Escaping Atlantis: The Human Rights Approach (Part III)

This article is Part III of an investigative series about climate migration. For Part II of Escaping Atlantis, click here.

Permanent territory loss caused by climate change presents the unique challenge of statelessness. The 1933 Montevideo Convention on the Rights and Duties of States established criteria for a state: "a permanent population; a defined territory; government; and capacity to enter into relations with the other states."

The looming risk of island disappearance threatens state sovereignty and raises questions about the ownership of exclusive economic zones and their proximate resources. For affected populations, they may assert their right to self-determination under Article 1 of the ICCPR.

The loss of citizenship and nationality has historically devastated populations - stateless people are deprived of their international protection, voting rights, freedom to travel, freedom to purchase land, and human rights. Without legitimate documentation of passports and birth certificates, stateless people are immobilized. They are paralyzed in a never-ending spiral of rejection, spanning denied citizenship, denied employment, denied college admission, denied marriage application, and denied human rights complaint.

Stateless people are not even given the rights to an official burial or death certificate - stateless people are not legally worthy enough to become statistical data points.

As Hannah Arendt, a German-American political theorist, solemnly contemplated, "to be stripped of citizenship is to be stripped of worldliness; it is like returning to the wilderness as cavemen or savages... they could live or die without leaving any trace."

Vulnerable island populations also fear the disappearance of their indigenous culture preservation of religious sites, historical landmarks, and community networks is critically important for preserving the cultural identity of indigenous island populations. When cultural ceremonies are only possible on sacred ancestral ground, the permanent loss of territory threatens their freedom to enjoy the cultural life of a community (Article 27 of the ICCPR). Citizens may potentially lose their traditional practices and their ability to transmit their customs to future generations.

Beyond social preservation, cultural and environmental tourism is a crucial financial sector for SIDS. The Guna Yala population (or Kuna Yala) - indigenous people living on the gradually inundating islands of Western Panama - derives 80% of its annual income from the tourism industry. Other sectors are heavily predicated on indigenous customs, such as the major export of colorful, handwoven waistbands called molas. The potential evisceration of these vibrant customs is a significant loss of its participants and the world.

Nele Kantule, a leader of the Guna Yala, passionately declared, "I want the culture of my race to endure within the universal framework, like all the great cultures of the world." Without the ability to properly perform customs and pass down these traditions onto their brethren, these cultural aspects are washing away, settling on the ocean floor like Titanic artifacts.

Political theorists have proposed methods to address climate change-induced statelessness and cultural loss. Some advocates favor the implementation of a new international convention recognizing the collective rights of people from disappearing states. Proponents envision a cosmopolitan state that reallocates territorial rights to address the needs of climate-affected populations.

Other commentators narrow their scope towards bilateral partnerships or unions between vulnerable and non-vulnerable states. In this scenario, the inundation of the island state triggers the successor state to grant citizenship to the affected population. In 2014, Kiribati preemptively bought land from Fiji for potential relocation, indicating a resilience strategy of adopting new territory.

For cultural loss, Daniel Billy and others v. Australia successfully challenged the Australian government for violating their right to cultural life. These indigenous Torres Strait plaintiffs were able to prove that the lack of government funding for regional adaptation and resilience, and Australia's increase in fossil fuel emissions, led to the loss of indigenous traditions and sacred land. Daniel Billy inspires confidence that human rights councils can establish a comprehensive approach in assessing violations of the right to culture, setting universal obligations for states to preserve vulnerable cultural practices.

However, these proposals heavily depend on wavering international support, sacrifice, and cooperation. Lowly-populated, resource-deficient islands have little leverage in gaining substantial political or financial assistance from developed nations. To encourage international support or necessitate human rights protection, many of these solutions require environmental degradation to grow worse from its current devastation.

The lack of proactive yet plausible measures of the human rights approach is emblematic of the self-interested nature of modern international politics.

The human rights approach is often applied through litigation. These legal mechanisms pave pathways for individuals to assert their human rights claims and seek redress. International verdicts in favor of climate migrants may instill binding legal responsible for states and enforceable rights for individuals. While human rights litigation does not directly alter law or treaty, any precedent established from favorable climate change rulings may influence future administrative action and reinterpret current conventions.

From 2005 to 2014, only 22 cases invoked human rights arguments to hold governments and corporations accountable for climate change. Ever since the adoption of the Paris Agreement and the landmark decision in Urgenda Foundation v. State of the Netherlands, human rights climate change cases have quadrupled between 2015 to 2021.

In Urgenda, the Dutch government's failure to achieve their minimum GHG emission reduction goals qualified as a breach of their duty of care for their citizens. The Supreme Court of the Netherlands recognized climate change as a foreseeable, genuine, and imminent harm that was compounded by the negligence of the Dutch government. The Court held the Dutch government liable for violating the citizens' right to life, and right to private and family life, under the European Convention on the Protection of Human Rights.

With the groundwork laid by Urgenda, other cases have used the duty of care doctrine to prosecute governments and corporations for failing to protect their citizens from adverse climate effects. As established in Daniel Billy, the Australian government has an explicit duty of care to provide adaptive and resilience strategies to protect the traditions, property, and lives of their indigenous people. This duty of care signifies a social contract between the state and its citizens. By obeying and serving the state, the government provides internal protection to its subjects. States have an inherent responsibility to serve and safeguard their citizenry.

This administrative duty of care does not extend to non-citizens. Beyond a direct demonstration of persecution or human rights violation, no legally binding contract broadens these considerations on a global scale. Thus, powerful resource-rich states cling onto traditional arguments for restrictive international protection on the account that they do not bear primary responsibility for the suffering of those beyond state jurisdiction.

States have no binding responsibility to secure adequate flood protection or fund resilience programs for foreign governments. States are not legally obligated to provide protection to international migrants who lack a well-founded fear of persecution. Outside the bounds of international convention, states often avoid accountability for their contributions toward climate change, especially when the consequences of their climate change transcend their sovereignty.

The human rights approach for climate migration recognizes the impossibility of holding foreign governments accountable for climate change under the current international structure. Human rights protection cannot occur without clear attribution of liability. Therefore, rather than correlating state-driven climate change with generalized foreign environmental degradation, the human rights approach confronts cases where the actions or negligence of a state directly endangers human rights.

Ioane Teitota v. The Chief Executive of the Ministry of Business, Innovation, and Employment was the first international case to use human rights arguments to challenge the denial of refugee status for climate migration.

• For more on the Isle de Jean Charles Resettlement Program, read Sheriff
• To learn more about the Guna Yala, read Cordeiro
• To learn more about Daniel Billy v. Australia, read McGaughey et al.
• To learn more about climate change statelessness, read DelGrande
• For further sources, visit the Recommended Reading Folder

To view this investigative series with complete academic citations and references, visit my academic paper here.

For Part IV of Escaping Atlantis, click here.

Full Copyright of Cover Image: Isle De Jean Charles - Courtesy of Karen Apricot (CC BY-SA)