RISING STATELESSNESS DUE TO DISAPPEARING

ISLAND STATES: DOES THE CURRENT STATUS OF

INTERNATIONAL LAW OFFER SUFFICIENT
PROTECTION?
MARIJA DOBRIĆ *

Scientific prognoses have shown that by the year 2100, several low-lying island states such as
Tuvalu and Kiribati will disappear due to rising sea levels. The submergence of whole territories
will have consequences including the displacement of a huge number of islanders. In that context,
the question of how to protect their human rights in their future host states is of great importance.
In fact, their human rights protection will most likely prove even more difficult if disappearing
island states are considered to have lost statehood. Without the nationality of any state, those
displaced islanders will be stateless under international law. In this article, the author assesses
whether displaced island populations are sufficiently protected by existing international law norms
or whether the international community is called upon to create new rules addressing these future
challenges.

TABLE OF CONTENTS

I Introduction............................................................................................................. 42
II Statelessness — The Definition Dilemma .............................................................. 45
III The Importance of Having a Nationality ................................................................ 47
IV The Right to Nationality ......................................................................................... 49
V Loss of Nationality on the Example of Disappearing Island States ........................ 52
A Continuing Statehood of Disappearing Island States?................................ 53
B De Lege Lata Protection Possibilities for an Externally Displaced
Island Population ........................................................................................ 58
1 The 1954 and 1961 Statelessness Conventions .............................. 58
2 Human Rights Treaties (ICCPR and ICESCR) .............................. 63
3 The Refugee Convention ................................................................ 64
VI Conclusion .............................................................................................................. 67

I INTRODUCTION

As of today, many millions of people around the world are stateless. 1 Despite that
large number, the protection regimes under international law that are currently in
place fail to safeguard their human rights adequately. The most recent flight of the
stateless Rohingya people from the territory of Myanmar and its wide coverage in

* Marija Dobrić was a Researcher and Lecturer at the Section for International Law and
International Human Rights Law at the Bundeswehr University Munich before taking up her
current position as a Judicial Clerk at the Higher Regional Court of Vienna.
1 United Nations High Commissioner for Refugees, ‘Statelessness around the World’,
<[Link]
 Rising Statelessness Due to Disappearing Island States

the media illustrate this dilemma. 2 The lack of protection might be partially
explained by the limited ratification of the two United Nations ‘Conventions on
Statelessness’ — the 1954 Convention Relating to the Status of Stateless Persons
(‘1954 Convention’) and the 1961 Convention on the Reduction of Statelessness
(‘1961 Convention’). 3 This is particularly the case with regard to states, which
would most likely serve as host states to fleeing stateless persons in the future. To
date, only 91 states have ratified the 1954 Convention and 73 states are party to
the 1961 Convention. 4 Additionally, statelessness is still a comparatively
underrepresented area in international legal scholarship, especially when
comparing it to intertwined fields such as refugee law or international human
rights law in general. 5 Yet, it is a person’s nationality 6 — at least from a state’s
perspective 7 — which matters a great deal when claiming a ‘human’ right vis-á-
vis a state. The lack of nationality not only limits which fundamental rights are
granted by states on the domestic level but also the enjoyment of international
human rights. Hence, should a state refuse to grant citizenship to persons
permanently residing in its territory, it thus hinders these persons to effectively
enjoy a wide range of civil, political and social rights. 8 On the international level,
the United Nations High Commissioner for Refugees (‘UNHCR’) set the goal in
its Global Action Plan to End Statelessness 2014–24. 9 At first glance and given
the upcoming challenges in international law, however, that seems rather
illusionary.

2 Approximately one year ago, the clearance operations against the Rohingya people started in
Myanmar. Almost one million Rohingya refugees live now in the world’s biggest refugee
camps in Bangladesh. As their return to Myanmar is still considered too dangerous, their
future remains unknown. Michael Safi, ‘“We Cannot Go Back”: Grim Future Facing
Rohingya One Year after Attacks’ The Guardian (London, 25 August 2018)
<[Link]
attacks>.
3 Convention Relating to the Status of Stateless Persons, opened for signature 28 September
1954, 360 UNTS 117 (entered into force 6 June 1960) (‘1954 Convention’); Convention on
the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 185 (entered
into force 13 December 1975) (‘1961 Convention’).
4 See United Nations Treaty Collections, ‘Multilateral Treaties Deposited with the Secretary
General — Chapter V: Refugees and Stateless Persons’
<[Link] (‘Refugees and
Stateless Persons Page’).
5 Alice Edwards and Laura van Waas, ‘Introduction’ in Alice Edwards and Laura van Waas
(eds), Nationality and Statelessness under International Law (Cambridge University Press
2014) 1. See also Will Hanley, ‘Statelessness: An Invisible Theme in the History of
International Law’ (2014) 25(1) European Journal of International Law 321, 321–27.
6 As there is no ‘fundamental’ difference between nationality and citizenship, the terms will be
used synonymously for the purpose of this paper.
7 Please note that there is a difference between fundamental human rights, which are granted
by, for example, a state’s constitution and international human rights, applicable to everyone
by virtue of being human. See Part III for more details.
8 David Weissbrodt and Clay Collins, ‘The Human Rights of Stateless Persons’ (2006) 28(1)
Human Rights Quarterly 245, 248: ‘[M]any states only allow their own nationals to exercise
full civil, political, economic, and social rights within their territories’. See also Part III.
9 United Nations High Commissioner for Refugees, Global Action Plan to End Statelessness
2014–24 (Action Plan, 2014) <[Link]
au/protection/statelessness/54621bf49/global-action-plan-end-statelessness-2014-
[Link]>. See also United Nations High Commissioner for Refugees, ‘Stateless People’,
<[Link] See generally Matthew Seet, ‘The Origins of
UNHCR’s Global Mandate on Statelessness’ (2016) 28(1) International Journal on Refugee
Law 7.

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2019 Statelessness & Citizenship Review 1(1)

More specifically, the international legal framework is faced with the challenge
of addressing several effects of climate change, one of the most drastic being the
case of disappearing island states. 10 By all estimates, the territory of several low-
lying island states — such as the Maldives or Tuvalu — will become submerged
due to sea level rise in the foreseeable future. 11 Hence, the submergence of whole
nations might result in rising numbers of stateless people by the end of the 21st
century. The issue of disappearing island states has also not evaded the attention
of the International Law Association (‘ILA’), a private organisation, which has as
its objective ‘the study, clarification and development of international law’. 12 It
has established the ILA Committee on International Law and Sea Level Rise (‘ILA
Sea Level Rise Committee’), which aimed to consider in its final report in 2018
inter alia whether questions such as the continuing statehood of disappearing
island states as well as its ‘human dimension’ ‘need to be addressed by treaty law
or whether customary international law and “softer” methods of norm creation will
be sufficiently flexible to address these challenges’. 13
This contribution will focus on a selected number of issues concerning the
current status of international law with regard to disappearing island states. The
core question of this paper is whether the de lege lata regime is sufficient to
counter the challenge of effective human rights protection of displaced island
populations. 14 Disappearing island states are without precedent in international
law. For the purpose of this article, it will thus be assumed that the whole territory
of island states will be submerged under the sea. The article will, in Part II, start
by illustrating several pertinent problems with regard to the definition of
statelessness. The importance of nationality for the enjoyment of human rights —
especially with regard to their effective enforcement — will be underlined in Part
III. Part IV will analyse whether there exists a so-called right to nationality in
international law, which could serve as a possible solution to the problem of
statelessness. Part V is divided into two parts: Part V(A) will address the question
whether island states may still be considered ‘states’ once they are submerged.
The answer to this question is particularly important in order to determine whether
displaced islanders may enjoy protection under the Conventions on Statelessness.
Part V(B) will conclude by demonstrating that existing international law
instruments might not be effective enough to protect the human rights of displaced
populations of disappearing island states.
10 See generally Leonard A Nurse et al, ‘Small islands’ in V R Barros et al (eds), Climate Change
2014: Impacts, Adaptation, and Vulnerability — Part B: Regional Aspects (Contribution of
Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate
Change 2014) 1613–54. Note one of the most recent scientific articles on the issue of
accelerated sea level rise, Robert S Nerem et al ‘Climate-Change — Driven Accelerated Sea-
Level Rise Detected in the Altimeter Era’ (2018) 115(9) PNAS 2022, 2022–25.
11 Other low-lying island states that will most probably disappear are Tuvalu, Kiribati, Marshall
Islands, Nauru etc. See Jenny Grote Stoutenburg, Disappearing Island States in International
Law (Brill Nijhoff 2015) 40; Alister Doyle, ‘Rising Seas Scariest Climate Impact: Nauru’s
Moses’ (Reuters 26 April 2011) <[Link]
idUSTRE73P6TU20110426>.
12 International Law Association, ‘About Us’ <[Link]
us/aboutus2>.
13 International Law Association Committee on International Law and Sea Level Rise, The
Johannesburg Conference: Final Report (Report, 2016) 11.
14 While the commonly used Latin expression de lege lata means ‘of the current/existing law’,
de lege ferenda expresses ‘new law’ or ‘what the law should be’. Both expressions are of
particular importance to this contribution, since the current law will be assessed and measured
against the need of a possible ‘future law’ for the protection of displaced islanders due to
disappearing island states.

