Shall I at least set my lands in order? – Can states acquire new territory to avoid climatic statelessness?

As we get closer to COP26 in Glasgow this November and following on from the Climate and Development Ministerial on 31 March 2021 ¹, I want to come back to an issue I discussed in a series of blogs last year: statelessness caused by the impact of climate change.

One way to look at citizenship is as the connection between a people, a territory and a state.  Climate change is threatening to sever that connection in the case of some small island states.  The binary choice in international law is between statelessness and citizenship of (some) state.  That choice does not take into account the importance for small island states at risk of climatic statelessness of key concepts bound up with that of citizenship: self-determination, cultural identity, and belonging.  Can we look beyond the normative hierarchy created by international law to ensure that the concept of citizenship remains meaningful for those most impacted by climate change?

 

Small island states and the impact of climate change

I focus on small island states as they are most at risk from the long-term impact of climate change.  Several uninhabited islands forming part of the Solomon Islands chain have disappeared already, and some inhabited islands are also at risk. Tuvalu, for example, could disappear in the next 50 years ².  The Intergovernmental Panel on Climate Change has also identified Kiribati and the Marshall Islands as being at risk of loss of sovereignty or existence due to the effects of climate change ³.

My first blog in the series looked at how climatic events and the disappearance of states due to slow-onset climate events, such as inundation or erosion, might create a new group of stateless people.  The second blog considered whether the law on statelessness can protect those at risk of climatic statelessness.  Currently, the law on statelessness does not deal with the loss of a state, only of citizenship of the individual or of groups.  Might the concepts of de jure and de facto statelessness apply in the context of ‘disappearing states’?  In the third instalment, I looked at how the law on statehood and the criteria for statehood might be relevant.  There is some precedent for continued recognition of a state where some of the criteria for statehood have not been met.  Ultimately, islanders will not be able to rely on recognition of their submerged state indefinitely.

 

Same state, different territory?

The UN High Commissioner for Refugees and IOM in their 2009 Submission on Climate Change and Statelessness suggest that, to solve this problem and prevent statelessness, territory elsewhere could be ceded to the disappearing state.  Can a state lose its territory, but then reconstitute itself on new territory satisfying the conditions for statehood?  The UNHCR submission suggests that should the original state territory cease to exist, moving to a new territory may not lead to loss of statehood, if other states agree to continue recognising the state.  But is this a realistic and viable solution?

The solution envisaged by UNHCR submission is already being explored.  To manage the impact of climate change and make up for parts of its territory disappearing, 10 years ago the island state of Kiribati purchased 6000 acres of land on Fiji ⁴.  Fiji has welcomed the possibility of some i-Kiribati moving to the purchased land, although this has not yet occurred ⁵.  Recent plans are to continue using the land to ensure Kiribati’s food security ⁶, rather than as a relocation option.  In any event, moving from one island to another may not be an answer in the long run.  Fiji too has had to move some of its villages because of rising sea levels ⁷.

Once Kiribati’s land disappears, even if all its population moves to the land on Fiji, without a territory of it is own, Kiribati would cease (eventually) to be considered a state.  Kiribati may own the land, but ownership alone is not sufficient.  The Kiribati state needs to have exclusive jurisdiction over that territory ⁸.  In this case, Fiji will retain exclusive jurisdiction and sovereignty over the land.  Kiribati could not form an independent state on that land without Fiji ceding control and jurisdiction over the land to the Kiribati government and people.

 

Cultural identity, territory and citizenship

Once there is no Kiribati state, there could no longer be Kiribati citizenship.   Any i-Kiribati living on the purchased land on Fiji would have two options.  The population could either become stateless, or the i-Kiribati could seek to obtain Fiji citizenship.   It would be open to Fiji, under its current or amended nationality laws, to allow the former Kiribati citizens to take on Fijian nationality.

A new citizenship would provide protection from statelessness, but it would not protect from the loss of identity, both legal and cultural, of the migrated Kiribati community.  In many Pacific island countries, the term for land is the same as the generic term for people from that place.  This shows the close link, conceptually, between the land and the people.  For the i-Kiribati, losing their territory means losing a key part of their identity ⁹.

Even where land and identity can be separated, that separation can result, ultimately, in the erosion and loss of that identity.  For example, the people of Nauru, whose island was damaged by Australian, New Zealand and British phosphate mining, were offered in 1963 an alternative territory, on Curtis Island.  Although the government of Nauru considered the relocation itself as potentially viable, the retention of sovereignty by Australia over Curtis Island was problematic.  So was the fact that Nauru islanders would be required to accept Australian citizenship as part of the move.  Relinquishing Nauru citizenship, as well as their territory was considered an unacceptable impact on the nation’s cultural identity and the offer was rejected for that reason ¹⁰.

 

Beyond the binary choice of statelessness vs. citizenship

For all the discussion here about the i-Kiribati moving together to another territory, it is unlikely that there will be a sudden disappearance of its land.  Climate change damage is slow and protracted.  It reduces habitable land, yes.  But it also impacts on agricultural capacity, food security, fresh-water access, health and on employment opportunities ¹¹.  The degradation of the environment makes it likely that the i-Kiribati will move away bit by bit and possibly to different states.  This may eventually impact on Kiribati fulfilling the criteria for statehood, such as a permanent population or an effective government.  It will also impact on the strength and resilience of the population’s cultural identity.  Both are likely to occur long before the full loss of territory ¹².

Whether the outcome for the i-Kiribati is a slow dissipation of its population or a wholesale relocation of that population to a different territory, it is clear that citizenship is not simply a standalone right.  Citizenship has been described as the right to have rights ¹³.  A solution that does not take into account the right to self-determination, to a cultural identity, and to related socio-economic and territorial rights cannot be a solution that has truly mitigated the long-term devastating impacts of climate change on small island states.