Improving Solutions for the Asian-Pacific ‘Sinking Islands’ Paradigm

by Imaan Budhram
3012 words



Legal Challenges of the ‘Sinking Islands’ Paradigm

Legal Solutions for Kiribati

Clash Between Western and Asian-Pacific Discourse



Improving Solutions for the Asian-Pacific ‘Sinking Islands’ Paradigm

Imaan Budhram

SBS320: A Global View on Migration

Word Count: 3012


The discourse pertaining to the ‘sinking island’ paradigm does not properly reflect the perspectives of all parties involved and has negative repercussions for an effective approach to the issue. In addition, legal considerations for an effective solution such as accurate terminology for affected parties can have ostracizing implications for these parties. Hence, this paper researched legal and sociological aspects of the ‘sinking islands’ paradigm to find required elements for a successful solution. It concluded that a successful solution understands cultural implications (e.g. people’s connection to their homeland) and incorporates elements that address the aspect of cultural identity when creating global solutions. One approach that this paper recommends is for states to continue formally recognizing the sovereignty of the Asian-Pacific Island states. This approach should be combined with relocation of Asian-Pacific Islanders to the territory of another sovereign state or to an artificially created island.
           Over the past few decades, the topic of rising sea levels associated with climate change has become increasingly relevant as it will impact well over seventy states (Aurescu et al., 2018). States that will particularly be affected by this issue are the Asian-Pacific Islands (Farbotko, 2010). The Asian-Pacific community consists of twenty-five states and its territory extends beyond 25,000 islands located in the western and central Pacific Ocean (Costa & Sharp, 2011). Within the Asian-Pacific territory, studies have found that islands in Micronesia and the Solomon Islands have been submerged by the ocean (Albert et al., 2016; Nunn et al., 2017). In response, many Asian-Pacific states have been forced to engage in relocation of Pacific-Islanders (Tabe, 2019).

            Nearby states such as Australia and New Zealand have also proposed solutions for the Pacific Islanders, but not all have been equally successful (Dempster & Ober, 2020; Warbrooke, 2014). As a proposed solution, in 2017 New Zealand issued an ‘experimental humanitarian visa’ category for displaced Asian-Pacific Islanders (Dempster & Ober, 2020). Every year 100 people would be able to enter New Zealand. However, the proposed solution was dropped within six months, because it was not well-received by the Pacific Islanders since they perceive migrating as a measure of last resort. Instead, the Islanders urged states to contribute more heavily to the reduction of greenhouse gas emissions and provide support in adaptation efforts. This example illustrates that the solutions proposed by other states neglect the attachment of the Asian-Pacific Islanders to their land and identity (Warbrooke, 2014). In this sense it can be argued that the way in which the ‘sinking island’ paradigm is narrated does not properly reflect the perspectives of all parties involved and has negative repercussions for an effective approach to the issue. For the sake of this paper the term ‘sinking island’ paradigm is defined as the cessation of the existence of a State without it being replaced by another entity (Sparks, 2018).

            Relevant to note is that this issue includes legal considerations. For a country to be considered a state, it must have a defined territory1. Hence, one important question for legal scholars is whether the legal status of statehood will still apply to the Pacific Island states if they lose their territory to the ocean (Johnstone, 2019). Another issue relates to a term that has been used more frequently since the 1970s to describe victims of environmental crises, namely the term ‘climate refugee’ (Farbotko & Lazrus, 2012). This term is problematic within international law, because as became evident in the Teitiota Case2, it has no legal basis. However, the argument has also been made that the framing of this term has negative implications and the term has even been rejected by the people who it would supposedly apply to (Farbotko & Lazrus, 2012). For instance, Bettini et al. (2017) points to the fact that this term assumes the sole cause of the migration being climate change, creating ‘‘an environmentally deterministic understanding of human migration’’ (p. 352). In addition, she argues that this term focuses on the opportunity to move, even though the sole focus should lie on the prevention of displacement.

1 Montevideo Convention on the Rights and Duties of States (entered into force 26 December 1934) 165 LNTS 19, Art. 1. [Hereafter Montevideo Convention]. 2  AF (Kiribati) [2013] NZIPT 800413, New Zealand: Immigration and Protection Tribunal, 25 June 2013, para. 90 and 91.
            Hence, this paper intends to research both the legal and sociological aspects of the ‘sinking islands’ paradigm and it will also underline which components are crucial for a solution to be effective. Thus, this paper aims to answer the following question: ‘What legal and sociological aspects need to be taken into consideration when suggesting solutions for the ‘sinking islands’ paradigm of the Asian-Pacific Islanders?

The Legal Challenges of the ‘Sinkings Islands’ Paradigm

            As stated previously, one crucial legal challenge that concerns scholars is whether the nationality of Asian-Pacific Islanders will be retained even after their states have submerged into the ocean (Johnstone, 2019). To better understand this legal dilemma one must look at the Montevideo Convention which stipulates the criteria of statehood. Art. 1 of the Montevideo Convention states that for a nation to be considered a state it must fulfil four requirements, one of them being that a state must have a ‘‘a defined territory’’. 3 Equally relevant is the 1954 Convention Relating to the Status of Stateless Persons4 which states that a person would be considered stateless if their citizenship is no longer granted (due to the fact that his/her state has ceased to exist). Hence, the assumption would be that if Asian-Pacific States’ territory were to disappear, they would not be considered states anymore and would not have the associated rights and obligations under international law (Marek, 1968). This would mean that the Asian-Pacific States would not be able to maintain international contacts through the UN, seeing that UN membership is reserved for states only (Wong, 2013). Consequently, this would also result in Asian-Pacific Island states not having the right to stand before the International Court of Justice whose duty is to safeguard states in cases of violations of international law. In addition, it would mean that the nationalities of the Asian-Pacific Islanders would disappear. Concretely, for Asian-Pacific Islanders this could mean that it would become increasingly difficult to enter other states if their passports were to no longer be recognized.

