Sinking slowly

Posted on Actualizado enn

The propensity for the disappearance of a state or the sinking of an island is a rather dangerous impact of climate change on human society. While on the one hand they create humanitarian crises of enormous proportions, they also create massive legal debates that strike the root of the rules concerning the creation, existence and extinction of states from the standpoint of international law. While the existence or extinction of a state have come into question only in the wake of incidents such as mergers, secession and disintegration on paper, this is the first time in the history of international law that the loss of territory in the literal sense is shaking the roots of statehood.

Statehood in international law has four criteria: defined territory, permanent population, effective government, and the capacity to enter into relations with other States. In principle, it may seem that all four criteria are necessary for a state to be deemed to be in “existence”, but in reality, the absence of all four does not necessarily have to imply that a state is no longer in existence. Although this may seem to be an absurd conclusion, it comes from the fact that international law follows a strong presumption in favour of the continuity of states in international law. Consequently, it is possible that a state can continue to exist despite the absence of complete fulfilment of all the formal prerequisites of statehood.

Climate change damage can lead to the increase in sea-levels, and consequently render the low-lying countries uninhabitable by eroding into them. While the continued erosion of land is something that happens along every coastline, it is the smaller island nations that are low lying that are most vulnerable to immediate disappearance. Recently, Tuvalu declared a state of emergency consequent to water shortages and an urgent humanitarian response was sparked from Australia and New Zealand in aid of their predicament due to climate change.

While the law could be stretched to denounce the existence of the state, there is a danger in that: what would the people do? They would lose their nationality and citizenship, and yet cannot enjoy protection under conventional Refugee Law because they don’t fall under the strict interpretation of the definition of refugees, which requires a person to show a well-founded fear of persecution for reasons such as religion or political opinion. They may not be recognized as stateless persons either, since the term is legally confined to people who are ‘not considered as a national by any State under the operation of its law’. This is further coupled with the fact that treaties concerning statelessness are poorly ratified and only a few States have procedures for the determination of statelessness in place.

This could well be the scenario if the island states waited until their complete erosion and disappearance of their territory. But it is possible that the ability to anticipate the destruction has been reason enough to drive movement from their states to be slow and gradual. The only hindrance, though, is the progressively strict legal barriers to entry imposed by states to restrict the entry of migrants. Relocation of whole communities have been raised on different occasions as a solution for small-island States – though it still remains a last-resort. Relocation of a population goes beyond just seeking territory, for concerns such as identity, self-determination, freedom of exit and re-entry, the right to work, the right to health and the right to social security – to maintain their culture and tradition, and their and their children’s nationalities. Dislocation from a homeland can have consequences that can last for over generations, with significant ramifications for cultural and social rights of the resettled communities. This is best evidenced by the case of the Banabans on Rabi, who were relocated in 1945 from present-day Kiribati to Fiji.

The ideal way, perhaps, is to ensure that migration is managed and something that begins well in advance – rather than at the last minute. With a clear migration program, it is possible to help manage and enable people to move away from the long-term effects of climate change, and in helping handle livelihood diversification and cultural sanctity.

Source: Global Ethics Network

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