Will Climate Change Push Some People into Statelessness?

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CHAPTERS 

[00:02:09]: Legal definitions of statehood under international law 

[00:04:31]: Small island states facing heightened exposure to sea-level rise 

[00:06:04]: Legal questions surrounding the loss of physical territory 

[00:10:58]: Citizenship, nationality, and risks of statelessness 

[00:14:31]: Tuvalu’s constitutional approach to maintaining statehood 

[00:18:29]: Land acquisition and other strategies to preserve sovereignty 

[00:24:19]: The capacity of international law to respond to climate-related challenges 

TRANSCRIPT
[00:00:03.13] 

It is possible that one day climate change will cause some countries to cease to exist. Sea levels in parts of the Pacific Ocean are rising much faster than in other regions of the world. And they could seriously threaten many of the small, low lying islands that make up countries such as Tuvalu, Kiribati and the Maldives. It could even swallow them entirely, depending on how climate change progresses and what sorts of protections can be put in place. Human Huge parts of these countries could be underwater in the next few decades. So what happens then if most of the landmass of these island countries become uninhabitable? Do the countries themselves, as a legal concept, just disappear? What happens to the people whose country is swallowed by the sea? Even if they migrate away, do they lose their nationality? This is Changing Climate, Changing Migration. This is a podcast from the Migration Policy Institute that investigates all the ways climate change is unsettling how and why people move around the world. My name is Julian Hattem, I'm your host and I'm the editor of MPI's online magazine, the Migration Information Source. Today we're looking at the prospect that some people could become stateless because of climate change.

[00:01:17.12] 

To be clear, this is a problem facing only a very small number of relatively tiny countries. But for those countries, it is quite literally existential and it could happen within our lifetimes. My guest today is Mark Nevitt. Mark is an associate professor of law at Emory University who focuses on various legal ramifications of climate change. He is also a retired Navy Commander in the JAG Corps. Mark, thanks so much for your time today. It's very glad to have you on.

[00:01:44.06] 

Great to be on the MPI podcast.

[00:01:46.20] 

So let's start by getting a lay of the land, so to speak, legally speaking, under international law, what makes a country a country as opposed to just a patch of dirt with a flag on it? And why might the impacts of climate change pose a problem to that definition?

[00:02:02.11] 

Sure, it's actually a great question and a great place to start. And this may disappoint your listeners, Julian, but there's actually not a clear, well understood definition of what makes a country a country or an international law of parlance, what makes a state a state. The best guidance that we have that has had the most influence is actually from 1933. It predates the Second World War. It's the Montevideo Convention on the Rights and Duties of States, which again predate the UN Charter. But if you were to look into UN Charter, which is sort of the post World War II key international law document, it doesn't really have a clear, crisp desk definition of state. But the Montevideo Convention has been very influential and it says that a state must have four sort of characteristics. First is a permanent population, people who belong to the state. There's no minimum number on that. So a nation like Nauru has 12,000 citizens and it's still recognized as a state. A place like the Vatican as well, very small number, but a permanent population. Two, a defined physical territory. So a piece of land or an island where the state controls, even if the borders are disputed.

[00:03:15.04] 

But so it's some sort of permanent physical territory, even if the borders again, are not fully, fully settled. Three, a functioning government. So some sort of political authority to exercise control. Doesn't matter what flavor of government it is. It could be democratic, authoritarian, monarchy. That form doesn't matter. It just means it has to have a functioning government. And four is the capacity to enter into relations with other states, do diplomacy, sign treaties, do the things that nations do with each other. And so if all four criteria are met, then I'm using air quotes. A state illegally exists regardless whether or not another nation would like it or approve of the way that state governs itself. For climate change, the second piece of this is a real problem, which is the physically defined territory. The good news perhaps is that there's no sort of minimum territory. So the Vatican, I think, is 0.2 square miles. That's a legally recognized state. So some of these small island developing states, which we'll talk about, I'm sure, are really, really being faced with climate challenges of extreme weather and sea level rise and a whole host of other factors.

