Citizens of the World

Author(s): Alexandra R. Harrington

Source: Proceedings of the Annual Meeting (American Society of International Law), Vol.
104 (March 24-27, 2010), pp. 55-57
Published by: American Society of International Law
Stable URL: http://www.jstor.org/stable/10.5305/procannmeetasil.104.0055
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 New Voices I 55

laws to procure a divorce which Maryland law would not offer him and to undermine the
connection which his wife had made to that law. Irfan is the unscrupulous foreign husband
(apart entirely from the husband who insists on a prenuptial agreement) against whom his
wife must be protected, who disregards Maryland’s fundamental principles and carries with
him oppressive foreign law.
Irfan and Farah Aleem’s case marks the doubleness of conflicts’ hospitality. Domicile
precipitates both welcome and discipline. Articulation of public policy entails both recognition
of belonging to a community of shared values, and condemnation of departure from them.
What does it mean to acknowledge that doubleness in private international law?

Citizens of the World

By Alexandra R. Harrington*

Introduction
Climate change has had an indelible effect on international law, resulting in changes and
challenges across many areas of law and policy. The question which my remarks address is
a direct outgrowth of a particular challenge brought on by climate change—what is the legal
status of citizens when their state disappears or is rendered uninhabitable?

Disappearing States
There are many potential causes of such disappearance or uninhabitability, the most visible
being rising sea levels that threaten island states in particular. In some instances, such as
Papua New Guinea’s Carteret Islands, the territory disappears in part and citizens of the
affected state can be internally relocated.1 This situation certainly raises its own, primarily
domestic, issues, but citizenship, for the most part, is not among them. In other instances,
however, such as the Maldives and Tuvalu, the entire state territory is threatened with
uninhabitability and disappearance. These are not abstract or theoretical threats for the
Maldives or Tuvalu—2050 has been established as the estimated date by which Tuvalu will
become uninhabitable due to rising sea levels, while the Maldives will become uninhabitable
beforehand.2
The disappearance of a state is not new as a matter of international law, and indeed one
need only look to the dismantling of the Balkans in the 1990s to find examples.3 However,
these are political examples, in which the territory upon which a disappeared state existed
has been incorporated into a new or expanded political entity. The citizens of these territories
thus have had the opportunity to be citizens of a political entity by virtue of remaining on
the same territory, although that territory might be subject to a new name and identity as a
matter of law.4

*
Doctor of Civil Law candidate, Faculty of Law, McGill University.
1
See Tom Heap, Costing the Earth: The Carteret Islands—Sharks in the Garden (May 28, 2009), at http://
www.bbc.co.uk/programmes/b00kj9z1; Alex Kirby, Pacific Islanders Flee Rising Seas (Oct. 9, 2001), at http://
news.bbc.co.uk/2/hi/science/nature/1581457.stm.
2
See Alliance of Small Island States (AOSIS), Declaration on Climate Change 2009 (Sept. 21, 2009),
available at http://www.sidsnet.org/aosis/documents/AOSIS%20Summit%20Declaration%20Sept%2021%20FI-
NAL.pdf; BBC News, Plan for New Maldives Homeland (Nov. 10, 2008), at http://news.bbc.co.uk/2/hi/south_asia/
7719501.stm.
3
James R. Crawford, The Creation of States in International Law, ch. 17.4 (2d ed. 2006).
4
Id.

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56 ASIL Proceedings, 2010

The case of states disappearing due to environmental factors is quite different from states
disappearing due to political factors, and raises a myriad of previously unaddressed questions
for international law. One of the central questions raised by environmentally disappearing
states is whether the uninhabitability of their territory automatically causes these states to
cease to exist; as identified in the Montevideo factors, territory is one of the four factors
necessary for valid statehood to be established.5 Another key question is the citizenship
rights of citizens of disappearing states.

Refugees and Statelessness

As a general matter, states have the right to establish their own laws and rules regarding
citizenship and other immigration status rights as an expression of their sovereignty. This
includes the legal processing and status of asylum seekers and refugees. There are, however,
also international agreements in place which provide for basic protections and rights to vest
in asylum seekers and refugees when they are outside of their country of origin.6
The international conventions regarding refugees require that, in order to meet the definition
of a refugee as a matter of law, a person must have been persecuted in his home state or
have a well-founded fear of persecution if he were to return to his home state.7 Thus, the
entire premise of the international refugee system is that there is a state to which the refugee
belongs as a citizen, regardless of the fact that persecution awaits him at home. This assumes
that there exists a home state to which the refugee could in fact return, and the legal
question then is whether the allegations of persecution made by the refugee are sufficient
and substantiated to the point that they merit protection and the granting of refugee status.
Even where refugee status is granted, this is by no means a guarantee that the refugee has
the right to remain in the granting state beyond the period during which he fears persecution.8
For example, if General X flees State A after a coup—fearing that, because he was a high-
ranking general in the military, he will be persecuted by the new regime—and is granted
asylum in State B, State B may require General X to return to State A once the illegal regime
there has been replaced. This is because, by its very nature, refugee status does not imply
a right to remain in the granting state unless the refugee commences formal naturalization
or other processes to do so.
At the other end of the spectrum stands statelessness. As a matter of international law,
there are several conventions which recognize the rights of stateless persons.9 However,
these conventions use a definition of statelessness which requires that a claimant not be
‘‘considered as a national by any state.’’10 Further, these conventions have been ratified by
very few states.11

