The Protection of Environmentally and Externally Displaced Peoples:

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The Protection of Environmentally and Externally Displaced Peoples:

Collective and Permanent Relocation for Inhabitants of Small Island Developing States in an Era of Rising Sea Levels

Name: Sorcha Ryder

Email: ryderso@tcd.ie

Student ID: 13032895

Masters: LL.M. Public International Law Supervisor: Prof. Marjoleine Zieck

Date of Submission: 1 July 2021

Word Count: 12,975 words (excluding title page, abstract, contents and bibliography)

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Abstract

There is a legal category of peoples in the world which exists as an anomaly in international law: the environmentally and externally displaced. They currently receive no protection under the Refugee Convention, or any alternative international legal regime. The purpose of this thesis is to illustrate the unique and novel needs of one type of environmentally and externally displaced peoples, the inhabitants of low-lying island States which will one day become submerged below rising sea levels. These peoples will one day experience an

unprecedented event: the disappearance of their entire physical territory. Therefore, this thesis answers urgent questions as to how their need for permanent and collective relocation might best be protected by international law.

This research proceeds from the right to self-determination as a legal basis through which collective and permanent relocation can be achieved. This right is established as existing for these peoples and submitted as capable of surviving their loss of territory. A number of challenges to this relocation, both conceptual and practical, are considered in this research, and fundamental principles such as territorial sovereignty and State responsibility are

analysed in order to evaluate the viability of collective and permanent relocation. This thesis concludes that in order for these peoples to achieve a secure and safe future as a collective, a reconceptualisation is required in regards to conventional statehood and sovereignty as the ultimate goal of self-determination.

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Table of Contents

Introduction 4

Scope and Structure 5

Methodology 7

1. The Peril of Island Inhabitants 9

1.1 Tuvalu 9

1.2 Kiribati 10

1.3 Fiji 11

2. The Novel Position of Environmentally and Externally Displaced Peoples 13

2.1. Unique Needs 13

2.2. Describing the Phenomenon 14

2.3. The Inapplicability of the Refugee Convention 15

2.4. Moving Beyond the Refugee Convention 17

3. The Right to Self-Determination 20

4. Self-Determination and Island Inhabitants 25

4.1. Self-Determination as a Right for Island Inhabitants 25 4.2. Exercising Self-Determination for Collective and Permanent Relocation 26

4.3 Self-Determination and the Loss of Territory 27

4.3.1 Self-Determination Rights Attach to Peoples 28

4.3.2 The Deterritorialised State 29

4.3.3 Self-Determination Before Land Loss 32

5. Challenges of Permanent and Collective Relocation 33

5.1 Self-Determination and Territorial Sovereignty 33

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5.2 The Allocation of Responsibility 35

6. Forms of Collective and Permanent Relocation 39

6.1 Cession 39

6.2 Alternative Forms of Relocation 41

Conclusion 45

Table of Cases 46

Table of Legislation 46

Bibliography 47

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Introduction

“Inasmuch as nature declines to negotiate, it is we and our laws which must adapt.”

- David Caron, 2009.

Climate change is no longer presented as merely a cautionary tale, but an existing and accelerating crisis. A 2014 study carried out by the Intergovernmental Panel on Climate Change highlighted 2000-2010 as being the highest decade of greenhouse gas emissions in human history,1and this January was recorded as the seventh warmest in the global

temperature records spanning the last 142 years.2Copernicus also reported that the European autumn of 2020 was the warmest experienced according to existing records.3Those who attempt to frame global warming as a ‘distant concern’4are decreasing amid consistent scientific data, especially as the rising sea levels of the world provide undeniable evidence of climate change. In fact, reports have stipulated that during the summer of 2035, the Arctic region will be completely ice-free.5

Inhabitants of small island developing States are in danger as a result of this slow onset change. Entire communities will eventually be displaced due to a kind of environmental degradation which has never before been witnessed by the international community - the total disappearance of a state’s territory beneath rising sea levels. This group will soon be in need of some form of international intervention. However, despite the world watching, almost with

5Maria-Vittoria Guarino and others, ‘Sea-ice-free Arctic during the Last Interglacial supports fast future loss’

(2020) 10 Nat. Clim. Chang. 928.

4John Connell, ‘Losing ground? Tuvalu, the greenhouse effect and the garbage can’, (2003) 44(2) Asia Pacific Viewpoint, 89. As cited in: Carol Farbotko, ‘Wishful sinking: Disappearing islands, climate refugees and cosmopolitan experimentation’, (2010) 51(1) Asia Pacific Viewpoint, 47, 49.

3Copernicus, ‘Global November temperatures reached a record high, while Europe experienced its warmest autumn on record’ Copernicus: Europe’s Eyes on Earth (7 December 2020)

<https://climate.copernicus.eu/copernicus-global-november-temperatures-reached-record-high-while-europe-exp erienced-its-warmest> accessed 12 April 2021.

2NOAA National Centers for Environmental Information, State of the Climate: Global Climate Report for January 2021 <www.ncdc.noaa.gov/sotc/global/202101> accessed 12 April 2021.

1The Intergovernmental Panel on Climate Change, Climate Change 2014: Mitigation of Climate Change, 354.

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‘perverse impatience’,6as these islands loom close to submersion, adequate protections in international law are yet to be established. This group does not fit into existing international instruments such as the Refugee Convention.7Their novel needs render the provision of protection even more complicated. They require collective and permanent relocation, in order to ensure their long-lasting security and to retain their cultural identity.8

Although these peoples are becoming increasingly visible on the international stage, they remain a complete anomaly,9about whom many questions must be addressed. Can they exercise rights of self-determination to seek permanent and collective relocation, or do their entitlements disappear along with their territory? On whom does the burden of protection lay? In what ways may they seek relocation, and is total sovereignty over new territory too high an order? This research seeks to illuminate solutions to the imminent crisis facing environmentally and externally displaced peoples, in a manner which ultimately protects them as a collective unit.

Scope and Structure

This thesis examines a particular type of environmentally and externally displaced peoples:

the inhabitants of low-lying, small island developing States (referred to as SIDS). This research focuses on three SIDS in particular; Tuvalu, Kiribati and Fiji, due to their proximate location to each other in the Pacific ocean. Furthermore, there exists a myriad of both

proactive and reactive measures which may be taken in response to climate change and rising sea levels. Proactive measures against global warming include mitigation and adaptation strategies. For example, The United Nations Framework Convention on Climate Change seeks to stabilise international greenhouse gas (GHG) emissions at a sustainable level.10The

10The UN Framework Convention on Climate Change, 1992, Article 2.