[00:04:29.23] 

And so the question is, can that small island state continue to exist under this classical definition of what constitutes a state? I think the good news is that there's no minimum. So even if you have a very small piece of physical property that could be a state, also there's a sort of presumption that a state will continue to exist following losing some of these criteria. But then how this plays out exactly starts to become a murky area of international law. But I'm happy to talk about how climate change in a little bit greater detail discusses or really threatens these small island developing states. Yeah, go ahead.

[00:05:11.22] 

Yeah, I guess to that point, I guess I'm curious. So, like, I'm very interested in climate change in particular, because while you mentioned the categories or the preconditions, generally speaking, for statehood, it does not. To me, it seems like climate change is interesting in that there seems to be no real precedent, right, like for removing One of those preconditions other than climate change countries have disappeared in the past. There used to be a place called Czechoslovakia. Right. Now there's not. But that is because they have been broken apart or absorbed into another country or conquered in war. No place has really just lost one of the preconditions, as far as I understand it, of statehood. You know, no land has disappeared into the ocean unless you believe in Atlantis or something like that. So I guess what happens not so once you have defined a state, what happens if a state ceases to be right?

[00:06:03.24] 

And you're exactly right. There's no clear precedent that I can just turn up to my international law book and says, oh, this is how we've dealt with this in the past. We've had governments in exile for sure. States that were occupied during the Second World War and even Kosovo, which is, I'm sorry, Kuwait, which was occupied by Iraq in 1990, was still recognized as states by other nations. And you mentioned Czechoslovakia. Right. There was sort of the velvet sort of divide where it broke up into two different states, but it's still recognized as a state because it met all four of those characteristics. So climate change is threatening all that and particularly on the physical territory component, Julian. And it really is affecting sort of four specific states. If I can just sort of mention these four states in particular, it's Kiribati, it's the Maldives, it's the Marshall Islands and Vanuatu, if I get that pronunciation correct, these are atoll nations. And there are some studies out there that suggest that many of these atoll nations will be uninhabitable by the mid 21st century. And that's due to sea level rise, that it's exacerbating wave driven flooding, which is affecting not just the physical territory, but food security, economic security, freshwater security.

[00:07:22.19] 

At some point, it'll just be really, really challenging to live in these four nations. And what catches my eye, which was the basis for my paper I wrote, is that this is not 100, 200 years away from now. This is in my lifetime. And so how does international law wrestle with this? And so your question is, I think, has a country disappeared without being conquered of subsumed into another country? We don't really have a good reference aid to deal with this, but I can give you some sort of ideas with how this could play out in practice.

[00:07:56.08] 

Yeah, please.

[00:07:57.09] 

So we have, I think maybe the government in exile type idea, I think is something that is worth looking into yet. Poland and Norway and the Netherlands, where they were recognized as states Even though their territory was physically occupied by other nations. Of course you don't have Germany invading these island states that physically are disappearing. But at least there is some sort of precedent that you can have. Sort of a de. Territorialized or a state that's delinked from the physical territory and still exist in practice. I think that recognition is going to be key. And one can imagine, Julian, that these are very sympathetic states, particularly as you think about the nations that are responsible for the most greenhouse gas emissions, essentially there's a causation piece where they are causing their extinction. So they are. One can imagine situations where states find a way to essentially continue to recognize these states as well as their maritime zones. That's really, really important. That applies to fishery rights and other sort of rights which would allow that state to essentially have some kind of legal personality and continue to exist. But how this plays out precisely sort of remains to be seen.

[00:09:17.23] 

I want to talk a bit more about the statehood question, but I'm also curious about the. The people, the national, the nationals of a country that either is disappeared or that exists without territory. On this podcast we often note that under international law there is people moving in response to the impacts of climate change do not qualify legally as refugees. But in a situation like the one you described, would they qualify as stateless? Or how, how. What happened to the nationals of a country who are the country that no longer exists? Or at least not as we think of countries existing?

