Beyond the individual: the protection of (indigenous) peoples displaced by climate change

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Master’s Thesis Public International Law

Beyond the individual:

the protection of (indigenous) peoples displaced by climate change

Author: Katrin Schambil (12731609) Contact: Katrin.schambil@gmail.com

Supervisor: Prof. Dr. Marjoleine Zieck 16.07.2020

A B S T R A C T

As climate change consequences become increasingly visible and change some territories to become uninhabitable not only for individuals but for whole peoples, the question arises, which of those peoples’ collective human rights can be sustained when they are displaced from the land they used to inhabit. Looking at the current human rights system from an internal perspective and analysing its provisions on collective human rights for indigenous peoples and small island nations peoples, this paper predicts that collective rights to existence and self-management are sustained where indigenous peoples are displaced internally, while there are some gaps regarding the indigenous peoples’ collective land-rights. International law protection of collective human rights does not extend to the peoples’ right to self-determination of small island nations peoples displaced internationally. It finds that while there are creative approaches to the issue of external displacement, which would preserve self-determination to differing extents, none of them is currently protected as a legal right under international law. Instead, they rely on the willingness of third states to make available for sale some of their territory, on a change or addition to UNCLOS or on the willingness of third states to accept a whole people into their territory and grant rights accordingly.

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Acronyms

ACHPR African Commission on Human and Peoples' Rights

ECtHR European Court of Human Rights

GPID Guiding Principles on Internal Displacement

HRC Human Rights Council

HRComm Human Rights Committee

IACtHR Inter-American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic Social and Cultural Rights

IDP Internally Displaced Person

IHRL International Human Rights Law

IPCC International Panel on Climate Change

UN United Nations

UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNFCCC United Nations Framework Convention on Climate Change

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Introduction

Human movement is an adaptation strategy used to escape the danger and hardship that disasters and persecution can bring. However, in an international society based on nation states, persons cannot choose freely where and when to migrate. International law, which provides general rules for this state-based system, only recognizes a particular category of persons as persons who have a legal right to be protected by countries other than their home states: refugees, stateless persons, and those eligible for complementary protection under International Human Rights Law (IHRL).1 International refugee law designed to protect people fleeing persecution has been found not to be the right instrument to encompass climate change displacement.2 However, IHRL and its complementary protection might offer at least some degree of protection for persons fleeing the fast-onset and slow-onset consequences of climate change.3

Some scholarly attention has recently been directed towards the circumstances and degree of protection individuals enjoy under IHRL,4 but little has been said about the collective human rights in international law and how they are threatened or sustained in the context of climate change. As territories become uninhabitable due to climate change impacts, threatening not only individuals but whole peoples with displacement, the question whether they enjoy collective rights to and on another territory becomes relevant. Therefore, the question this paper attempts to answer is:

Does international law extend to the protection of peoples’ rights in the case of internal and international climate change displacement?

To adequately answer this question, first the relevant collective human rights and the ways they are threatened by climate change displacement will be analysed in Chapter 1. Next,

1_{McAdam, J. (2016). “From the Nansen initiative to the platform on disaster displacement: shaping international}

approaches to climate change, disasters and displacement”. UNSWLJ, 39, p. 1520.

2_{See for example McAdam, J. (2014). Climate change, forced migration, and international law (2}nd_edition).

Oxford University Press, p. 43; Lister, M. (2014). “Climate change refugees”. Critical Review of International

Social and Political Philosophy, 17(5), p. 618.

3_{McInerney-Lankford, S. (2017). “Climate change, human rights and migration: a legal analysis of challenges}

and opportunities” in Maye, B., & Crépeau, F. (eds.) Research Handbook on Climate Change, Migration and the

Law. Edward Elgar Publishing, p. 131ff.

4_{For example, Berchin, I. I., Valduga, I. B., Garcia, J., & de Andrade, J. B. S. O. (2017). “Climate change and}

forced migrations: An effort towards recognizing climate refugees”. Geoforum, 84, pp. 147-150; McAdam (2016), supra 1; Thomas, A. (2018). “Human rights and climate displacement and migration” in S. Duyck, S. Jodoin, & A. Johl, (eds.) Routledge handbook of human rights and climate governance (pp. 110-127). Routledge.

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Chapter 2 will focus on the protection of collective rights of indigenous peoples displaced internally, while Chapter 3 analyses the legal rights of small island nations’ peoples who face external displacement.

The primary goal of this research is to identify the present human rights systems applicable as well as to analyse and assess the peoples’ rights, duties and powers emerging from these rules. To analyse the existing law and practice concerning climate change displacement of collectives firstly descriptive research from an internal legal perspective is required. By extension, this research attempts to chart the status of the law with regard to topics about which no clear judicial rulings have yet been made. This paper aims to make the best possible prediction of which and how international law could be applied if a case would be presented to an international institution, court or tribunal concerned with IHRL. The research method for this section uses the judicial method of legal interpretation, including particularly legislative history, prior case law in related fields and scientific literature.5_{This section’s}

method is of a normative character, as the research is based on a normative interpretation of the applicable law. It proceeds from the internal perspective, and predictive statements are made.

The lack of agreed terminology around climate change displacement has already been acknowledged as a gap.6 However, this paper does not prioritize the question of terminology and therefore neither extensively analyses the many existing definitions nor proposes new terminology. Rather, terms will be used consistently but without an argument as to which language should generally be used. It neither analyses the options for enforcement of the legal norms identified, as they vary largely and, in the context of indigenous peoples, also depend on domestic legislation, whose analysis would go beyond what is possible in this paper. It is rather a legal analysis of the situation currently faced if a people comes to be displaced (either internally or internationally).

5_{Due to a Global Health Crisis (the COVID-19 pandemic) access to resources is mostly limited to online}

resources during the writing phase of this paper.

6_{Kälin, W., & Schrepfer, N. (2012). Protecting People Crossing Borders in the Context of Climate}

Change. Normative Gaps and Possible Approaches. University of Bern, available online at:

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1. Climate change and the collective human rights affected

Before analysing which legal rights can be sustained in the context of climate change displacement, it is first necessary to delimit the problem and identify its scope. This chapter therefore introduces the concepts of climate change displacement and collective human rights to then identify how collective human rights are threatened by the climate change displacement of peoples.

