DISAPPEARING STATES, STATELESSNESS AND RELOCATION

Among the various environmental problems that cause the displacement of people from their habitats, none rivals the potential effects of sea level rise as a result of human-induced changes in the earth ́s climate.

Lately, the climate change discourse has become aware of a possible consequence of climate change, the disappearance of the entire territory of a state. The Intergovernmental Panel on Climate Change (IPCC) determines that the earth is warming up. The linear warming trend for the last 50 years is twice that compared to the same over 100 years. The increase in average temperature occurs all over the globe but is greater in the northern latitudes. This has serious effects on the hydrological system such as the enlargement and increased number of glacial lakes, raised water temperatures and changes in ice cover, salinity and circulation. Much of these consequences can be derived from anthropogenic activity with increased greenhouse gas (GHG) emissions. Since the emissions of GHGs largely have been emitted unequally and disproportionally between countries. The Rio Declaration on Environment and Development recognized that states bear common but differentiated responsibilities towards a sustainable future. Notably, developed states bear the greatest burden due to their greater environmental impact. The various effects of climate change will be felt differently depending on the geographical location (some areas and regions are more vulnerable), the readiness of the concerned state and its people (implemented response programs and similar actions) and the financial and technical capacities to respond to the changes. Less affluent states and their citizens are likely to suffer worse than richer states when climate change occurs. Small island states are particularly exposed for raised water levels and increased salinity because of their low elevation. An acute problem to people in the small island states in terms of relocation is the insufficiency of fresh water and increased salinization of the soil. This has direct consequences on the food availability for the people on those islands and might lead to “voluntary” migration. However, faced with the possibility of sinking, their state could cease to exist.

During the seventh International Conference of American states in 1933, the Convention on Rights and Duties of States defined a state by four elements of statehood: a defined territory, a permanent population, an effective government and the capacity to enter into relations with other states. The capacity to enter into relations with other states is basically an indication of sovereignty. All of these criteria are necessary for a state to come into existence and the loss of these could mean that a state cease to exist. For instance, the criterion of a permanent population means that it cannot be transitory. While a big proportion of the population can live outside the state and still function, the migration of the whole population outside of the territory would inevitably lead to the loss of that criterion and at some point, the loss of statehood. However, it should be noted that while all four criteria are necessary in order to form a state, the lack of all four does not immediately result in the end of a state. The explanation for this is can be found in cases of “failed states” that have continued to exist for a period even when had objectively failed. The legal status of states entails recognition of either de facto or de jure statehood. De facto recognition means that a state’s existence is provisional and depends on the government’s current control of the state, whereas the de jure recognition means that a state has fulfilled all criteria and has the full and absolute legal status. According to international law, a state can be dissolved by absorption (by another state), through merger (with another state) and dissolution (with the emergence of successor states). Moreover, a state has never ceased to exist due to disappearance. Due to this unprecedented situation, there is no manual for handling a potential disappearance of a state.

Alike a state losing its status and international recognition, citizens of a state also lose their status when the state disappears. Since aliens do not enjoy the same rights as citizens, it is crucial to make sure that nationals of a sinking state do not become stateless. In the Convention Relating to the Status of Stateless Persons, a person is defined as stateless when he or she “is not considered as a national by any state under the operation of its law”. The Convention, however, does not apply to persons “receiving protection or assistance from organs of agencies of the United Nations” or to persons recognized “as having the rights and obligations which are attached to the possession of the nationality”. Being recognized as a national in a state is a fundamental human right, and the deprivation of ones nationality is a violation of article 15 of the Universal Declaration of Human Rights (UDHR). Surprisingly, there is no correlative duty for states to confer nationality. If a state would become uninhabitable and submerged, such as the small island states may be, their governments would not be able to fulfill their obligations towards the citizens in the respective state. A state’s population could then be considered either de jure stateless or de facto stateless (a formal but in practice ineffective nationality). In cases of ambiguity where it is unclear whether a state exists or not, the United Nations Human Rights Council (UNHCR) has the mandate to determine the state s population as de facto stateless. The same body also has the mandate to prevent and reduce statelessness. As far as possible, de facto stateless persons shall be treated as de jure stateless so that they can acquire an effective nationality.

In the event of a sinking or disappearing state, there is no guidebook as to when the state will lose its statehood and its people will become stateless. Although there are generally agreed principles for what a state is (a defined territory, a permanent population, an effective government and the capacity to enter into relations with other states). It is usually more difficult to assert when a state does not exist. There have been cases where states objectively would have lost their state recognition but in reality continued to be recognized as a state. It is not always easy to determine whether a state exists in reality due to different interpretations of the four criteria of statehood. A sunken state could in practice have a government in exile, which for some time could be effective. In that case, the sunken state could enjoy its sovereignty more or less intact. Despite a state’s continued sovereignty, its population would nonetheless need assistance and protection of their human rights which would be more difficult then maintaining diplomatic relations with other states.

The dilemma in the case of disappearing states and human rights for its populations is whether the state is recognized as a state or not and if it, in reality, can protect its people. The state can be unable to effectively function and for some time, still be recognized as a state de facto. This can have problematic consequences for the protection of its population since they might not qualify as stateless and therefore not receive the full protection from the Convention Relating to the Status of Stateless Persons. If they do not qualify as de facto or de jure stateless and their government in reality cannot protect them they become trapped in a legal grey zone. According to humanitarian law, states are obligated to protect everyone’s human rights but it is unclear how actively a state must do so. Moreover, since disappearing small island states will not sink overnight, populations of those states may have to relocate long before the physical submergence of the territory due to tsunamis, cyclones or coastal erosion. In the interim, people will be most likely have to relocate while the physical territory of their state is above water leaving them with the only protection offered by human rights law. Since they cannot relocate within their country, they do not qualify as either Internally Displaced Persons(IDPs) or refugees (because of the narrow definition in Convention Relating To The Status Of Refugee[CRSR]). The United Nations Human Rights Council (UNHCR), which has the mandate to prevent and reduce statelessness, face an unprecedented situation in the event of disappearing states. People relocating from these states will need extensive assistance ranging from housing, medical care, food and water to employment and schooling for a long period of time, possibly permanent. Furthermore, people whom are receiving protection or assistance from an UN organ do not qualify as stateless according to the Convention Relating to the Status Stateless Persons. This will leave thousands of people migrating from sinking states in a legal limbo where they cannot get protection from the convention because they receive assistance from the UN.

The function of the international protection system is designed so that the full protection from the convention cannot be granted to people who are receiving temporary assistance from the UN, which in turn will make the temporary assistance permanent and the full protection unreachable. Although well intended, the convention on stateless persons does not provide adequate protection for the people who might become stateless. It is unclear whether the international community would recognize a state’s disappearance in time for the convention to effectively protect the population.

“ Climate change will invariably affect all countries to some degree, but its impacts are predicted to fall largely and disproportionately on the developing world. Smaller island nations will likely be the hardest hit, as they will literally shrink in size until they are engulfed completely by the oceans that surround them”