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 Rising Statelessness Due to Disappearing Island States

II STATELESSNESS — THE DEFINITION DILEMMA

At the outset of the discussion, it is of primary importance to settle the definition

of statelessness. It will be shown that the well-known problem of distinguishing
between de jure and de facto stateless persons is still not resolved. Subsequently,
the legal differences between falling in the category of stateless persons and the
‘mere’ reliance on international human rights regimes will be examined in more
depth in Part V(B).
The 1954 Convention contains a legal definition of who may be considered
stateless. 15 According to art 1, a stateless person is ‘a person who is not considered
a national by any State under the operation of its laws’. 16 There are different ways
in which someone might become stateless within the meaning of art 1. A person
might not have acquired the nationality of one state automatically at their birth and
was not awarded one afterwards. Alternatively, a person might have lost their
nationality, eg the state revoked their citizenship at a later stage in life (this could
be due to memberships in subversive groups, serving in the armed forces of a
foreign state etc). 17 In principle, states have sovereignty over the act of granting
citizenship to a person. 18 International law poses few restrictions (eg the
prohibition of discrimination) in this regard. 19 Although not having absolute
discretion, it thus predominantly depends on the will of states if they recognise
someone as a national. 20 With regard to granting citizenship at birth, national
legislation will generally either require a person to have a link through jus soli
and/or jus sanguinis to the state. 21 Different to the granting of citizenship,
protection standards with regard to the deprivation of nationality limit the

15 For instance, the 1961 Convention (n 3) does not itself contain a definition on statelessness.
It is however recognised that the art 1 1954 Convention definition is applicable. Carol
Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation
within the European Union Member States and Recommendations for Harmonization’ (2005)
22(2) Refuge 31, 53. See also Laura van Waas, ‘The UN Statelessness Conventions’ in: Alice
Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law
(Cambridge University Press 2014) 64, 72.
16 According to the International Law Commission this definition has become part of customary
international law, see International Law Commission, Report of the International Law
Commission, UN GAOR, 58th sess, Supp No 10, UN Doc A/61/10 (1 May 2006) 48–49 (‘ILC
Articles on Diplomatic Protection’); Alice Edwards, ‘The Meaning of Nationality in
International Law in an Era of Human Rights’ in Alice Edwards and Laura van Waas (eds),
Nationality and Statelessness under International Law (2014) 11, 27.
17 Eric Fripp, Nationality and Statelessness in the International Law of the Refugee Status (Hart
2016) 95.
18 See also art 1 of the 1930 Convention on Certain Questions Relating to the Conflict of
Nationality Laws, opened for signature 13 April 1930, 179 LNTS 89, entered into force 1 July
1937 (‘1930 Hague Convention’), which explicitly states that ‘it is for each State to determine
under its own law who are its nationals’.
19 States also have to comply with applicable human rights obligations with regard to the
granting of nationality: United Nations Human Rights Council, Human Rights and Arbitrary
Deprivation of Nationality: Report of the Secretary-General, 13th sess, Agenda Item 3, UN
Doc A/HRC/13/34 (14 December 2009) [20]. See also Walter Kälin and Jörg Künzli, The
Law of International Human Rights Protection (Oxford University Press 2010) 500.
20 Walter Kälin and Jörg Künzli (n 19) 500.
21 Jus soli means to acquire nationality when being born on the territory of a state. Jus sanguinis
confers nationality via descent. For a detailed analysis on the different modes of nationality
acquisition (the jus solis and jus sanguinis principle etc): Eric Fripp (n 17) 25–30.

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sovereignty of states more strictly and are included in numerous international

human rights treaties. 22 Thus, several treaties prohibit the revocation of nationality
if the person concerned would become stateless as a result. 23
As illustrated above, the statelessness definition contained in art 1 of the 1954
Convention only refers to so-called de jure stateless persons. However, scholars
have debated if the definition of a ‘stateless person’ should be understood as also
including circumstances of de facto statelessness. 24 According to the 1949 UN’s
A Study on Statelessness, such de facto stateless persons are persons who, ‘having
left the country of which they were nationals, no longer enjoy the protection and
assistance of their national authorities’. 25 Although they remain nationals of a
state, their legal bond to that state is in effect meaningless, as they are not able to
enjoy the protection or benefits usually contingent on citizenship. 26 In essence,
their status amounts to a situation of statelessness — only that they are not
‘stateless’ by definition.
Consequently, as de facto stateless persons do not fall under the legal term of
statelessness, they are not protected under the Conventions on Statelessness. As a
result, the distinction between those two categories — de jure and de facto
statelessness — exemplifies a gap in their legal protection. 27
This legal distinction seems difficult to justify in light of the factual similarity
of de jure and de facto stateless persons. Therefore, many calls have been made to
also include de facto statelessness in the definition of art 1 of the 1954
Convention. 28 The Final Act of the United Nations Conference of
Plenipotentiaries on the Status of Refugees and Stateless Persons (‘The Final Act
of the 1954 Convention’) supports the view that de facto statelessness is to be
treated the same as de jure statelessness. 29 The Final Act of the 1954 Convention
recommends that:
[E]ach Contracting State, when it recognizes as valid the reasons for which a person
has renounced the protection of the State of which he is a national, consider
sympathetically the possibility of according to that person the treatment which the
Convention accords to stateless persons. 30
However, that recommendation is of a non-binding nature. 31 The same applies
to the Final Act to United Nations Conference on the Reduction or Elimination of

22 Michelle Foster and Hélène Lambert, ‘Statelessness as a Human Rights Issue: A Concept
Whose Time has Come’ (2016) 28(4) International Journal of Refugee Law 564, 577.
23 ibid.
24 Weissbrodt and Collins (n 8) 251.
25 United Nations Ad Hoc Committee on Refugees and Stateless Persons, A Study on
Statelessness, UN Doc E/1112 and Add.1 (1 August 1949) Introduction III.
26 There is also a possibility that a person cannot prove or verify their nationality, which makes
it practically useless: Weissbrodt and Collins (n 8) 263–64.
27 ibid 251.
28 See eg ibid.
29 Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and
Stateless Persons, opened for signature 14 December 1950, 360 UNTS 117 (entered into force
28 July 1951) (‘Final Act of the 1954 Convention’). See also Jane McAdam, Climate Change,
Forced Migration, and International Law (Oxford University Press 2012) 140–41.
30 Final Act of the 1954 Convention (n 29) art 3. With regard to the drafting history of the 1954
Convention (n 3), see Nehemiah Robinson, Convention Relating to the Status of Stateless
Persons: Its History and Interpretation (Commentary Institute of Jewish Affairs, 1955)
(‘Statelessness Convention Commentary’). This commentary was reprinted by the Division
of International Protection of the United Nations High Commissioner for Refugees in 1997.
31 McAdam, Climate Change, Forced Migration (n 29) 140–41.

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Statelessness (‘The Final Act of the 1961 Convention’), which provides that
‘persons who are stateless de facto should as far as possible be treated as stateless
de jure to enable them to acquire effective nationality’. 32 Thus, it is at state
discretion to follow the recommendations made by the Final Acts to the
Conventions on Statelessness. 33
Nonetheless, Part V will show the practical importance of closing this gap in
legal protection in the example of disappearing island states. For the purposes of
this article it is, however, first necessary to explore the relevance of having a
nationality in general. Subsequently it will be argued that nationality is essential
for the effective enjoyment of human rights.

III THE IMPORTANCE OF HAVING A NATIONALITY

Statelessness and nationality are necessarily interlinked, as statelessness results

from the fact that a person does not have the nationality of any state. However, not
having a nationality has many detrimental consequences. The International Court
of Justice (‘ICJ’) prominently held in its Nottebohm Case (Liechtenstien v
Guatemala) (‘Nottebohm Case’) that
nationality is a legal bond having as its basis a social fact of attachment, a genuine
connection of existence, interests and sentiments, together with the existence of
reciprocal rights and duties. 34
Accordingly, states grant a range of rights only to their nationals. 35 Most
importantly, these guarantees include political participation rights such as the right
to vote, rights to residence and free movement, consular assistance, or social
benefits such as health care, social assistance or family benefits. 36 Frequently, the
right to education and employment is also linked to the nationality of a person,
thus often driving stateless people into poverty. 37 Rights are usually limited to
nationals, as such, the right to nationality has been frequently called ‘the right to
have rights’. 38 This applies both domestically as well as internationally: without
nationality, persons will not enjoy certain fundamental rights under domestic
constitutional law; likewise the enforcement of human rights on the international

32 Final Act of the United Nations Conference on the Elimination or Reduction of Future
Statelessness, opened for signature 4 December 1954, 989 UNTS 250 (entered into force 30
August 1961) 279 (‘Final Act of the 1961 Convention’); See also McAdam, Climate Change,
Forced Migration (n 29) 141.
33 See also van Waas, Nationality and Statelessness (n 15) 81: ‘it remains to be seen whether
states are willing to go beyond their present obligations and nevertheless extend international
protection’. See also Final Act of the 1954 Convention (n 29); Final Act of the 1961
Convention (n 32); 1954 Convention (n 3); 1961 Convention (n 3).
34 Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) (Judgment) [1955] ICJ Rep 4,
23 (‘Nottebohm Case’).
35 See, eg, Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger 1867 [Basic Law
on the General Rights of Citizens 1867] (Austria) arts 2, 3, 6, 12; Grundgesetz für die
Bundesrepublik Deutschland 1949 [Basic Law for the Federal Republic of Germany]
(Germany) arts 8, 9, 11, which only offer protection to citizens.
36 Katja Swider, ‘Why End statelessness’ in Tendayi Bloom, Katherine Tonkiss and Phillip Cole
(eds), Understanding Statelessness (Routlege 2017) 191, 192; Edwards (n 16) 12. See also
Kristy A Belton, ‘Statelessness and Economic and Social Rights’ in Lanse Minkler (ed), The
State of Economic and Social Human Rights (Cambridge University Press 2013) 221.
37 Cf Katja Göcke, ‘Stateless Persons’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of
Public International Law (Oxford University Press, 2012) vol 9, 551[3].
38 This phrase stems from philosopher and writer Hannah Arendt, who was stripped of her
nationality by Nazi Germany. Weissbrodt and Collins (n 8) 248.

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level is severely curtailed. 39 As a result, the sovereign right of states to grant

citizenship comes into tension with the rights of individuals.
While stateless persons might not enjoy fundamental rights granted under a
state’s constitution because they lack citizenship, they may still enjoy human
rights under international law. Since 1945, international law has increasingly
granted rights to individuals — most importantly human rights — also heightening
the importance of nationality on the international level. 40 Accordingly,
international human rights treaties — such as the International Covenant on Civil
and Political Rights (‘ICCPR’) — generally oblige a state to protect persons who
find themselves on its territory or jurisdiction. 41 Stateless persons might therefore
fall under the protection of such human rights treaties, if the pertinent violation
occurs in the state’s territory or under its jurisdiction. 42 In that case, a state is under
the obligation to protect the rights of stateless persons. However, the enforcement
of such human rights obligations via states proves to be the actual obstacle to the
enjoyment of human rights. The difficulties pertaining to enforcement will be
illustrated below.
The enforcement of human rights on the international level is generally
entrusted to the home state, which might exercise diplomatic protection on behalf
of its nationals against violations of their rights by other states. 43 This traditional
concept of diplomatic protection is also espoused by the International Law
Commission (‘ILC’) in its Articles on Diplomatic Protection and consequently
requires the bond of nationality between the protecting state and the person. 44
However, the ILC Articles on Diplomatic Protection also provide exceptions
regarding refugees and stateless persons. According to art 8(1) of the ILC Articles
on Diplomatic Protection ‘[a] State may exercise diplomatic protection in respect
of a stateless person who, at the date of injury and at the date of the official
presentation of the claim, is lawfully and habitually resident in that State’. 45 While
the efforts to propose new rules for stateless people de lege ferenda are laudable,
the ILC itself noted that art 8 is still ‘an exercise in progressive development of
the law’ 46 and thus cannot be considered to reflect customary international law. 47
Consequently, international law does not yet foresee the possibility for states to
exercise diplomatic protection on behalf of stateless persons.