1.1. Climate change displacement

Climate change is defined in the United Nations Framework Convention on Climate Change (UNFCCC) as “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to other natural climate variability that has been observed over comparable time periods.”7 This definition has been expanded by the Intergovernmental Panel on Climate Change (IPCC) which refers to any change of climate over time as a result of human activity or due to natural variability.8 That there is a warming of the climate system is now “unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and oceans have warmed, the amounts of snow and ice have diminished, and sea level has risen.”9_{There is consensus that regardless of the exact causes, climate change is a reality and}

that Africa, Asian mega-deltas and small island states will be amongst the areas most affected.10 While climate change itself does not trigger the movement of persons, some of its effects, such as natural disasters, environmental degradation, sea-level rise or conflict over resources, have the potential to do so.11 Worsening living conditions require different adaptation strategies from the states and persons affected. Where adaptation in a certain region is not enough or rapid-onset disasters make it impossible to adapt in time, persons

7_{United Nations Framework Convention on Climate Change (adopted 9 May 1992, entry into force 21 March}

1994) 1771 UNTS 107 [“UNFCCC”], article 1(2).

8_{International Panel on Climate Change (IPCC), 2007, Climate Change 2007: Synthesis Report, p. 30.} 9_{International Panel on Climate Change (IPCC), 2014, Climate Change 2014: Synthesis Report, p. 3.} 10_{Even most critics of the IPCC accept that climate change linked to an overall warming of the atmosphere}

exists. See, e.g. Ellis, B. & Akasogu, S. (2009). Climate Change: Science Manipulated - Natural causes of

global warming are much more significant than manmade changes, available online at:

http://climaterealists.com/index.php?id=3524.

11_{Kälin & Schrepfer (2012), supra 6, p. 4; United Nations, Displacement and Climate Change: Towards}

Defining Categories of Affected Persons, Working paper submitted by the Representative of the UN

Secretary-General on the Human Rights of Internally Displaced Persons (25 August 2008), para. 1.2; see also Appendix

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might be forced to migrate.12 This involuntary migration has become known as climate

change displacement.

While predictions of and perspectives on the exact impacts and the numbers of people forced to migrate as a consequence of climate change vary widely,13 it is hardly disputed that climate change will impact the livelihood of millions of people around the globe and will lead to an increase of migration, in places of whole populations, as a response.14 Just as the impacts of climate change are highly diverse, so are the types of migration resulting from them. The former UN Secretary General’s Representative on the Human Rights of Internally Displaced Persons, Walter Kälin, differentiates between the following types of climate change

displacement: a. the increase in disasters (such as flooding, hurricanes, mudslides, etc.),

leading to often short term internal displacement; b. government initiated evacuation of high-risk areas, leading to permanent internal displacement; c. environmental degradation (e.g., reduced freshwater availability, desertification,…) leading to increased ‘voluntary’15

migration; d. the risk of disappearing of small island countries due to rising sea levels, which

will result in permanent international migration; and lastly e. the risk of conflict due to the scarcity of essential resources, which causes short- or long-term international

displacement and might render consequently displaced persons eligible for refugee

protection.16 As this thesis will focus on the forced displacement of whole peoples for

primarily environmental reasons, voluntary migration (c.) and conflict related displacement

(e.) will be excluded from this research and the focus lays on the short- or long term displacement of indigenous peoples internally as a consequence of disaster (a.), or

12_{While some scholars also treat migration as one form of adaptation, Kälin and Schrepfer argue that “[…]}

where migration turns into forced movement, for example where a long-lasting and expanding drought no longer allows for the survival of pastoralists or nomads and forced them to move to urban areas, one should no longer speak of a form of adaptation.”, Kälin & Schrepfer (2012), supra 6, p. 20; see also Barnett, J. and Webber, M. (2010). “Migration as Adaptation: Opportunities and Limits” in J. McAdam, Climate Change and Displacement,

Multidisciplinary Perspectives, (pp.37-55). Hart Publishing, p. 44.

13_{For a discussion of the minimalist vs. maximalist schools on climate change migration see for example Kälin}

& Schrepfer (2012), supra 6, pp. 8-10.

14_{McAdam, J. (2016). “Building International Approaches to Climate Change, Disasters, and Displacement”.}

Windsor YB Access Just., 33(1), p. 2.

15_{The lines between forced and voluntary migration as a result of climate change impacts are blurry and cannot}

always be neatly separated. The Chairperson of the 2011 Nansen Conference on Climate Change and

Displacement acknowledged the “complexity of drawing a sharp distinction between ‘voluntary’ and ‘forced’ migration (displacement) spurred by environmental and development factors” and concludes that “[m]otivation is a continuum, with ‘voluntary’ at one end of the spectrum, in a gradual transition to ‘forced’ at the other”, Chairperson‘s Summary, Nansen Conference on Climate Change and Displacement in the 21st Century (Oslo, 6-7 June 2011), para. 6.

16_{Under the Convention Relating to the Status of Refugees (adopted 28 July 1951, entry into force 22 April}

1954) 189 UNTS 137 [“1951 Refugee Convention”], and the Protocol Relating to the Status of Refugees, (adopted 31 January 1967, entry into force 4 October 1967) 606 UNTS 267 [“1967 Protocol”].

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government evacuation (b.), and on the international displacement of small island nation peoples due to sea level rise (d.).

1.2. Collective human rights threatened

Collective human rights17 is a term used inconsistently for different groups of human rights, which have a collective dimension.18 They can describe rights enjoyed by a collective entity, rights for individuals in their capacity as members of such entities and rights which have a collective object.19 This paper will focus on collective human rights in a narrow sense, entailing community rights of which the rights-holder is a collective entity, more precisely a people. This approach is most suitable for this research because the individual rights enjoyed as part or member of a people can only be enjoyed if the people as such is protected first.20

Other cultural rights for individuals as members of a people can only follow in a second step, which is not the centre of this research. The specific collective rights concerned will be discussed at the beginning of the chapters on indigenous peoples and small island nations respectively.

The connection of collective human rights and displacement works two ways: not only can threats to a people cause its displacement, but displacement of a people can also threaten its collective rights, particularly its rights to self-determination and existence, as well as

collective land rights. Generally, the right to self-determination is discussed regarding two

different dimensions:21 the internal dimension concerns the rights of a people within the wider structure of a state and has an important cultural component.22 It describes the rights of all

17_{Although collective rights have been included in IHRL, their place remains rather controversial. Disagreement}

over whether collective rights can or should be designated as human rights, the relationship between collective and individual rights, and the subject of collective rights are issues in this controversy. Donders, Y. (2016). “Foundations of Collective Cultural Rights in International Human Rights Law” in A. Jakubowski (ed.) Cultural

rights as collective rights: an international law perspective (pp. 87-112). (Studies in intercultural human rights;

No. 7). Brill Nijhoff, p. 89.

