By: Keshav Somani
The sea-level rise poses a risk to the sovereignty and existence of island states such as Kiribati, Tuvalu, and the Marshall Islands. The threat of complete and permanent submersion could displace their entire population. Even before a threat of submersion is realised, slow on-set processes such as salinisation and land degradation will cause cross-border movement of individuals. In this regard, there exists a lack of a proper international legal framework to address the concerns of ‘climate refugees’. Article 1(A) of the Convention Relating to the Status of Refugees defines a refugee as a person unable or unwilling to return to his origin state owing to a well-founded fear of persecution for reasons of race, nationality, religion or membership of a particular group.
As climate change affects population generally, it is significantly difficult to establish harm for reasons of race, nationality or religion. Thus, there exists a lacuna in international law where persons moving because of climate change are not covered under the definition of ‘refugee’. This article will analyse the international legal regime and ascertain the protection afforded to persons affected by climate change under (a) Article 6 of International Covenant on Civil and Political Rights (hereinafter the ‘Covenant’) and (b) Convention Relating to the Status of Stateless Persons (hereinafter the ‘1954 Convention’).
RIGHT TO LIFE UNDER ARTICLE 6 OF ICCPR
Article 6 of the Covenant recognises the inherent right to life possessed by every person. General Comment 36 of the Human Rights Committee (hereinafter the ‘Committee’) has interpreted ‘right to life’ broadly to even include the right to life with dignity. It also notes that environmental degradation and climate change constitute a serious threat to the enjoyment of the right to life. The Committee in its General Comment 31 incorporated the ‘non-refoulement’ obligation into the Covenant by observing that State Parties may not remove persons to a country where a real risk of violation of Article 6 can be contemplated. This obligation against refoulement under the Covenant is broader than the non-refoulement obligation under international refugee law. The former affords protection to even persons not satisfying the traditional definition of ‘refugee’.
The Committee in the case of Teitiota v New Zealand for the first time addressed the non-refoulement obligations of a State in reference to threats to life in the home state because of climate change. The author, in this case, alleged that his right to life will be seriously impaired by removing him to Kiribati because sea-level rise has (a) reduced habitable space causing violent land disputes (b) contaminated soil causing the destruction of crops and (c) contaminated freshwater resources reducing the access to potable water.
The Committee held that the effects of climate change in the receiving state may expose individuals to a violation of their rights under Article 6 or 7, thereby, triggering the non-refoulement obligation of sending states. The Committee observed that the entire submergence of a country is such an extreme risk, that the right to life may be impeded even before the realisation of such a risk. Although the Committee agreed that sea-level rise will render Kiribati uninhabitable, it also observed that the time frame of 10-15 years will allow intervening acts and adaptive measures to be adopted by Kiribati.
In the facts of the case, the Committee did not consider the removal of the author to Kiribati as a violation of the Covenant because he could not establish a foreseeable risk of (a) personal harm arising out of land disputes (b) indigence or deprivation of food and (c) inaccessibility or insufficiency of drinking water. Therefore, in order to trigger the non-refoulement obligation, a person must satisfy the high threshold of a real risk of foreseeable harm.
CONVENTION RELATING TO STATUS OF STATELESS PERSONS
Article 1 of the 1954 Convention defines ‘stateless person’ as a person not considered a national by any state under the operation of its law. A person’s citizenship may cease if the state itself ceases to exist; for there is no longer a state to confer nationality by the operation of its law. A similar conclusion was reached by the International Law Commission (hereinafter “ILC”) with regards to succession of states; wherein it observed that ‘when a state disappears by dissolution, its nationality also disappears’. The question which, thus, arises is whether the citizens of island states will become stateless if their entire territory were submerged.
To answer this, it is necessary to examine the statehood of island states in the event of permanent submergence. Although there is no accepted and satisfactory definition of a ‘state’, the best-known formulation is laid down in Article I of the Montevideo Convention. It states that a ‘state’ as a person of international law should possess:-
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other States.