9Frank Biermann and Ingrid Boas, ‘Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees’ (2010) 10(1) Glob. Environ. Politics 60, 62.

8Selma Oliver, ‘A New Challenge to International Law: The Disappearance of the Entire Territory of a State’

(2009) 16(2) IJGR 209, 214.

7The Convention Relating to the Status of Refugees 1951.

6Farbotko (n 4) 48.

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Kyoto Protocol aims to progressively reduce these levels.11Mitigation and adaptation measures, if successful, may allow SIDS inhabitants to remain on their land. However, proactive measures lay outside the boundaries of this research, which departs from an assumption that territories will ultimately disappear beneath rising sea levels. Therefore, this thesis focuses on reactive measures.

The inhabitants of low-lying SIDS are facing an urgent threat to their livelihood, yet are lacking in any international protections by which they can seek collective and permanent relocation. Considering this problem statement, the research question is addressed: what are the needs of environmentally and externally displaced peoples, and how can they be protected in international law? Crucially, this research seeks to illustrate how these peoples might pursue collective and permanent relocation on the basis of their rights to self-determination.

This will be analysed against several challenges, such as whether self-determination rights survive the loss of territory, the territorial sovereignty of other States and the allocation of responsibility. It also explores the various forms of relocation which can be pursued.

Chapter 1 offers a descriptive account of the threat to three SIDS and the approaches they are taking against sea level rise: Tuvalu, Kiribati and Fiji. In Chapter 2, the unique needs of environmentally and externally displaced peoples are outlined, as well as the difficulty in describing the phenomenon and the inapplicability of the Refugee Convention. Furthermore, the steps taken to move beyond the Convention’s scope are addressed as falling short of meeting these peoples’ needs.

Chapter 3 outlines the nature of the infamous right to self-determination, as well as its capacity to be expanded beyond its previous use, followed by an application of this right to the island inhabitants in Chapter 4. This Chapter establishes that these peoples have a right to self-determination and they should exercise it to achieve collective and permanent relocation.

It will also examine whether self-determination rights survive the loss of territory.

11Kyoto Protocol to the UN Framework Convention on Climate Change, 1998, Article 2(1).

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The challenges facing collective and permanent relocation will be detailed in Chapter 5, including the clash of self-determination with the territorial sovereignty of States, as well as the difficulty of allocating the responsibility to States. Lastly, Chapter 6 will illustrate different types of relocation which could be pursued by these peoples, including full cession of sovereign territory, as well as other alternatives.

Methodology

The object of this research is environmentally and externally displaced peoples, with its main focus on their pursuit of collective and permanent relocation. It departs from the assumption, based on scientific consensus, that permanent displacement from their territories will be inevitable.

Within this focus, a descriptive account of these displaced peoples is first outlined, followed by an evaluation of their needs. Secondly, a description of international law from an external legal perspective is provided, focusing on the meaning that these instruments have for the displaced peoples. A normative assessment is made as to whether current laws provide sufficient frameworks for these peoples. In the normative evaluation of whether collective and permanent relocation can be achieved, this research proceeds from the principle of the right to self-determination, establishing it as the framework within which to pursue relocation options. The question as to whether this relocation can be achieved is judged against a range of criteria, presented as “challenges” to this relocation. These challenges are pursued from the external perspective of considering what implications relocation will have for pre-existing States. Against these challenges, prescriptive recommendations are made to indicate how best both the displaced peoples and the international community should act to secure collective and permanent relocation.

The research materials consist of a range of primary sources, including international instruments which enunciate the relevant law, as well as legal reports which outline certain recommendations previously made in this area. Furthermore, the writings of a number of

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academic scholars and researchers are consulted. These writings were selected against the following criteria: their recommendations regarding relevant legal principles, namely self-determination, sovereignty and statehood, and their contributions to the evolving research in this area.

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1. The Peril of Island Inhabitants

This chapter will outline the experiences of a number of SIDS located in the Pacific Ocean, notably, Tuvalu, Kiribati and Fiji.

1.1. Tuvalu

Tuvalu, the fourth smallest nation in the world, is an isolated island State located in the Pacific Ocean, consisting of nine coral atolls with the island of Funafuti as the capital. It has been battling against decades of coastal erosion, floodings and rising sea levels. Families face frequent evacuation and internal relocation among the atolls, most of which only reach the maximum height of a precarious three metres.12Ten feet of beachfront was reported to have disappeared entirely on the Tuvaluan atoll of Vaitupu by the early 2000s.13This is a worrying figure considering that the islands only span about 200 metres at their widest points.14Tuvalu has been identified as most likely to be affected by rising sea levels,15with unmitigated sea levels threatening to render it uninhabitable within the next thirty to fifty years.16Over the years, the small population of approximately 11,000 Tuvaluans have gained a footing on the international stage, becoming one of the most vocal countries in the world on this issue.17In a 2003 address to the United Nations General Assembly, the Tuvaluan Prime Minister and

17Tuvalu’s National Adaptation Programme of Action (n 12) 6.

16UN Climate Change Conference COP-23 Fiji, Bonn 2017-18, Tuvalu <https://cop23.com.fj/tuvalu/> accessed 15 April 2021.

15N.L. Bindoff and others, ‘Observations: Oceanic Climate Change and Sea Level.’ In: S. Solomon, D. Qin, M.

Manning and others, Climate Change 2007: The Physical Science Basis Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, (Cambridge University Press 2007). As cited in: Carol Farbotko, ‘The global warming clock is ticking so see these places while you can’:

Voyeuristic tourism and model environmental citizens on Tuvalu’s disappearing islands’ (2010) 31 Singap. J.

Trop. Geogr. 224.

14Tuvalu’s National Adaptation Programme of Action (n 12) 32.

13Leslie Allen, ‘Will Tuvalu Disappear Beneath the Sea?’ (Smithsonian Magazine, August 2004).

12Tuvalu’s National Adaptation Programme of Action, under the auspices of the UN Framework Convention on Climate Change, (Ministry of Natural Resources, Environment, Agriculture and Lands, May 2007) 30.

