaments can make their own laws. By agreement, Niueans and Cook Islanders hold New Zealand citizenship (and do not have additional Niuean or Cook Islands citizenship) and can freely enter, live and work in New Zealand (and thus also Australia).

There are historical reasons for this relationship.Given the absence of such strong historical ties with Kiribati and Tuvalu, it is questionable whether New Zealand or Australia

would be willing to enter into a similar free association with them. Alternatives such as federation or incorporation might be perceived as more attractive, given the economic benefits that could be gained by merger, such as control over the extensive EEZs of Kiribati and Tuvalu.In any event, the political likelihood of the Tuvaluan and i-Kiribati populations determining by referendum to move to a self-governance model, let alone to dissolve the State altogether through merger, seems remote in light of how recently independence was obtained.

State practice suggests that there is likely to be a presumption of a State’s continuity for some time, even as the legal indicia of statehood begin to wane. However, at some future point this may cease as the objective characteristics of statehood start to recede, and States, unilaterally or collectively, may gradually withdraw their recognition of an entity as a State.

International legal personality is not confined to States, and other entities, such as international organisations, groupings of States, Taiwan and the Sovereign Order of Malta, operate to differing degrees at the international level. While they do not have the same extensive full’ powers of States to act, they have certain functional powers that enable them to operate as persons of sorts at the international level.