18_{Bisaz, C. (2012). The concept of group rights in international law: groups as contested right-holders, subjects}

and legal persons (Vol. 41). Martinus Nijhoff Publishers, pp. 7-12.

19_{Freeman, M. (1995). “Are there collective human rights?”. Political Studies, 43(1), p. 28.}

20_{See for example UN Human Rights Committee (HRComm), General Comment No. 12: Article 1 (Right to}

Self-determination), The Right to Self-determination of Peoples, (13 March 1984), para. 1 (“The right of

self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights […]”).

21_{Alfredsson, G. (2019). “The Right of Self-Determination in International Law” in O. Akbulut & E.}

Aktoprak (eds.) Minority Self-Government in Europe and the Middle East (pp. 3-31). Brill Nijhoff

22_{Donders, Y. (2008) “The UN Declaration on the Rights of Indigenous Peoples: a Victory for Cultural}

Autonomy?” in I. Boerefijn and J. Goldschmidt (eds.) Changing Perceptions Of Sovereignty and Human Rights:

Essays in Honour of Cees Flinterman (pp. 99-122). Intersentia; see, on the right to self-determination, including

the external and internal dimension, for example, Hannum, H. (1996). Autonomy, Sovereignty and

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peoples to pursue freely their economic, social and cultural development without outside interference. In that respect there exists a link with the right of every citizen to take part in the conduct of public affairs at any level, as referred to in article 5 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination.23 The external dimension implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation. This aspect is controversial and, unsurprisingly, hardly recognized by states in any context other than the decolonization process, which has been considered mostly finished in the 1970s,24 as its realization usually goes hand in hand with the breaking apart of existing states.25 International law certainly has not recognized a general right of peoples unilaterally to declare secession from a State;26_an

exception may arise where peoples face grave, systemic repressions.27

The peoples’ right to self-determination is threatened by climate change displacement, where it is not possible for a people to stay together as a collective, but – if at all – only individual movement is possible.28_{This would de facto lead to a shattering of the collective entity across}

different localities. Where the right to self-determination is conceived as a community right with the subject being a collective entity, it is a freedom that can only be realized in common by the members of a distinct political community, working together within shared political institutions to determine the laws and policies that will shape their individual and collective

Henrard, K. (2000). Devising an adequate system of minority protection: individual human rights, minority

rights and the right to self-determination. Nijhoff Publishers.

23_{Convention on the Elimination of all Forms of Racial Discrimination (adopted 21 December 1965, entry into}

force 4 January 1969), 660 UNTS 195 [“CERD”]; see also, UN Committee on Economic, Social and Cultural Rights (CESCR), General comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1a of the

Covenant on Economic, Social and Cultural Rights), E/C.12/GC/21, (21 December 2009), para. 4.

24_{Wiessner, S. (2008). “Indigenous sovereignty: A reassessment in light of the UN declaration on the rights of}

Indigenous People”. Vand. J. Transnat'l L., 41, p. 1151. However, there are still legal aspects of the

decolonization process unfinished today, see e.g., International Court of Justice (ICJ), Legal Consequences of the

Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019/95 (25

February 2019).

25_{Committee on the Elimination of Racial Discrimination (CERD), General Recommendation 21, The right to}

self-determination, UN Doc. A/51/18, (Forty-eighth session 1996), adopted by Human Rights Treaty Bodies, UN

Doc. HRI\GEN\1\Rev.6, (2003), para. 4.

26_{Ibid, para. 6; Boutros-Ghali, B. (1992). “An Agenda for Peace: Preventive Diplomacy, Peacemaking and}

Peace-keeping”. International Relations, 11(3), paras. 17ff.

27_{Supreme Court of Canada, Reference re Secession of Quebec, Report [1998] 2 SCR 217, No. 25506, (20}

August 1998).

28_{Even such individual rights to cross borders are not firmly established under international law, see The Nansen}

Inititative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and

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futures.29 A local dispersion of the group would thus threaten their peoplehood and their right to self-determination (as well as other collective rights discussed in Chapter 2), leading to the question if such community rights are protected and sustained under current international law where peoples are displaced.

29_{Murphy, M. (2014). “Self-determination as a collective capability: The case of indigenous peoples”. Journal}

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2. Indigenous peoples displaced internally

To answer the question whether indigenous peoples’ collective rights can be sustained where they are internally displaced due to climate change, this chapter will first look to define

indigenous peoples and identify requirements and the problems arising in this regard from

displacement. Second, it will analyse the available protection for the cases of short-term disaster related displacement and long-term government planned relocation.

2.1. Definition of indigenous peoples

ILO Convention No. 16930 provides a set of subjective and objective criteria – namely a historical background of oppression as well as self-identification,31 which are jointly applied to identify who the peoples protected are in a given country.32 Similarly, indigenous peoples were famously defined by Jose R. Martinez Cobo, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, as follows:

“Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system.”33

The UNDRIP,34 while not defining the term itself, was commented on with the argument that the Martínez Cobo definition, in addition to the element of recognition by other indigenous

30_{International Labour Organization (ILO), Indigenous and Tribal Peoples Convention, C169 (adopted 27 June}

1989, entry into force 5 September 1991), [“ILO Convention 169”].

31_{Ibid, article 1; All articles of the ILO Convention, UNDRIP, GPID, the IASC Operational Guidelines and}

Kothari guidelines cited in this chapter are attached in the Appendix in full text.

32_{The Convention uses the inclusive terminology of “indigenous” and “tribal” peoples and ascribes the same set}

of rights to both groups.

33_{Martínez Cobo, J. (1986). Study of the Problem of Discrimination against Indigenous Populations, UN Doc.}

E/CN.4/Sub.2/1986/7 and Add. 1-4, available online at: http://www.un.org/esa/socdev/unpfii/en/second.html; A similar understanding has also been adopted by other scholars in the field, based also on international state practice, e.g., Wiessner, S. (1999). “Rights and status of indigenous peoples: A global comparative and international legal analysis”. Harv. Hum. Rts. J., 12, p. 115.