[00:09:53.01] 

Yeah, this sort of two pronged. It's sort of the million dollar question. What happens to maybe the Kiribatians if the nation no longer exists? And one can imagine a way to sort of meet that second threshold of a physical territory by having some kind of physical sovereign territory in another nation? This is actually not a outlandish idea. There are embassies that, that are essentially legally the recognized territory of a state that even though it physically resides in another state. And there can be maybe an opportunity for some sort of sovereignty zone within a particular nation. The challenge of that is that a nation would have to give up a piece of its physical sovereignty. And that politically is very, very, very challenging, even under the best of circumstances. The good news for some of these island states is that the closest nations are I would consider to be very friendly nations, New Zealand, Australia, who may be more open to this. Right. But how that plays out is a little bit unclear. But I think the key thing is, Julian, will other states continue to recognize these sort of displaced citizens as nations or residents or citizens of the preexisting state or, or will they consider that nation to be extinct.

[00:11:14.03] 

And one could see a situation where some nations have incentives to maybe take over those fishing rights, to take over that exclusive economic zone. I mean, some of these island nations, the exclusive economic zone goes out to 200 nautical miles. And so some bad actor states could look at their natural resources, the fishing rights, and essentially refuse to recognize these, these stateless citizens. That would be very problematic. And that's the nightmare scenario. In that case, citizenship would effectively vanish because there's really no state to maintain nationality, register, passports, do all the things that states do. And then it's a massive human rights problem, facing barriers to work, education, travel, property ownership. That's the nightmare scenario that we really, really want to avoid. But one can see that it's not. There's a non zero chance of this occurring.

[00:12:07.14] 

And it seems like you're framing this within kind of a geopolitical question that the benefits or the incentives for a host country to recognize or not someone's nationality is whether or not the existence of that nationality is beneficial or that that nation, legally speaking, is beneficial to the host country in terms particularly I guess, of like fishing rights, of like, you know, undersea mineral, other resources. Right. Natural resources. That the main kind of geopolitical kind of wedge. Does that make sense?

[00:12:38.14] 

Right. I just want to sort of contextualize international law in the sense that, you know, international law is a powerful force. International law should ideally govern. International law should be front and center. But I would be remiss if I just mentioned, did not mention geopolitics and just politics, which I think will be driving the outcome of even much more so than sort of the black letter international law. And right now we don't have clear legal protections for these, you know, these people if they were stateless. We, you know, the Montevideo Convention is from 1933, the UN charters from 1945, the UN Convention relating to the status of refugees, which has nothing in there about environmental migrants or environmental refugees or climate refugees. That's from 1951. And so we kind of have this old sort of international treaty based system designed more for an Earth 1.0 than like an Earth 2.0, which is what we're having here. So I think politics is going to be key. And I just want to highlight, I think that how other nations recognize or do not recognize these atoll nations is really going to be the most important question.

[00:13:44.16] 

Because the last thing I want to see happen is that recognition is formally withdrawn and then the state effectively dies within international law. Which is just a shocking, shocking event for international law.

[00:13:59.16] 

We're mostly talking now kind of in abstraction, and that's a great segue, because I'm interested. Also, there have been some real empirical movements on these kinds of fronts to address the future. Precisely that you're warning about. One is a couple years ago, 2023, I believe, Tuvalu, which I think you mentioned, a small Pacific island nation, amended its constitution to basically say that Tuvalu will continue to exist even if the land of Tuvalu no longer existed. And it's an interesting line, so I actually want to read it real quick. I've got written down. It is, quote, the state of Tuvalu within its historical, cultural and legal framework, shall remain in perpetuity in the future, notwithstanding the impacts of climate change or other causes resulting in loss to the physical territory of Tuvalu. End quote. Similarly, as part of a migration and security deal with Australia, which this podcast has previously discussed with the legal scholar Jane McAdam in another episode, and that as part of that deal, Australia agreed to recognize Tuvalu's continued statehood regardless of the impacts of climate change. So it seems like you're saying that like. So there is some effort to address the questions you're raising here.

[00:15:09.19] 

Right. Do you think that these kinds of mechanisms, these kinds, like in future bilateral deals or whatever, it seems reasonable to expect some sort of clause like that? Is that a reasonable prediction for the future?

