Low-Lying States, Climate Change-Induced Relocation, and the Collective Right to Self-Determination

Abstract

It is increasingly likely that, due to the impacts of climate change, entire populations of low-lying States – Tuvalu, Kiribati, the Marshall Islands and the Maldives – will need to relocate to other States' territories. Such en masse relocations would jeopardise these peoples' national identities and manifestations of their ways of life: cultures, languages, customs, and social, political and economic systems.

Legal writers analysing this topic focus mainly on maritime boundaries and statehood questions. This thesis examines the right to self-determination. The principal finding is that the peoples of low-lying States are entitled to enjoy self-determination in climate change-related relocation and that there are practical ways this can occur.

After explaining the factual scenario and the approach to this research, the analysis has four key components. First, it defines the right to self-determination in context of the low-lying States, including entitlements flowing from this collective right. The populations of low-lying States' are "peoples" entitled to self-determination, including in relocation. Self-determination comprises various elements, resembling a bundle of rights. A framework is devised for unpacking this bundle and understanding what self-determination entails. The framework divides the right into strategic and operational elements. The strategic elements are the right's objectives of peace and human rights, as well as its classic expressions; external and internal self-determination. The operational elements seek to secure the right's objectives through substantive and procedural entitlements. Substantive entitlements include the right of peoples to continuity of their States, to be different, to freely-determined political statuses, and to freely-pursued economic, social and cultural development. Procedural aspects include processes for determining the substantive elements, plus democratic governance, and some degree of autonomy from other political units.

The second major component of this thesis examines potential duty-bearers, and the nature of their duties. Low-lying States are the principal duty-bearers regarding their peoples' right to self-determination. Third-party States and the United Nations have relevant duties, but these are vague and do not anticipate proactive involvement in supporting low-lying peoples' endeavours to maintain self-determination ex situ. The duties become clearer for a third-party State that partners in a low-lying people's relocation, but there are no obligations to become such a partner.

The third part of the legal analysis re-examines the issue of whether statehood can be maintained without inhabitable territory, but in light of the self-determination analysis. There is a presumption of continuity of statehood in international law and it applies to low-lying States. There is no legal basis to argue that statehood would be terminated in this relocation scenario. The presumption of continuity is bolstered by self-determination, which gives the peoples of low-lying States exclusive competence to determine their political statuses. Prior analyses of statehood have focused on the Montevideo Convention indicia. However, these indicia only apply to the creation of States, not termination. Consequently, there is far-reaching flexibility for extant States to decide how, or whether, the indicia are satisfied.

Finally, options for enabling ex situ self-determination are presented concerning key questions of legal personality (since statehood is only one option), land and international frameworks. The final section also proposes ways of incorporating self-determination into the emerging human rights-based approach to climate change adaptation.