34_{UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted}

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peoples, reflects the customary practice vis-à-vis an understanding of the term ‘indigenous people’.35

Seeing how the suggested definitions include a special, historically grown relationship between the indigenous people and the land they inhabit, the question arises, whether displacement of an indigenous people can in turn lead to their status and rights as an indigenous people being lost. Such an understanding would go against the object and purpose of the law on indigenous peoples’ rights, which is to protect such peoples, also and especially where they have been displaced.36 Moreover, in practice, where peoples were displaced from the land they traditionally inhabited, human rights bodies did not find that their displacement threatened their status and personality as an indigenous people.37 Lastly, in all attempts to create criteria for the definition of indigenous peoples, it has been stressed that they apply to different degrees on a spectrum, thus none of the criteria introduced is absolute.38 It must thus be assumed that a people continues to exist as such, if it is displaced from the land it had traditionally inhabited.39

2.2. Indigenous peoples’ collective rights

This chapter will go on to analyse the specific rights of indigenous peoples in different displacement scenarios. This analysis is based on several legal documents that are briefly introduced here first.

The first instrument entailing specialized provisions on indigenous peoples’ rights to be analysed in the following sections is the ILO Convention 169 from 1989. It is a convention creating binding obligations for state parties and has, to date, been ratified by 23, mostly South American, states40 with indigenous populations on their territories and thus of particular

35_{Hohmann, J., & Weller, M. (Eds.). (2018). The UN declaration on the rights of indigenous peoples: A}

commentary. Oxford University Press [“UNDRIP Commentary”], Chapter 1.

36_{On the importance of the object and purpose of Human Rights documents for their interpretation, see e.g.,}

Mechlem, K. (2009). “Treaty bodies and the interpretation of human rights”. Vand. J. Transnat'l L., 42.

37_{CERD General Recommendation 21, supra 25, para. 36. (“States parties must […] take measures to recognize}

and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources, and, where they have been otherwise inhabited or used without their free and informed consent, take steps to return these lands and territories.”).

38_{ILO Convention 169, supra 30; UNDRIP Commentary, supra 35, Chapter 1.}

39_{This is a legal analysis and without prejudice to the fact that displacement can have dire practical}

consequences for indigenous peoples, sometimes even threatening or destroying their collective existence, see Brölmann, C. A. & Zieck, M. (1993). “Indigenous Peoples” in C. Brölmann, R. Lefeber & M. Zieck

(eds.) Peoples and minorities in international law (pp.187-220). Martinus Nijhoff Publishers, p. 196.

40_{International Labour Organisation (ILO), Ratifications by Convention, Convention 169, available online at:}

https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:31 2314:NO.

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relevance. It has furthermore been acknowledged as a reference point by different UN and human rights bodies.41 The analysis will also draw on the most widely recognized document on indigenous peoples’ rights, the UNDRIP.42_{Although the Declaration itself is not binding}

in the same way a treaty is, it represents, in the words of UN Special Rapporteur S. James Anaya, “an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law […].”43

Moreover, three sets of Guiding Principles might be relevant for the discussion of internal displacement: the UN Guiding Principles on Internal Displacement (GPID),44 the IASC Operational Guidelines on Human Rights and Natural Disasters (IASC Guidelines),45 as well as the Basic Principles and Guidelines on Development-based Evictions and Displacement (Kothari Guidelines)46 provide some guidance in the context of displacement within state borders. Those Guidelines share the goal of protecting the rights of particularly vulnerable groups and individuals.47_{Importantly, none of these guidelines are legally binding, and thus}

they do not create new legal rights through their provisions, however they are based on existing and binding IHRL and IHL.48

Indigenous peoples have a right to existence, protected as a norm of customary international law.49 Moreover, such a right is reflected in the “collective right to live in freedom, peace and security as distinct peoples”50_{as well as the right “not to be subjected to forced assimilation}

41_{International Labour Office Geneva, Understanding the Indigenous and Tribal Peoples Convention, 1989}

(No.169), Handbook for ILO Tripartite Constituents. International Labour standards Department, International Labour Organization (Geneva, 2013), [“ILO Commentary”], p. 5.

42_{UNDRIP, supra 34.}

43_{Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental}

Freedoms of Indigenous People, U.N. Doc. A/HRC/9/9, (11 August 2008), paras. 85, 88; see also United

Nations News Center, United Nations Adopts Declaration on Rights of Indigenous Peoples, (13 September 2007), available online at: http://www.un.org/apps/news/story.asp?NewsID=23794&Cr=indigenous&Cr1.

44_{United Nations Commission on Human Rights, Report of the Representative of the Secretary-General, Mr.}

Francis M. Deng, submitted pursuant to Commission resolution 1997/39. Addendum: Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2, (11 February 1998), [“GPID”].

45_{Inter-Agency Standing Committee, Protecting Persons Affected by Natural Disasters. IASC Operational}

Guidelines on Human Rights and Natural Disasters, (June 2006), [“IASC Guidelines”].

46_{United Nations, Annex 1 of the report of the Special Rapporteur on adequate housing as a component of the}

right to an adequate standard of living: Basic Principles and Guidelines on Development Based Evictions and

Displacement, UN Doc. A/HRC/4/18, (5 February 2007), [“Kothari Guidelines”].

47_{Schade, J. (2013). “Climate change and planned relocation: risks and a proposal for safeguards” in T. Faist &}

J. Schade (eds.) Disentangling migration and climate change (pp. 183-206). Springer, Dordrecht, p. 198.

48_{Ibid, p. 197.}

49_{See UNDRIP Commentary, supra 35, Chapter 5.} 50_{UNDRIP, supra 34, article 7(2).}

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or destruction of their culture.”51_{These rights are opposable with government obligations}

codified in ILO Convention 169 and UNDRIP, to provide effective mechanisms for prevention of violations of such rights, to take positive action to promote and fulfil those rights and to provide technical and financial assistance for that purpose.52 Additionally, they enjoy a right to “autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions”,53 including rights to take measures to promote and maintain their (political, economic, and social) systems or institutions, and their customs, spirituality, traditions etc.54 Furthermore, an important category of rights concerns their territories, which they have the right to inhabit. The more specialized provisions on relocation build on a generic right to those lands,

territories, and resources traditionally owned, occupied, and used subject only to justified

limitations on them.55_{The ILO Convention 169 is based on the recognition of the special}

significance attached to indigenous peoples’ land,56_{and thus attaches self-management rights}

to the lands traditionally inhabited by those peoples and safeguards to protect access to lands traditionally used.57_{The customary status of indigenous peoples’ rights to their lands,}

territories, and resources is supported by a purposive, contextual interpretation of relevant human rights treaties and taking into account jurisprudence at the international and domestic levels.58 Which of these rights can be sustained when indigenous peoples are displaced by climate change consequences will be the object of the following analysis.