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Minister of Foreign Affairs described the impacts of climate change as a source of constant fear for the entire population, amounting to “a slow and insidious form of terrorism”.18

Tuvalu’s adaptation projects include disaster and emergency plans, such as water tanks and the construction of seawalls.19Former Prime Minister Enele Sopoaga has declared relocation to be a “cheap” solution for those international parties who have caused global warming.20 Asserting that relocation to Fiji was unnecessary, he is pursuing raising the land and reclaiming lost territories.21Tuvalu’s situation has been described as “the canary in the coal-mine”,22as global efforts to reduce greenhouse gas emissions may only truly be

prioritised once we witness the tragedy of an entire population’s home becoming submerged under water.

1.2. Kiribati

Situated in the central Pacific Ocean, the island nation of Kiribati faces a similar struggle in its fight against global warming. A larger State, Kiribati consists of thirty-three small atolls.

However, each atoll remains extremely vulnerable to sea levels, reaching just 3-4 metres above sea level in height. Classified as one of the poorest countries in the world,23Kiribati is projected to be the first country to become fully submerged, with two of its atolls, Abanuea and Tebua Tarawa, already disappearing a number of years ago.24

24Owen Mulhern ‘Sea Level Rise Projection Map - Kiribati’ (Earth.Org, 6 August 2020)

<https://earth.org/data_visualization/sea-level-rise-by-2100-kiribati/> accessed 15 April 2021.

23UNDP Climate Change Adaptation, Kiribati

<https://www.adaptation-undp.org/explore/asia-and-pacific/kiribati> accessed 15 April 2021.

22Farbotko (n 4) 53.

21ibid.

20Matthew Vari, ‘Relocation for ‘sinking islands’ cheaper but ‘we’re staying’ vows Tuvalu PM’ ( Asia Pacific Report 14 August 2019)

<https://asiapacificreport.nz/2019/08/14/relocation-for-sinking-islands-cheaper-but-were-staying-says-tuvalu-p m/> accessed 2 May 2021.

19UNDP Climate Change Adaptation, Tuvalu <https://www.adaptation-undp.org/explore/polynesia/tuvalu>

accessed 2 May 2021.

18Statement by the Honourable Saufatu Sopoanga OBE Prime Minister and Minister of Foreign Affairs of Tuvalu at the 58th United Nations General Assembly, 24 September 2003, 15

<https://www.un.org/webcast/ga/58/statements/tuvaeng030924.htm> accessed 7 June 2021.

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The government has undertaken a number of measures. Former President Tong developed the concept “Migration with Dignity”, which creates pathways for the educated younger

generation to migrate to neighbouring countries.25He encouraged his citizens to relocate as “a matter of choice instead of waiting until the end”.26In 2014, the government purchased a large property on the island of Vanua Levu in Fiji, assuring its citizens that it would be used primarily for economic security and food resources.27However, many I-Kiribati locals believe that it was purchased as a safety net, to ensure that migration and resettlement could be a possibility should Kiribati’s atolls one day be rendered uninhabitable.28The new

President has tackled Kiribati’s rising sea levels with enhanced vigour. He rejects “the misleading and pessimistic scenario of a sinking, deserted nation,”29and is working with a new diplomatic partner, China, to raise the Kiribati islands by at least a metre.30This strategy, if successful, will allow the i-Kiribati to stay on their islands and their cultural identity to remain intact.31

1.3. Fiji

Fiji has also faced its own challenges in outmanoeuvring the changing climate. For example, in Fiji’s first climate-change induced internal relocation, the entire village of Vunidogoloa was forced to resettle elsewhere within the island nation as a result of rising sea levels, coastal flooding and erosion.32However, the Prime Minister, Frank Bainimarama, has stated

32Annah Piggott-McKellar, Karen McNamara and Patrick D. Nunn, ‘Climate change forced these Fijian communities to move - and with 80 more at risk, here’s what they learned’ (The Conversation, 30 April 2019)

<https://theconversation.com/climate-change-forced-these-fijian-communities-to-move-and-with-80-more-at-ris k-heres-what-they-learned-116178> accessed April 16 2021.

31ibid.

30ibid.

29McDonald (n 26).

28ibid 254.

27Hermann and Kempf (n 25) 232.

26Joshua McDonald, ‘Kiribati Announces Plans to Raise Islands Above Rising Seas’ ( The Diplomat, 14 August 2020) <https://thediplomat.com/2020/08/kiribati-announces-plans-to-raise-islands-above-rising-seas/> accessed 2 May 2021.

25Elfriede Hermann and Wolfgang Kempf, ‘Climate Change and the Imagining of Migration: Emerging Discourses on Kiribati’s Land Purchase in Fiji’ (2017) 29(2) Contemp. Pac. 231, 237.

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that many more communities would have to be similarly relocated.33In fact, the government has identified sixty such areas within Fiji which are highly likely to need potential relocation in the future.34

It is evident that these three SIDS are determined to stay within their territory and fight against rising sea levels, with a range of tactics. However, the only permanent solution to rising sea levels before they render SIDS uninhabitable is the stabilisation and radical reduction of international GHG emissions. In light of the enormity of this task, it is pertinent for this research to instead explore the rights of SIDS inhabitants, should mitigation efforts fail and they are one day left with only one viable option - relocation.

34UNEP, Republic of Fiji, Second National Communication to the United Nations Framework Convention on Climate Change (2013) 167.

33Justin Worland, ‘The Leaders of These Sinking Countries are Fighting to Stop Climate Change. Here’s What the rest of the World Can Learn’ Time Magazine (13 June 2009)

<https://time.com/longform/sinking-islands-climate-change/> accessed April 15 2021.

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2. The Novel Position of Environmentally and Externally Displaced Peoples

2.1. Unique Needs

Environmentally and externally displaced peoples have very distinct needs. Firstly, they will require cross border relocation. Internal relocation is not possible, as we face the entire disappearance of the territory below sea levels. Additionally, the basis for their displacement will be different from the reasons of other refugees or migrants, who may seek refuge due to persecution or voluntarily migrate for work opportunities. This displacement will be due to slow onset climate change and will be completely involuntary.

Their relocation will be sought on a permanent basis. The Refugee Convention operates with the assumption that individuals will eventually return home when conditions have

improved,35so that they no longer require international protection.36Article 1 establishes that the Convention will no longer apply to a person whose ‘circumstances in connexion with which he has been recognized as a refugee have ceased to exist.’37However, in relation to our displaced peoples, there will be no territory to which they could return. Therefore, this group requires permanent relocation. Lastly, the inhabitants of low-lying SIDS consist of small close-knit villages who live and work closely with their land and surrounding nature. As a result, they have extremely strong ties to their territories and communities.38Crucially, in order to retain their cultural identity as much as possible, their relocation must be collective.

