Climate Change and Small Island States: A drift in a Raising Sea of Legal Uncertainty

Author:Jeremy Kelley
Position:J.D. Candidate, May 2013, at American University Washington College of Law
WINTER 2011 56
In 1999, the rising sea level swallowed two islands of the
nation Kiribati.1 Rising sea level2 is one of the effects of
climate change to which small island nations are particu-
larly susceptible.3 Considering that the average elevation of
this nation of ninety thousand people on thirty-three islands and
atolls4 is only about two meters above sea level,5 it is no surprise
that Kiribati’s President Anote Tong considers the rising sea a
threat to the very existence of his nation.6 Taking a cue from a
policy first announced by the Maldives, President Tong has sug-
gested that the solution to his nation’s disappearance could be
purchasing land in another country to relocate the entire popula-
tion of Kiribati.7 This unprecedented situation raises the ques-
tion: what would be the legal status of an I-Kiribati or Maldives
population on the run from the rising waters?
Estimates vary, but it is undisputed that current and future
effects of climate change, including droughts, floods, desertifica-
tion, and rising sea level, will displace millions each year.8 At least
some displacement will occur across borders, especially when
dealing with small islands nations. 9 In spite of this potential for
massive displacement, at present no international legal framework
exists which will recognize and protect those displaced by envi-
ronmental factors, even though the concepts of “environmental”
and “climate” refugees have been contemplated since the 1980s.10
Two different approaches to the legal problems have been
proposed. On one hand there have been voices calling for an
expansion of the legal definition of “refugee” to incorporate
environmentally displaced persons,11 while others argue that a
new and separate legal framework be created.12 Island nations,
while supportive of finding an international legal solution, are
unwilling to wait for international consensus and are taking their
own measures to avoid catastrophe.13
“Refugee” is a legal term, narrowly-defined by the 1951 UN
Convention Relating to the Status of Refugees, protecting per-
sons who fled their home country in fear of persecution for rea-
sons of race, religion, political opinion, or ethnicity.14 In 2006,
the Maldives proposed amending the Convention to include
“climate refugee.”15 Recently, the Bangladeshi Finance Min-
ister called for “[t]he [C]onvention on refugees [to] be revised
to protect [those displaced by climate change.]”16 However, the
UN High Commissioner for Refugees (“UNHCR”) is concerned
that the inclusion of environmental or climate refugee could
potentially undermine the clarity of current standards.17 Further,
UNHCR is already under pressure from host countries to reduce
the burden of refugees18 and it is also concerned that renegotia-
tion of the Convention could result in the lowering of existing
protection standards.19
by Jeremy Kelley*
* Jeremy Kelley is a J.D. Candidate, May 2013, at American University
Washington College of Law.
For these reasons, some argue that dealing with climate
refugees calls for a new and independent legal framework.20
Any new framework would need to draw upon widely agreed
principles and connect the protection of those displaced with the
broader international legal framework on climate change.21 The
international instrument would also need to address the practi-
calities of enforcement and establishment of rights.22
One proposed convention from the University of Limo-
ges23 recognizes different types of environmental displacement,
protecting generally against “natural and technological disas-
ters.”24 It calls for the creation of a monitoring agency akin to
the UNHCR.25 The convention would recognize the duty of the
international community to assist a State that suffers from eco-
logical disasters26 and the right to “conserve the nationality of
[the environmentally displaced person’s] state of origin . . . and
to acquire the nationality of the receiving state.”27 This last right
is especially important for a nation such as Kirbati, where com-
plete loss of territory could result in the destruction of its legal
status as a nation.
Territory is one of the key elements of nationhood28 and
without physical territory under sovereign control, no nation can
exist.29 On the other hand, nationality is considered a fundamen-
tal right in international law.30 How can this right be squared
with permanent loss of sovereign territory and nationhood? It
is unlikely that another nation would accept a cash payment to
transfer the sovereignty of a part of its existing territory. Cer-
tainly, consideration would have to be made for those already
settled upon the land.31 Without an existing legal framework,
perhaps Kiribati and the Maldives are doing the right thing to
proactively seek out alternatives.
Beyond purchasing land, one plan currently underway is
to secure “merit-based relocation.”32 Island nationals would be
trained in needed professions (e.g. nursing) in other countries,
with the ability to stay and seek citizenship there.33 In this way,
pockets of I-Kiribati community would be built up worldwide,
facilitating future resettlement.34 Furthermore, with removal of
much of the population, it would be possible to build up one
island and use it to “anchor” the sovereignty of the nation in
the event of drastic sea level rise.35 However, even if the state
continued to exist in legal terms36 it is unclear how it would
The best choice may be for an island nation to be absorbed into
another nation, using its own sovereignty to pay for relocation.38
For example, in exchange for control of Kiribati’s sovereign terri-
tory, India could accept Kiribati’s population and provide resettle-
ment assistance such as language training, vocational training, and
financial aid.39 An end to nationhood, incorporation and reloca-
tion of an island nation in exchange for the sovereign control of its
resources and maritime zone would then benefit both parties.40
The world will see an increase in environmentally displaced
persons in the coming years. Room must be made for them with
the creation of a new and separate legal framework.41 However,
this will take time. In the meantime, small island nations are best
served to take matters into their own hands.