39 See also Belton (n 36) 223.

40 The protection of international human rights has drastically increased post-Second World
War. See also Edwards (n 16) 24.
41 International Covenant on Civil and Political Rights, opened for signature 16 December
1966, 999 UNTS 171 (entered in force 23 March 1976) art 2(1) (‘ICCPR’).
42 Cf Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep 136, [107–11]; Human Rights Committee, Views:
Communication No 52/1979, 13th sess, UN Doc CCPR/C/13/D/52/1979 (29 July 1981) [12.1].
43 ILC Articles on Diplomatic Protection UN Doc A/61/10 (n 16) 24. See also Ahmadou Sadio
Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582, 599 [39], where the
International Court of Justice emphasised the customary nature of the ILC Articles on
Diplomatic Protection art 1.
44 See also Panevezys-Saldutiskis Railway (Judgment) [1939] PCIJ (ser A/B) No. 76, 16, with
reference to the requirement of ‘the bond of nationality between the State and the individual
which alone confers upon the State the right of diplomatic protection’.
45 ILC Articles on Diplomatic Protection UN Doc A/61/10 (n 16) 47.
46 ibid 48.
47 ibid. The ILC also cited the case of R (Al Rawi and Others) v Secretary of State for Foreign
Affairs and Another [2006] EWHC 972, in which the England and Wales Court of Appeal
held that art 8 is ‘not yet part of international law’.

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 Rising Statelessness Due to Disappearing Island States

This discussion notwithstanding, states may still attempt to enforce erga omnes
(partes) norms with regard to stateless persons. 48 Erga omnes obligations are a
concern of all states. As such, they allow states to bring a claim before a court in
absence of a direct injury. 49 Consequently, every state would have standing in
front of a court if an erga omnes obligation has been violated, even in respect of a
non-national. However, the erga omnes character has only been confirmed by the
ICJ in the context of the most important human rights violations such as slavery
and racial discrimination, whereas human rights treaties on the universal level,
such as the ICCPR and the International Covenant on Economic, Social and
Cultural Rights (‘ICESCR’) ‘do not confer on states the capacity to protect the
victims … irrespective of their nationality’. 50
On the international level, human rights treaty bodies may be empowered to
consider complaints or communications by individuals themselves. 51 Such
individual complaint mechanisms are, for example, foreseen in the Optional
Protocol to the International Covenant on Civil and Political Rights or the
Optional Protocol to the International Convention on the Elimination of All Forms
of Racial Discrimination itself. 52 In those cases, stateless persons without the
nationality of any state could also petition violations of their human rights.
However, in this case, enforcement of their human rights is rather unsatisfactory. 53
Although stateless persons are able to present their claims before human rights
treaty bodies, their decisions (eg the decisions of the Human Rights Committee)
are not legally binding and only serve as suggestions to state parties. 54
To conclude, individuals will generally have to rely on the protection of states
via diplomatic protection to enjoy their human rights effectively. However, this is
not a possible pathway for stateless persons.

IV THE RIGHT TO NATIONALITY

In Part III, the importance of having a nationality for the effective enjoyment of
human rights was assessed. In an attempt to address the problem of ineffective
human rights protection, many scholars have argued for an obligation of states to

48 The Latin expression erga omnes (partes) means ‘towards all ([treaty] parties)’.
49 Subject to diplomatic protection, a state generally only suffers injury if its nationals are
harmed by another state. See also Barcelona Traction, Light and Power Company, Ltd
(Belgium v Spain) (Judgment) [1970] ICJ Rep 3, [33]. See Part III above.
50 ibid [33]–[34], [91]. See also Malcolm N Shaw, International Law (Cambridge University
Press 2017) 92–3; ICCPR (n 41); International Covenant on Economic, Social and Cultural
Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January
1976) (‘ICESCR’)
51 See generally, Dinah Shelton, ‘Human Rights, Individual Communications/Complaints’ in
Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford
University Press, 2012) vol 9, 1086–97.
52 Optional Protocol to the International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 3 March 1976); Optional
Protocol to the International Convention on the Elimination of All Forms of Discrimination
against Women, opened for signature 6 October 1999, 2131 UNTS 83 (entered into force 22
December 2000).
53 See eg Göcke (n 37) [20].
54 Belton (n 36) 237. For more details see Part V(B).

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confer nationality to an otherwise stateless person. 55 For instance, art 1(1) of the
1961 Convention foresees an obligation to grant nationality — not with regard to
every stateless person but — to persons born in the territory of a state if it would
otherwise render them statelessness. 56 However, this is again a treaty obligation,
only binding for ratifying states of the 1961 Statelessness Convention. It is
questionable, however, whether there exists a so-called ‘human right to
nationality’. 57 Article 15(1) of the Universal Declaration of Human Rights
(‘UDHR’) stipulates prominently that everyone has the right to a nationality. 58 It
also states that no one should be arbitrarily deprived of their nationality. 59
Additionally, the innovative case law by the Inter-American Court of Human
Rights with regard to art 20 American Convention on Human Rights (‘ACHR’),
which grants to every person a right to nationality, might suggest that there could
be such a right on the universal level. 60 Moreover, art 24(3) ICCPR, which
incorporates the right of every child to acquire a nationality should also be
mentioned here. 61
While the incorporation of a right to nationality in the UDHR demonstrates the
international community’s early awareness of the problem of statelessness, art 15
does not create a legal obligation for states to grant citizenship to a person, as the
UDHR is a non-binding instrument. 62 Thus, reference to art 15 in the context of a
legal obligation on states to confer citizenship to stateless persons might only serve
as a starting point in order to evaluate whether there is a customary international
norm. Moreover, neither does art 1(1) of the 1961 Convention nor art 24(3) ICCPR
recognise a general right to nationality, as they confer such right only to children

55 Cf Edwards (n 16), 29–30. See generally United Nations Human Rights Council, Human
Rights and Arbitrary Deprivation of Nationality: Report of the Secretary-General, 13th sess,
Agenda Item 3, UN Doc A/HRC/13/34 (14 December 2009) for more details on the right to
nationality.
56 Luca Brücken and René de Groot, ‘Deprivation of Nationality Under Article 8(3) of the 1961
Convention on the Reduction of Statelessness’ (2018) 25(1) Maastricht Journal of European
and Comparative Law 38, 40–41. See also Foster and Lambert (n 22) 567, 572.
57 Such a right of customary nature would bind states regardless of whether they have given
their formal consent or have participated in the formation of the customary rule.
58 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10
December 1948).
59 ibid art 15(2).
60 American Convention on Human Rights, opened for signature 22 November 1969, 1144
UNTS 123 (entered into force 18 July 1978) art 20 (‘ACHR’):
1. Every person has the right to a nationality.
2. Every person has the right to the nationality of the state in whose territory he was
born if he does not have the right to any other nationality.
3. No one shall be arbitrarily deprived of his nationality or of the right to change it.
Yean and Bosico v Dominican Republic (Preliminary Objections) (Inter-American Court of
Human Rights, Series C No 130 8 September 2005) (‘Yean and Bosico v Dominican
Republic’).
61 ICCPR art 24(3). See also United Nations Human Rights Council, Human Rights and
Arbitrary Deprivation of Nationality: Report of the Secretary-General, 13th sess, Agenda Item
3, UN Doc A/HRC/13/34 (14 December 2009) [3] for a complete list of norms incorporating
a right to nationality, including European Convention on Nationality, opened for signature 6
November 1997, ETS 166 (entered into force 01 March 2000) art 4 (‘European Convention
on Nationality’); emphasis should also be put on International Convention on the Elimination
of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS
196 (entered into force 4 January 1969) art 5(d)(iii) (‘CERD’), which requires equality before
the law for everyone also with regard to the enjoyment of the right to nationality.
62 Göcke (n 37) [10]; McAdam, Climate Change, Forced Migration (n 29) 139.

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born on the territory of a state. 63 Therefore, when speaking of a so-called human

right to nationality, scholarly debate should accurately distinguish between
existing treaty provisions conferring a right to nationality on everyone (eg art 20
ACHR) 64 or only to children born on the territory of the host state (eg art 24(3)
ICCPR). While many instruments incorporate the right of children to acquire a
nationality and the obligation not to render them stateless has indeed most likely
become part of customary international law, it is difficult to find a ‘general’ right
to nationality on the universal level. 65
Based on the findings of the Nottebohm Case before the ICJ, scholars have
nonetheless tried to argue innovatively for a right to nationality — applicable to
everyone — primarily in the case of state succession. 66 They referred to the so-
called principle of effective nationality to propose that states might have a positive
obligation to grant nationality to individuals if they have a ‘genuine and effective’
link to a state. 67 Conversely, Guy S Goodwin-Gill merely proposed relying on the
principle of effective nationality that, if a person has ‘a social fact of attachment,
a genuine connection of existence, interests and sentiments’ with regard to a
particular state, it might be bound by incidental obligations such as that of non-
expulsion or readmission. 68 However, the reliance on the Nottebohm Case as
support for an emerging right to nationality seems far-fetched at best. The
Nottebohm Case was merely concerned with the question whether Liechtenstein
was allowed to exercise diplomatic protection on behalf of its naturalised citizen
Friedrich Nottebohm in respect of a claim against Guatemala. 69 The ICJ held that
since Nottebohm had no real and effective link to Liechtenstein, the question has
to be answered in the negative. Besides the ‘traditional’ requirement of nationality,
the Court also asked for the ‘individual’s genuine connection with the State’ for
the purpose of diplomatic protection. 70 Consequently, it is difficult to use the
Nottebohm Case as reference to establish ‘a right to nationality’. 71 However, the
criterion of ‘genuine or effective link’ has already been used in regional
instruments in the context of state succession. 72

63 Foster and Lambert (n 22) 567.

64 Oliver Dörr, ‘Nationality’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public
International Law (Oxford University Press, 2012) vol 9 496 [7].
65 Ineta Ziemele, ‘State Succession and Issues of Nationality’ in Alice Edwards and Laura van
Waas (eds), Nationality and Statelessness under International Law (Cambridge University
Press 2014) 243. Laura van Waas also speaks of the ‘widespread recognition of a child’s right
to a nationality’: van Waas (n 15) 84.
66 Nottebohm Case (n 34); See, eg, Foster and Lambert (n 22) 574, with reference to scholar
Guy S Goodwin-Gill. See also, Jeffrey L Blackman, ‘State Successions and Statelessness:
The Emerging Right to an Effective Nationality under International Law’ (1998) 19(4)
Michigan Journal of International Law 1141, 1163: ‘Nevertheless, the trend in international
law, at least in the context of state succession, is moving in the direction of imposing positive
legal obligations on states deriving from the principle of effective nationality enunciated in
Nottebohm’.
67 Belton (n 36) 227.
68 Foster and Lambert (n 22) 574.
69 Nottebohm Case (n 34).
70 ibid, 23.
71 Cf Foster and Lambert (n 22) 574, with regard to the propositions made by Goodwin-Gill:
‘He suggested, innovatively, that the criteria set out by the International Court of Justice in
the Nottebohm Case to assess an individual’s genuine connection with a State in the context
of diplomatic protection may have relevance beyond this limited context’.
72 European Convention on Nationality (n 61).

