The Stateless Paradox

Climate change poses many challenges for International Law. One issue that has become the subject of much discussion in both academic discourse and in political practice is the unique situation of some small island states. The threat of losing the entire territory due to sea level rise affects various areas of International Law and calls into question long-established principles such as the preconditions of statehood itself. From a human rights perspective, one main question is how this scenario will affect the legal status of the inhabitants of “lost states”. In the discussion regarding the handling of so-called “climate refugees”, they take on a special role. Unlike most cases of displacement where the ultimate aim is to return to one’s home state, there may no longer be a state to return to. But what are the possible legal consequences – do people who “lose” their state actually become stateless?

On the face of it, the international stateless regime consisting of the Convention relating to the Status of Stateless Persons (herein after “Status Convention”) and the Convention on the Reduction of Statelessness appears to be tailor-made for this scenario. However, this post argues, that especially in the face of the manifold transformative challenges of modern times it is worth taking a closer look, before making rash assumptions about the applicability of familiar rules of International Law.

The Stateless Regime in the Context of Sinking Island States: A Nuanced Perspective

The Status Convention creates a framework for protecting stateless individuals and shares parallels with international refugee law. Even if some authors dealing with the case of sinking island states assume statelessness as an inevitable legal consequence, it is uncertain whether the inhabitants of small island states are covered by this legal regime. The usual case of statelessness (de jure statelessness) occurs when the home state denies nationality to an individual by wilful act or omission (more precisely: by “operation of law”). The physical demise of the state does not fulfil these criteria, which is why de jure statelessness is out of the question in the matter of small island states. Furthermore, there are cases in which individuals, despite not facing a denial of nationality, encounter obstacles in accessing certain rights and thus find themselves in a situation comparable to de jure statelessness. According to UNHCR, such de facto statelessness occurs in the case of “persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country.” A typical scenario in which nationals may be denied a wide range of rights in practice is when they are unable to obtain national identity documents. While de facto stateless persons are not included in the Status Convention’s definition, they face the same restrictions as de jure stateless persons and are therefore no less in need of protection. For this reason the Final Act of the Conference leading to the Status Convention suggests that de facto stateless persons should as far as possible be treated as de jure stateless persons. The UNHCR’s mandate also extends to these cases.

However, the question of whether the physical submergence of a state triggers de facto statelessness lacks a straightforward answer. Typically, there is a competent home state and affected individuals, at least formally, have a nationality – circumstances that are questionable in the scenario discussed here. The concrete legal effects of the loss of the entire habitable territory of a state and its legal status have not yet been clarified, but two scenarios can be considered. Either the state continues to exist without the original territory, or it loses its statehood and ceases to exist as a legal entity. In the first scenario the status of the citizens will depend on the extent to which the state can continue to guarantee the enforcement of the rights deriving from citizenship. As soon as the effective enforcement of citizenship becomes impossible, the common definition of de facto statelessness is met. The second scenario, which is often unreflectively assumed when speaking of statelessness in the context discussed here, requires a more in-depth investigation.

The Legal Feasibility of “Climate Statelessness”

The concept of de facto statelessness – at least according to the aforementioned definition –does not apply to the legal disappearing of a state, as it presupposes an existing citizenship. But the islanders concerned are no less in need of protection than the other groups of de facto stateless persons. This unprecedented scenario could possibly establish a new category of de facto statelessness – “climate statelessness”. The history of the Status Convention also supports this view. Although its drafters recognised the similarity of the situations of de jure and de facto stateless persons (both are unable to assert the rights to which they are entitled by virtue of their nationality), they ultimately decided against including the letter because of the difficulties of proof. Yet, as pointed out by McAdam, in the case of sinking island states, there comes a juncture where it becomes evident that the inhabitants will no longer be able to reside in their home state and thus no longer be able to assert any rights arising from their nationality. To remain in line with the purpose of the Status Convention and its Final Act, one could therefore argue, that if the prevailing view is that even the usual cases of de facto statelessness were to be covered beyond the wording of the Status Convention, the protection should a fortiori be extended to disappearing states, thus establishing “climate statelessness” as a new category.

The Considered Rejection of “Climate Statelessness”

We learned that despite deviating from the typical cases, the rules of de facto statelessness could potentially be harnessed. But after all these complex considerations, we should take a step back and contemplate whether this truly serves the best interests of the people concerned. The inclination to categorise them in this manner only arises from the intuitive assumption that these submerged states are also legally considered “lost”. However, it is precisely the determination of de facto statelessness in the aftermath of the physical loss of the state’s territory that can influence the legal status of the state in question. Ultimately, this status will at least partially depend on the ongoing acceptance and recognition by the International Law community. The assurance of the minimum rights arising from the stateless regime might lead the International Law community to believe there is no longer a need to deal with the important question of the continued existence of the threatened states, as the residents’ status would have been clarified. In this respect, the creation of a “climate statelessness” would de facto hinder the legal survival of these states and leave the former population in a condition that merely appears to provide a semblance of a secure legal status.

Statelessness is not a stable legal position, but an undesirable anomaly in International Law. This is because, on the one hand, no specific home state is responsible for enforcing the human rights of those affected. On the other hand, the existence of a competent home state is also a prerequisite for refugee status in a foreign country. Furthermore, there are no clear means by which the benefits of the regime could be claimed in this context, as only a few states have a procedure for identifying stateless persons on their territory. For all these reasons, the maxim to prevent and reduce statelessness is enshrined in several international human rights treaties, such as in the International Covenant on Civil and Political Rights (Art. 24), the United Nations Convention Relating to the Status of Refugees (Art. 32) and the Universal Declaration of Human Rights (Art. 15). In accordance with these provisions, a scenario in which it would first have to be discussed whether a case of (de facto) statelessness even exists should be avoided a fortiori. Consequently, it is desirable not to work towards establishing the category of “climate statelessness”.

Concluding Remarks

This brief consideration of “climate statelessness” and the way it is dealt with in the academic literature teaches us to be careful not to make hasty assumptions about the legal assessment of such unprecedented phenomena, as they can obscure the actual problems. While the legal implications of a particular phenomenon may sometimes seem clear initially, a second look may suggest otherwise. This also applies to the “lost states” narrative – the much-shared assumption that a state perishes with the loss of its territory – which is not as obvious as it may seem. This post shows that in many cases International Law does indeed offer starting points for interpretation and therefore the possibilities to react flexibly to new kinds of problems. But especially in view of climate change, which confronts us with multiple unprecedented challenges, this flexibility must also be used thoughtfully in order to serve the primary meaning and purpose of International Law, the maintenance of international peace and security, as described in Article 1 of the UN Charter.