2.3. Short-term displacement (disaster response)

This section will look at the protection offered where indigenous peoples are forced to leave their homes due to sudden-onset disasters. As apparent from Kälin’s typology,59_such

displacement is typically not a long-term, planned solution, but rather a quick, short-term response to unforeseen disaster. Such movement is mostly internal,60 as most disasters strike

51_{Ibid, article 8(1).}

52_{ILO Convention 169, supra 30, articles 2, 6(1)(c); UNDRIP, supra 34, articles 8(2), 39.} 53_{UNDRIP, supra 34, article 4.}

54_{Ibid, article 20(1), 34; ILO Convention 169, supra 30, article 4.} 55_{UNDRIP, supra 34, article 46.}

56_{ILO Convention, supra 30, article 13.}

57_{Ibid, article 14; see also UNDRIP, supra 34, article 25 and 26.} 58_{See UNDRIP Commentary, supra 35, Chapter 12.}

59_{See Chapter 1 on climate change displacement, p. 6.}

60_{Cohen, R., & Deng, F. M. (2012). Masses in flight: the global crisis of internal displacement. Brookings}

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in locally limited areas and migration across borders usually requires more planning which is hardly possible in such cases.

Unlike refugees (who by definition cross borders),61 Internally Displaced Persons (IDPs) remain within the territory of their state and their protection is thus the responsibility of that state.62 Consequently, the IHRL obligations the state is bound by apply.63 It is important to note, that those “[h]uman rights don’t disappear the moment an earthquake, a hurricane or a tsunami strikes.”64_{While it is possible to derogate from certain human rights, this is only an}

option where such derogation is explicitly permitted.65 The challenge often is not whether IHRL applies, but rather how to apply human rights in an operational context, given the many potential humanitarian and human rights dilemmas arising in situations of natural disasters. Neither the ILO Convention nor UNDRIP deal specifically with questions of disaster response and they are thus only of limited use in protecting the indigenous community rights during the time of disaster displacement itself. They rather contribute to clarifying the rights indigenous peoples have as soon as the immediate reason for disaster displacement has ceased to exist. Most importantly, both documents include a right for indigenous peoples to return to their traditional lands as soon as the immediate reason for displacement has ceased to exist.66 Moreover, there is a right to retain a spiritual connection to the traditional lands even where the people does not live on the land concerned67 and the right to visit cultural sites on any traditional land remain protected, given that the circumstances allow for such visits, even during the disaster displacement phase.

International law instruments more directly concerned with disaster response are useful in further assessing the rights of concerned peoples during the time of displacement. The Guiding Principles on Internal Displacement (GPID) were officially adopted by the UN

61_{1951 Refugee Convention, supra 16, article 1.}

62_{Beyani, C. (1995). “State Responsibility for the Prevention and Resolution of Forced Population}

Displacements in International Law”. Int'l J. Refugee L., 7, p. 130; see also International Covenant on Civil and Political Rights (adopted 16 December 1966, entry into force 23 March 1976) 999 UNTS 171 [“ICCPR”], article 2.

63_{As the ICCPR (ibid) and International Covenant on Economic Social and Cultural Rights (adopted 16}

December 1966, entry into force 23 March 1976) 993 UNTS 3. [“ICESCR”], have been ratified by most states today, and at least partially represent customary international law, most states have a similar set of basic human rights obligations, see United Nations Office of the High Commissioner for Human Rights. (2020). Status of ratification, available online at: https://indicators.ohchr.org/.

64_{IASC Guidelines, supra 45, foreword; see also International Law Commission, Draft Articles on the}

protection of persons in the event of disasters, UN Doc. A/71/10, (2016), para. 48, articles 5, 6.

65_{ICCPR, supra 62, article 4.}

66_{ILO Convention 169, supra 30, article 16; UNDRIP, supra 34, article 10.} 67_{UNDRIP, supra 34, article 25.}

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General Assembly in 1998, and consist of thirty recommendations upholding the human rights of IDPs.68 The principles address different aspects of internal displacement: protection from displacement, protection during displacement and humanitarian assistance, return, resettlement, and reintegration. Walter Kälin stressed that:

“a closer look at the Guiding Principles might reveal that this very soft instrument might actually turn out to be much harder than many well-known soft law instruments. […] It is possible to cite a multitude of existing legal provisions for almost every principle, which actually provided the drafters strong normative guidance.”69

The respect and use of the Guiding Principles has been encouraged by different UN bodies, pushing further a customary approach to the IDP framework.70

One important contribution for the case of indigenous peoples’ internal climate change displacement of the GPID is the prohibition of discriminatory treatment,71_{stating that IDPs}

enjoy the same rights as non-displaced persons in the same country. Thus, a displaced people generally enjoys the same rights as a non-displaced people, including a right to collective existence, participation and self-government rights.72 Discrimination between different groups of displaced persons is likewise prohibited,73 requiring that indigenous peoples internally displaced must enjoy at least the same level of protection74 as other displaced persons.75 Importantly, there is a right of displaced persons to request and receive assistance from the responsible national authorities, on which the primary obligation to provide relief and protection is placed.76 The state is thus under an obligation to provide assistance where an indigenous people is forcibly displaced, to ensure that members can continue to enjoy their human rights as a collective. That the government does not only have the possibility to assist

68_{GPID, supra 44, Introduction: Scope and Purpose.}

69_{Kälin, W. (2001, December). How hard is soft law? The Guiding Principles on Internal Displacement and the}

need for a normative framework. In Unpublished presentation given during the Ralph Bunche International

Relations Roundtable Meeting (Vol. 19), p. 6; see also Global Protection Cluster Working Group, Handbook for the Protection of Internally Displaced People, (June 2010), p. 9; Paragraph 3 of the introduction to the GPIDs

also states that they “reflect and are consistent with international human rights law and international humanitarian law.”, GPID, supra 44, Introduction: Scope and Purpose.

70_{United Nations General Assembly, 2005 World Summit Outcome, UN doc A/60/L.1, para. 132; see also,}

Kälin, W. (2006). “The future of the guiding principles on internal displacement”. Forced Migration Review

Special Issue, p. 5

71_{GPID, supra 44, principle 1.} 72_{See, p. 11 of this paper.} 73_{GPID, supra 44, principle 4.}

74_{IASC Guidelines, supra 45, guideline I.1.}

75_{This mirrors and complements the prohibition of discrimination in the indigenous peoples protection regime}

described above. However, indigenous peoples are not listed in principle 4(2) among the groups needing special treatment to meet their special needs.