[00:15:21.06] 

Right. And as someone who's a climate change scholar, you have to be a rational optimist. Right? Because it does. You know, some of what we're talking about is pretty serious and dire and talk about nation extinction. But I was really pleased to see Tuvalu have that constitutional amendment. And you're exactly right, the Article 2 sub 1 speaks that the Tuvalu will remain in perpetuity, and not just the physical territory of Tuvalu, but also the maritime zones, which sometimes gets lost in the mix because that is really, really where the seaboard, seabed resources, the fishing rights. And so if the land was to disappear, we know under the UN Convention on the Law of the Sea, if there's no sort of coastal state to define an exclusive economic zone, then the EEZ would sort of disappear with it. And so Tuvalu, I thought, deserves significant credit for thinking through this. I also think it's significant because that's just a matter of domestic law. So how Tuvalu is thinking about its perpetuity and its future statehood is important, but it's sort of a tree in a forest and no one hears it unless someone recognizes that as a legal precedent, a legal condition.

[00:16:39.01] 

So Australia did that recognizing Tuvalu statehood and sovereignty and shall continue notwithstanding the impact of climate change related sea level rise. So Julian, I would hope that beginning with maybe the nations that are closest to Tuvalu, New Zealand, other sort of Pacific island nations would have a similar approach that Australia has. And then that was sort of. Now you're talking about potentially making international law, state recognition, state practice. And over time, state practice can actually harden into what's called customary international law if enough states sort of adopt this idea that is embedded in Tuvalu's constitution.

[00:17:23.01] 

And because you were also talking before about the prospect of buying land or a country possessing land within, kind of nested in another country. And that also is not purely hypothetical. Right. Like Kiribati, as you mentioned, another small Pacific island nation, I believe has bought some land in Fiji. My understanding was that was could be kind of a home for displaced people potentially, but I guess theoretically could also be the legal territory of Kiribati and the Kiribati government. I mean, is that also part of kind of establishing international legal practice and how countries behave in this strange new world of ours?

[00:17:59.22] 

Right. And I see what's happening here is that we are really good at diagnosing the problem. And some of these nations, for them, it's sort of a hypothetical idea for us in the USA, you know, although we have, you know, many islands, you know, many islands and many coastal regions, but we're not. Our existence is not threatened. But for these nations, this is the number one issue before them. So they're thinking about sort of innovative ways to sort of essentially save themselves and preserve their international rights. So purchasing or leasing land in another country strikes me as a sensible move because that land would now serve as a physical base for governance under that second criteria in the Montevideo Convention. Sort of a sovereign enclave. Right. That would sort of climate proof the seat of government. So we see this happen with Kiribati and Fiji. And it's not entirely. There's some precedent for this, I think, of places like embassies, there's places where there's special administrative zones. Guantanamo Bay, right, is basically US exercises full jurisdiction and control without sovereignty transfer. And so this government in exile idea, I think could develop into some legal personality.

[00:19:14.15] 

The problem is that nations need to sort of give up a piece of their territory to these, to these island nations. And this might be a role where the United Nations Framework Convention on Climate Change or Loss and Damage and other Sort of international legal approaches can help fund that and help sort of offset those costs to the host nation.

[00:19:37.07] 

Yeah, let's talk about that because you, in this article that you mentioned in the Georgetown Environmental Law Review, you mentioned some other potential solutions or approaches. One I think is the climatizing, quote unquote, the UN Security Council and kind of repointing, I guess some of that's mission. You also mentioned loss and damage, which is international framework for repaying financially countries that have lost physical or other damages due to the impacts of climate change. I mean what, what would that look like? What, what else could happen to prevent a sort of climate induced statelessness or climate induced loss of statehood?

[00:20:16.18] 

Great question. So climate lawyers, people who think about this for a living, like to say there's no sort of silver bullet, but we got a lot of silver buckshot that we can try. Some of what you're talking about, Julian, is one maybe buckshot that could maybe help. And so what Tuvalu's doing, and we haven't talked about the recent international legal cases from the ICJ or the UN Tribunal Law of the Sea, which is really sort of, I think really elevated climate change as a, as a human security issue and upholding.

[00:20:50.22] 

Explain that briefly. Yeah, yeah, give us a rundown.