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More specifically, there are two European instruments, which incorporate an

obligation for ratifying states to grant their nationality to persons who would
become stateless as a result of a state succession. 73 In general, the right to
nationality in those instruments functions more broadly as it not only applies to
children but to all persons that at the time of the succession had the nationality of
the predecessor state and where state succession would otherwise render them
stateless. 74 In 1999, the ILC adopted the Articles on Nationality of Natural
Persons in Relation to Succession of States (‘Articles on Nationality’), which also
set out rules for the attribution of nationality in the context of state succession. 75
However, those Articles on Nationality are not of a binding nature. 76 Also in the
case of state succession, scholar Francesco Costamagna writes that
the main concern of these documents is not to reassert the existence of a universal
right to have a nationality, but simply to avoid that individuals might end up losing
their nationality because of a change of sovereignty. 77
To conclude, a more in-depth analysis on a so-called human right to nationality
seems redundant since it is not considered to have acquired customary nature
(yet). 78
People without the nationality of any state in the world might enjoy protection
under the 1954 Convention and the 1961 Convention. Especially with regard to
disappearing island states, it is important to determine if displaced island
populations would fall under the protection regime of the Conventions on
Statelessness. The next Part will therefore analyse whether the population of
disappearing island states would be considered as stateless under art 1 of the 1954
Convention.

V LOSS OF NATIONALITY ON THE EXAMPLE OF DISAPPEARING ISLAND STATES

In Part II, the possibility of losing citizenship through state action was already
touched upon. Such state action is usually called ‘denationalisation’ or
‘withdrawal of citizenship’. However, the threat of losing a once possessed
nationality does not solely lie in the sphere of a state, eg their nationality laws and
corresponding government measures. Thus, statelessness may not only occur
through arbitrary deprivation of nationality. 79 Looking ahead, it is already possible
to identify instances where a state would not deprive its citizens of citizenship
voluntarily. Scientific prognoses on climate change show that several low-lying
island states — such as the Maldives or the smaller Kiribati and Tuvalu islands —

73 ibid; Council of Europe Convention on the Avoidance of Statelessness in Relation to State

Succession, opened for signature 19 May 2006, ETS 200 (entered into force 1 May 2009)
(‘Convention on the Avoidance of Statelessness in Relation to State Succession’).
74 See, eg, Convention on the Avoidance of Statelessness in Relation to State Succession (n 73)
art 2. Note, however, that according to art 5, some connection to the territory of the new state
will be required to obtain citizenship.
75 International Law Commission, Report on its work of its fifty-first session, UN GAOR, 54th
sess, Supp No 10, UN Doc A/54/10 (3 September 1999).
76 Dörr (n 64) [9].
77 Francesco Costamagna, ‘Statelessness in the Context of State Succession — An Appraisal
under International Law’ in Serena Forlati and Alessandra Annoni (eds), The Changing Role
of Nationality in International Law (Routledge 2013) 37, 42.
78 Dörr (n 64) [9]; Edwards (n 16) 24. See also Blackman (n 66) 1176; McAdam, Climate
Change, Forced Migration (n 29) 139; Belton (n 36) 227.
79 Cf Foster and Lambert (n 22) 567.

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will physically disappear by 2100 due to unavoidable sea level rise. 80 In scholarly
debate, there has already been discussion on whether the population of such states
would lose its nationality if territory permanently disappears. 81 If an island state
should extinguish legally, the populations’ citizenship to that state would also
cease to exist, as the essential attachment to a state will be lacking. 82 Accordingly,
if there exists no state who grants citizenship to a person, it must follow that this
person is stateless. 83 The imminent global challenge of sea level rise could
therefore lead to massive deprivations of citizenships and thus induce a global rise
in statelessness in the future. It goes without saying that this would be detrimental
to the vision of the UNHCR to end statelessness by 2024. 84
This ultimately leads to the question of how to treat the population of a sinking
island state — would they fall under the de jure definition of the 1954 Convention?
Would it be desirable to have former islanders be considered as stateless? If not,
how can they be protected by international law if they do not fall under the
statelessness regime? In order to find an answer to these questions, one first needs
to determine the general criteria of statehood and thus whether a sunken island
state could still be considered to fulfil the requirements.

A Continuing Statehood of Disappearing Island States?

To begin with, there is no commonly agreed legal definition in international law

on what constitutes a state. 85 In order to evaluate the elements of statehood,
scholars have however oriented themselves on a definition contained in the
Convention on the Rights and Duties of States (‘Montevideo Convention’), which
reflects customary international law. 86 According to art 1 of the Montevideo
Convention, the criteria for statehood are ‘a) a permanent population; b) a defined
territory; c) an effective government; and d) the capacity to enter into relations
with other states’. 87 Additionally, criterion d) is also often replaced with the
criterion of independence. 88 Those criteria are not absolute and, when concerned
with already existing states, not even the loss of all elements will immediately lead

80 See generally, Stoutenburg (n 11); See also McAdam, Climate Change, Forced Migration (n
29) 127; Nurse et al (n 10) 1613–54; Nerem et al (n 10) 2022–25.
81 This is different to other scenarios of state dissolution such as merger or succession, where
state practice is available. There has not been an example of the entire loss of state territory
so far. For more details on the extinction of states, see generally James Crawford, The
Creation of States in International Law (Oxford University Press, 2nd edn, 2006) 715–17.
82 See United Nations High Commissioner for Refugees, Climate Change and Statelessness: An
Overview (Report, 15 May 2009) 1 (‘Climate Change and Statelessness’).
83 Heather Alexander and Jonathan Simon, ‘Sinking into Statelessness’ (2014) 19 Tilburg Law
Review 20, 20–21. See also Paul Weis, Nationality and Statelessness in International Law
(BRILL 1979) 136; McAdam, Climate Change, Forced Migration (n 29) 159.
84 Unfortunately, it must also be noted that the goal to prevent statelessness due to sea level rise
was not adopted among the ten specific actions to end statelessness by United Nations High
Commissioner for Refugees.
85 Crawford, The Creation of States in International Law (n 81) 45–95; McAdam, Climate
Change, Forced Migration (n 29) 128; Climate Change and Statelessness (n 82) 1.
86 James Crawford, The Creation of States in International Law (n 81) 45–95; James Crawford,
Brownlie’s Principles of Public International Law (Oxford University Press, 8th edn, 2012)
128.
87 Convention on the Rights and Duties of States, opened for signature 26 December 1933, 165
LNTS 19 (entered into force 26 December 1934); See Stoutenburg (n 11) 250; See also Shaw
(n 50) 157.
88 Stoutenburg (n 11) 250. Cf Shaw (n 50) 160.

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to the extinction of the state. 89 Considering a case where the whole territory of a
state is submerged due to sea level rise, and thus the whole population and the
government is displaced, the continuance of statehood in application of those
criteria becomes highly questionable.
First, in our discussion on statehood we already start from the premise that a
state’s territory will vanish under rising sea levels. Thus, criteria b) — one of a
defined territory — will undoubtedly be lacking. Although international law has
not been faced with the total and irreversible loss of territory yet, some scholars
have already considered it as a possible ground for the extinction of a state. 90
While there is no number or percentage which must be met in order to satisfy the
criterion of permanent population, 91 statehood must at least require a small
number of inhabitants. 92 The described scenario of total disappearance with no
possibility for inhabitants to live on the territory, however, would be of such
gravity to reasonably negate the fulfilment of continuing statehood.
Regarding criteria c) it is important to highlight that international law presumes
a state’s continued existence despite a period without an effective government (eg
failed states). 93 There have been many instances in history where recognised
governments were able to operate temporarily in exile on the territory of other
states while suffering occupation. 94 Governments in exile, however, may only
establish its seat in a host state if they have the consent of the latter to exercise
jurisdiction in the host state’s territory. 95 Additionally, it should be noted that
examples of state practice so far pertain to circumstances in which regaining the
lost government, territory and population appeared somewhat likely in a
foreseeable future. 96 That is not the case with regard to disappearing island states,
due to the permanence of the status quo. After a nation is fully submerged, neither
the government nor the displaced island population would be able to return to the
sunken territory. Thus, where governments would be forced to perform
permanently in exile due to the loss of territory, it seems at least questionable
whether a state would host a foreign state under such circumstances, and thus in
effect consent to the establishment of parallel state or state-like structures on its
territory. Moreover, states are more inclined to permit governments on their
territory if their performance in exile ‘results from acts contrary to a peremptory

89 Crawford, Brownlie’s Principles of Public International Law (n 86) 128; McAdam, Climate
Change, Forced Migration (n 29) 128–29.
90 See, eg, Malcolm N Shaw (n 50) 164; Rosemary Rayfuse, ‘International Law and
Disappearing States — Maritime Zones and the Criteria for Statehood’ (2011) 41(6)
Environmental Policy and Law 281, 284.
91 There are some Pacific countries that have a large number or even half of their population
living outside the territory: McAdam, Climate Change, Forced Migration (n 29) 131–32.
This, however, does not lead to a state’s extinction.
92 Crawford, Brownlie’s Principles of Public International Law (n 86) 129. Then again, Shaw
suggests that not even a nomadic population would satisfy the requirements of territorial
integrity: Shaw (n 50) 158.
93 Crawford, The Creation of States in International Law (n 81) 34; Shaw (n 50) 160; McAdam,
Climate Change, Forced Migration (n 29) 135.
94 Eg, governments in exile of German-occupied States during the Second World War. For more
details in this regard, see generally Stefan Talmon, Recognition of Governments in
International Law: With Particular Reference to Governments in Exile (Clarendon 1998).
95 ibid, 215–18. This flows from the principle of territorial sovereignty.
96 See also McAdam, Climate Change, Forced Migration (n 29) 136: ‘The government in exile
idea is premised on there still being an identifiable population over which the government has
jurisdiction’.

