About the Author: Dr. Nafees Ahmad is an Associate Professor at the Faculty of Legal Studies, South Asian University (SAU)-New Delhi. He holds a doctorate in International Refugee Law and Human Rights. His scholarship focuses on RAMS (Refugees, Asylum-seekers, Migrants, Stateless) and the role of Artificial Intelligence (AI) in their protection, Global Forced Displacement, Global Circumstantial Migration (GCM) Governance and Climate Refugees in South Asia. Dr. Ahmad is also an active blogger, writer, poet and Op-Ed contributor to many international digital platforms in the fields of Refugee Research, Forced Population Transfer, IRL, IHRL, IHL, International Relations and Diplomacy etc. He serves on many committees and editorial boards of many international journals and magazines. He is available at drnafeesahmad@sau.ac.in.
Remains of a collapsed seawall in Tuvalu, by mtcurado. Available here.
Introduction
International Law has numerous issues due to climate change. One topic that has garnered much attention in both scholarly discourse and political practice is the particular circumstances a few small island republics face. Climate change-induced sea level rise threatens millions of people who live in low-lying coastal areas, especially island nations, as well as their security and the entire gamut of livelihoods. The culture, habitation, and identity of millions are being destroyed or lost, which impacts many aspects of international law and challenges long-standing ideas like the requirements for statehood. One primary concern from the human rights standpoint is how this will affect the citizens of disappeared states regarding their legal standing. They play a specific role in the debate over handling climate refugees.
In contrast to most displacement cases, there might not be a state to return to when doing so is the end goal. However, what are the potential legal ramifications? Do those who lose their state genuinely end up without a form? The International Statelessness Law (ISL), which consists of the 1954 UN Convention Relating to the Status of Stateless Persons (UNCSSP) and the 1961 UN Convention on the Reduction of Statelessness (UNCROS), seems to be specifically designed for this situation. Nonetheless, this piece makes the case that, before jumping to hasty conclusions about the applicability of well-known principles of international law enunciated under Article 1 of the UN Charter, it is worthwhile to investigate more closely, particularly in light of the numerous transforming difficulties of the modern day.
Climatic De-territorialization and ISL
The UNCSSP, which complements international refugee law (IRL), establishes a framework for the protection of stateless people. It is indeterminate if the citizens of tiny island nations are protected by this legal framework, even though some writers who address the situation of sinking island states regard statelessness as an unavoidable legal outcome. The most common instance of statelessness, also known as de jure statelessness, is when a person’s home state knowingly refuses to grant them citizenship— more specifically, by the operation of law. Small island nations cannot be considered de jure stateless since the physical collapse of the state does not meet these requirements. Moreover, some people experience barriers to exercising certain rights and end up in a condition similar to de jure statelessness even though they are not denied nationality. In the words of UNHCR, “persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country” constitute a case of de facto statelessness. When nationals cannot get national identity documents, this is a common circumstance in which they may be effectively denied various rights. De facto stateless people should, in theory, be treated like de jure stateless people, according to the Final Act of the Conference that led to the UNCSSP. These instances fall under the purview of the UNHCR’s mandate.
Nonetheless, there is no simple way to determine whether a state’s physical submersion causes de facto statelessness. In most cases, the affected individuals have a nationality and a competent home state; these are dubious circumstances in the subject under discussion. Two possibilities can be considered, albeit the precise legal ramifications of a state losing all its liveable land and its legal standing still remain uncertain. The state loses its existence as a state, disappears from the face of the earth, or survives without the original area. In the first situation, the status of citizens will be determined by the state’s ability to maintain its promise of applying citizenship-induced rights. The conventional definition of de facto statelessness is reached when it becomes difficult to enforce citizenship effectively. In the context of statelessness explored here, the second situation—which is frequently assumed without question—needs closer examination.
The New Category of Climate Statelessness
Since de facto statelessness requires citizenship, it does not apply to a state that has legally vanished, at least not following the criteria given above. However, the islanders in question require protection just as much as other categories of de facto stateless people. This extraordinary situation may create a brand-new class of de facto statelessness known as “climate statelessness.” The UNCSSP’s history further supports this opinion. Despite acknowledging that de facto and de jure stateless people are comparable in that they cannot assert the rights to which their nationality entitles them, the letter’s drafters decided eventually not to include it due to the challenges of evidence. But as an International Scholar noted, there comes a point at which the people living on sinking island states will no longer be able to live in their home state. As a result, they will no longer be able to claim any rights based on their nationality. Therefore, to secure protection, one could argue that to stay in tune with the goals of the UNCSSP and its Final Act, the ISL framework should be extended to states that are disappearing, conceiving a new category of “climate statelessness” if the consensus is that even typical cases of de facto statelessness should be covered beyond the scope of the UNCSSP.
Legal Entity Challenges of Climate Statelessness
It is ascertained that even in instances that do not conform to the norm, the principles of de facto statelessness may be applied. However, after all these intricate calculations, one should pause and ask themselves if this is actually in the best interests of all parties involved. The tendency to classify them in this way merely stems from the innate belief that these underwater states are officially regarded as disappeared. Nonetheless, the precise assessment of de facto statelessness following the actual loss of a state’s territory can impact the state’s legal standing. Ultimately, this position will rely, at least in part, on the international law community’s perennial approval and recognition. The international law community may feel that the vital subject of the endangered states’ future existence may be ignored because the minimum rights resulting from the ISL framework would have clarified their inhabitants’ status. In this way, the development of “climate statelessness” would effectively impede these states’ ability to continue as legal entities and leave the former population in a situation that only seems to offer a loose legal standing.
In international law, statelessness is not a fixed legal situation and remains an unwanted oddity. This is because, on the one hand, no particular home state is in charge of upholding the impacted parties’ human rights. However, one must also have a functioning home state to be granted refugee status abroad. Furthermore, since only a few governments have a process for recognizing stateless persons on their soil, there are no apparent pathways to benefit from the ISL framework in this situation. It is evident from these reasons that Article 32 of the 1951 UN Convention Relating to the Status of Refugees (UNCSR), Article 24 of the 1966 UN Covenant on Civil and Political Rights (ICCPR), and Article 15 of the Universal Declaration of Human Rights, 1948 (UDHR) enshrine the maxim to prevent and reduce statelessness. A situation where it would be necessary first to determine whether a case of de facto statelessness even existed should be avoided with grater reason in conformity with these principles. As such, it is preferable to refrain from attempting to create the classification of “climate statelessness.”
Way Ahead
It may be aptly summed up from the above analysis of “climate statelessness” and how it is handled in the scholarly literature warns against assuming too much about the legal evaluation of such novel phenomena because doing so can mask the real issues. Sometimes, a phenomenon’s legal ramifications are apparent, but further examination may reveal otherwise. This also holds for the widely held belief that a state ends when its territory has disappeared. This belief is not as clear-cut as it might first appear. This article demonstrates that international law does, in fact, frequently provide points of departure for interpretation and, consequently, the ability to respond adaptably to novel types of issues. However, this flexibility must also be used carefully to serve international law’s primary meaning and purpose as per the UN Charter and Conventions adopted thereunder, particularly in light of climate change, which presents us with numerous unprecedented challenges.