CLIMATE DISPLACEMENT: GAPS IN THE LEGAL FRAMEWORK FOR SMALL ISLANDS/ARCHIPELAGO

Despite the existence of numerous international instruments addressing forced migration, internal displacement and climate change, international law does not offer ad hoc protection to people affected by climate displacement. The unprecedented nature of the challenges posed by sinking islands is one of the causes of this legal vacuum. Nonetheless, international law will have to react and the ways in which this could happen vary substantially.

One possible solution could consist in adapting the existing legal frame work to the peculiarities of climate-induced displacement. The specific needs of climate-displaced people could thus be met through creative interpretation or extrapolation by analogy. Alternatively, a new legal instrument could be adopted. Despite the fact that a new treaty could provide specific solutions to climate change related challenges, it would not necessarily solve the problem. Its effectiveness would depend on its ratification and implementation. Furthermore, due to a general lack of political will to negotiate a new instrument, this solution does not seem viable at the moment. It is thus crucial to investigate the current legal framework, highlighting the specificities of climate change related challenges. Before proceeding with the analysis, it is necessary to put forward a caveat. Climate change is not the only circumstance that causes displacement: other factors contribute to vulnerability for Small Island Developing States(SIDS) such as limited natural resources and poor socioeconomic conditions. However, focusing on climate change is crucial because it constitutes a threat to the very existence of these islands. Furthermore, while other factors may result in substantial migration from Small Island Developing States(SIDS), the phenomenon of sinking islands will render such forced migration permanent.

It is highly unlikely that climate displaced people would be recognised as refugees under the Convention Relating to the Status of Refugees (Refugee Convention). First, a refugee is a person who has crossed an international border. However, many of the people displaced by climate change will tend to reach other islands within the same country and will thus qualify as Internally Displaced People (IDPs). The Guiding Principles on Internal Displacement expressly include individuals who fled their home due to natural or human-made disasters. Nonetheless, the principles are a soft law instrument, not capable of generating binding obligations. Second, it seems difficult to define climate change as persecution. Although there is no generally accepted definition of this term, it entails violations of human rights that are sufficiently serious owing to their nature or repetition. General claims based on ‘climate change’ do not meet this persecution mould. Furthermore, persecution must be grounded on one of the following reasons: race, religion, nationality, membership of a particular social group, or political opinion. This constitutes perhaps the main obstacle to recognise climate displaced people as refugees: sea level rise and extreme hazards affect the population indiscriminately. In light of the above, several national courts have concluded that individuals displaced by climate change would not meet the refugee definition: natural disasters and bad economic conditions do not serve as grounds to be a refugee under the 1951 Refugee Convention.

At the regional level, the Organization of African Unity (OAU) Convention (1969) provides a broader definition of refugee, which encompasses people who flee “events seriously disturbing public order in either part or the whole of his country of origin or nationality.” Despite the fact that climate change related events could disturb public order, state practice would not confirm this interpretation of the Treaty: neighbouring countries often host people who flee environmental hazards. Nonetheless, “receiving States rarely declare that they are acting pursuant to their OAU Convention obligations”. Similarly, the Cartagena Declaration on Refugees of 1984 includes in the refugee definition “persons who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”. Although sea level rise and water salinisation could fall into the scope of this provision, both the Cartagena Declaration and the OAU Convention require an imminent threat. Therefore, these instruments could not offer pre-emptive protection.

In sum, refugee law is unfit to provide an effective response to climate change displacement. Moreover, islanders directly affected by climate change have expressed discomfort in being considered refugees. The rationale underpinning the refugee status is a lack of protection by the government. However, in case of climate-induced displacement, Small Island Developing States(SIDS) governments are actively engaged in protecting the population, and most of them did not contribute to climate change.