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norm’. 97 Even if assuming that the government of a former island state would have
the consent of a foreign state to function on its territory, its effectiveness would
most probably eventually wane. 98 The importance of sovereign territory for a
government’s ability to operate effectively should not be undervalued. 99
Moreover, the aspect of independence should for the sake of completeness also
be mentioned here. Apart from the criteria illustrated above, the capacity to enter
into relations with other states and thus independence is also crucial to
statehood. 100 Independence in other words means inter alia that a state is
unaffected by the ‘factual dependence upon other states’. 101 Hence, it may not be
subject to the authority of a foreign state. 102 While it will obviously depend on the
host state whether governments in exile become subordinate, it seems rather
reasonable to conclude that a state without territory will find itself more easily in
dependency than other states. 103 Thus, it only seems plausible to assume the end
of statehood based on the criteria in the Montevideo Convention.
The ILA Executive Council established the ILA Sea Level Rise Committee in
2012 with the specific mandate ‘to study the possible impacts of sea level rise and
the implications under international law of the partial and complete inundation of
state territory’ and in this regard to ‘to develop proposals for the progressive
development of international law… including the impacts on statehood’. 104 In its
2018 final report, the ILA Sea Level Rise Committee poses the question whether
the problem of permanently uninhabitable state territory due to sea level rise would
eg require international law to recognise a new category of subjects in international
law, even if those entities lose their legal status as states. 105 Although international
law recognizes entities sui generis such as the Holy See or the Sovereign Order of
Malta for historical reasons, it seems rather unlikely that submerged states will be

97 Crawford, Brownlie’s Principles of Public International Law (n 86) 125; Rosemary Rayfuse
and Emily Crawford, ‘Climate Change, Sovereignty and Statehood’, (Legal Studies Research
Paper No 11/59, Sydney Law School, September 2011) 8:
If the government of a state has been forcibly displaced from its territory through
belligerent occupation, the government in question is considered to remain the
legitimate government and state… Under international law, such exile must be
accepted by the international community; that is, there should be no general
acknowledgement of a change of circumstances.
98 For instance, McAdam argues that a merger with the organs of the host state would ultimately
lead to the extinction of the state if no other interests to uphold the continuance of statehood
prevail: McAdam, Climate Change, Forced Migration (n 29) 137.
99 It is important to keep in mind that disappearing island states would not only lose territory but
also their population. McAdam, Climate Change, Forced Migration (n 29) 160: ‘[A]
substantial loss of population would start to erode the effectiveness of the State’s government
as its economic base declined’.
100 Shaw (n 50) 160.
101 ibid.
102 McAdam, Climate Change, Forced Migration (n 29) 133.
103 For more details on the independence criterion, see Crawford, The Creation of States in
International Law (n 81) 62–89.
104 International Law Association, Committee on International Law and Sea Level Rise, Sydney
Conference: Final Report (Report, 2018) 1 (‘Sydney Conference Final Report’).
105 ibid, 25. Regarding subjects of international law in general, see Crawford, Brownlie’s
Principles of Public International Law (n 86) 115–26.

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accepted to enter this category. 106 After all, they have once possessed statehood.
However, it will be interesting to see how the ILA Sea Level Rise Committee will
approach this question in the future.
Some authors suggest that even if the whole territory of a state disappears, it is
still possible that the international community would recognise the existence of its
statehood. 107 In general, international law has accepted the presumption of
continuing statehood under certain circumstances. 108 Thus, state practice so far
suggests that the international community is willing to uphold recognition of states
that no longer fulfil the criteria of statehood (eg failed states such as Somalia). 109
Accordingly, in order to protect ‘failed’ states from unlawful invasion and
annexation from other states, their continuing statehood will generally be
presumed for a considerable amount of time. 110 In contrast to situations of ‘failed’
states, the presumption of continuing statehood may also not be justified by
preventing claims of neighbouring states to otherwise uncontrolled and stateless
territory.
That distinction being made, scholars have specifically argued that the
presumption of continuing statehood is not appropriate in the case of disappearing
island states. 111 They have also noted that the prevailing doctrine favours the
declaratory theory, and recognition does not play a constitutive role in the
determination of statehood. 112 In that case, it would be absurd to recognise non-
territorial entities as states. 113 Above all, there should be at least a minimum
amount of territory left to recognise the continuance of statehood. 114
It is important to keep in mind that the recognition of states remains a political
act, and states will not base their decision to recognise a state strictly on the
fulfilment of the statehood criteria. 115 Consequently, it will be seen how far the

106 For instance, Taiwan is considered to have international legal identity, approximating to that
of a state. However, such acknowledgment of a modified personality applies to ‘case[s] of
territory title to which is undetermined, which is inhabited and has an independent
administration’. This does not apply to submerged island states: Crawford, Brownlie’s
Principles of Public International Law (n 86) 125. See also McAdam, Climate Change,
Forced Migration (n 29) 159: suggesting that disappearing islands could at some point be
regarded ‘as having acquired a different kind of international personality, other than as a
state’.
107 See, eg, Stoutenburg (n 11) 297; McAdam, Climate Change, Forced Migration (n 29) 140.
108 The requirements on fulfilling the statehood criteria are much more stringent in the context
of the creation of new states. See also Crawford, The Creation of States in International Law
(n 81) 34; See also Sydney Conference Final Report (n 104) 25.
109 Regarding Somalia, see Rayfuse and Crawford (n 97) 9
110 Crawford, The Creation of States in International Law (n 81) 63; McAdam, Climate Change,
Forced Migration (n 29) 134. It is also noteworthy to mention International Law Commission,
Report of the International Law Commission on the Work of Its Fifty-Third Session, UN
GAOR, 56th sess, Supp No 10, UN Doc A/56/10 (10 August 2001) 286 art 41(2) (‘ILC Articles
on State Responsibility’): ‘No State shall recognize as lawful a situation created by a serious
breach within the meaning of article 40, nor render aid or assistance in maintaining that
situation.’ This article confers on states the obligation to refrain from recognising situations
as lawful, which are created by jus cogens violations.
111 Alexander and Simon, ‘Sinking into Statelessness’ (n 83) 21.
112 ibid 24–25.
113 ibid.
114 Crawford, The Creation of States in International Law (n 81) 46.
115 Crawford, Brownlie’s Principles of Public International Law (n 86) 147. See also Alexander
and Simon, ‘Sinking into Statelessness’ (n 83) 25:

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political interest to uphold continuing statehood of disappearing island states will

prevail over the lack of ‘factual’ statehood.
However, the question of how effectively a government acting from foreign
territory is able to protect its citizens remains uncertain. Even if the international
community could agree on the continuity of disappearing island states as legal
entities, 116 the externally displaced population would struggle to enjoy protection
from a government forced to act in exile without territory; a situation, which
according to UNHCR, would most likely amount to de facto statelessness. 117
To conclude, the discussion regarding the continuance of statehood of
disappearing island states is far from being uniformly acknowledged. Even the
ILA Sea Level Rise Committee considered the question of continuing statehood
of such ‘great sensitivity’ that it refrained from discussing it in more detail in its
Sydney Conference: Final Report 2018. 118 Instead, the ILA Sea Level Rise
Committee evaluated that it would be useful to continue its work on the issue of
statehood after the end of its current mandate. 119 Unfortunately, it also did not
touch upon the issues of nationality and statelessness in its report. 120 The legal
status of a submerged state and its population still remains unresolved. 121

Note that we have not argued that in fact states will not continue to recognize
submerged island nations as states. We have argued that the principle of presumption
of continuity does not necessarily recommend that they do so, and we have argued that
even if it did, it would not follow that these submerged entities really were states, any
more than a boiled egg would be a state if recognized by the community of nations to
be.
116 Stoutenburg (n 11) 405.
117 Climate Change and Statelessness (n 82) 2. See also Stoutenburg (n 11) 427.
118 Sydney Conference Final Report (n 104) 25–26.
119 ibid.
120 Ibid. However, the Committee’s mandate also includes to
develop proposals for the progressive development of international law in relation to
the possible loss of all or of parts of state territory and maritime zones due to sea level
rise, including the impacts on statehood, nationality, and human rights.
at 1.
121 See also Stoutenburg (n 11) 404. Some commentators have argued that former islanders will
become de jure stateless even if the international community continues to recognise statehood
of disappearing island states. They base their arguments on the premise that non-territorial
states cannot comply with their duty to readmit nationals if other states request it; thus, they
lose their ability to confer nationality under the operation of their law. This allegedly flows
from the basic concept that a state cannot assume a duty (here: the international obligation to
readmit nationals) if it cannot discharge it. For further details on this obligation, see also Kay
Hailbronner, ‘Readmission Agreements and the Obligation on States under Public
International Law to Readmit their Own and Foreign Nationals’ (1997) 57(1) Heidelberg
Journal of International Law 1. Regarding that argument, see Heather Alexander and
Jonathan Simon, ‘No Port, No Passport: Why Submerged States Can Have No Nationals’
(2017) 26(2) Washington International Law Journal 307. In the author’s opinion, this seems
a rather unconvincing argument. Under international law, the consequence of a state’s
‘factual’ inability to comply with its obligation to readmit nationals cannot result in the loss
of its sovereign right to confer nationality. In general, the violation of an international
obligation towards another state must lead to state responsibility, if no circumstances
precluding wrongfulness apply. Disappearing island states could, for example, try to argue
force majeure (art 23 ILC Articles on State Responsibility (n 110)); that is the occurrence of
an irresistible force, beyond the control of the state, making it materially impossible in the
circumstances to readmit nationals to the state. The state as such, however, exists further and
may, under the operation of its law, confer, regulate and withdraw nationality (in the limits of
international law as elaborated further above).

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B De Lege Lata Protection Possibilities for an Externally Displaced Island

Population

Without any state practice, the scenario of disappearing island states raises many
unsettled questions. At the core is the question of how to protect and guarantee
human rights of externally displaced islanders. Rising sea levels will most likely
jeopardise the protection of various human rights, including civil rights (eg the
right to life), as well as many socio-economic rights such as the right to health,
housing or the right to work. 122 For the purpose of determining the various
protection possibilities in the case of disappearing island states, different
protection regimes — their applicability essentially depending on whether the
population is considered stateless or not — will be illustrated below. It is important
to highlight that the question of whether displaced islanders fall under the relevant
protection regimes goes hand in hand with the question of whether their rights can
be effectively enforced.