These peoples must relocate together as a collective unit. This solution provides these inhabitants with the best opportunity to retain their heritage, culture and traditions outside of their original territory.

38Hermann and Kempf (n 25) 232.

37The Refugee Convention (n 7) Article 1(C)(5).

36Biermann and Boas (n 9) 75.

35 However, there are many protracted refugee situations, such as Afghan refugees in Iran and Pakistan. See:

‘Protracted refugee situations: the search for practical solutions’ The State of the World’s Refugees 2006 - Human displacement in the new millennium (UNHCR 2006).

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2.2. Describing the Phenomenon

Although the numbers of environmentally and externally displaced peoples are growing, there remains an “inherent difficulty in conceptualising and accurately describing the phenomenon,”39and as a result, they “occupy an ambiguous position under international law”.40The term “environmental refugees” was first popularised by Essam El-Hinnawi in 1985.41This term, although controversial, went on to be utilised by Myers when discussing the newly emerging category.42The International Organisation for Migration, disliking this association with refugees, has instead opted to classify this situation as “environmentally induced migration”.43Additionally, the Office of the United Nations High Commissioner for Refugees avoids classifying this group as refugees, due to the extensive legal rights

associated with the term.44

This thesis will similarly avoid the use of the term “refugee”. Neither will this thesis invoke the use of the phrase “migrant”, as it suggests that the movement of these peoples represents a voluntary choice, instead of a last resort. As illustrated thus far, the preferred term for this research is environmentally and externally displaced peoples. The use of “externally”

highlights the cross-border nature of this situation. The use of “peoples” illustrates that the focus of this thesis is a collective; the entire displaced population of island nation States.

44Biermann and Boas (n 9) 66.

43Institute for Environment and Human Security, Human Security, Climate Change, and Environmentally Induced Migration, (United Nations University, 2008) 60. As cited in: L. W. Marshall, ‘Toward a new definition of ‘refugee’: is the 1951 Convention out of date?’ (2011) 37(1) Eur. J. of Trauma and Emerg. Surg. 61, 64.

42N. Myers, ‘Environmental Refugees: A Growing Phenomenon of the 21st Century’ (2002) 357(1420) Philosophical Transactions: Biological Sciences 609.

41Essam El-Hinnawi, Environmental Refugees (UN Environmental Programme, 1985) 4.

40Patrick Stewart, ‘How Should the World Respond to the Coming Wave of Climate Migrants?’ (World Politics Review, 16 March 2020)

<https://www.worldpoliticsreview.com/articles/28603/how-should-the-world-respond-to-the-coming-wave-of-cl imate-migrants> accessed 16 April 2021.

39Mostafa Mahmud Naser, ‘Protecting Climate Change Induced Displacement in Bangladesh: Legal and Policy Responses’ (Macquarie University, 2012). As cited in: Jane McAdam, ‘How to Address the Protection Gaps - Ways Forward’ (Presented at Nansen Conference on Climate Change and Displacement in the 21st Century, Oslo, Norway, 5–7 June 2011) 1.

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2.3. The Inapplicability of the Refugee Convention

The Refugee Convention was enacted in 1951, to cope with an influx of displaced people throughout Europe after the second World War. It was designed to primarily accommodate those within Europe45who sought refuge due to events occurring prior to 195146(although an option was included for States to opt to accommodate those who sought refuge from beyond Europe).47In the years to follow, it became clear that new refugee situations were emerging which were not yet covered,48and as such, the 1967 Protocol49later removed the temporal50 and geographical51limitations of the Convention, while including the option for original States parties to the Convention to retain these geographic limitations.52

The definition of a refugee has not since been expanded. The Convention provides that the term “refugee” shall apply to those who;

“...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.53

For those who qualify for refugee status, the Convention offers extensive legal protections.

53The Refugee Convention (n 7) Article 1(A)(2).

52ibid.

51ibid Article 1(3).

50ibid Article 1(2).

49Protocol relating to the Status of Refugees, 1967.

48Marshall (n 43) 63.

47ibid Article 1(B)(1)(b).

46ibid Article 1(A)(2).

45The Refugee Convention (n 7) Article 1(B)(1)(a).

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Environmentally and externally displaced peoples clearly cannot qualify as a refugee, due to their lack of a well-founded fear of persecution. The requirement of ‘persecution’ has been interpreted strictly within the listed categories.54Hathaway explores the types of harms serious enough to be amount to a risk of persecution to an individual,55which he classifies under the headings of harm to physical security,56harm to liberty and freedom57and harm to autonomy and self-realisation.58The drafters of the Convention consciously excluded environmental disasters or degradation from the remit of persecution. This is not a weakness of the Convention but rather a sign that its purpose was deeply influenced by its historical context,59and it is simply intended to protect other groups. To avoid jeopardising the success it has found in domestic implementation, it should not be stretched beyond its limits.

Be that as it may, exclusion from the “only binding treaty regarding refugee law”,60is certainly a huge obstacle in the protection of environmentally and externally displaced

peoples. This was made evident in the 2016 case of Ioane Teitiota, an I-Kiribati national from the capital atoll of Tarawa.61In this landmark communication to the UN Human Rights Committee, it was determined that those displaced due to rising sea levels would not qualify for protection under the Refugee Convention. Teitiota sought asylum in New Zealand on the grounds that the rising seas surrounding his atoll were rendering life for his family dangerous and unsustainable.62The Human Rights Committee upheld the view of the Immigration and Protection Tribunal of New Zealand to remove Teitiota, holding that there was insufficient

62ibid, para 2.1.

61Views adopted by the Human Rights Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016 (CCPR/C/127/D/2728/2016).

60Javaid Rehman, International Human Rights Law (2nd edn, Longman 2010) 647.

59Nehemiah Robinson, ‘Convention Relating to the Status of Refugees: Its History, Significance and Contents’

(1952) World Jewish Congress.

58ibid, 260.

57ibid, 238.

56ibid, 208.

55James C. Hathaway, The Law of Refugee Status (2nd edn, Cambridge University Press, 2014) 3.

54Jessica Cooper, ‘Environmental Refugees: Meeting the Requirements of the Refugee Definition’ (1998) 6(2) N.Y.U. Env. Law J. 480, 483.

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evidence to prove any imminent risk that Teitioa’s life would be threatened,63preventing his classification as a refugee.64

It is clear that environmentally and externally displaced peoples are facing a major protection gap. Not only are they excluded from the ambit of the Refugee Convention, but there is no alternative regime which provides them with a legitimate status.

