‘Disappearing States’, Statelessness and the Boundaries of International Law

Abstract

The ‘disappearing States’ or ‘sinking islands’ phenomenon has become the litmus test for the dramatic climate change impacts on human society. Atlantis-style predictions of whole countries disappearing beneath the waves raise fascinating legal issues. As a purely academic exercise, pondering the dissolution of a State because of climate change rather than conflict, cession, merger or succession entails novel questions that go to the heart of legal rules on the creation and extinction of States. However, much of this deliberation is taking place in the abstract, such that the premises for why, when and how States might ‘disappear’, and the consequences of this, do not always sit comfortably with the empirical evidence. This may lead to the adoption of well-intentioned but ultimately misguided policies. This paper is anchored in a case study of the small Pacific island States of Kiribati and Tuvalu, which have become emblematic of the so-called ‘sinking States’ and ‘climate refugee’ phenomenon. It argues that the focus on loss of territory as the indicator of a State’s disappearance may be misplaced, since small island States such as Kiribati and Tuvalu will become uninhabitable long before they physically disappear. In legal terms, the absence of population, rather than of territory, may provide the first signal that an entity no longer displays the full indicia of statehood. While the paper’s motivation is to determine the legal status of people displaced from ‘disappearing States’, its primary focus is on how and when such States would cease to exist, since this necessarily links to the ability to maintain nationality. In doing so, it examines mechanisms such as the government in exile as a means of enabling the State to continue even when the territory is uninhabitable, and briefly considers alternatives to full statehood, such as a self-governing territory in free association with another State.

Keywords: International law, disappearing States, climate change, statelessness, 'climate refugees', displacement, forced migration