1 The 1954 and 1961 Statelessness Conventions

To begin with, it should be quickly re-emphasised that only a ‘stateless person’

may enjoy the protection of both Conventions on Statelessness. Whether the
population of a disappearing state will be considered as de jure or de facto
stateless, will ultimately depend on the will of the international community to
continue to recognise islands as states once they are submerged. Only with regard
to de jure stateless persons, ratifying states will have to fulfil the obligations set
out in the Conventions on Statelessness. However, as illustrated above, states may
still decide to follow the recommendations of the Final Acts to the Statelessness
Conventions, which suggest to treat de facto stateless people as far as possible as
de jure stateless people. 123
If the population of former island states was to fall under the definition of
stateless people, they would benefit from the protection regime provided under the
1954 Convention. 124 This would entitle them to enjoy a range of human rights
aimed at improving their status in the host state. 125 For instance, the 1954
Convention incorporates a set of civil rights such as the freedom to practice
religion (art 4), access to courts (art 16) and the right of association (art 15). 126
Stateless persons also enjoy the right of freedom of movement, which is contained
in art 26. 127 Moreover, the 1954 Convention contains several economic and social
rights, which are necessary for every person to live a minimally decent life. 128 Of

122 McAdam, Climate Change, Forced Migration (n 29) 52.

123 Stoutenburg (n 11) 427–28; Final Act of the 1954 Convention (n 29); Final Act of the 1961
Convention (n 32). For more details, see Part II.
124 Note, however, that there are also scholars who apply such a narrow reading of art 1 of the
1954 Convention so as to consider de jure statelessness only in cases where states actually
withdraw nationalities from people. This understanding would lead to the conclusion that
although the island state ceases to exist, its population would not be considered to fall under
the definition of art 1 of the 1954 Convention: Walter Kälin, ‘Conceptualising Climate-
Induced Displacement’ in Jane McAdam (ed), Climate Change and Displacement.
Multidisciplinary Perspectives (Bloomsbury 2010) 92; Stoutenburg (n 11) 404–5.
125 Foster and Lambert (n 22) 566.
126 van Waas (n 15) 73.
127 1954 Convention (n 3) art 26.
128 Belton (n 36) 226, 228.

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those rights, arts 17–19 and 24 concerning ‘the rights to work’, art 21 with regard
to ‘the right to housing’ and art 24, which incorporates ‘the right to social security’
should be highlighted. 129 As can be seen, the 1954 Convention incorporates
existing human rights standards, which can be found in various human rights
treaties. 130 Importantly, however, the 1954 Convention even goes beyond those
standards. 131 For instance, art 32 of the 1954 Convention includes an obligation to
‘facilitate the assimilation and naturalization of stateless persons’. Thus, while the
1954 Convention does not confer an obligation on states to grant nationality to
stateless persons, it does call on them to facilitate the naturalisation of stateless
persons ‘as quickly and easily as possible’. 132 Moreover, arts 27 and 28 oblige
states to issue travel documents to stateless persons within their territory. 133
Article 25 of the 1954 Convention foresees that stateless persons are afforded
administrative assistance in cases where the assistance of authorities of a foreign
country to whom the stateless person cannot have recourse would be required.
Stateless persons greatly benefit from those provisions, which confer a legally
binding obligation on host states to facilitate their naturalisation as well as to issue
travel documents and to offer administrative assistance. 134
In general — and different to the ICCPR or the ICESCR — the 1954
Convention sets out different standards of treatment, depending on the right in
question. Some provisions require states to grant the same rights to stateless
persons as are granted to their nationals, others accord to stateless persons the same
level of treatment as granted to other non-nationals in the state. The 1954
Convention also grants several absolute rights to stateless persons regardless of
whether they also exist for nationals. 135 In general, however, the 1954 Convention
shall accord to stateless persons the same treatment as is accorded to non-nationals
in general (art 7(1)). Overall, the 1954 Convention is beneficial to stateless persons
as it grants them a minimum standard of human rights as well as several guarantees
that go beyond those rights incorporated in the ICCPR or ICESCR.
Importantly, several regional human rights courts have already stressed the
relevance of ‘legal identity’ for the enjoyment of human rights in general. 136 Many
provisions in the 1954 Convention only grant protection to those stateless persons

129 Furthermore, the 1954 Convention (n 3) includes the right to access primary education and
the right to be provided identification documents: Belton (n 36) 226.
130 ICCPR (n 41); ICESCR (n 50).
131 Stoutenburg (n 11) 427.
132 van Waas (n 15) 73.
133 Eg, Stoutenburg suggests that governments in exile would be still able to issue travel and
identification documents: Stoutenburg (n 80) 427.
134 However, how those obligations — especially art 32 of the 1954 Convention (n 3) — can be
exactly enforced against ratifying states is yet another question.
135 van Waas (n 15) 73.
136 Apleyeva and Dzhalagoniya v Russia (European Court of Human Rights, Chamber
Application Nos 7549/09 and 33330/11, 12 June 2018); The Nubian Community in Kenya
v The Republic of Kenya (Merits) (African Commission on Human and People’s Rights,
Communication No 317/2006, 28 February 2015); IHRDA and OSJI (on behalf of children of
Nubian descent in Kenya) v Kenya (African Committee of Experts on the Rights and Welfare
of the Child Decision 002/COM/002/09, 22 March 2011); Marija Dobric and Philipp Janig,
‘Stateless Persons and Social Rights’ in Christina Binder et al (eds), Research Handbook on
Social Rights (forthcoming).

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lawfully staying in the territory of the host state. 137 Essentially, stateless persons
unlawfully staying in the host state are only able to enjoy a limited number of
rights under the 1954 Convention. As the legality of residence is subject to
domestic legislation, states will in general enjoy wide discretion in determining
the legal status of former islanders fleeing from disappearing island states. 138
Thus, the requirement of lawful stay might be a pivotal barrier for stateless persons
to enjoy the human rights stipulated therein; in particular as states will arguably
not consider them refugees under the Convention Relating to the Status of
Refugees (‘1951 Refugee Convention’). 139
Even if falling under the legal definition of a stateless person, the enjoyment of
the rights stipulated in the 1954 Convention is not as simple as it may sound.
Naturally, in order to benefit from the statelessness regime, a stateless person has
to reside in a state party to the Conventions on Statelessness. As already mentioned
above, ratification is poor, as is exemplified by the large number of neighbouring
countries of endangered island states (which would most likely serve as refuge to
former islanders) that have not ratified the Conventions on Statelessness. More
precisely, of all those states that likely might serve as host states due to their
geographical proximity to low-lying island states — eg India, Sri Lanka,
Indonesia, the Philippines, Singapore, Malaysia, New Zealand, Papua New
Guinea, the United States or Australia — only Australia and the Philippines have
ratified the 1954 Convention. 140
While the 1954 Convention could provide human rights protection, which goes
even beyond basic human rights standards, most future host states in the case of
disappearing island states have not yet ratified the Convention. Hence, stateless
persons will not enjoy protection under the 1954 Convention unless the
aforementioned states ratify it.
Additionally, the protection regime of the 1961 Convention should also be
briefly mentioned here. In contrast to the 1954 Convention, its main focus is to
prevent cases of statelessness from arising rather than the protection of basic
human rights standards. 141 As illustrated above, art 1(1) of the 1961 Convention
does not confer a right to nationality to everyone but only to persons born on the
territory of a state if they otherwise would be stateless. 142 This means that the 1961
Convention only applies to children of displaced islanders born on the territory of
the host state. 143 Consequently, the original generation does not enjoy such a right
under art 1(1).
Another core obligation in the 1961 Convention is art 8(1), which stipulates
that states ‘shall not deprive a person of its nationality if such deprivation would
render him stateless’. While the 1961 Convention does not have a legal definition
on the term deprivation, it is however regarded as the ‘withdrawal of citizenship
137 The following articles in the 1954 Convention (n 3) require lawful stay: art 15 (right of
association), art 17 (wage-earning employment), art 18 (self-employment), art 19 (liberal
professions), art 21 (housing), art 23 (public relief), art 24 (labour legislation and social
security), art 26 (freedom of movement), art 28 (travel documents) and art 31 (expulsion).
138 For a detailed discussion on the importance of a legal status in the host state for the enjoyment
of social rights: see Dobric and Janig (n 136).
139 Convention Relating to the Status of Refugees, opened for signature 28 July 2951, 189 UNTS
37 (entered into force 22 April 1954) (‘1951 Refugee Convention’). See more on this issue
further below.
140 ‘Refugees and Stateless Persons Page’ (n 4). See Stoutenburg (n 11) 409.
141 Edwards (n 16) 28.
142 See Part IV for more details.
143 Stoutenburg (n 11) 428.

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that is initiated by state authorities’. 144 As emphasised above, disappearing island

states do not revoke citizenships of their populations voluntarily. The prohibition
against arbitrary deprivation of nationality does also not apply to the case of
disappearing states due to the aforementioned grounds. 145
Therefore, the 1961 Convention will hardly provide redress to the problems
created by virtue of the disappearance of island states. 146
Moreover, unlike other international human rights treaties, the Conventions on
Statelessness do not provide for any enforcement mechanisms, as elaborated
above. However, the UN General Assembly awarded the UNHCR the mandate to
work on four different issues concerning statelessness. 147 This includes inter alia
the task to advocate for the ratification of the Conventions on Statelessness as well
the prevention of statelessness. 148
In light of this, it is also important to highlight that some authors speak of an
emerging trend towards the duty of states to prevent, or rather not to create,
statelessness. 149 The Explanatory Report of the European Convention on
Nationality even states that the obligation to avoid statelessness has become part
of customary international law. 150
In essence, the scholarly debate on the duty to prevent is similar to that on the
right to nationality. However, while various international and regional (human
rights) treaties already include provisions with regard to a right to nationality, they
do not explicitly refer to a duty to prevent statelessness. 151 The content of such a
duty in international law is not strictly defined yet. For instance, the Introductory
Note of the UNHCR to the 1961 Convention itself states that in order to prevent
statelessness ‘[s]tates may either grant nationality to children automatically at
birth or subsequently upon application’. Apart from the conferral of nationality,
which is inherent in the right to nationality, the duty to prevent also includes a
prohibition on the withdrawal of nationality if such deprivation would render

144 Brücken and Groot (n 56) 40.

145 For further details on arbitrary deprivation of nationality, see Foster and Lambert (n 22) 578.
146 ibid 581. However, it should also be noted that the general effectiveness of art 8(1) is limited
due to the possibility of states to retain the right to deprive citizens of their nationality by
means of a declaration under art 8(3) at the time of ratification of the 1961 Convention (n 3);
See generally, Brücken and Groot (n 56).
147 Seet (n 9) 8.
148 ibid 8, 20.
149 Such a duty to prevent statelessness upon states would be of customary nature. As such, it is
relevant to determine uniform state practice as well as opinio juris.
150 European Convention on Nationality (n 61) [33]. Please also note the European Convention
on Nationality explicitly provides in art 4(b) that statelessness shall be avoided. See generally
Foster and Lambert (n 22) 578.
151 See 1930 Hague Convention (n 18) arts 14, 15; ICCPR (n 41) art 24; Convention on the
Elimination of All Forms of Discrimination Against Women, opened for signature 18
December 1971, 1249 UNTS 1 (entered into force 3 September 1981) (‘CEDAW’) art 9;
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS
3 (entered into force 2 September 1990) (‘CRC’) art 7–8; International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Families, opened for
signature 18 December 1990, 2220 UNTS 3, (entered into force 1 July 2003) (‘ICRMW’) art
29; ACHR (n 60) art 20. See also Yean and Bosico v The Dominican Republic (n 60) [140]–
[143], where the Inter-American Commission on Human Rights speaks of the ‘obligation to
prevent, avoid and reduce statelessness’ by citing: 1961 Convention (n 3) art 1(1); ICRMW at
art 29; CRC at art 7(1); ICCPR at art 24(3). With regard to the gradual development of the
‘duty to prevent’, see Tang Lay Lee, ‘Denationalization and Statelessness in the Modern
World’ (2006) 6 ISIL Year Book of International Humanitarian & Refugee Law 19, 34–37. It
must be noted that Tang Lay Lee explicitly refers to the ‘duty to prevent statelessness’ and
not the right to nationality when citing the provisions above.

