SEPTEMBER 2012
Contributor: Raditya Pratamandika Putra - ALSA LC Universitas Padjajaran
The issue of climate change has been
a great discussion among the international community of states for the
past decade. Many argued, that climate change would raises a serious
risk of statelessness in the low – lying island states. The risk of
statelessness in the low – lying island states is the new unprecedented
phenomenon under international law.
The whole population of the low-lying
island states, such as Tuvalu and Maldives, would be forced to leave
their country as an impact of climate change. Moreover the existence of
statehood will be at stake as well. The entire population of the
affected states will thus be stateless.
Elevation data on the low-lying island
states shows their vulnerability. The highest elevation point is 2.4
meters for the Maldives and 5 meters for Tuvalu. The average altitude is
far lower, recently known that it is one meter for both Maldives and
Tuvalu. The Intergovernmental Panel on Climate Change (“IPCC”) stated
that “ Sea level rise impacts on the low- lying island states are
unavoidable and thus it would gravely affected their sovereignty and
existence”. Reportedly, Maldives and Tuvalu could be dissapeard in the
next 50 years. Even before this happens, this islands would be
uninhabitable due to the lost of clean freshwater, arable land and
incidence of diseases such as malaria and diarrhea.
Stateless person , according to Article 1 of the 1954 Convention Relating to The Status of Stateless Person is, “a person who is not considered a national by any state under the operation of its law”. When a state cease to exist therefore there will be no citizenship of that state.
Although until now there are no
internationally agreed elements of what constitutes a state, there is a
customary rule which governs the elements of states. There must be a
defined territory, a government who effectively control that territory, a
permanent population, and a capacity to enter into relations with other
states. However, those elements or requirements of states applied less
strictly once a state is established. The exile of government or loss of
territory for a temporary period would not automatically lead to the
extinction of the state. The implication is then, if such situation is
permanent. The loss of all territory has been argued most frequently as
a possible ground for loss of statehood. When a statehood cease to
exist, the population would be rendered stateless. Until now, the loss
of entire population or entire territory of a state is without
precedent.
As noted above, the loss of the entire
territory of a state is without precedent. Given that island states are
recognized as state, the presumption of continuity will apply. As far as
the requirements of state could be restored, there will be no question
on the continuity of state.
To the extent that statelessness is
forseeable, there should be efforts to prevent it. Under general
international law there exists a right to have nationality and a
principle to prevent statelessness. Both of these principles have been
safeguarded under several international law intruments. The 1961 Convention on the Reduction of Statelesness
is one of the spesific instruments which addres the prevention and
reduction of stateless person. Evenmore, the United Nations General
Assembly have mandated UNHCR to prevent, reduce, and protect stateless
persons.
To prevent the statelessness in the
low-lying island states, one option would be the ceding of territory by
another state to that affected state. If another state agree that it is
the same state, statelessness will not arise. The President of Maldives
has reportedly announced plans to buy lands in Sri Lanka and India for
the new place for Maldives nationals. Other solution had came from our
government, the Government of Indonesia, who had considered to rent one
of our inhabited islands for the climate change refugees. The
establishment of a union with another state could be the other option as
well.
Regardless all of the above mentioned
solutions, the continuity of statehood largely depend on the continued
recognition by other states. Where the recognition of states cease, then
de jure statelessness will emerge. The only solution for this
situation is the acquisition of nationality by a third state.
Unfortunately, the 1961 Convention on the Reduction of Statelesness did
not furnished any guidance regarding this case. Therefore, a
comprehensive multilateral arrangements, based on the principle that
statelessness shall be avoided, shall be made to resolve such issue.
Such arrangements shall include the provisions on what legal basis
affected population would be permitted to move in to the third state and
integrate. Such arrangements are necessary to ensure that affected
population find a safe new place and to ensure the protection of their
right to obtain a nationality.
Reference:
a. Peter Malanczuk, Modern Introduction to International Law, 7th ed., (New York: Routledge, 1997)
b. P. Weis, Nationality and Statelessness in International Law, Second Revised Edition, (Netherlands: Sijthoff and Noordhoff International Publisher B.V., 1979)
c. The 1961 Convention on the Reduction of Statelessness, 989 U.N.T.S. 175, entered into force Dec. 13, 1975.
d. The 1954 Convention relating to the Status of Stateless Persons, 360 U.N.T.S. 117, entered into force June 6, 1960.
e. The 1933 Montevideo Convention on the Rights and Duties of States, 165 LNTS 1915, entered into force Dec. 26, 1934.
f. Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