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populations where disaster threats occur, but a duty to take measures where there is a foreseeable risk to the life or health of persons, was held by the ECtHR in Budayeva & others

v. Russia,77 where the court concluded that “there had been no justification for the authorities’

failure to implement land-planning and emergency relief policies in the hazardous area.”78 The judgement stresses that the State’s negligence had caused damage exceeding what had been inevitable in a natural disaster.79 Thus, while there is no obligation for the state to repair all damage resulting from the force majeure of a natural disaster, the state has a due diligence obligation to protect the human rights of persons and groups of persons under its jurisdiction as best as possible, also in the case of indigenous peoples threatened by natural disaster. The IASC Guiding Principles prescribe that adequate protection must be available, accessible,

acceptable and adaptable, in line with the approach of Human Rights bodies; they thus

require e.g., shelter, that is adequate for the persons concerned.80_{Considering the special}

needs of indigenous peoples in order to sustain their collective human rights, adequate shelter would at least include a close proximity to each other and communal spaces, so as to support community life and self-government.81

When it comes to norms for the protection from displacement, the indigenous peoples protection regime generally provides strict provisions as to when government-planned relocation is prohibited, which will be discussed in depth below.82 For the more specialized case of disaster displacement, GPID principle 6 lists scenarios in which the relocation of persons is not permissible, including83 where natural disasters occur but the evacuation of persons is not required for the protection of their health or life. This clarifies the threshold of necessity, which is required for displacement to be permissible even in the context of natural disasters.84 There is a particularly high threshold of protection against displacement of indigenous peoples, who due to their connection to the land enjoy a special status.85 Even where there is the necessity to emergency evacuate an area, indigenous peoples continue to

77_{European Court of Human Rights (ECtHR), Budayeva and others v Russia, (20.03.2008).} 78_{Ibid, p. 4.}

79_{Ibid, p. 5.}

80_{See also, IASC Guidelines, supra 45, guideline C.2.1.} 81_{See also, ibid, guideline C.2.5.}

82_{See below under 2.4; The GPID for example, also include some provisions to ensure participatory,}

rights-based planning but without the same level of specification of what that entails for indigenous peoples. GPID, supra 44, principles 6(2)(d), 7(1), 15(d), 28, and 29, etc.

83_{Under lit d.}

84_{Similarly, also in the IASC Guidelines, supra 45, guideline A.4.} 85_{GPID, supra 44, principle 9.}

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enjoy participatory rights in the planning and decision-making processes,86 a safeguard which can help to ensure that the special needs of indigenous peoples are taken into account even for short-term displacement phases.87

During the phase of displacement, an obligation is placed on the government to protect the property left behind and possessions from being pillaged or destroyed,88 an important requirement particularly where indigenous peoples’ sites and artefacts of cultural as well as monetary value had to be left behind. After the reason for displacement ceases to exist, the displaced persons are to be given the choice to return to their prior place of residence.89 Such return is to be facilitated by the responsible authorities so that it can happen in safety and dignity.90 In facilitating return, “[t]raditional claims of indigenous peoples and ethnic minority groups to land title and ownership in the absence of land title documents should be respected.”91_{All possessions left behind shall be recovered or, if that turns out to be}

impossible, compensated for, so as to facilitate a smooth transition back to a normal life.92

2.4. Government-planned relocation

Relocation of indigenous peoples initiated by governments has received some scholarly attention, mostly in the context of development-induced relocation, meaning the relocation of indigenous peoples, to facilitate economic development through projects on their traditional lands.93 While such practice has received criticism from indigenous peoples’ representatives and international human rights bodies and organisations,94 relocation can become a necessity when indigenous peoples’ land becomes uninhabitable through slow-onset processes, or where the risk of repeated disaster increases significantly and would likely endanger the lives

86_{IASC Guidelines, supra 45, guideline I.3; GPID, supra 44, principles 6(2)(d), 7(1), 15(d), 28, and 29.} 87_{See also IASC Guidelines, supra 45, guideline I.8.}

88_{Ibid, guideline C.1.2 on the Protection of property left behind.} 89_{GPID, supra 44, principle 28.}

90_Ibid.

91_{IASC Guidelines, supra 45, guideline C.1.6.}

92_{GPID, supra 44, principle 29(2); IASC Guidelines, supra 51, guideline C.1.3.}

93_{Barelli, M. (2012). “Free, prior and informed consent in the aftermath of the UN Declaration on the Rights of}

Indigenous Peoples: developments and challenges ahead”. The International Journal of Human Rights, 16(1); Ward, T. (2011). “The right to free, prior, and informed consent: indigenous peoples' participation rights within international law”. Nw. UJ Int'l Hum. Rts., 10; Anaya, J. (2005). “Indigenous peoples' participatory rights in relation to decisions about natural resource extraction: the more fundamental issue of what rights indigenous peoples have in lands and resources”. Ariz. J. Int'l & Comp. L., 22.

94_{Kemner, J. (2011). “Lobbying for Global Indigenous Rights: The World Council of Indigenous Peoples}

(1975-1997) Introduction”. FIAR. Forum for inter-american Research, p. 4 ff;

Amnesty International, Guatemala: Fighting for their land through the radio, available online at: https://www.amnesty.org/en/latest/education/2018/08/guatemala-fighting-for-land-through-radio/; OHCHR, States must act now to protect indigenous peoples during migration, available

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of members of the people in a foreseeable way.95 In such cases relocation of the peoples concerned might be an adaptation strategy, planned and taken by the state to fulfil its human rights obligations. Case studies have shown that governments often seem to prefer relocation over other adaptation measures (such as building dams, early warning systems and evacuation plans, etc.), particularly where marginalised groups are concerned.96 However, as discussed above, relocation is a measure that can have grave effects and often comes with negative impacts for the peoples concerned and might even threaten their existence as a people.97 It is thus necessary to analyse under which circumstances planned relocation can legally happen, and how indigenous peoples’ collective human rights are then protected.

Looking at the relevant treaty and soft law, the general land rights discussed above more specifically also include the right not to be relocated from their lands without free, prior, and

informed consent. The ILO Convention affirms that relocation must be an exceptional

measure, used only where alternatives are not feasible and following appropriate procedures - including the free and informed consent of people.98_{The Kothari Guidelines}99_{state that}

“[p]rior to any decision to initiate an eviction, authorities must demonstrate that the eviction is unavoidable and consistent with international human rights commitments protective of the general welfare.”100_{Where the rights to life and health of members of an indigenous people}

are threatened by environmental deterioration, those conditions are likely met. Eviction and relocation of the people is then not only in the State’s general welfare interest but can even be in the people’s own interest, if conducted in accordance with relevant human rights standards.

