That Sinking Feeling

While public concern about global warming has waned in recent years, ever-more scientific evidence shows that climate change is a grave and growing nightmare. Among problematic signs are the melting of glaciers and polar ice caps at an increasing rate, and the corresponding rise in sea levels.  While perhaps a distant concern both geographically and temporally for much of the world’s population, rising sea levels pose an imminent threat to the inhabitants of small island states (SIS) already suffering from the effects. The highest point in the Marshall Islands, for instance, is only 10 meters above sea level, while other SIS such as Tuvalu, Kiribati and the Republic of Maldives average just 1.5 meters above sea level. With sea levels projected to rise two meters or more by this century’s end, these states are threatened with virtual extinction.

Many of the 52 UN-designated Small Island Developing States are already experiencing the baleful effects of rising seas: increased frequency of tropical storms, flooding and coastal erosion. This in turn leads to the destruction of critical infrastructure: roads, bridges, ports and aqueducts. Also concerning is the likely prospect of seawater intrusion into ground water supplies, with devastating implications for everything from agriculture and irrigation to sanitation and supplies of drinking water. While the SIS combined population is only several hundred thousand, many more are threatened if low-lying coastal regions in continental states are included. UN Secretary-General Ban Ki-Moon recently noted that over 60 million people worldwide live less than one meter above sea level, and many of them – crowded into developing-world city slums – are “tinder for the fires of social unrest.”

For the most-threatened SIS, there exist neither the funds nor, more critically, any higher ground to which inhabitants can retreat. The Carteret Islands have become nearly uninhabitable due to the salination of farmland and freshwater supplies, forcing plans for evacuation of several thousand residents to Papua New Guinea. The Solomon Islands face similar challenges, and Marshall Islanders are already being resettled in places as diverse as Australia and Arkansas.

To further complicate matters, the 1951 Convention on Refugees – the standard framework for displaced people – provides little guidance for the case of climate change refugees.  In addition, protections in the United States and Europe for victims of environmental disaster are limited, and these protections do not much allow for transference into permanent residency. However, this has the potential to change in coming years, as countries begin to act on a moral obligation to help those affected by environmental shifts. International organizations such as the International Organization for Migration will play a role in this transition. The United Nations Framework Convention on Climate Change has already taken steps by recognizing the issue at the Cancun 2010 Conference, stating the necessity “to enhance understanding, coordination and cooperation with regard to climate change induced displacement…at national, regional and international levels."

More fundamental than protection of climate refugees, though, is the need to protect citizens of SIS through active legal strategies by which they can ensure the continued existence of their states. These challenges are considerable and unprecedented. Never before have rising oceans forced the international legal framework to account for shrinking states.  But to better understand the legal dilemmas surrounding the SIS’ fate, we must begin with the definition of statehood. The Montevideo Convention of 1933 stipulates several requirements a state must meet in order to achieve it: a permanent population, a defined territory, a government and the capacity to enter into relations with other states. If the island meets these requirements, its statehood is established and the associated economic privileges of statehood are awarded.  According to the UN Convention on the Law of the Sea, these include control over a zone of territorial sea as well as an Exclusive Economic Zone (EEZ), which guarantees states sole jurisdiction over the natural resources in their waters. Determining these zones requires a low-water line measurement, called a baseline, to be made along the coast. As coastlines recede, states that continue to claim these privileges move into uncharted legal waters where no rights are guaranteed.

Moving beyond the economic privileges of territory, the question returns to the nature of the state as defined by the international community. Conceptually, under the Montevideo Convention, a sinking state ceases to exist once its territory is no longer inhabitable, but this outcome quickly appears unacceptable. How can states retain their statehood and identity within the international community if their populated territory disappears?

The fundamental standards of international legal order are founded on jus cogens norms, principles of legality that entitle people and nations to basic human rights. The rest of the world – especially the developed nations – has a moral obligation to SIS. Stripping a SIS of its statehood as its territory disappears would be controversial, considering that rising seas are due primarily to the greenhouse gas emissions of developed nations (SIS emit less than 1% of global greenhouse gases).

There are several possible methods by which states can remain legally independent in the face of rising seas, even in the scenario that their populations no longer physically occupy their original territories or that those territories become inundated. Among these proposals, one is the concept of sea defenses – an appropriately broad term for constructions that protect islands from the encroaching ocean. According to one study, in order to preserve the atoll of Fanfuti – capital of Tuvalu ­– roughly 54 kilometers of sea-defenses would be needed for the 2.5-kilometer island. Another concrete solution is the construction of artificial territory. The Maldives, for example, has already built two artificial islands totaling three square kilometers. Both these proposals, however, while possible in theory, are incredibly expensive and – in practice –ultimately unrealistic.