1 Alex Kirby, Islands Disappear Under Rising Seas, BBC NEWS (June 14,
2007: THE PHYSICAL SCIENCE BASIS 409 (2007) [hereinafter IPCC], http://www. (estimating sea
level rise of 28-43 centimeters (11-17 inches) by 2100), with Richard Black,
Forecast for Big Sea Level Rise, BBC NEWS (April 15, 2008), (noting that new research suggests the IPCC estimates
may be too conservative and real sea level change could be closer to 150 centi-
meters (59 inches) by 2100).
3 IPCC, supra note 2, at 690-91,
ar4/wg2/ar4-wg2-chapter16.pdf (“Many small islands are highly vulnerable
to the impacts of climate change and sea-level rise. They comprise small land
masses surrounded by ocean, and are frequently located in regions prone to
natural disasters, often of a hydrometeorological and/or geological nature. In
tropical areas they host relatively large populations for the area they occupy,
with high growth rates and densities. Many small islands have poorly devel-
oped infrastructure and limited natural, human and economic resources, and
often small island populations are dependent on marine resources to meet their
protein needs. Most of their economies are reliant on a limited resource base
and are subject to external forces, such as changing terms of trade, economic
liberalisation, and migration flows. Adaptive capacity to climate change is
generally low, though traditionally there has been some resilience in the face of
environmental change.”).
5 Secretariat of the UN Permanent Forum on Indigenous Issues, N. Austl.
Indigenous Land & Sea Mgmt. Alliance, International Expert Group Meeting
on Indigenous Peoples & Climate Change, at 3, U.N. Doc. 2007/WS.3 (April
4, 2008) (“Kiribati almost entirely consists of low lying atolls with an average
elevation below 2 meters (6.5ft). The small island of Tebua in Tarawa used to
be a landmark for fishermen. It cannot be seen any more–it is now knee-deep
under water! Kiribati suffers the effects of king tides that wash through the
islands from one side to the other with great ease. It is now a common factor in
Kiribati to have king tides with waves of 2.8 meters high!”).
6 Subramaniam Sharma, Kiribati Islanders Seek Land to Buy as Rising Seas
Threaten, BLOOMBERG (Feb. 8, 2009),
7 Id.; see also Randeep Ramesh, Paradise Almost Lost: Maldives Seek to Buy a
New Homeland, GUARDIAN (Nov. 10, 2008),
ment/2008/nov/10/maldives-climate-change (noting President Mohamed Nasheed
statements that multiple nations are receptive of the idea of selling land to Mal-
dives); IPCC, supra note 2, at 688-716 (detailing the adverse ways in which cli-
mate change will affect and possible render uninhabitable small islands).
8 See Christian Aid, Human Tide: The Real Migration Crisis, at 6, 48 n.10
(2007) (estimating displacement of 250 million “[b]ased on an updated figure
calculated by Dr Norman Myers. In 1995, Dr Myers suggested that between
150 and 200 million people would have to permanently leave their homes
because of climate change (Norman Myers & Jennifer Kant, The Climate Inst.,
Environmental Exodus: An Emergency Crisis in the Global Arena (1995)). This
was quoted last year in the UK Government’s Stern Review on the Economics
of Climate Change, which described the estimate as being based on ‘conserva-
tive assumptions’. Dr Myers now believes that the true figure will be closer to
250 million. Christian Aid interview, 14 March, 2007.”). But see OLI BROWN,
nig ed., 2008) (analyzing different estimates, including that of Norman Myers,
Brown concludes that “the simple fact is that nobody really knows with any cer-
tainty what climate change will mean for human population distribution. Current
estimates range between 25 million and 1 billion people [displaced] by 2050.”).
[hereinafter UNHCR],
(noting that most environmental displacement will occur domestically and those
displaced in this manner should be afforded protection and rights under the
UN Guiding Principles on Internal Displacement, however, some displacement
will occur across borders and, as such, protection cannot be afforded under the
Guiding Principles).
mental refugees are defined as those people forced to leave their traditional hab-
itat, temporarily or permanently, because of a marked environmental disruption
(natural or triggered by people) that jeopardizes their existence and/or seriously
affected the quality of their life.”).
11 See, e.g., Frank Biermann & Ingrid Boas, Protecting Climate Refugees:
The Case for a Global Protocol, ENVIRONMENT, Nov.-Dec. 2008, http://www.
2008/Biermann-Boas-full.html; Harriet Grant et al., UK Should Open Borders
to Climate Refugees, Says Bangladeshi Minister, GUARDIAN (Dec. 4, 2009),
12 See, e.g., Dana Zartner Falstrom, Stemming the Flow of Environmental
Displacement: Creating a Convention to Protect Persons and Preserve the
Environment, 13 COLO. J. INTL ENVTL. L. & POLY 1 (2002); LAURA WESTRA,
13 See, e.g., Sharma supra note 6; Ramesh supra note 7.
14 U.N. Convention Relating to the Status of Refugees, art. 1, July 28, 1951,
189 U.N.T.S. 150. (“[Any person] owing to well-founded fear of being per-
secuted for reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the protection of
that country; or who, not having a nationality and being outside the country of
his former habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it.”).
15 Biermann & Boas, supra note 11, at n.1 (citing to Republic of the Maldives
Ministry of Env’t, Energy & Water, Report on the First Meeting on Protocol on
Environmental Refugees: Recognition of Environmental Refugees in the 1951 Con-
vention and 1967 Protocol Relating to the Status of Refugees (Aug. 14-15, 2006)).
Endnotes: Climate Change and Small Island States
Endnotes: Climate Change and Small Island States continued on page 94