2.4. Moving Beyond the Refugee Convention

It is comforting to know that many States, as well as the United Nations, have taken steps to extend their support to displaced peoples beyond merely those who qualify as refugees.

However, most measures taken in response to external climate-related displacement have been fragmented, occurring through domestic agreements.65Furthermore, most measures are focused on internal displacement only.

Despite their omission from the High Commissioner’s formal mandate,66the UNHCR has extended its assistance towards the environmentally displaced, acknowledging it as the

‘defining crisis of our time’.67The United Nations Advisory Group on Climate Change and Human Mobility advises on managing migration as a result of climate change.68Furthermore, the United Nations Guiding Principles on Internal Displacement69provides States with a framework for assisting people who become displaced within their own territory, and includes “natural or human-made disasters” in its scope.70These principles were a welcome

70ibid, Article 2.

69UNHCR, Guiding Principles on Internal Displacement 1998.

68Advisory Group on Climate Change and Human Mobility, Human Mobility in the context of Climate Change (UNFCCC Paris COP-21, November 2015).

67UNHCR, Strategic Framework for Climate Action, 2021.

66Biermann and Boas (n 9) 73.

65UNHCR, Climate Change Displacement and International Law: Complementary Protection Standards (Legal and Protection Policy Research Series PPLA/2011/03 2011) 36.

64ibid, para 2.8.

63ibid, para 4.5.

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step in the international understanding that climate change can cause involuntary

displacement. However, the above measures focus on internal displacement, falling short of accommodating the cross-border needs of environmentally and externally displaced peoples.

On a regional level, the Organisation of African Unity Convention71took steps to expand the known refugee definition, including “events seriously disturbing the public order”.72It

remains unclear as to whether this could encompass environmental situations, as States which have given refuge to those fleeing environmental disasters ‘rarely declare that they are acting pursuant to their OAU Convention obligations.’73The Kampala Convention74addresses situations of internal displacement across the African continent, and includes “natural or human made disasters, including climate change”.75It is heralded as the first regional legal instrument which legally obliges States to protect internally displaced peoples.76Despite being welcome progress, it also does nothing for cross-border relocation.

Although its results were non-binding, the Nansen Initiative77had the right focus. This was a

“state-led, bottom-up consultative process”,78chaired by Sweden and Norway, which worked closely with the global South to address protection gaps for climate change-induced

externally displaced peoples.79As a result of their consultative process, the Initiative’s 2015 Protection Agenda80provides an outline of the protection needs of the externally displaced,

80Agenda for the Protection of Cross-Border Displaced Persons (n 78).

79The Nansen Initiative (n 77).

78 The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change, Volume I (2015) 15.

77The Nansen Initiative <https://www.nanseninitiative.org/secretariat/> accessed 3 May 2021.

76Oliver C. Ruppel ‘Intersections of Law and Cooperative Global Climate Governance - Challenges in the Anthropocene.’ Climate Change: International Law and Global Governance: Volume II: Policy, Diplomacy and Governance in a Changing Environment (Nomos Verlagsgesellschaft mbH & Co. KG, 2013) 29, 64.

75ibid, Article 5(4).

74African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (“Kampala Convention”) 2009.

73UNHCR, Complementary Protection Standards (n 65) 15.

72ibid, Article 1(2).

71Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa 1969.

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guidelines for environmental disaster management and an assessment of future priority areas,81recommending further data collection and harmonisation of approaches.82

Unfortunately, these actions are either merely aspirational in nature, or else focused on internal displacement, and thus are inapplicable to this thesis. It is evident that much more work is to be done to provide sufficient protections to environmentally and externally displaced peoples.

82ibid 44.

81ibid 16.

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3. The Right to Self-Determination

Environmentally and externally displaced persons require a legal basis on which to justify their right to permanent and collective relocation. It is submitted that something more is required beyond natural law concepts, such as Risse’s theory of the common ownership of the earth, and the equal claim of all humans to it.83Furthermore, international human rights instruments, such as the Universal Declaration of Human Rights (UDHR),84the International Covenant on Civil and Political Rights (ICCPR)85and the International Covenant on

Economic, Social and Cultural Rights (ICESCR)86do provide fundamental rights to island inhabitants, but these human rights could be protected through individual migration rather than collective relocation.

Therefore, this research utilises the right to self-determination as an avenue through which environmentally and externally displaced peoples can pursue their optimal type of relocation.

Although the exact scope and content of this right is ambiguous, it is submitted that it offers better protection as it is still elucidated in international instruments, and it gives displaced peoples the power to choose their own form of relocation. This chapter provides an account of the right to self-determination, including its history, status in the international community, as well as its capacity to continually evolve in its application.

The right to self-determination is one of the most essential collective rights of peoples, and has been established as a fundamental principle of contemporary international law.87It is “the

87Case Concerning East Timor (Portugal v Australia) [1995] ICJ Reports 1995 4 [29]. As cited in: Matthew Saul, ‘The Normative Status of Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Right?’ (2011) 11(4) H. R. Law Rev. 609, 610.

86International Covenant on Economic, Social and Cultural Rights 1966.

85International Covenant on Civil and Political Rights 1966.

84Universal Declaration of Human Rights 1948.

83Mathias Risse, ‘The Right to Relocation: Disappearing Island Nations and Common Ownership of the Earth’

(2009) 23 Ethics & International Affairs 281, 282. As cited in Frank Dietrich and Joachim Wündisch, ‘Territory Lost - Climate Change and the Violation of Self-determination rights’ (2015) 2(1) Moral Philosophy and Politics 83, 91.

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right claimed by a ‘people’ to control their destiny”,88which bestows upon peoples the

capacity to formulate their own statehood, systems of power and governance. Furthermore, it allows all peoples “freely to determine, without external interference, their political status and to pursue their economic, social and cultural development”.89As it derives from the natural principles of free will, independence and autonomy, the right to self-determination “seems to be something timeless”.90The right to self-determination can be applied both internally and externally. Saul provides a useful definition for both, acknowledging that on one hand, external self-determination relates to the right of a people to determine their own status within the international community,91free of external, unwanted influence in that decision.

On the other hand, internal self-determination refers to the “range of political entitlements”

peoples should have within the State,92as well as social, religious and cultural rights. This research will be focusing on the former - the external right of a people to determine their international status.