Complementary protection can be defined as “protection granted by States on the basis of an international protection need outside the 1951 Refugee Convention framework”. Certain human rights violations raise protection obligations, notably the principle of non refoulement, which consists of the prohibition of returning a person to a country where he or she would face persecution, ill-treatment, or torture. This principle is a powerful tool to ensure protection of people in need who do not meet the refugee definition. Nonetheless, it is questionable whether climate-induced displacement falls within the complementary protection schemes. First, climate change would not meet the current definitions of persecution, ill-treatment, or torture under international law. Second, a lack of basic services would not be sufficient to ground a complementary protection claim, unless returning the person to the home SIDS would put his life in danger. Lastly, complementary protection requires an actual risk of harm, thus it is not adequate to respond in a pre-emptive manner to climate-change-induced displacement.

International law does not offer clear answers in case of statelessness. The right to nationality is recognised only in soft law sources, such as Article 15 of the Universal Declaration of Human Rights, while human rights treaties do not protect it. Furthermore, the two conventions on stateless- ness do not envisage the eventuality of literal, physical statelessness but only the case of de jure statelessness (i.e. when a state refuses the nationality to an individual or a group of individuals). United Nations High Commissioner For Refugees (UNHCR) has clarified that, even if the international community were to continue to recognise the existence of the SIDS after they become un- inhabitable, the population would be de facto stateless. The government in exile would be unable to offer services beyond diplomatic protection. Therefore, the population would formally have a nationality, but it would be ineffective in practice.

Generally speaking, states that do not meet all the criteria of statehood are presumed to exist as members of the international community. Therefore, the most urgent question is not whether SIDS could continue to be recognised as states, but how they could do so. It is thus crucial for SIDS to find land to relocate their populations. This could happen in two ways: through a formal cession or a private contract.

A formal cession is the only way in which one of the SIDS could exercise its sovereignty over a new territory. Therefore, it constitutes the most appealing solution to guarantee the continuing existence of small state islands, as the latter would be secured in accordance with traditional rules of international law. Furthermore, the population could be relocated in the new land and issues related to the nationality would not arise, as the new territory would be under the sovereign jurisdiction of the small island state that acquired it. However, a formal cession of land is highly unlikely, given that states are reluctant to cede their sovereignty over portions of their territory.

A second option could be to buy a territory through a private contract. This would not grant SIDS the right to exercise full sovereignty over the territory: the limits of the control over the land would need to be agreed upon with the host state. Nevertheless, several SIDS are taking steps in this direction. For instance, Kiribati bought 5460 acres of land from Fiji, and the President of the Republic of Fiji, Ratu Epeli Nailatikau, affirmed that the people of Kiribati will have a home if their country is submerged by the rising sea level as a result of climate change. Furthermore, Maldives is negotiating with India the acquisition of land in order to relocate the population therein, while India is pushing to have access to Maldives’ exclusive economic zone (EEZ) in exchange.

Once the population relocates to the newly acquired territory, the home state’s role will be limited to diplomatic protection (i.e. the jurisdiction that every state exercises over its nationals abroad). People will gradually start to acquire double nationality and the presumption of diplomatic protection will be solved in favour of the residence state, on the assumption that this is where the nationality is more effective. This could lead to extinction for SIDS.

As for the governments of SIDS, two solutions can be envisaged. First, the governments could be resettled with the populations. However, they would not be able to exercise sovereignty over the new land, which would raise questions regarding their independence. Second, the SIDS could establish governmental outposts on the highest islands within each of the SIDS, such as a lighthouse. This could allow each of the SIDS to maintain its sovereignty and the EEZ.

Alternatively, any of the SIDS could negotiate a model of self-governance in free association with another state. Free association is a form of self-government developed in United Nations practice under which the associated entity has a special status short of independence, with certain functions (including international representation and defence) carried out by another State, usually the former colonial power. One successful model of free association is the one adopted by Cook Islands and Niue with New Zealand. The associated territory maintains full internal autonomy: the legislation adopted by the New Zealand Parliament applies in Cook Islands only if so accepted by the Prime Minister, while the main functions related to foreign relations are covered by New Zealand. Furthermore, the population of the islands is granted New Zealand citizenship.

Analysing climate change problems and possible solutions is not enough: SIDS will have to adopt viable strategies in order to obtain the best outcome during multilateral and bilateral negotiations.