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A new kind of refugee crisis is on the horizon. For this one, there will be no tyrants to blame and the migrants won’t be escaping war. They will be fleeing nature—specifically the ocean—and they will have no home to return to. The highest point in the Pacific state of Tuvalu is just over 15 feet above sea level. During tidal surges, all of Tuvalu becomes temporarily submerged. The highest point in the Maldives, a country situated on coral atolls in the Indian Ocean, is less than eight feet above sea level. The tide on the islands creeps higher by the day. Scientists expect Tuvalu to disappear in the next 50 years, the Maldives in the next 30. Once they become uninhabitable, neighboring islands will follow, affecting up to 9.2 million people throughout the Pacific Ocean’s 22 island states and 345,000 in the Maldives. Although the slow advance of the waves may not attract as much media attention as the metaphoric flood of refugees hitting European shores, the consequences of the unprecedented eradication of a state’s entire territory will be just as significant.
Throughout the Pacific, evacuation—more innocuously referred to as “population transfer” in most cases—is already taking place. New Zealand has agreed to grant entry and work permits to an annual quota of 75 citizens from Tuvalu; but Australia has reportedly declined to do the same and has not accepted climate refugees. Around 57 percent of Samoans and 46 percent of Tongans already live outside their home countries, mostly in New Zealand. Meanwhile, the United States has given the citizens of the Marshall Islands the right to live and work visa-free on its shores, and Fiji has promised to accept climate refugees from Kiribati if the need arises.
Although populations can be hosted abroad in the case of mass migration, states themselves cannot. Entire populations could become stateless if their home states sink. Even those granted new citizenship would feel the loss of their homes and livelihoods. Once displaced, Tuvaluan fishermen or Maldivian tour guides cannot simply pick up where they left off. Some Tuvaluans and Nauruans have rejected resettlement plans to New Zealand. They don’t want to move to another country or the refugee label that comes with it; they want their own. To give up and leave would turn sovereigns into dependents, and it would let the world off the hook for neglecting to prevent the climate catastrophe in the first place.
The problem is that there aren’t many other options. Nation states may fail, but they rarely die. When they do, they tend to be absorbed into other states or spawn entirely new ones in their place, as was the case in the breakup of the Soviet Union or the formerly independent republics that were voluntarily annexed to the fledgling United States. So unusual was state death that the so-called father of international law, German legal theorist L. F. L. Oppenheim, actually removed a section about it in 1905 when he revised his International Law: A Treatise, now a benchmark reference work for scholars and students. With climate change becoming an existential threat to island states, however, the prospect of complete and permanent physical loss of a state’s entire territory—and the total displacement of its population—has become increasingly real.
Could a sunken state still be called a state? Under the conventional criteria for statehood set out in the Montevideo Convention in 1933, territory is a prerequisite of statehood. So, too, are a permanent population, government, and the capacity to enter into relations with the other states. In its 1928 ruling on a territorial dispute between the United States and the Netherlands over ownership of the Southeast Asian island of Palmas, the Permanent Court of Arbitration found that “states cannot exist separate from their territory.”
And what of the status of its citizens? Host countries could well ask whom exactly they are admitting and who is responsible for them if their originating state is gone. They could, however, just as well ask whom exactly they are admitting, since the new arrivals would be de facto stateless, lacking the protection of their state even if they had passports to prove their prior nationality. This would leave new climate refugees at the mercy of their host country, both for their security and for providing them with a new nationality. But many states have not yet committed to the protection duties outlined in the 1951 convention on refugees, and the current crisis has shown that even those who have are prepared to sidestep their obligations.
The majority of these at-risk island states are preparing for the worst, exploring resettlement options as they call on the world to act on climate change. The Maldives, however, is standing its ground and using its wealth to build the artificial island of Hulhumalé with reclaimed land. In building this lush but conspicuously angular addition to the archipelago, the government’s Housing Development Corporation has spent $63 million on the first phase of the project; estimates for the second are in the $50 million range. For many other small island states, though, such ventures are well out of reach financially.
And then there is the problem that, under international law, territorial sovereignty and its benefits require a nucleus of naturally formed land. The UN Convention on the Law of the Sea defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide.” Even if Hulhumalé becomes the economic, commercial, and cultural center of the Maldives, it could not on its own sustain the Maldivian state once the other, naturally formed islands have disappeared. Once that happens, the population would become effectively stateless—pawns (or prizes) in regional power struggles. And even in this case, Hulhumalé, too, would eventually succumb to the waves.
Rather than island building, some legal experts suggest freezing the status quo and making current maritime boundaries permanent regardless of expected territorial losses. A sinking state would thus retain rights over its surrounding waters, even if it could govern those waters only from abroad. Although this might provide legal clarity in an uncharted area, it is so removed from the facts on the ground as to be pointless.
The best remaining option is to rethink the state itself. Deterritorialized states such as the Vatican’s Holy See and the Sovereign Order of St. John are both functional and enjoy international standing without providing the services or security expected of a nation state. A sunken state that hopes to survive in some form would have to outsource these key functions to others, gutting its own sovereignty to watch another do what it cannot. Its policies would be reduced to advocacy for its diaspora, and it would lack the resources and power to mobilize allies around even that modest aim.
An international law that presumes state continuity and stable maritime boundaries is a product of the past. The effort that has gone into finding a way for disappearing states to survive once their land is lost suggests that we are prepared to give up everything—territory, services, rights over resources—except the state itself. At best, that leaves climate refugees with a hollow citizenship that entitles them to nothing. At worst, it leaves them with no citizenship at all. For states that have the means to create islands and find engineered solutions, the world must address the legal incongruities that prevent artificial creations from constituting territory. For those who have no choice but to flee, it must do more to assist in relocation and integration. Taking in refugees is not enough. With no possibility of return, these people will need permanent recognition of their cultural identities and the role the world played in their exile.