In 2019, the right to (external) self-determination was recognised by the International Law Commission (ILC) as a peremptory norm of jus cogens status.93These norms are “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm… having the same character”.94Furthermore, this right has also been classified by the International Court of Justice as an obligation owed erga omnes,95that is, an obligation owed towards the

95Case Concerning East Timor (n 87) [29]. As cited in Saul (n 87) 632.

94Vienna Convention on the Law of Treaties 1969, Article 53.

93ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, 85.

92ibid.

91Saul (n 87) 614.

90Jorg Fisch, The Right of Self-Determination of Peoples: The Domestication of an Illusion (Cambridge University Press, 2015) 25.

89Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations (“Declaration on Friendly Relations”), G.A. Res.

2625 (XXV), 1970, annex.

88Marija Batistich, ‘The Right to Self-Determination and International Law’ (1995 ) 7(4) Auckland U. L. Rev.

1013. As cited in: Nathaniel Berman, ‘Sovereignty in Abeyance: Self-Determination and International Law’

(1988) 7 Wis. Intl. L. J. 51, 52.

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international community as a whole on the part of all States.96Despite its important status, the impacts of this right being played out are explosive within the international community.

Claims of various peoples throughout history to this right have shaken international relations and re-conceptualised principles of territorial integrity.97Indeed, Secretary of State Robert Lansing once acknowledged self-determination as being “loaded with dynamite”.98

The United Nations Charter gave the concept a formal expression in law within Article 1, which contains as a general purpose of the organisation the “to develop friendly relations among nations based on the respect for the principle of equal rights and self-determination of peoples”.99Although lacking in detail as to the scope of the right, this provision paved the way for the General Assembly Resolution 1514, the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.100This provided the legal embodiment for the progressive era of decolonisation for peoples located in the global South, based on the right of those people to self-determination. Later, with a growing need to recognise this right as vested in all types of peoples, self-determination was expanded beyond just the concept of decolonisation for the first time, with the 1970 Declaration on Friendly Relations (General Assembly Resolution 2625).101This declaration positions self-determination as a right of universal applicability, with the “emergence into any political status, freely determined by a people” acknowledged as an implementation of the right to some extent.102

102Batistich (n 88) 1020.

101Declaration on Friendly Relations (n 89).

100Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514 (XV) 1960.

99Charter of the United Nations 1945, Article 1(2).

98Robert Lansing, The Peace Negotiations: A Personal Narrative (Houghton Mifflin Co. 1921) 97.

97Maja Spanu, ‘What is Self-Determination? Using History to Understand International Relations’

(E-International Ireland, 17 April 2014)

<https://www.e-ir.info/2014/04/17/what-is-self-determination-using-history-to-understand-international-relation s/> accessed 10 June 2021.

96Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v Spain) [1970] ICJ Reports 3 [33].

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Despite this expansion, Batistich has noted that secession from pre-existing States as an ethnic, religious or linguistic group,103rather than a former colony becoming liberated, remains very controversial in terms of disturbing the carefully defined order of the international community.104When Croatia and Slovenia relied on their right to

self-determination to declare independence from Yugoslavia in 1991, it sparked a debate surrounding the conflict between principles of self-determination of the peoples claiming such a right and the territorial integrity of the pre-existing state.105Unfortunately,

international law provides us with little guidance on the legality of secession.106In fact, Drew describes the right to self-determination (beyond anti-colonialism) as “plagued by an excess of indeterminacy both in terms of scope and content.”107

Although there remains controversy surrounding its scope, it is clear that the right has an ability to adapt to divergent understandings of pursuing one’s collective destiny.

Self-determination is more than simply part of the historical triumph of decolonisation, and one should not underestimate its future significance.108The United Nations Educational, Scientific and Cultural Organization (UNESCO) has also acknowledged that the right to self-determination, although undetermined in its exact scope, stretches beyond

decolonisation.109Similarly to the Declaration on Friendly Relations, the right is enunciated in broad terms in both the ICCPR and ICESCR; “All peoples have the right of

self-determination. By virtue of that right they freely determine their political status”.110In fact, Fisch notes that the Federal Republic of Germany, during its ratification of the ICESCR,

110ICCPR (n 85) and ICESCR (n 86) Articles 1(1).

109UNESCO, ‘Statement to the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities’, UN Doc. E/CN.4/Sub.2/1992/6 (1992) [3(b)]. As cited in Willcox (n 108) 98.

108Susannah Willcox, ‘Climate Change Inundation and Atoll Island States: Implications for Human Rights, Self-Determination and Statehood’ (PhD thesis, LSE 2015) 90.

107Catriona Drew, ‘The East Timor Story: International Law on Trial’ (2001) 12 EJIL 651, 658.

106ibid 1027.

105ibid 1026.

104Batistich (n 88) 1030.

103Hurst Hannum, ‘The Right of Self-Determination in the Twenty-First Century’ (1998) 55 Wash. & Lee L.

Rev. 773, 775.

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asserted that this provision should apply to all peoples and not only colonial peoples as a matter of importance.111

This leaves room for the right to be applied to novel contexts as the cultural, geographical and political delineations of our world change and evolve over time. There is a general consensus among international law scholars that this right has the capacity to be employed beyond its previous uses. Indeed, Crawford asserts that one should be aware of “the

continuing vitality and potential expansion of the principle of self-determination”.112Alston has argued that thinking of self-determination as applying only to foreign oppression amounts to a failure to understand the entirety of “threats that exist to the enjoyment” of this right.113 In light of these affirmations, it is submitted that the right to self-determination could be expanded to provide relocation rights to environmentally and externally displaced peoples.

113ibid Alston, 1026.

112James Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’ in Philip Alston (ed), Peoples’ Rights (OUP, 2001) 65.

111Fisch (n 90) 51.

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4. Self-Determination for Island Inhabitants

The history of the right to self-determination has now been illustrated, as well as its explosive nature. Although its precise scope remains to be determined, perhaps this is a positive

attribute of the right, as it leaves open the possibility for it to evolve and apply to new claims of peoples in the future. In light of the evolving nature of the right to self-determination, it will now be applied to the focus of this research, environmentally and externally displaced peoples from low-lying SIDS. This Chapter will determine whether these inhabitants of low-lying islands which are facing severe climate degradation have the right to

self-determination, and if so, whether they should exercise said right to achieve collective and permanent relocation. Lastly, this Chapter will examine the pressing question as to whether the right to self-determination of these peoples will disappear along with their territory.