95_{Sometimes short-term displacement in response to a disaster turns out to become a long-term displacement if}

the circumstances do not permit a safe return to the original homes. See, for example, Inter-Agency Standing Committee (IASC), Climate Change, Migration and Displacement: Who will be affected? Working paper submitted by the informal group on Migration/Displacement and Climate Change of the IASC, (31 October 2008), p. 1.

96_{Schade (2013), supra 47, p. 194.}

97_{A peoples’ right to existence can only be sustained through displacement where the indigenous people in the}

long term enjoys the right to territory, as their way of life is one of interdependence with the land they inhabit, Brölmann & Zieck (1993), supra 39, p. 196.

The IACtHR also stressed the unique and considerable significance of indigenous peoples’ territories to them, stating that they relate to “the collective right to survival […]. Property of the land ensures that the members of

the indigenous communities preserve their cultural heritage.” Inter-American Court of Human Rights (IACtHR)

Kaliña and Lokono Peoples v. Suriname, IACtHR Series C, No. 309, (28 January 2016), para. 138.

98_{ILO Convention 169, supra 30, article 16(1) and 16(2); The UNDRIP, supra 34, also explicitly considers such}

a right in article 10.

99_{The Kothari Guidelines, focusing on government planned evictions are suited to address non-emergency}

resettlement and thus planned relocation, also in a climate change adaptation context, Kothari Guidelines, supra

46, paras. 2, 8, 10. They have been endorsed and employed by the OCHCR, however, they remain non-binding

soft law and thus secondary to the binding ILO Convention 169 as well as other relevant human rights treaties, see Schade (2013), supra 47, p. 204.

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If returning to or remaining on the traditional land is not possible, compensation and land of equal quality and legal status is required; relevant factors to consider in the choice of a relocation site (and thus compensatory territory) is a comparable quantity and quality of the land.101 In its 2010 landmark ruling Endorois v Kenya102 the ACHPR found that evictions with only inadequate compensation violate indigenous peoples’ rights to property, culture, health, religion, and natural resource.103 The court affirmed that the traditional possession of land by indigenous people has the equivalent effect as that of a state-granted full property title,104 that the members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto, even though they lack legal title,105 and that the members of indigenous peoples who have unwillingly lost possession of their lands, are entitled to restitution thereof or to obtain other lands of equal extension and quality.106_{The Awas Tingni decision of the Inter-American Court of Human Rights}107_{came to}

the same conclusions.108

The Kothari Guidelines add some specificity to the protection of the ILO Convention and UNDRIPS by requiring that the relocation site has to be ‘adequate’109_{and as close to the}

original location as possible.110_{Considering that environments are more similar when they are}

located close to each other, this allows for the traditional skills of members of a people, which are often particular to the specific environment to stay useful and can protect location-specific parts of the culture of peoples.111 Even where land itself is not inhabitable anymore, a spiritual relationship with the land can still be upheld (for example via the visit of cultural sites and objects on that land) which is also protected separately.112

101_{ILO Commentary, supra 41, p.22; ILO Convention 169, supra 30, article 16(4) and 16(5); UNDRIP, supra}

34, article 28.

102_{African Commission on Human and Peoples' Rights, Centre for Minority Rights Development (Kenya) and}

Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003, (4 February

2010), [“Endorois v Kenya”].

103_{Ibid, paras. 86 ff, 196.}

104_{Ashamu, E. (2011). Centre for Minority Rights Development (Kenya) and Minority Rights Group}

International on Behalf of Endorois Welfare Council v Kenya: A Landmark Decision from the African Commission. Journal of African Law, 55(2), p. 307.

105_{Endorois v Kenya, supra 102, paras. 199ff, 207.} 106_{Ibid, para. 209.}

107_{Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, IACHR}

Series C No 7, (31 August 2001).

108_{Ibid, paras. 67, 173.} 109_{Ibid, para. 16.} 110_{Ibid, para. 43.}

111_{Human Rights Council (HRC), supra 43, p. 53f.}

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The right to a process to have their interests in lands, territories, and resources adjudicated113 is a special application of the general human right to access to judicial proceedings in ones’ home country.114 The Convention also includes a special provision for “[i]ndigenous peoples deprived of their means of subsistence and development [who] are entitled to just and fair redress.”115

2.5. Conclusion

The peoples’ right to existence and internal self-determination is sustained in cases of internal climate change displacement and the home state remains under obligations to protect and fulfil such rights in both displacement scenarios. A right to the traditional land is sustained in cases of short-term disaster displacement, enabling a swift return when possible, and in cases of government planned relocation there is a right to be fully compensated in kind. One significant gap in the protection of indigenous peoples’ rights is the clear identification of a threshold for when a people can be considered forcibly displaced due to climate change, and thus when a government is obliged to assist the displaced people, particularly where such displacement happens due to slow-onset processes.

The highest standard of protection is available to indigenous peoples in cases of government planned relocation to a new territory. This includes full compensation in kind where this is desired and planned relocation might become the preferred option for an indigenous people, where the frequency of disasters or drastic slow-onset processes destroys livelihoods. However, the protection currently applicable is one that is triggered when the state desires and plans the relocation as its adaptation strategy of choice but does not give an indigenous people an independent right to be long-term relocated and fully compensated if they so wish. Where peoples are displaced internally without such government-planned relocation, but in reaction to e.g., natural disaster, a basic protection applies to them as a collective entity as a result of their right to collective existence, as well as the special regime of internally displaced persons. However, such emergency responses are not designed to become long-term solutions, as they only afford a baseline protection of human rights.

113_{ILO Convention 169, supra 30, article 12; UNDRIP, supra 34, article 40.} 114_{ICCPR, supra 62, article 14.}

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3. Small island peoples displaced internationally

While in the case of internal displacement of indigenous peoples, the state on whose territory that people lives and is displaced is under continuing obligations to respect, protect and fulfil the rights of the people concerned, such a single primarily responsible entity does not exist in the case of international displacement.116 Where sea-level rise threatens to submerge a states’ territory, the small island state with the primary human rights obligation towards its own people is potentially unable to provide the protection required because of the external circumstances – the loss of inhabitable territory due to climate change. It is thus relevant to ask whether the collective rights of small island nation peoples can be sustained under current international law in the face of international climate change displacement and which obligations third states have.

