When a whole nation is at risk

The survival of low-lying Pacific atoll nations' statehood can only be safeguarded through a concerted global effort, writes Professor Alberto Costi.

What happens to those nations whose homelands appear to be slowly sinking beneath the waves? Whose responsibility is it to ensure statehood is preserved, despite the many threats of climate change?

States have faced many perils in the past, mostly from wars, the expansionist plans of neighbouring nations or the desire to ‘cleanse’ a country of people of certain ethnicities or religions.

The growing jeopardy from climate change questions the traditional approaches to statehood to breaking point. Warming temperatures, increasingly severe storm systems and rising sea-level do not respect sovereignty.

These issues and others are covered in a publication I co-edited with Te Herenga Waka—Victoria University of Wellington’s Professor James Renwick, In the Eye of the Storm – Reflections from the Second Pacific Climate Change Conference, which took place in Wellington in 2018.

My chapter, 'Addressing the Challenges to Statehood Arising from Climate Change: Future Bases for Action to Protect Low-Lying Atoll Nations', outlines some of these issues and concludes there are no legal reasons for these states to ‘disappear’ and lose their statehood.

Despite the difficulties, there are enough existing principles and emerging concepts on which the international legal community could potentially base its actions to protect low-lying atoll nations in the future.

One approach is to look at this through the 'responsibility to protect' (R2P) lens. The R2P concept was first drawn out by the Canada-sponsored International Commission on Intervention and State Sovereignty (ICISS), whose experts popularised the concept with two central elements in a 2001 report.

The first concerned a shift in the understanding of sovereignty from “sovereignty as control” to “sovereignty as responsibility”. In other words, sovereignty is not a right to perform whatever internal actions the state desires but is instead an obligation on governments to protect the people's most fundamental rights from the worst acts of violence.

The second concept is that, while the state has primary responsibility for protecting its citizens, should it be unwilling or unable to do so, that onus shifts to the international community.

This responsibility for a wider community of states to engage in appropriately authorised and multilateral actions can include, if need be, the use of coercive force to protect those populations.

This core concept of R2P is strongly distinguished from the “right of humanitarian intervention”, invoked in the past to legitimise foreign unilateral intervention for ulterior motives.

Instead, R2P legitimises multilateral action aimed at protecting the local population, in the process favouring initially less coercive and intrusive measures. It has been invoked by the United Nations Security Council in several resolutions – for instance, Security Council Resolution 1706 (2006) creating a peacekeeping force to protect civilians in Darfur against militia groups, and Resolution 1973 (2011) reiterating the responsibility of the Libyan government to protect its population.

How then could R2P assist low-lying atoll nations whose people may well find themselves in a dire situation with their governments unable to help? There is much to suggest R2P could play a role.

It is, perhaps, not well known the ICISS originally conceived that R2P would apply not only to cases of war crimes, crimes against humanity, genocide and ethnic cleansing, but also to extraordinary natural or ecological disasters.

This hinted at a possible intervention by the international community in the event of an overwhelming natural or environmental disaster, “where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened”, according to the ICISS.

However, applying this concept to any responsibility towards those jeopardised by climate change can be difficult.

No reference to extraordinary natural or ecological disaster may be found in the World Summit Outcome resolution of the UN General Assembly that adopted R2P in 2005.

The non-recourse to R2P after Cyclone Nargis in 2008 inflicted intense damage on Myanmar, and the narrow interpretation and inconsistent application of R2P in recent conflicts, such as the internal armed conflict in Syria, cast doubt on its acceptance as a legal principle.

Although R2P has not yet been applied to a scenario akin to that possibly facing low-lying atoll nations, its existence suggests it could be done.

Another related future basis for action explored in the chapter is the emergence of a “duty of assistance”, which might involve financial and technical assistance, and other “assistance agreements”, such as relocation arrangements.

In general, when states are not compelled to act they are unlikely to raise major objections – a "duty" not involving a hard legal obligation.

We can find isolated examples of existing duties of assistance. For instance, the International Law Commission has reflected on the broad entitlement to human rights protection held by individuals affected by disasters.

Furthermore, the duty to assist people in distress at sea is a long-established rule of customary international law that dates back centuries, extending to other vessels and coastal states in the vicinity. Everyone, including irregular maritime migrants, remains protected by this.

Another example is the Convention Governing the Specific Aspects of Refugee Problems in Africa. This explicitly recognises that particular countries will have to call for help when they are over-burdened with refugees, and it imposes a duty on other states to assist.

Along with the related principle of cooperation, found in human rights treaties and multilateral environmental agreements, these examples show some acceptance by states of obligations to others – where there is risk to life due to the environment being under threat – translating into legal obligations and possibly a duty of assistance upon request by another state.

Therefore, it seems possible to interpret existing or emerging norms in a way that would help protect states and the rights of their peoples. In fact, the questions confronting low-lying atoll nations threatened by climate change are not so much legal as they are political.

At the centre of all this is whether there is sufficient will in the international community to interpret the existing, and emerging, legal principles to ensure continued statehood.

R2P and the duty of assistance are just two of many concepts through which low-lying atoll nations may maintain their status and be assisted in the event climate change makes their territory uninhabitable.

However, although there are existing instruments that may apply, the novelty of the plight of low-lying atoll nations means the future development of public international law may require a renewed creative commitment.

The survival of several small developing island nations in the Pacific region and beyond can only be safeguarded through concerted global effort.

Professor Alberto Costi is in the Faculty of Law at Te Herenga Waka—Victoria University of Wellington. He is a member of the New Zealand International Humanitarian Law Committee and Secretary-General of the International Law Association’s New Zealand branch.

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