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persons stateless. 152 It seems that the duty to prevent statelessness shall include all
cases in which a person could become stateless; thus, it applies very broadly.
Bearing that in mind, it is arguable that the duty to prevent statelessness is already
partly implicit in the right to nationality (of children). 153 More precisely, if states
are bound by an obligation to confer nationality to children born on the territory
of their state, states necessarily must also be bound by an obligation to not render
them stateless and vice versa. 154
However, it is unclear how future host states of fleeing islanders might be
bound under a duty to prevent statelessness. 155 There are several scholarly
contributions, which have discussed a possible duty to prevent if statelessness
arises from state succession. While there might be such a customary obligation in
the context of state succession, 156 it seems questionable how such a duty — if
legally binding — would apply in the context of disappearing island states. 157
Clearly, future host states to fleeing islanders are not successor states of
submerged Pacific islands. As such, they do not have to assume the same
responsibility as successors, which ‘replace a predecessor state in the
responsibility for the international relations of territory’. 158 The link former
nationals of the predecessor state have to the successor state is manifestly stronger
than the one former islanders might have to their new state of residence. Under
current customary international law, a duty to prevent statelessness might only be
assumed with regard to stateless children, born on the territory of the host state.
To conclude, several problems with regard to the effective enjoyment of human
rights under the Conventions on Statelessness have been analysed above.
However, displaced islanders in the Asia-Pacific region will usually also enjoy
protection under general human rights guarantees, which are applicable to all
human beings.

152 Again, please note the Introductory Note of the United Nations High Commissioner for
Refugees to the 1961 Convention (n 3):
The Convention further seeks to prevent statelessness later in life by prohibiting the
withdrawal of citizenship from States’ nationals — either through loss, renunciation,
or deprivation of nationality — when doing so would result in statelessness.
153 As already elaborated above, there is no general right to nationality under customary
international law. However, it was argued that there potentially exists such a right for stateless
children. This discussion, however, leaves any applicable treaty provisions unaffected. For
instance, under ACHR (n 60) art 20, states are indeed bound by a general right to nationality.
154 See, eg, CRC (n 151) art 7(1), which provides, inter alia, such a right to nationality for
children. Furthermore, art 7(2) stipulates that state parties to the CRC shall ensure the
implementation of the rights found in para 1 in particular where the child would otherwise be
stateless. As such, art 7 could be understood as incorporating a duty to prevent statelessness.
155 Disappearing island states cannot be bound under the duty to prevent statelessness, as they
are not withdrawing their citizenships.
156 However, even in the context of state succession, some scholars argue that it is difficult to
identify a customary obligation to grant nationality to everyone. See Ziemele (n 65) 243. Dörr
(n 64) [9].
157 Cf Blackman (n 66) 1176–83.
158 Cf Convention on the Avoidance of Statelessness in Relation to State Succession (n 73) art
1(a).

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2 Human Rights Treaties (ICCPR and ICESCR) 159

There are several international human rights treaties that would provide protection
to stateless persons, where they are applicable. 160 The ICCPR and the ICESCR —
the most prominent human rights treaties on the universal level — incorporate a
wide set of basic human rights, some of which have already been illustrated above
in the context of the 1954 Convention. Substantively, the ICCPR grants civil and
political rights, whereas the ICESCR incorporates economic, social and cultural
rights. Out of all rights, art 24 ICCPR should be specifically mentioned here, as it
provides for a right to nationality for every child. Article 24 ICCPR, however,
which accordingly only guarantees the right of children to acquire a nationality
born in the territory of a state, will add little to help displaced islanders who will
have to migrate to other states. In cases where their children are born stateless on
the host state’s territory, art 24(3) ICCPR might indeed prove valuable.
The ICCPR and the ICESCR are both widely ratified instruments, including in
the Asia-Pacific region. 161 While the ‘advances of international human rights law
which obligates all states to protect human rights regardless of the status of the
holder’ 162 should not be undermined, it is however always pertinent to question
how human rights can be actually enforced vis-à-vis a state, in particular the host
state. As eluded to above in Part III, the possibility of exercising diplomatic
protection on behalf of stateless people as provided for in the ILC Articles on
Diplomatic Protection has so far not been accepted by state practice. But even if
that were the case, the ILC Articles on Diplomatic Protection themselves also
grant that right only to the resident state which, arguably, will be the most likely
to violate the displaced islander’s human rights on its territory. Under these
circumstances, the possibility of enforcement remains alarmingly limited. Even if
states recognise continuing statehood and islanders do not lose their nationalities,
it remains uncertain whether island states would be able to guarantee human rights
effectively while having their governments act in exile on foreign territory.
Moreover, whether individuals may rely on treaty mechanisms in the context
of their human rights, such as the Human Rights Committee, is contingent on
acceptance by the respective state. This again is limited in the affected region,
which would most probably serve as host states for displaced island populations.
Thus, it must be noted that the status of ratification of several ‘optional protocols’,

159 Please note that the CERD (n 61) and the CEDAW (n 151) will not be specifically mentioned
under the human rights treaties section. They might also apply to stateless persons; however,
their statelessness does not arise due to discriminatory state action or laws. However, both
conventions may provide redress with regard to discriminatory treatments in future host states.
160 Not only the ICCPR (n 41) and ICESCR (n 50), but also the CERD (n 61), CEDAW (n 151)
(as already mentioned above), the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS
85 (entered into force 26 June 1987) (‘CAT’), the CRC (n 151); the ICRMW (n 151), the
International Convention on the Protection of All Persons from Enforced Disappearance,
opened for signature 20 December 2006, 2716 UNTS 3 (entered into force 23 December
2010) and the Convention on the Rights of Persons with Disabilities, opened for signature 13
December 2006, 2515 UNTS 3 (entered into force 03 May 2008) are international human
rights instruments which, if applicable, might protect stateless persons from human rights
violations in future host states.
161 See accordingly the status of ratification of the ICCPR (n 41) and the ICESCR (n 50) at the
official website of Office of the High Commissioner for Human Rights, ‘Status of
Ratification’ <[Link] (‘Status of Ratification’).
162 Amal de Chickera and Laura van Waas, ‘Unpacking Statelessness’ in Tendayi Bloom,
Katherine Tonkiss and Phillip Cole (eds), Understanding Statelessness (Routledge 2017) 59.

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which would provide for the possibility of individual complaint mechanisms, is

limited in the Asia-Pacific region. 163
To sum up, while stateless persons will most certainly fall under the protection
regimes of the ICCPR and the ICESCR as they are widely ratified and applicable
to everyone, it remains questionable whether stateless persons might effectively
enforce those human rights vis-à-vis their host states without the possibility of
enjoying diplomatic protection.

3 The Refugee Convention

The 1954 Convention is largely modelled on the 1951 Refugee Convention, 164
although in comparison to the Refugee Convention, it eg lacks a provision
prohibiting refoulement as well as the penalisation of illegal entry. 165
Stateless persons might fall under the international refugee protection regime,
if certain circumstances are met. 166 Article 1A(2) deals first with persons with a
nationality. After a semicolon, art 1A(2) stipulates that a stateless person, as a
person ‘not having a nationality and being outside the country of his former
habitual residence… is unable or, owing to such fear, is unwilling to return to it’,
is — if fulfilling these criteria — to be considered as falling under the refugee
definition. In the context of disappearing island states, it must be mentioned that
the question of whether ‘climate refugees’ can be considered as refugees at all
under art 1A(2) has already received wide attention in legal scholarship. 167 In
general, it is recognised that it will be difficult, if not impossible, to prove that
natural disasters give rise to a ‘well-founded fear’ of persecution. 168 While art
1A(2) stipulates the requirement of a well-founded fear of persecution for
nationals of a state, it subsequently merely states that a stateless person must be
‘unable or, owing to such fear, unwilling to return’ to its country of habitual
residence. If considerable emphasis is put on the ordinary meaning of art 1A(2), it

163 See ‘Status of Ratification’ (n 161). Please also note that the author will refrain from
elaborating on protection mechanisms through regional human rights instruments, such as the
American Convention on Human Rights or the European Convention on Human Rights, as
they would not be applicable in the relevant region.
164 See Statelessness Convention Commentary (n 30) 1: ‘[I]n many instances the relevant articles
of the Refugee Convention were taken over bodily by substituting the words “stateless
person” for “refugee”’. See also Foster and Lambert (n 22) 566.
165 Foster and Lambert (n 22) 566.
166 1951 Refugee Convention (n 139) art 1A(2).
167 ibid.
168 There are several problems to the application of art 1A(2) to ecological ‘refugees’, which
cannot be dealt with in its entirety here. However, it should be stressed that persecution
necessarily requires attribution of a violation of the person’s human rights to a state. In the
case of disappearing island states, it will be difficult to determine one single state actor as
responsible for the vanishing of a state’s territory (in the end, disappearing island states cannot
be held responsible for rising sea levels on their own). The reasoning behind the Teitiota cases
in New Zealand is similar: see Teitiota v The Chief Executive of the Ministry of Business
Innovation and Employment [2013] NZHC 3125; Teitiota v The Chief Executive of the
Ministry of Business, Innovation and Employment [2014] NZCA 173 (‘Teitiota v The Chief
Executive of the Ministry of Business, Innovation and Employment’); Jane McAdam, ‘The
Emerging New Zealand Jurisprudence on Climate Change, Disasters and Displacement’
(2015) 3(1) Migration Studies 131, 133–34. See also Andreas Zimmermann and Claudia
Mahler, ‘Article 1 A, para. 2’ in: Andreas Zimmermann (ed), The 1951 Convention Relating
to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press,
2011) 281, 440 [572]; Jane McAdam, ‘Climate Change Displacement and International Law’,
(Speech, Side Event to the High Commissioner’s Dialogue on Protection Challenges, 8
December 2010) (‘Climate Change Displacement and International Law’).