This chapter first introduces the related concepts of statehood and self-determination, drawing important distinctions prior to considering potential solutions. Next, three approaches as to how self-determination might be sustained will be introduced and analysed. The first approach is to relocate the whole island state and its people to a new territory. Second, the idea of establishing a deterritorialized state will be analysed, a concept in which the population moves individually or in “pockets of their communities”117_{abroad into third}

countries, but the statehood of the concerned small island state is sustained through a

government in exile. A third approach requires the people to migrate together (en masse) into

another country, potentially resulting in the loss of statehood for the small-island states concerned, but avoiding the dispersion of members of the people. All three approaches will be analysed in turn as to their legal feasibility under current international law, as well as the degree of self-determination they would allow for.

3.1. Statehood and the peoples’ right to self-determination

States under current international law are the only subjects with full, original, and objective legal personality118 and, thus, most rights and obligations of international law are directly attached to statehood. Four criteria have been established to identify which entities qualify as

116_{As only states on whose territory or under whose jurisdiction individuals are have human rights obligations}

towards those individuals, see e.g., ICCPR, supra 62, article 2.

117_{McAdam 2014, supra 2, p. 160.}

118_{Hernandez, G. (2019). “States as subjects of international law” in G. Hernandez (ed.) International Law (pp.}

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states: population, territory, government, and the ability to enter into relations with other states.119 Attached to states is the concept of sovereignty, which has also been described as ‘national self-determination’, for example in the context of the collapse of the Soviet rule.120

This shows how closely connected the concept of a state usually is with the peoples’ right to self-determination. However, they are not always congruent concepts as, for example, shown by the discussion of indigenous peoples’ right to self-determination above. Peoples can exist without forming an independent state and thus several peoples can live on the territory of a single state.121 As discussed in Chapter 1, there isan internal dimension, including a right to self-government on a local level, as well as an external dimension, ultimately entailing a right to secession, national sovereignty and independence.122 This multifaceted understanding of self-determination is important for the current discussion, as it shows that the statehood of the small island states concerned is not necessarily a prerequisite for such peoples to enjoy a right to self-determination, as long as they control a territory with regard to which they have a right to determine their own faith to some degree.

It seems widely recognized and unproblematic that the populations of (small island) states currently enjoy peoples’ rights and can thus exercise a collective right to self-determination.123 The question of the statehood of small island nations being submerged due to sea-level rise is a separate question, which is not the main focus of this paper. The concept of statehood is, however, also relevant to the right to self-determination insofar as a loss of statehood would have consequences for the people concerned. Besides the ability to enter into relations with other states, one of the most significant consequences of the loss of statehood for small island states’ populations would be the loss of sovereignty over its territory and adjacent maritime zones,124 which are often essential to such peoples’ livelihoods and

119_{Convention on Rights and Duties of States adopted by the Seventh International Conference of American}

States (adopted 26 December 1933, entry into force 26 December 1934), [“Montevideo Convention”], article 1.

120_{Craven, M. (2010). “Statehood, self-determination, and recognition” in M. D. Evans (ed.) International Law}

(pp.203-251). Oxford University Press, p. 236.

121_{As is the case for states on whose territories indigenous peoples reside.}

122_{Nanda, V. P. (2020). “Self-Determination and Succession under International Law”. Denver Journal of}

International Law & Policy, 29(3), pp. 308-309.

123_{Problems with the exercise of that right usually only appear where several peoples exist within the same state}

and claim the external dimension of this peoples’ right for themselves to achieve secession, Raic, D. (2002). Statehood and the law of self-determination (Vol. 43). Martinus Nijhoff Publishers.

124_{Rayfuse, R. G. (2009). W (h) ither Tuvalu? International law and disappearing states. International Law and}

Disappearing States, UNSW Law Research Paper, p. 6 (“[O]nly states are entitled to declare maritime zones.

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economies.125 Most scholars engaging in the debate on the statehood of ‘sinking island states’126 agree that there is a strong presumption for state continuity under international law; therefore, a state would not automatically cease to exist as soon as its territory is first submerged or its population moves127 but it is more a question of long-term solutions and the recognition of such solutions by other states on the international plane.128 It is important to note that, to date, no state has been completely submerged under the sea, and, therefore, the answer to whether an entity retains legal statehood status in such a situation has yet to be confirmed.129 Three potential pathways are next analysed as potential solutions to the struggles of small island nation peoples.

3.2. The relocation of the state to another territory

As there is currently no terra nullius, no ‘undiscovered’ territory in the world, that is not already under the sovereignty of an existing state or unable to be subjected to any sovereignty claims,130_{there are only two options for a state to move to another territory: it can either be}

obtained from another state or be artificially created.

3.2.1. Obtaining territory from a third state

An ideal scenario from the perspective of the human rights of the people displaced would be where land is sold, leased or ‘donated’ in a geographically similar area where people can settle down and continue their livelihoods that they are accustomed to.131 It thus first needs to be analysed whether the right to self-determination of peoples corresponds with an obligation of other states to make available such territory as needed.

125_{Stoutenburg, J. G. (2011). “Implementing a new regime of stable maritime zones to ensure the (economic)}

survival of small island states threatened by sea-level rise”. The International Journal of Marine and Coastal

Law, 26(2), p. 266.

126_{For a critique of this terminology see McAdam (2014), supra 2, p. 123-125.}

127_{Crawford, J., & Crawford, J. R. (2006). The creation of states in international law. Oxford University Press,}

p. 700.

128_{McAdam, J. (2010). ‘Disappearing states’, statelessness and the boundaries of international law. Statelessness}

and the Boundaries of International Law. UNSW Law Research Paper, p. 12.

129_{United Nations High Commissioner for Refugees (UNHCR), Climate Change and Statelessness: An}

Overview (May 15, 2009), available online at http://www.unhcr.org/refworld/docid/4a2dl89d3.html;

additionally, some entities lacking a territory continue to enjoy sovereign recognition by other states, such as the Royal Order of Malta, which lost sovereignty over the Maltese islands in 1798, and today merely occupies a few structures in Rome, see Cohan, J. A. (2006). “Sovereignty in a Postsovereign World”. Fla. J. Int'l L., 18, pp. 928-929;Freestone, D., & Pethick, J. (2002). “Sea level rise and maritime boundaries: international implications of impacts and responses” in J. I. Charney, D. A. Colson, L. M. Alexander & R. W. Smith (eds.) Maritime

Boundaries: World Boundaries Volume 5 (pp. 87-104). Routledge, p. 94.

130_{Such as the Antarctic or outer space, see}_{Collis, C. (2017). “Territories beyond possession? Antarctica and}

outer space”. The Polar Journal, 7(2), p. 288.

131_{Atapattu, S. (2014). “Climate Change: disappearing states, migration, and challenges for international}

Beyond the individual: the protection of (indigenous) peoples displaced by climate change