4.1 Self-Determination as a Right for Island Inhabitants

In order for environmentally and externally displaced peoples to seek collective and permanent relocation, their identity as a people with rights of self-determination must be established. As noted by Willcox, UNESCO provided a comprehensive definition of such peoples in 1989, whereby a people must share a collective identity, meet a minimum population requirement, hold some collective will as a people and share institutions.114 Willcox emphasises the importance of a people having shared political institutions, and submits that peoples with a right to self-determination may be better defined as the

population of an existing State, “constituted by a history of mutual cooperation in the shared political institutions of a state.”115

Tuvalu, Kiribati and Fiji clearly meet this standard to qualify as self-determining peoples. All three are recognised independent states and members of the United Nations. Furthermore, they are strongly constituted societies of native peoples, with clear collective ethnic, religious, cultural and linguistic identities, that employ their collective will by actively

115ibid Willcox (n 108) 108.

114UNESCO, ‘International Meeting of Experts on Further Study of the Concept of the Rights of Peoples’, UN Doc. SHS89/CONF.602/7 (1989) [22]. As cited in: Willcox (n 108) 107.

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participating in their political institutions, which are both effective domestically and vocal on the international stage. Should the existence of “foreign subjugation”116be required to

establish a right for peoples to self-determination, it is submitted that climate-change inundation, to the point at which an entire territory of a State is in danger of disappearing, qualifies as a suitably grave threat of an external nature.

Furthermore, these SIDS once identified as non-self-governing peoples. Kiribati and Tuvalu were the Gilbert and Ellice Islands respectively, a British colony, until 1976, as was Fiji until 1970. During the period of decolonisation, the islands exercised their right to external

self-determination to become independent, autonomous states (although they are now members of the Commonwealth). Once a community successfully exercise this right to self-determination, it does not simply disappear. Rather, they “continue to hold an ongoing right as self-determining peoples.”117Therefore, it can be argued that not only do the inhabitants of SIDS qualify as self-determining peoples, but they have retained a right to self-determination since their independence. This argument should also be read in light of the fact that the right to self-determination has the capacity to evolve and adapt to new situations where peoples require its use. As such, it is clear that these peoples do have a right to

self-determination upon which they can rely.

4.2 Exercising Self-Determination for Collective and Permanent Relocation

It has been outlined in Section 2.1 that permanent relocation as a collective unit is the best method of protecting environmentally and externally displaced peoples, and as such it is submitted that it should be with this aim in mind that these displaced peoples should exercise their right to self-determination. Although the low-lying SIDS would ideally prefer to remain at home and successfully mitigate against the rising sea levels, should they be faced with relocation as an inevitable last resort, it is clear that a relocation which is both collective and permanent would be their priority. The former Tuvaluan Prime Minister has observed before the UN General Assembly that Tuvalu wishes to “survive as a people and as a nation” and

117S. J. Anaya, Indigenous Peoples in International Law (2nd edn, OUP 2004) 105.

116ibid 107.

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deems this their “fundamental right”.118Additionally, the Office of the i-Kiribati President has stated that they are planning to act “so that 50 years from now, there will still be a nation called Kiribati”.119Despite offering individualised migration alternatives to its citizens (such as the i-Kiribati Migration with Dignity proposal in Section 1.2), it is clear that the protection of their collective national identity is a prime concern.

Considering the upheaval to their lives will be immense, relocating as a collective unit presents these peoples with the best opportunity to retain a sense of community identity and continue their lives to as normal an extent as possible. Furthermore, permanent relocation provides long-lasting security and safety for these peoples. As such, their self-determination rights would best be exercised to achieve collective and permanent relocation.

4.3 Self-Determination and the loss of Territory

Whether these peoples maintain their rights to self-determination even after their territory becomes submerged beneath the waves is a controversial topic. The Montevideo Convention, which provides the most universally accepted definition of statehood, stipulates a defined territory as one of the requisite conditions for a State, along with a permanent population, a government and the capacity to enter into relations with other States.120Considering that a defined territory provides a physical basis on which “people can live together as organised communities”,121the loss of all territory has been noted by the UNHCR as a potential ground for the loss of statehood.122Although the disappearance of States is not entirely new, this is

122UNHCR, ‘Climate Change and Statelessness: An Overview’ (2009), 2

<https://www.unhcr.org/protection/environment/4a1e50082/climate-change-statelessness-overview.html>

accessed 11 June 2021.

121Jenny Stoutenburg ‘When Do States Disappear? Thresholds of Effective Statehood and the Continued Recognition of “Deterritorialised” Island States’ in Michael Gerrard and Gregory Wannier (eds), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (CUP 2013) 61. As cited in: Willcox (n 108) 154.

120Montevideo Convention on the Rights and Duties of States 1933, Article 1.

119Kim Angell, ‘New territorial rights for sinking island states’ (2021) 20(1) EJPT 95, 107.

118Statement by the Honourable Apisai Ielemia Prime Minister and Minister of Foreign Affairs of Tuvalu at the 63rd Session of the United Nations General Assembly, 26 September 2008

<https://www.un.org/en/ga/63/generaldebate/tuvalu.shtml> accessed 10 June 2021.

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usually done so in the context of State succession whereby no actual territory disappears.123 Therefore, this type of territorial disappearance is completely novel to international law.

In 2015, the impacts of climate change on both the human rights and self-determination rights of SIDS inhabitants were discussed by the President of Kiribati and Prime Minister of Tuvalu before the United Nations Human Rights Council. It was pleaded that if their territories are submerged in the future, gone with that territory would be “all the trappings of a modern state”,124including their political institutions and the self-determination claims of their peoples. Clearly, if a State is at risk of disappearing along with the territory, there could be a risk that the right to self-determination of environmentally and externally displaced peoples could also vanish. This Section will argue against this risk by proposing that firstly,

self-determination rights attach to peoples, secondly, States can continue without the loss of territory and lastly, any self-determination rights will be exercised before the territory is lost.

4.3.1 Self-Determination Rights Attach to Peoples

Firstly, it is submitted that even if the State and territory is lost, the right to self-determination attaches itself specifically to peoples, not to States or to territories. Peoples may initially define themselves as a collective on the basis of being part of the same population, or their attachment to the same land, but, as Judge Dillard opined in Western Sahara, “it is for the people to determine the destiny of the territory and not the territory the destiny of the people.”125Several academics have agreed that self-determination may live on in this way.