5
Convention on the Rights and Duties of States, Dec. 26, 1933, 165 LNTS 19; see also Crawford, supra note
3, at 45–46.
6
Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150 [hereinafter Refugee Convention];
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6259, 606 UNTS 267 [hereinafter Refugee
Protocol].
7
Refugee Convention, Art. 1(2)(A).
8
Refugee Convention; Refugee Protocol.
9
Convention Relating to the Status of Stateless Persons, Sept. 28, 1954, 360 UNTS 117 [hereinafter Stateless
Persons Convention]; Convention on the Reduction of Statelessness, Aug. 30, 1961, UN Doc. A/CONF.9/15 (1961)
[hereinafter Statelessness Reduction Convention].
10
Stateless Persons Convention, Art. 1(1).
11
For a full list of states parties to the Stateless Persons Convention, see http://treaties.un.org/doc/publication/
mtdsg/volume%20i/chapter%20v/v-3.en.pdf; for a full list of states parties to the Statelessness Reduction Convention,
see http://treaties.un.org/doc/publication/mtdsg/volume%20i/chapter%20v/v-4.en.pdf.

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 New Voices I 57

The Future for Citizens of the World

Where, then, does this leave the citizen of a disappeared/uninhabitable state? The new
president of the Maldives has publicly proposed the idea of purchasing land in another state
in the same region (purportedly the locations under consideration are Australia, India, and
Sri Lanka) and relocating the population of the Maldives there when the territory becomes
uninhabitable.12 However, to date little has come of this proposal, and the bulk of the legal
questions raised by such a proposal—of particular relevance to these remarks is the citizenship
status of Maldivians who relocate to a new territory within an existing state—have not been
addressed or even raised at the public level.13 There are reports that the governments of
Tuvalu and New Zealand have entered into an agreement under which New Zealand would
admit a limited number of Tuvaluans each year, although certainly not enough to cover the
entire population.14 Of late, however, the government of New Zealand has distanced itself
from the existence of such an agreement.15
Absent any of these agreements, in the future there will be citizens of disappeared states
who are required to relocate. However, given the legal uncertainty of continued statehood
in the face of territorial disappearance, there will likely be a question as to whether these
persons will be able to retain their status as citizens of their homeland. Under current
international law regimes, and most domestic law regimes, these persons could not be defined
as refugees because they are not fleeing persecution, nor could they say that they have a
well-founded fear of persecution if they were to return. Also complicating the issue is the
fact that there would be no possibility of return for these persons, thus altering the ability
of an immigration court to repatriate them.
Additionally, although these persons would literally be without a physical state, they would
not meet the definition of stateless persons that is currently in use as a matter of international
law or in most domestic legal regimes. Thus, they would not qualify for the special protections
or citizenship rights afforded to stateless persons at international or domestic law.
What is the answer? At the moment, there is no controlling answer as a matter of interna-
tional law. The idea of states disappearing through methods other than politics and conquest
is not contemplated in international law or practice. Therefore, international law must change
to meet the challenges it now faces; the alternative is to wait until there is an exodus from
disappearing states and concomitant threats to citizens of these states, as well as to the
stability of states in the international system that receive them. This threat is demonstrated
by the current existence of refugee camps filled with poverty, violence, and misery in states
around the world. As an alternative, my remarks advocate swift action at the international
level to craft agreements between the international community and threatened states regarding
the status of the state when faced with disappearance, as well as the status of its citizens.
These agreements would provide certainty to the international system, to the states comprising
it, and to citizens of disappearing states, as well as promote stability, as the international
legal community—and the international community generally—addresses the many issues
posed by climate change.

12
See BBC News, supra note 2.
13
Id.
14
Kirby, supra note 1.
15
See New Zealand Ministry of Foreign Affairs & Trade, New Zealand’s Immigration Relationship
with Tuvalu (Aug. 4, 2009), available at http://www.mfat.govt.nz/Foreign-Relations/Pacific/NZ-Tuvalu-immigra-
tion.php.

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