[00:20:53.17] 

Yeah. So we have, in the last couple of years we've had two actually three major decisions from international court which actually came after my article was, was drafted. And one is from the ICJ, International Court of Justice, which is sort of the UN's international law judicial body, issued a landmark opinion on States obligations to respect climate change. And it recognized that a clean, healthy and sustainable environment is a human right and environmental harm can undermine the rights of current and future generations. Affirming that states have an affirmative legal duty under international law to combat climate change and failure to meet those obligations could result in legal consequences such as compensation. That all sounds great. At the end of the day it comes down to enforcement of this opinion. Right. This is always a challenge in international law and this is technically an ICJ advisory opinion, but it was brought by a small island state. And it also is very influential I think in sort of setting the conditions for a lot of the ideas we're talking about here. Part of that, you know, the silver buckshot there also was the International Tribunal for the Law of the Sea, again an opinion that was issued at the request of the Commission of Small Island States on Climate Change and again found that the UN Convention on Law of the Sea states that nations need to take all measures to Prevent, reduce and control marine pollution and also take affirmative steps to protect and preserve the marine environment.

[00:22:34.11] 

All which to say these two sort of opinions, I think sort of set are sort of setting the pathway for actually implementation of some of these ideas that we're talking about. But in terms of what the communities can do today, I mean, loss and damage is certainly part of that. I think adaptation finance is part of that as well. Right. Developed nations helping out developing nations. And these are the nations that are most at risk of climate change. That certainly seems like a smart idea. I think there's actually could be a role for the Security Council long term. I've done some writing on that, Julian. It strikes me that if in fact nations lose their sovereignty and the United nations, which is predicated on upholding the sovereign equality of all other nations, that's a problem for the Security Council to address potentially. Right. And so unlikely to happen right now because of Russia, Ukraine and sort of geopolitical realities. But in other times the Security Council has shown a willingness to sort of address these non traditional threats.

[00:23:43.12] 

We're almost out of time, so I probably got one more question. But I guess one thing that has jumped out to me during the course of this conversation is how much the international legal system seems just unprepared for the potential new reality for Earth 2.0, as you put it. Right. This is a broader question, but I mean, is international law prepared or equipped to handle the prospect of climate induced statelessness or climate induced loss of sovereignty in its current form in the Earth 1.0 that we have, or do we basically need to rewrite the rules going forward?

[00:24:19.03] 

So I think that today the answer is, is no. They're inadequate based upon how we conceptualize what a state is, how we protect climate refugees, which we really don't under international law. And these institutions are showing their age. They're kind of creaky. Even the human rights treaties and negotiated agreements between nations just lack the clarity and the ability to wrestle with this issue. But again, you have to be a rational optimist in this line of work. International law is not rigid. There is precedent for states to exist despite losing effective control over their sovereignty. We talked about some of them. The government's in exile. There is an idea for legal entrepreneurship relying upon some of the ideas I talked about, Guantanamo Bay embassies, things along those lines, buying territory in other countries. And I think that, you know, international law could effectively evolve over time as states recognize these otherwise, these nations that otherwise would not have all four of those criteria under the Montevideo Convention.

[00:25:34.24] 

We should probably wrap things up there. But Mark, thank you so much for walking through these complex legal challenges. It's been eye opening and interesting and I appreciate it.

[00:25:43.17] 

Thank you so much.

[00:25:44.22] 

Mark Nevitt is an Associate Professor of Law at Emory University. His article in the Georgetown Environmental Law Review, which we mentioned, is called Climate Change and the Specter of Statelessness. Thank you for tuning in to this episode of Changing Climate, Changing Migration. If you made it this far in the episode, I suspect that you are interested in hearing more from us, which you can do by subscribing to the podcast through Apple, Spotify or wherever else you get your podcasts. Please also leave us a review and share the podcast widely that helps support our ability to continue making new episodes. You can find all of the episodes of this and other MPI podcasts on our website at migrationpolicy.org/podcasts. In my conversation with Mark, I mentioned a previous episode with Jane McAdam that discussed a migration and security deal between Tuvalu and Australia. If you want to hear more, that episode is called "Are the Pacific’s Climate Migration Experiments a Preview for the World?". Check it out. This episode was produced by Daniel;a Espacio with assistance from Lisa Dixon and editorial oversight by Michelle Mittelstadt. Our theme music is Touch by Patrick Patrikios. Once again, I'm Julian Hattem.

[00:26:56.19] 

Thank you very much for listening. See you next time.