For example, Kolers notes that while jurisdiction over territory may often be “indispensable”

for the exercise of self-determination, in principle, one could achieve self-determination anywhere,126especially considering that a peoples’ exercise of self-determination could

126Avery Kolers, ‘Attachment to Territory: Status or Achievement?’ (2012) 42 Can. J. Philos. 101, 119.

125Western Sahara Case, Advisory Opinion, Separate Opinion of Judge Dillard [1975] ICJ Reports 12, 122. As cited in: Anemoon Soete, ‘The legal position of inhabited islands submerging due to sea level rise’ (Master’s thesis, Ghent University 2014) 53.

124UN News, ‘Climate change “threatens self-determination of citizens in island States, UN rights council told’

(Relief Web, 6 March 2015)

<https://reliefweb.int/report/world/climate-change-threatens-self-determination-citizens-island-states-un-rights-c ouncil> accessed 5 May 2021.

123Jane McAdam, ‘Disappearing States, Statelessness and the Boundaries of International Law’ in Jane McAdam (ed), Climate change and displacement: Multidisciplinary perspectives (Hart Publishing 2010), 109.

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manifest itself in any number of situations, as will be discussed in Chapter 6. Additionally, Lauterpacht has proposed that despite a change in territory, a State “remains one and the same international person”,127presumably with its peoples still containing the same claims to self-determination.

Of course, if the peoples of these low-lying SIDS pursue individual migration and begin to assimilate into the communities of different countries, it may be harder to argue that they will retain a collective right to self-determination after the loss of territory. Therefore, this

argument is based on the premise that the large majority of the population will remain on the SIDS until this collective relocation, although, as discussed below, the formation of a

deterritorialised State could protect their self-determination claims despite being scattered.

4.3.2 The Deterritorialised State

A novel proposal offers a way to retain the survival of the State in this situation, and thus the self-determination of its environmentally and externally displaced peoples. This could be achieved through the temporary formation of a deterritorialised State after the loss of territory, before progressing to a more permanent solution. This proposal has been proposed by academics as a means of conserving the existing State, and consists of the displaced populations relocating, but retaining sovereign control over the abandoned land, and eventually the territorial waters (once the last rock disappears).128This control would be exercised by a ‘government-in-exile’, which would act as a trustee of the State and its assets.

It would protect the rights and interests of its relocated citizens as much as possible, continue to represent them at the international level, and manage the State’s remaining maritime zones.129This would depend on the willingness of host States to receive majorities of populations, as well as a willingness to allow the government-in-exile to reside therein and extend to its nationals a level of personal sovereignty, such as diplomatic and consular

129ibid 227.

128Jorgen Odalen, ‘Underwater Self-determination: Sea-level Rise and Deterritorialized Small Island States’

(2014) 17(2) Ethics, Policy & Env. 225, 226.

127H. Lauterpacht (ed), International Law: A Treatise (8th edn, Longmans, Green and Co. 1955) 153.

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protection.130Even if the peoples were relocated separately to a number of States, they could retain their self-determination rights and collective identity to an extent through its

deterritorialised government.

Admittedly, this solution is far from perfect. Willcox points out that such a government would lack many of its original capacities of independent statehood, such as ability to enforce laws or retain any jurisdictional sovereignty in the new territory.131In fact, its competencies as a government-in-exile, as well as its limited control over its people, would fully depend on what the receiving states of the government and peoples would be willing to grant. In

response, it is submitted that this solution would work best as a temporary one, with the purpose of allowing the peoples of the submerged SIDS to retain a degree of

self-determination rights, before more collective and permanent relocations are adopted.

Odalen notes that this proposal would require a change in the legal system governing jurisdictional rights over territorial waters, whereby maritime zones could be frozen in their current state, in order to be preserved as national waters of the SIDS even after their territory has been completely submerged.132Rayfuse agrees with this approach, noting that no State would have to relinquish sovereignty over a portion of their maritime zones, as this would simply retain the present division of boundaries.133Although this proposal seems unstable, the idea of a state continuing to exist without territory is not entirely new. It has in fact been accepted before under international law. For example, the Sovereign Order of the Military Hospitaller Order of St John of Jerusalem, of Rhodes and of Malta is an order which has historically been recognised as a “sovereign international subject”, despite having lost its territory in 1798.134McAdam notes the many historical examples of governments temporarily operating in exile in other territories,135which suggests that while the existence of territory,

135McAdam (n 130) 135.

134Odalen (n 128) 227.

133Rosemary Rayfuse, ‘International Law and Disappearing States: Utilising Maritime Entitlements to Overcome the Statehood Dilemma’ (2010) 52 UNSW Law Research Paper 1, 4.

132ibid 232.

131Willcox (n 108) 194.

130Jane McAdam, Climate Change, Forced Migration and International Law (OUP 2012) 136.

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along with the other Montevideo criteria, may be necessary to establish statehood, a people may continue to retain their self-determination and an “identity analogous to statehood”136 even after this territory has disappeared.

Although recognition by other States of statehood is not determinative, but merely a declaratory “indication of already established statehood”137once the necessary Montevideo standards have been met, Soete submits that the continued international recognition of a deterritorialised State could bolster its legitimacy at the international level.138State practice demonstrates that the international community would be willing to move beyond the restrictions of the Montevideo Convention in order to recognise on-going statehood and self-determination in such a situation. For example, the Congo was still recognised as a State even though it no longer fulfilled the necessary criteria by lacking an effective government.139 If a State which lacks a government can survive in the eyes of the international community, it is submitted that a State which still has surviving political institutions could survive even without a defined territory. The strong presumption in international law of the continuation of States once they are established,140even if going through transitional periods such as this one,141strengthens the position of the deterritorialised State. Although this proposal is

unusual and requires a rethinking of the conventional definition of a State, Burkett reminds us that climate change is an unprecedented problem, and will require unprecedented solutions.142

142Maxine Burkett, ‘The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood, and the Post-climate Era’ (2011) 2(1) Clim. Law 345, 355.

141Ben Juvelier, ‘When the Levee Breaks: Climate Change, Rising Seas, and the Loss of Island Nation Statehood’ (2017) 46 Denver Journal of International Law and Policy 21, 22.

140James Crawford, The Creation of States in International Law (2nd edn, OUP, 2006) 715.

139ibid.

138ibid 51.

137Soete (n 125) 11.

136Lilian Yamamoto and Miguel Esteban, ‘Vanishing Island States and Sovereignty’ (2010) 53(1) Ocean &

Coastal Management 1, 6.

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