Statelessness, statehood, and environmentally-displaced persons: the quest for a legal status

Climate change has been at the forefront of discussions within the international community for a number of years. A key issue of talks in recent years has been the expected migration caused by changes in sea levels and extreme weather phenomena, the creation of possible “climate refu-gees”.

While the term is incorrect, its inaccuracy is revealing in that it highlights a central aspect of climate-induced migration: environmentally-displaced persons (EDPs) are very likely to find themselves stranded in a legal vacuum once they relocate to a safe haven, notwithstanding pre-emptive solutions. To understand this problem, one should examine the 1951 Refugee Conven-tion and its shortcomings. As persecution for a limited number of grounds is key to securing refugee status, EDPs would most likely not qualify as refugees since the effects of climate change could hardly be assimilated to persecution under the meaning of the convention.

Thus, they are likely not to qualify for the protection countries afford to those falling within the refugee definition, creating a protection gap. Migrants from Low-lying Island States (LLIS), which have to contemplate the eventual physical disappearance of their homeland will, as a result, find themselves in an especially precarious position, where migration is an unavoidable, but highly unattractive outcome.

As EDPs from low-lying island nations could best be described as de facto stateless upon reloca-tion, this work argues that the 1954 Convention on the Status of Stateless Persons could bear a certain relevance to their situation by providing them with the de jure status of stateless persons. Admittedly a very poor “solution”, such an approach could nevertheless provide a useful starting point to EDPs in a particularly vulnerable position, since de facto statelessness affords no legal status or protection whatsoever.

To underline the relevance of the law on statelessness for EDPs from low-lying island nations, the present work substantiates the claim that the physical disappearance of the components of a state could mean its demise as a fully-fledged state and thus result in its former nationals becom-ing legally stateless. To do so, this thesis first examines the statehood criteria generally under-stood to be part of customary international law, and assesses the possible implications of their non-fulfillment. As there is no state practice or directly relevant custom or treaty covering the physical disappearance of a state, a number of related precedents and norms are analyzed,

As a result of this analysis, it appears that although the law on statelessness had until now been considered as insufficient in the protection it affords and irrelevant time-wise for EDPs from LLIS, it could nevertheless become a relevant tool for protecting the rights of the affected popu-lations.