In 2014, the Intergovernmental Panel on Climate Change (IPCC) released its fifth report on the status of the climate crisis. According to the IPCC, anthropogenic climate change has led to a global mean sea-level rise of approximately 0.2 metres between 1901 and 2010; the rate of which has been significantly higher since the mid-19th century than the mean rate of the two previous millennia. Under the IPCC’s worst case scenario, seas will rise by almost one metre by the end of the twenty-first century; and the majority of scientific experts on the subject anticipate an even larger rise by 2100 than projected under this scenario. The geophysical landscape of our world is in the midst of a significant and potentially devastating transformation.
Sea-level rise of between half a metre and a metre is sufficient to heavily impact many states around the globe. However, some nations are more vulnerable than others. Small island developing states – particularly low-lying ones – have significantly lower thresholds of climate resilience than industrialized states in the Global North. Five states in particular, which share the characteristics of low maximum altitudes, poor infrastructure, heavy reliance on foreign aid, and geographic remoteness, are particularly vulnerable: The Maldives, Tuvalu, the Marshall Islands, Nauru, and Kiribati. Given the extent of the predicted sea-level rise over the next century, there is a startlingly high probability that these states – home to a combined population of approximately 600,000 people – will become entirely uninhabitable.
This raises several important questions. What does this mean for these states’ existence? Does the material disappearance of a state necessarily entail its political and legal death? What are the implications for these states’ citizens? This unprecedented phenomenon has potentially explosive ramifications. The death of a state as a geographic entity rather than a political entity challenges our traditional conceptions of statehood, statelessness, and citizenship.
Traditionally, state death is the result of states’ actions. But ironically, the industrial activity that contributes most to the climate crisis tends to be based in wealthy and powerful states with the capacity and infrastructure to adapt to climate change in situ, leaving those states which have contributed the least to this crisis to face its most devastating consequences. In the context of climate change, bringing forward international litigation against a polluting state has generally been a complex process. Since states are held independently responsible under international law, achieving justice only grows more challenging when multiple powerful states violate the environmental rights of weaker ones – particularly when those violations are difficult to attribute to the actions of any one given state.
Those who will bear the greatest burden of the climate crisis will not be the polluters who have brought it to the boiling point. They will be ordinary people in developing nations around the world; many of whom rely on the land for their continued livelihood, including many Indigenous people. In a 2008 study by the Office of the UN High Commission for Human Rights, several supposedly inalienable rights were flagged as threatened by climate change: the right to life, to adequate food, to health, to adequate housing, to self-determination. Not only will these rights be affected by sea-level rise as populations struggle to adapt to climate change in situ, but they will inevitably be further called into question when these populations are, in all probability, displaced from their homelands.
Until now, the majority of climate-induced migration and displacement has taken place within states. However, internal displacement is not an option for those living in states facing wholesale submersion who will have no choice but to cross borders. This exposes a serious gap in international law. While those who might flee from states vulnerable to sea-level rise face similar challenges to those experienced by political refugees who lose access to their livelihoods and cultures, must adapt to their host countries, and – perhaps most significantly – face the loss of their homes and any opportunity to return to them, they are particularly vulnerable given that no international legal instrument yet exists to address climate-induced displacement.
In January 2020, the United Nations Human Rights Committee issued non-binding views on the case of Ioane Teitiota, a Kiribati national who had brought forward a complaint against New Zealand. Teitiota had sought asylum in New Zealand for himself and his young family a few years prior on the basis of the devastating impacts of climate change in his home country; branding himself as a would-be climate migrant in need of protection. In his complaint to the Human Rights Committee, Teitiota alleged that New Zealand had violated his right to life by returning him to Kiribati. While the Committee upheld New Zealand’s decision to repatriate Teitiota, it also found that “without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under… [the ICCPR], thereby triggering the non-refoulement obligations of sending states.” Although non-legally binding, the Committee’s views are a welcome step in the progressive development of international law relating to climate change and the protection obligations of receiving states vis-a-vis the nationals of countries most threatened by the consequences of climate change.
As the climate crisis worsens and relative political inaction persists, it is essential to continue shining a spotlight on cases like Ioane Teitiota’s. Will states eventually begin accepting climate migrants, with or without an international legal instrument to which they must adhere? If these migrants’ homelands have entirely disappeared beneath the sea, will the citizenship conferred by these homelands persist as such, or will a new form of statelessness ensue? Some scholars have pointed to the possibility for deterritorialized statehood, which would allow for continued legal recognition. Ultimately, however, the fate of the states and their populations that will potentially pay the ultimate price for the climate crisis is entirely in the hands of those same powerful states that brought the crisis into existence. How many people will have to suffer persistent violations of their rights, compounded by the legal ambiguity revolving around the phenomenon of disappearing states, before the Global North finally acts?