Island nations endangered by climate change
Alvin Leong, Pace Global Center for Environmental Legal Studies
Climate change poses an existential threat to certain island nations in the Pacific and Indian Oceans because their territories may become submerged as a result of sea level rise. This long-term threat includes the potential loss of statehood and sovereignty for these island countries.
While there is no legally binding definition of “statehood” in international law, the criteria found in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States have been widely accepted, which require that a state should possess (1) a permanent population, (2) a defined territory, (3) government and (4) capacity to enter into relations with the other states. Sea level rise caused by climate change threatens the ability of some island nations to keep a permanent population on a defined territory. The international community has a profound responsibility to ensure that the citizens of endangered island nations do not become stateless persons or territory-less citizens in a condition tantamount to statelessness.
There are possible solutions that endangered island nations can consider – including acquiring new territory, merger with or absorption into another state, self-government within another state, or the creation of artificial islands. Creative ideas about de-territorialised states, governments-in-exile and political trusteeships have been suggested. The concept of sovereignty is complex, and is manifested in the real world along a spectrum, ranging from the subordinate status of Native American tribes which exist as ‘domestic dependent nations’; to the conundrum of the ‘Republic of China’ of Taiwan, where the local government has sovereignty over territory and population but where the overwhelming majority of the international community does not recognise it as a state; to certain self-governing states with ‘free association’ arrangements with other states.
There are significant political and legal obstacles and challenges to solving this complex climate change problem. There are gaps in international law dealing with population displacement and migration. Also, significantly, the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which defines maritime zones such as Exclusive Economic Zones (EEZs), may need to be revisited. With sea level rise, coastal baselines will shift to the detriment of the island states, and at some point their maritime zones may be completely lost. Also, UNCLOS does not recognise artificial islands for purposes of EEZs. Efforts should be made to preserve, maximise and realise the value of maritime zones; such realisation could take the form of an exchange of rights for land or a monetisation of claims or other income-generating transactions. Thus, it may be economically vital for the island state to be assured that it can maintain formal statehood, at least for a certain period of time.
The parties and processes under the United Nations Framework Convention on Climate Change (UNFCCC) have a special responsibility to address this existential vulnerability of certain island states – a profound issue that is inextricably intertwined with the thematic areas of adaptation and loss and damage. This would call for the linking of the discussions of mitigation, adaptation, finance, and loss and damage within the UNFCCC. The UNFCCC, in conjunction with responsive international law, can provide a platform for the formulation of innovative bilateral, regional and multilateral mechanisms and arrangements with respect to endangered island states.
Ultimately, achieving a successful and sustainable solution to these challenging issues will require a deep and holistic understanding of the web of political, economic, social and cultural factors involved. This web of factors is grounded in the central concept of identity – including political, economic, social and cultural identity. In crafting appropriate responses, these multidimensional perspectives of identity should be contextualised with respect to the specific island nation. Thus, a customised approach is called for; one that focuses on the multidimensional phenomenon of identity over legal formalism. In other words, identity transcends the ‘nation-state’ construct. International efforts should strive to perpetuate, to the maximum extent possible, the multidimensional aspects of island identity, and secure the right of future generations of islanders to self-determination, to freely determine their political status and freely pursue their economic, social and cultural development.
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