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Love for Law

The International Legal Status of Territories That Will Be Exposed to Water Due to Climate Change

Markus Spiske from Unsplash

Today, humanity is in a state of environmental crisis, and ecology problems are gradually becoming the top priority of the agenda. The most debatable and tangible is the climate change issue — we are experiencing its effects now. The most vulnerable to climate change, especially global warming — which is inextricably linked to climate change — are the small island states of the Pacific Ocean.

As a result of melting glaciers and thermal expansion, the sea level increases, and small island states are threatened with flooding. Recent reports by the UN Intergovernmental Panel on Climate Change suggest a sea-level increase from 26 to 82 cm up to 2100. The growth rate depends on whether the temperature rises to the minimum forecast of 1.5 degrees Celsius above the pre-industrial level. It will reach the worst forecasts of 4.8 degrees Celsius.

The Maldives is the lowest country in the world, with over 80 percent of its islands at an altitude of less than one meter above sea level. Residents of this country will be among the first mass climate refugees. In 2009, former president Mohamed Nashed organized a governmental meeting underwater to raise awareness of the country’s future if anthropogenic global warming would be unattended. By 2050, about 1500 Indonesian islands may be underwater.

Pacific islands, such as Kiribati, Tuvalu, and the Marshall Islands, are also affected by climate change. Since the sea washes them from all sides, they are directly threatened by more intense storm cycles and seawater invasion in groundwater. The ex-president of Kiribati, Anote Tong, said his country had less than 20 years left to live.

Given the above, we are faced with two significant problems — the climate refugees’ issue and the question of sovereignty of states that will be underwater due to global warming.

Concerning climate refugees, international law’s attitude to recognizing “environmental refugees” as a separate category of people in need of special protection is ambiguous. At the UN Climate Change Conference held in Bonn in 2017, the issue of protecting “climate refugees” was raised. Shortly before the conference, the Foundation for Environmental Justice published the report “Without Borders,” which emphasized the link between climate change, forced migration, and conflicts.

However, this concept is non-classical in international law since it does not fall under the definition of “refugee” under the 1951 Convention on the Status of Refugees. Thus, the inhabitants of the islands of Kiribati, Nauru, and Tuvalu, where every tenth person has migrated over the last decade, can not be classified as refugees, even if those who remain “fall into the trap” due to deterioration of the environment.

Turning to the question of sovereignty, Article 1 of the Montevideo Convention on the Rights and Duties of States stipulates that the state must have the following characteristics: a permanent population, a specified territory, government, and the ability to enter into relations with other states.

That is, one of the signs of the state is the presence of a certain territory. Traditional State definitions also include this requirement. What then happens to the state, if it, as a result of flooding, loses one of its key features — the territory?

Statehood is important for the island states for three reasons. First of all, it is membership in the UN and the possibility of applying to the International Court of Justice of the United Nations, which have only states. Membership in the UN is necessary since it provides a cost-effective way to maintain international relations and apply to the International Court of Justice, which offers legal protection to the state.

Secondly, the island states’ inhabitants have a strong connection with their culture, land, and state. This connection is the cause that the residents of Tuvalu have refused to resettle in 2008–2010 and refuse to recognize themselves as refugees.

And thirdly, the consequences of disappearing are unclear. In the best case, the state will lose its status of the state. Still, it will remain “a subject of international law … capable of having international rights and obligations,” thereby retaining the ability to bring international claims. Or certain obligations may become obligatory erga omnes and continue to bind third countries.

In the worst case, the state’s physical disappearance may lead to the corresponding disappearance of rights and obligations. The peoples will not have access to international law, at least in the context of the disappearing state’s existing commitments. At the very least, the disappearance will lead to the loss of maritime rights, which is essential for island states .

Climate change is not a sudden phenomenon, and the loss of territory will not happen instantaneously. Consequently, two periods require consideration. The first is when people migrate through the effects of rising sea levels. It is important that the territory still exists, but there may be issues related to sovereignty abandonment. The second period begins with the complete loss of territory. It raises the question of whether the loss of statehood automatically flows from the complete loss of territory. Although this is unlikely to happen within the next 50 years, any decision will require time, resources, and political will.

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