We May Lose Our State Status: What Happens to a People When Their Land Disappears

Small island nations would rather fight than flee, but rising sea levels have prompted apocalyptic legal arguments about whether a state is still a state if its land disappears beneath the waves.

The Pacific Islands Forum, which represents many of the most vulnerable countries, has invited international legal experts to consider this matter and has launched a diplomatic campaign to ensure that the political state continues even after the physical fabric of a nation has been submerged.

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At the heart of this discussion is the scientific certainty that the oceans will continue to rise for at least another century and a sense of injustice that the people most affected are among those least responsible for the climate crisis. The Alliance of Small Island States represents more than a quarter of the world’s countries, but is responsible for less than 1% of global carbon emissions, most of which comes from the large industrialized countries of the global north.

This has halted an expansion of the world’s oceans that is already underway and will accelerate in the second half of this century. The maps of the islands are already being slowly redrawn and the coasts are increasingly threatened by storm surges. Within decades, archipelagos could lose the peripheral atolls that define national borders. A century from now, if not sooner, entire states could become uninhabitable, raising questions about what will happen to their citizens, governments and resources.

Simon Kofe makes a COP26 statement while in the ocean in Funafuti, Tuvalu Photograph: Tuvalu Foreign Ministry/Reuters

The World Bank said current relevant regulations were drafted in a period of climate stability and may need to be reassessed to take into account an unprecedented situation under international law.

At a conference on this topic in Fiji this year, Cook Islands Prime Minister Mark Brown framed this debate around a series of existential questions: As our shores are being eaten away by rising sea levels, what will of our sovereignty of our lands, of our titles, of our houses? What will become of our fundamental rights and freedoms guaranteed by our constitutions and the Universal Declaration of Human Rights? How can we realize our shared vision when our very status as states is challenged? How can we fulfill our responsibility to our peoples if their homes and livelihoods are taken away from them? These questions are hard but real. They require solutions.

Simon Kofe, foreign minister of Tuvalu, one of the most vulnerable nations, stressed the need for a redefinition of global rules and a recognition of what is due to the citizens of the most affected countries. The threats of rising sea levels and the erosion of our statehood are not mere hypotheticals, but very real and present dangers that we must face head on, he said. Our discourse is not limited to legal instruments and policies, but includes the survival of our people and our nations. We have the power to make a significant impact by acting with urgency and decisiveness.

Action priorities are largely determined by the timing of anticipated impacts. The science of sea level rise is well established, but there are several uncertainties surrounding future levels of greenhouse gas emissions and the rate at which the Greenland and Antarctic ice sheets are melting.

Robert E. Kopp, a professor of earth sciences at Rutgers University in New Jersey and a lead author of the IPCC report on global sea level rise, said it was unlikely that a country like Tuvalu, which has an average altitude of 2 meters, is completely inundated until the 22nd century. The possible collapse of the gigantic Thwaites Glacier in Antarctica could anticipate this as it would add 1.5 meters to the height of the ocean, but this would take decades. The most immediate risk, he said, was from storm surges: it’s not just sea level rise, but when a place is flooded several times a year. This view was echoed by Climate Central’s Peter Girard, who said the floods would hit long before full flooding: it could become impossible to live along the coast without protection.

Tuvalu and other island states have recently begun reinforcing some of their coastlines with concrete flood barriers, but this is only a partial defense that will diminish over time and will always be vulnerable to tsunamis or other major flood events as well as increases in groundwater.

In the face of these threats to the integrity of the nation, protecting legal rights is a priority. In 2020, the Pacific Islands Forum called for international guarantees of existing sea zones and the resources within them even as land territory is eroded.

Satellite view of Funafuti, an atoll on which the capital of the island nation of Tuvalu is located.
Satellite view of Funafuti, an atoll on which the capital of the island nation of Tuvalu is located. Photograph: Universal Images Group North America LLC/Alamy

More recently, Tuvalu has launched a diplomatic push for other nations to recognize its statehood regardless of the physical impacts of climate change.

Kofe noted that the definition of statehood under international law was reflected in the Montevideo convention, which establishes four criteria: physical territory, population, government, and the ability to enter into relations with other countries. Were we to take this definition, Tuvalu could lose its state status if we lose our physical territory or are forced to relocate to a different location, she said. So we’re just imagining this worst-case scenario, if it comes to that, we’d like the world to continue to recognize our statehood as permanent.

So far seven governments have made this commitment: Venezuela, the Bahamas, Saint Kitts, St Lucia, Vanuatu, Niue, Palau, Gabon and Taiwan. Tuvalu is also in discussions with bigger neighbors like New Zealand and Australia.

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Tuvalu is also digitising its government to make it easier to relocate, while legal scholars have considered whether statehood could be continued by leasing land in another country.

Patricia Galvo Teles, a member of the International Law Commission who participated in the conference in Fiji, noted the historical precedents of governments in exile during wartime, or the historical relocations of the Holy See and the Sovereign Order of Malta.

Children play on the sandy foreshore where a land reclamation project is underway.
Children play on the sandy foreshore where a land reclamation project is underway. Photograph: Kalolaine Fainu/The Guardian

However, in those cases, the moves were temporary and away from a homeland that remained physically intact. A state that evacuates because of climate pressure may find it harder to prove its long-term viability if its land is under ever more water. The loss of productive land and other economic resources might also make it difficult to meet international obligations to protect the assets of its citizens, maintain embassies or pay for membership of global organisations.

Another challenge is whether a population could maintain its legal rights and cultural cohesion as a permanent diaspora. Galvo Teles noted that international law does not have a special legal category for climate refugees or people affected by sea level rise, so it is necessary to rely on existing agreements on human rights and refugees. If states can continue as political entities regardless of the physical loss of land, she said, the question of statelessness would probably not arise until much further down the road. However, there could be complications if people evacuate to another nation that does not allow dual citizenship or the registration of births of foreign nationals.

One solution, raised by the World Bank, would be to merge with another state, as Zanzibar and Tanganyika did in 1964 to form Tanzania.

Delegates at the conference said speculation about a landless state and stateless citizens should not distract from the more pressing task of persuading big emitters, such as the United States, Europe, China and India, to cut greenhouse gases, which was the most effective way of reducing pressure on the oceans.

Galvo Teles said the delegates at the Fiji conference wanted to counter the narrative of climate refugees and disappearing nations. The new initiative is one of rising nations and the message is, We are not drowning, we are fighting, she said. That meant more emphasis on making industrial nations take responsibility for the problem and reduce emissions. If you concede you will disappear, there will be less engagement on mitigation and adaptation measures, she said.

Henry Puna, secretary general of the Pacific Islands Forum, stressed that climate action was the best chance for small island nations to guarantee their rights and their survival. We must not lose sight of the bigger picture, he said. Ensuring that we keep [rises in] global temperatures below 1.5 degrees Celsius must always remain a top priority for us.

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