Creative policymakers suggest that submerged states can resettle into other states while retaining their own autonomy; they would become deterritorialized states, theoretically possible under current international law. SIS governments could reorganize within other states, becoming “nations ex-situ,” and operate under a “trusteeship” arrangement established by both states, as described by University of Hawaii Law Professor Maxine Burkett at the first Threatened Island Nations Conference hosted by Columbia University’s Center for Climate Change Law. Given the expense of such relocation for the host nations, displaced states would presumably pay for the immigration of their population into the host nation with the revenues from continued management of their pre-existing maritime zones or with an outright transfer of those EEZ’s.

The displaced population would still vote through its displaced government. Ideally, they would be granted full citizenship rights by the host state, while simultaneously retaining home state citizenship. The exiled government could fund and promote social and cultural continuity and provide additional social protections, but citizens would necessarily be under the host state’s legal jurisdiction. Unfortunately, this option currently faces many logistical road blocks, since migration and assimilation into many nations will not be simple, especially given the aforementioned inadequacies of the Convention on Refugees.

One possibility for reconciling this philosophical dilemma with the geopolitical reality of sinking states is by purchasing new territory for resettlement. The government of the Maldives has already conducted such a transaction with Indonesia on a small scale. While legally this is one of the most appealing options for ensuring continued sovereignty, it is difficult to imagine it fulfilling all affected nations’ needs. From a strictly practical perspective, as Rosemary Rayfuse – legal expert at the University of New South Wales – argues, it is hard to imagine any states being willing to sell to another state, for any price, territory of any substantial value.

Even if countries could be persuaded to cede land, much of the displaced population may still take the opportunity to attempt immigration to a different nation than their compatriots if the purchased land were not comparable to their home island. If the people of a nation were to disperse in this manner, sovereignty would, by definition, no longer be possible – there would be no fixed population to rule. Despite these potential stumbling blocks, it is hard to deny the appeal of this option for retaining statehood.

Acknowledging the necessity of new measures to support displaced populations is not enough to save their statehood. The lack of a true international consensus on the issue suggests that the developed world may not view the fate of SIS as a worthy concern.  Rather, like the proverbial canary in the mineshaft, the plight of SIS foreshadows the international political and economic concerns that will be the focus of policymakers in the coming decades, as rising sea levels affect coastlines all over the world.

Some scholars, such as Cara Nine – a faculty member of University College Cork in Ireland – argue that where another state can be proven responsible for the plight of the small island nation, there are grounds – both moral and legal – for a direct claim to compensation by the responsible party, perhaps in the form of territory. Island nations thus face a tragic contradiction as they struggle to seek legal and economic recompense from those nations responsible for rising oceans while simultaneously forced to appeal to those same countries for continued recognition.

This tension is interestingly borne out in a lawsuit the Federated States of Micronesia launched this past December against a utility company in the Czech Republic – claiming that plans for the expansion of a massive coal plant would create direct negative consequences for the vulnerable Micronesia.  The result has been a call for an independent international assessment of the potential effects the plant will have on Micronesia. The success of this lawsuit has some experts optimistic that it can provide the grounds for future cases.  The probability of the case setting an international precedent, though, seems unlikely given the underdevelopment of international legal mechanisms and that the case’s success was due in large part to the Micronesian government’s surprising ability to access domestic Czech courts.

In terms of tangible options for SIS and the international community, the ideal solution, of course, is for the most developed states to take immediate, meaningful measures to cut greenhouse gas emissions and combat the warming that causes sea level rise.  This would not only help to solve the underlying problem and save the SIS, but it is also in the interest of developed states. Yet, given the poor track record of such initiatives, other methods will inevitably be necessary.

Deterritorialized states in trusteeships can provide some measure of continued existence, but these may well devolve into facades of statehood that primarily provide a point of social reference for citizens. For SIS looking to maintain real sovereignty in a world of realpolitik, procurement of some new territory will likely be necessary. Such territorial transfers may be purchased with rights to SIS maritime zones, as discussed, or with duly substantial loans from the World Bank and IMF.  The UN should play a role, perhaps in establishing a forum in which the necessary multitude of transactions can be fairly and consistently conducted. Even with all this, friction is foreseeable, and developments of artificial territory and – or certain states ­– sea defenses may still be useful. Indeed, no policy prescriptions are one-size-fits-all.

SIS, which face the unprecedented loss of territory and, thereby, statehood deserve the attention of the international community. Providing them with reasonable methods for guaranteeing their continued existence as states must be a minimum obligation. As unfortunate as it is, SIS are trapped in a situation which forces them to appeal to the developed nations – the unconcerned fountainheads of surging sea levels – through tangles of Western legal institutions. By little fault of their own, SIS are chained to the whims of the very nations that caused their plight. The question ultimately becomes whether those transgressors have the political will to act.