Author: Muskaan Aggarwal
IV Year | Jindal Global Law School, Sonepat

Introduction:

Sinking Island nations are those islands which are facing the threat of being submerged due to climate change. The climate crisis has now become an undeniable reality for all. It is not possible to ignore the incoming consequences of our past and present actions in the future. One of the many consequences comes through human displacement, especially due to the threat of sinking for many island nations.

Rise in Sea Levels:

The National Oceanic and Atmospheric Administration (NOAA) estimated that sea levels rose from 0.06 inches to 0.14 from 2006-2015.[1] The United Nations Intergovernmental Panel on Climate Change has estimated a rise in sea levels to be 24-30 cm by 2065 and 40-63 cm by 2100.[2] A World Bank Report identified climate change to be a potent driver of migrating 216 million people by 2050. [3]

The report highlights that taking immediate action can reduce the impact of climate change by 80%[4]. But in the current status of countries, it does not seem plausible for us to achieve this threshold. Thus, action is required on what would be the status of the countries and cities that are currently on the brink of sinking.

Sinking Islands and Cities:

Some of the cities that are facing the threat of disappearance by 2100 include Jakarta (Indonesia), Lagos (Nigeria), Houston (Texas), Dhaka (Bangladesh), Venice (Italy), Virginia Beach (Virginia), Bangkok (Thailand), New Orleans (Louisiana), Rotterdam (The Netherlands), Alexandria (Egypt), and Miami (Florida).[5]

UNESCO has been trying to help the underdeveloped and geographically-challenged countries to achieve their sustainable development goals through SIDS (Small Island Developing States),[6] which includes about 58 countries that are most expected to suffer the climate change consequences.

Some of the sinking island nations disappearing due to climate change are Kiribati, The Maldives, Vanuatu, Tuvalu, Solomon Islands, Samoa, Nauru, Fiji Islands, and the Marshall Islands.[7]

Sinking Island Nations and their Statehood:

It is important to find answers to the question of what happens to the statehood of a sinking island. Sovereignty is an essential principle of international relations. Global governance can come under question when the sovereignty of a state is under threat. This is where many solutions have been proposed to maintain the sovereignty of these threatened nations. The presumption of continuity of state existence is one of them.

Qualifications of a State:

As per Article 1 of the 1933 Montevideo Convention on Rights and Duties of States, the qualifications of a state include: “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states”.[8] Therefore, a state without any defined territory has questionable statehood. This further means that the population would also become stateless de facto.

Presumption of Continuity of State Existence:

The principle of continuity of statehood was first discussed by James Crawford in his book “The Creation of States in International Law”.[9] He argued that even if state territory is lost or gained, which is quite overwhelming, then it doesn’t mean that such change will affect the continued existence of the state.

This idea is aligned with Gerard Kreijan’s suggestion that “states may have a complicated birth, but they do not die easily”, as provided in his book “State Failure, Sovereignty and Effectiveness”.[10] This idea provides that even if the territory of a state is completely submerged or becomes uninhabitable due to the effects of climate change, it doesn’t mean that statehood itself has been destroyed.

Sinking Island Nations and their Population:

This idea still does not answer the question of what happens to the population of such states. It is important to note that despite the influential statement of the 2018 Global Compact for Safe, Orderly, and Regular Migration[11], there have been no binding agreements between countries for climate migrants and refugees.

Further, the principle of presumption of continuity is a restrictive principle. It avoids the merging of states in case of any change in the territory or governmental authority of the state. The principle doesn’t refer to the state itself. It refers to the existence of a current state as a continuous entity to a past state. Therefore, the existing principles of habitability for states should not apply to understanding states under this principle.

Illustration:

A park continues to exist even after the space of the park decreases or its location changes. However, one cannot explain the continued existence of the park, even after the open green space stands destroyed. Even for the principle of continuity to apply to the park, it needs to meet the independent ingredients.[12]

Problem of Migration:

Further, the principle becomes problematic for the population expected to migrate. The population would have to migrate before the calamity arises to some other country. However, in case we continue to recognize the state after it ceases to exist, it would mean that the population remain citizens of the country that is in continued existence.

Hence, they would have to be governed by the laws of the previous state that they were living in. This would mean a great amount of disarray for the state giving them refuge and also provide uncertainty to the status of such a population.

Suggestions And Conclusion:

While the ideal solution would be to make amends today, the principle of continuity of statehood sounds to be a good solution. However, the consequences of such a move would not be beneficial to anyone – neither for the population nor to the states. Instead, it would be better to allow the sinking island nations to merge with other existing states. This requires proper treaties in advance to suit the needs of the population in the face of such calamities.

Again, some may argue that it would not be possible for such Stateless Conventions to provide all solutions to the populations facing such situations. However, choosing to continue the recognition of submerged states would result in an empty fiction that would further make it difficult to reach a long-term solution for the same.

[1] Rebecca Lindsey, Climate Change: Global Sea Level, Climate.gov (2022), https://www.climate.gov/news-features/understanding-climate/climate-change-global-sea-level.

[2] United Nations, Climate Change, https://www.un.org/en/global-issues/climate-change.

[3] Viviane Clement, et. Al., Groundswell Part 2: Acting on Internal Climate Migration, World Bank (2021), https://openknowledge.worldbank.org/handle/10986/36248.

[4] Press Release, Climate Change Could Force 216 Million People to Migrate Within Their Own Countries by 2050, World Bank (2021), https://www.worldbank.org/en/news/press-release/2021/09/13/climate-change-could-force-216-million-people-to-migrate-within-their-own-countries-by-2050.

[5] Talia Lakritz, These 11 sinking cities could disappear by 2100, World Economic Forum (2019), https://www.weforum.org/agenda/2019/09/11-sinking-cities-that-could-soon-be-underwater.

[6] UNESCO and Small Island Developing States (SIDS), UNESCO, https://en.unesco.org/sids/about.

[7] Countries at risk of disappearing due to Climate Change, Sustainability for All, https://www.activesustainability.com/climate-change/countries-risk-disappearing-climate-change/?_adin=02021864894.

[8] Montevideo Convention on the Rights and Duties of States, https://www.jus.uio.no/english/services/library/treaties/01/1-02/rights-duties-states.xml.

[9] James Crawford, The Creation of States in International Law (2^nd edn), Oxford Academic (2010), https://doi.org/10.1093/acprof:oso/9780199228423.001.0001.

[10] Gerard Kreijen, State Failure, Sovereignty and Effectiveness: Legal Lessons from the Decolonization of Sub-Saharan Africa (Developments in International Law), Brill Nijhoff (2004), https://www.amazon.com/State-Failure-Sovereignty-Effectiveness-Decolonization/dp/9004139656.

[11] Global Impact for Safe, Orderly and Regular Migration, Global Compact for Migration (2018), https://refugeesmigrants.un.org/sites/default/files/180711_final_draft_0.pdf.

[12] Jane McAdam, ‘‘Disappearing States’, Statelessness, and Relocation’, Climate Change, Forced Migration, and International Law, Oxford Academic (2012), https://doi.org/10.1093/acprof:oso/9780199587087.003.0006. 

Editor: Kusumita Banerjee