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is arguable that stateless persons might be considered as refugees if they merely

prove to be ‘unable to return’ to their country of former habitual residence without
being persecuted per se. 169 Heather Alexander and Jonathan Simon have argued
that such inability to return must be understood as ‘irreparable, fundamental
inability, rather than mere difficulty of complication with the paperwork’.170
However, many recognise that stateless persons shall not be treated any different
to refugees (so-called ‘single test’ for refugee status). Although it is undeniable
that the wording of art 1A(2) seems ambiguous with regard to the requirement of
persecution for persons lacking a nationality, it is thus generally accepted that both
the unwillingness, as well as the inability to return to the country of former
habitual residence, must be based on a well-founded fear of being persecuted on
Convention grounds. 171
To conclude, it would be unconvincing to argue that a stateless person fleeing
due to disappearing island states would fall under the refugee definition in art
1A(2), if no other circumstances which would give rise to ‘well-founded fear’,
arose.
Again, it would be desirable to achieve some international consensus on this
issue. Sweden and Finland explicitly recognise ecological migrants under certain,
but strict, circumstances as ‘persons otherwise in need of protection’. 172 For
instance, former islanders fleeing to Sweden might succeed in applying for
protection on the grounds of ‘a person otherwise in need of protection’, if not
already considered as refugees (nor persons requiring subsidiary protection). 173

169 See generally Heather Alexander and Jonathan Simon, ‘“Unable to Return” in the 1951
Refugee Convention: Stateless Refugees and Climate Change’ (2014) 26(3) Florida Journal
of International Law 531.
170 ibid 532–33: Alexander and Simon make a convincing point when arguing that where a strict
test is applied to the inability to return, an application of refugee status without persecution is
justifiable. In the author’s opinion, however, the scholars neglect a discussion whether ‘is
unable or, owing to such fear, is unwilling to return to it’ could by way of textual interpretation
be read as requiring persecution for the inability and the unwillingness to return, respectively.
171 Zimmermann and Mahler (n 168) 463 [685]–[686]; Guy S Goodwin-Gill and Jane McAdam,
The Refugee in International Law (Oxford University Press 2007) 69–70. See also Council
Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and
Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who
Otherwise Need International Protection and the Content of the Protection Granted [2004]
OJ L 304/12, art 2(c).
172 See Aliens Act 2005 (Sweden) ch 4, s 2(a), which considers a ‘person otherwise in need of
protection’ is someone who ‘is an alien who in cases other than those referred to in Section 1
is outside the country of the alien’s nationality, because he or she […] 3) is unable to return
to the country of origin because of an environmental disaster’. See also Hélène Ragheboom,
The International Legal Status and Protection of Environmentally-Displaced Persons: A
European Perspective (Brill Nijhoff 2017) 352.
173 Ragheboom (n 172) 352; New Zealand and Australia have also not recognised ‘ecological
refugees’ yet (for the relevant case law see n 168); McAdam, ‘Emerging New Zealand
Jurisprudence’ (n 168). However, please note Teitiota v The Chief Executive of the Ministry
of Business, Innovation and Employment (n 168), where the Supreme Court of New Zealand
held at [13]:
That said, we note that both the Tribunal and the High Court, emphasised their
decisions did not mean that environmental degradation resulting from climate change
or other natural disasters could never create a pathway into the Refugee Convention or
protected person jurisdiction. Our decision in this case should not be taken as ruling
out that possibility in an appropriate case.

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While the Refugee Convention might not give stateless persons a right not to be
returned to their home country, 174 this might be the case under the non-
refoulement principle as a customary rule, which is also applicable to non-refugees
(also known as ‘complementary protection’). In general, the non-refoulement
principle is violated where an individual is returned to serious harm. 175
It appears dispensable to argue on the applicability of the non-refoulement
principle when there is no territory to which host states could send former
inhabitants back. Host states, however, might be restricted by the principle of non-
refoulement to return former islanders to territories that have not fully vanished,
when sending them back might put their lives at risk due, for example, to scarce
resources or a constant threat of sea floods. Especially considering that the
European Court of Human Rights has recognised that where the applicant suffers
from poverty or a lack of resources, housing/employment or medical care, it is
‘only’ in exceptional circumstances that the host state may not return the
applicant. 176 For instance, this is the case when a terminally ill person’s life
expectancy would be reduced significantly upon return. 177 In essence, ‘the
humanitarian grounds against the removal’ must be ‘compelling’. 178 Thus, the
non-refoulement principle might become applicable in situations where former

174 This will essentially hinge on the question whether a former islander is consider a refugee
under art 1A(2) of the 1951 Refugee Convention. If considered falling under art 1A(2), a
former islander may not be expelled under art 33(1), unless [2] is applicable (if the refugee is
‘a danger to the security’ or ‘community of the country’). Please note that asylum-seekers
may also enjoy protection under art 33. See also Goodwin-Gill and McAdam (n 170) 232–34.
175 See also the formulation in Soering v United Kingdom (European Court of Human Rights,
Chamber, Application No 14038/88, 7 July 1989) with regard to the non-refoulement
principle implicit in art 3 of the Convention for the Protection of Human Rights and
Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into
force 3 September 1953): ‘where substantial grounds have been shown for believing that the
person, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading
treatment or punishment in the requesting state’: at [91]. It must be noted that, theoretically,
any human rights violation may give rise to the non-refoulement principle. However, where
relative rights are concerned, states are permitted to balance their public interests against the
interests of the individual concerned; McAdam, Climate Change, Forced Migration (n 29)
53, 81; Moreover, in the case of non-refoulement, the obligation to protect lies on the
receiving country: see McAdam, ‘Climate Change Displacement and International Law’ (n
168).
176 In these cases, the feared harm was naturally occurring and the receiving state could not be
held responsible for it. See especially the most cited case in this context, D v United Kingdom
(European Court of Human Rights, Grand Chamber, Application No 30240/96, 2 May 1997)
where the Court held in [54]:
However, in the very exceptional circumstances of this case and given the compelling
humanitarian considerations at stake, it must be concluded that the implementation of
the decision to remove the applicant would be a violation of Article 3.
The Court held in this case that the expulsion of a terminally ill man suffering from AIDS to
St Kitts, where he could not receive adequate care for his illness, was in violation of art 3. See
also N v United Kingdom (European Court of Human Rights, Grand Chamber, Application
No 26565/05, 27 May 2008) (‘N v United Kingdom’) (no violation); Paposhvili v Belgium
(European Court of Human Rights, Grand Chamber, Application No. 41738/10, 13 December
2016) (‘Paposhvili v Belgium’) (violation). See also Goodwin-Gill and McAdam (n 170) 315;
Matthew Scott, ‘Natural Disasters, Climate Change and Non-Refoulement: What Scope for
Resisting Expulsion under Articles 3 and 8 of the European Convention on Human Rights’
(2014) 26(3) International Journal of Refugee Law 404, 413.
177 Paposhvili v Belgium (n 176) [183]. See also McAdam, Climate Change, Forced Migration
(n 29) 81–82. It must be noted that persons fleeing from submerging territories will generally
not be critically ill. However, sending them back to these territories could potentially result
in the reduction of their life expectancies.
178 N v United Kingdom (n 176) [42].

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islanders suffer grave violations of their human rights due to degrading or inhuman
conditions on submerging islands.
Consequently, although there is no decided case yet regarding the
disappearance of island states, it is arguable that states will refrain from returning
former islanders in the future because 1) there is no territory left or 2) they are
obligated under the non-refoulement principle as the disappearance of island states
could trigger compelling humanitarian grounds against removal. 179
Although protection possibilities for stateless persons exist de lege lata, their
effective human rights protection remains limited and will have to be assessed on
a case-by-case basis in the future. Thus, whether stateless persons might enjoy
protection under the Conventions on Statelessness will largely depend on the
particular state they seek as refuge after they are displaced. The same applies to
their protection under international human rights treaties such as the ICCPR and
the ICESCR. The lack of diplomatic protection, however, offers serious
consequences for stateless persons. The 1951 Refugee Convention will most likely
not be applicable to displaced islanders from submerged territories. Hence, it
seems that the current status of international law does not offer sufficient human
rights protection for those stateless persons.

VI CONCLUSION

This paper has illustrated several legal problems with regard to statelessness
resulting from disappearing island states. Most importantly, it is unclear whether
the people affected may be considered ‘stateless people’ within the meaning of the
Conventions on Statelessness and, even if they did, how far that would serve to
protect their rights effectively. Legal certainty on this issue will likely become
more pressing in the future. In addition, under the current international human
rights regime, enforcement of the rights of both de jure as well as de facto stateless
people is problematic. All of these issues are particularly pertinent to the region
most likely to see an influx of people fleeing from rising sea levels. It remains to
be seen how international law will deal with this global challenge in the future and
whether states will find timely solutions for the protection of displaced
populations.
Those problems would, of course, only arise if those displaced islanders were
considered stateless. With regard to the general problem of statelessness, scholars
have pointed out that it is important ‘to stop statelessness “at source” by
strengthening the principles governing acquisition of nationality’. 180 This might
also be applicable in the case of disappearing island states. While there is no
general right to a nationality that applies to every person by virtue of being human,
it is worth considering adopting new rules de lege ferenda, which might help to
naturalise stateless persons in the context of disappearing island states. Already
existing instruments adopting such rules in the context of state succession might
serve as guidance. However, while it seems easy to confer the obligation to grant
nationality on the successor state, it will likely be an extremely difficult task to
convince governments to confer their nationalities to stateless persons of

179 Cf Goodwin-Gill and McAdam (n 171) 289; Cf McAdam, ‘Climate Change Displacement
and International Law’ (n 168).
180 Foster and Lambert (n 22) 571–72.

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disappearing island states. Ultimately, which state has the obligation to confer its
nationality on those stateless displaced islanders?
In general, a first step towards more effective protection of stateless persons
would be the ratification of both Conventions on Statelessness by future hosts of
displaced islanders. It would also prove very helpful to have the ILA Sea Level
Rise Committee elaborate further on the challenges surrounding statehood,
nationality and human rights in the context of disappearing island states. That task
will be essential in light of the consequences for displaced populations due to
territories that are disappearing.

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