It is fairly settled that ‘territory’ constitutes a core requirement of statehood, which may be questioned on account of complete loss of territory.
However, once a state is established, there exists a strong presumption against its extinction. A State is not extinguished by substantial changes in territory, population or government, or even by a combination of all three. For instance, the States of Somalia, Afghanistan and the Democratic Republic of Congo continued to exist as States despite lacking an effective government for a considerable period. Nevertheless, the statehood of island states may be extinguished, if the loss of territory is permanent; as the presumption applies in cases where the effectiveness can be regained. Thus, permanent submergence of the territory is likely to cause the extinction of island states, rendering its nationals as ‘stateless’.
There are cases where entities not fulfilling the criteria of statehood, have been recognised as States. In such cases, the positive act of recognition confers constitutive effects of statehood on an entity. For instance, Bosnia and Herzegovina, despite lacking effective control over much of its territory, was recognised as a State. Thus, as recognition can create ‘states’ out of entities not fulfilling the criteria of statehood, a continued recognition can preserve the statehood of entities no longer satisfying the criteria. However, without a territory, a submerged state will face significant difficulties in enforcing its laws. It will not be able to secure the basic rights of its citizens.
Moreover, the exercise of powers by a government in exile will depend on another State’s acceptance of such exercise. The nationals of such a state will effectively lack nationality and may become de-facto stateless. The Final Act of the Convention on Reduction of Statelessness (hereinafter ‘1961 Convention’) requires State Parties to consider de-facto stateless persons as much possible as de jure stateless. Therefore, in the event of permanent submergence of a state’s territory, its nationals will be rendered stateless under the 1954 Convention.
CONCLUSION AND PERSONAL OPINION
While the HRC has initiated an important jurisprudence by reading climate change into the non-refoulement obligation, there are certain limitations in its ruling. The Committee has relied on the mere existence of Kiribati’s plan to combat climate change, rather than assess its effectiveness. It has failed to notice that adaptive measures have been in place for a long time, yet the situation and the conditions of life have only worsened. The land dispute violence and hardship in accessing fresh water and growing crops will only increase in the future. The Committee has reinforced the high threshold of establishing a ‘real risk of personal harm’ upon removal to the home state.
In this regard, the dissenting opinion of Mr. Duncan Laki aptly recognises the need to counterbalance a potential unreachable standard. The opinion observes that the Committee has always assessed all relevant facts and circumstances including the general conditions of the author’s country. Since people of a country will equally face the adverse effects of climate change, it becomes significantly difficult to establish a risk of personal harm. Thus, the Committee must give due consideration to the general conditions of life in cases pertaining to climate change.
Further, even though nationals of a ‘submerged state’ could get protection under the 1954 Convention, there exists no obligation on States to prevent or reduce their statelessness. The 1961 Convention does not provide any specific safeguards against statelessness in a situation of extinction of state by submersion. This gap can be bridged by concluding treaties which cede territory to an island state threatened with submersion. Nonetheless, it is highly unlikely that a cession of territory would also include the exercise of full sovereignty and jurisdiction.
In such cases, there will arise uncertainty on the fulfilment of the criteria of independence and effective control over territory, which can be resolved by constitutive recognition. In the event no territory is ceded, arrangements could be made providing the nationals of island states the option to acquire the nationality of another state. In both cases, the nationals of a submerged state will be prevented from becoming stateless persons. In conclusion, a robust international legal framework must be in place to protect the nationals of island states against slow-onset processes, refoulement and statelessness.
(Keshav is currently a law undergraduate at Gujarat National Law University, Gandhinagar. He may be contacted via mail at firstname.lastname@example.org.)
Cite as: Keshav Somani, ‘Sea-Level Rise, Climate Refugees and Statelessness’ (The RMLNLU Law Review Blog, 10 October 2020) <https://rmlnlulawreview.com/sea-level-rise-climate-refugees-and-statelessness > date of access.