3  Supra note 1.
4  Convention Relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 U.N.T.S. 117 (1954 Convention), Art. 1.1.

            However, the legal position that the disappearance of Asian-Pacific States’ territory will lead to loss of statehood and nationality for its citizens is disputed among international law scholars. Within international law there is a strong favour towards the principle of ‘presumption of continuity of state existence’ (Crawford, 2006). According to this principle even if states were to lose their territory, they would retain their legal statehood (Wong, 2013). The rationale behind this principle is that loss of statehood due to changes in territory can have grave repercussions. Relevant to note is that the international community plays a crucial role in the application of this principle (Stoutenberg, 2013). For Asian-Pacific Island states to retain their legal personality, other states must continue to recognize the Asian-Pacific Island states even after the island states’ territories have disappeared (Stoutenberg, 2013).

            Another legal issue pertains to the term ‘climate refugee’. It should be noted that the Refugee Convention5 adopts a fairly narrow definition of the term ‘refugee’. For instance, there are two elements that are necessary for a person to be considered a ‘refugee’ under the Refugee Convention. Firstly, according to Art. 1(a) the individual in question must have fled from his state because of a ‘‘well-founded fear of being persecuted’’.6 Secondly, this Art. further states that the reason for persecution must be because of ‘‘race, religion, nationality, membership of a particular social group or political opinion’’.7 Neither element applies to the concept of ‘climate refugees’. Thus, it becomes clear that there are no legal provisions within the Refugee Convention providing protection for environmental refugees (Jaswal & Jolly, 2013). This means that Asian-Pacific Islanders would not be able to invoke rights granted under the refugee status such as the right to shelter8 or right to education9 if they were to seek refuge in another state (Höing & Razzaque, 2012).
5  Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150; Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267; 19 U.S.T. 6223 [hereinafter Refugee Convention].
6 Ibid, Art. 1(a).
7 Ibid.
8 Ibid, Art. 21.
9 Ibid, Art. 22.

            This non-recognition of ‘environmental refugees’ is also perceived in case law. For example, in the Teitiota Case John Corcoran, a Kiribatian, who was residing in New Zealand requested protection under the Refugee Convention.10 The defendant argued that due to environmental pressures (e.g. over-population, sea-level rise) he could not return to Kiribati and requested permission to be granted the status ‘refugee’ so that he can continue residing in New Zealand.11 However, since neither of the aforementioned elements necessary for being considered a ‘refugee’ applied, the defendant’s claim was rejected by the Court.12 In this sense,  the rigidness of legal systems fails to provide protection for Asian-Pacific Islanders who are forced to migrate due to climate change.

10  Supra note 2, para. 12 and para. 36.
11  Ibid, Art. 41.
12  Ibid, Art. 77.

            In response to this, legal scholars have explored other possible options that could provide legal migration pathways for Asian-Pacific Islanders. For example, Byravan and Rajan (2015) suggested creating an international agreement that grants special migration status to nationals of those states who are experiencing strong climate-induced disasters. The protection of ‘environmental migrants’ would then be granted to nationals who were ‘‘living on small islands and along coasts in low-lying countries’’ and ‘‘whose habitats and means of livelihood have been destroyed by climate impacts’’ (Byravan & Rajan, 2006, p. 248). This convention would not only grant the right to relocate, but it would consequently draft an agreement in which the exact details are laid out on how associated rights would be exercised in practice, which institutions would coordinate the migration and how costs would be distributed (Byravan & Rajan, 2015). The states who significantly contribute to greenhouse gas emission would then be allocated more costs and resettlement so that the aspect of state responsibility would also be taken into consideration when establishing the convention (Byravan & Rajan, 2015). Alternatively, legal scholar McAnaney (2012) advocates for broadening the definition of the term ‘refugee’ used in the Refugee Convention. By defining ‘refugees’ as ‘‘persons who can no longer gain a secure livelihood in their traditional homelands because of what are primarily environmental factors of unusual scope’’ displaced persons such as the Asian-Pacific Islanders can also be granted the ‘refugee’ status and receive the associated beneficial rights with that status (p. 1183) .

Legal Solutions for Kiribati

            The aforementioned sections of the research paper have focused on analyzing legal issues that arise with the ‘sinking islands’ paradigm and proposing general solutions for Asian-Pacific Islanders. However, this section will focus on proposing solutions for a specific low-lying island state, namely Kiribati, to better visualize possible solutions Asian-Pacific Islands can take when dealing with the ‘sinking island’ paradigm. Kiribati is one of the island states that is very likely to be harmed by sea-level rise as its average height is circa 2 metres above sea level and is thus a relevant case study for this paper (Johnstone, 2019). Furthermore, it should be noted that the solutions that this section will propose will focus on relocating the Kiribatians in such a way that the sovereignty of Kiribati is maintained.

            The first solution would be to relocate the Kiribatian to the territory of another sovereign state (e.g. Australia or New Zealand) (Johnstone, 2019). The idea would then be for the sovereign state to give a part of their territory to Kiribati and grant them jurisdictional powers over that territory. The government of Kiribati has considered the idea and has even purchased some land of Fiji in 2014 (Caramel, 2014). Acceptance of this approach can also be seen among other low-lying island states. For example, the Marshall Islands have decided to follow Kiribati's approach and purchased land as well within another state’s territorial borders (Johnstone, 2019). However, this approach also has a few drawbacks. Firstly, relocation to another state would heavily affect Kiribati’s fishing rights and access to the marine resources of their land territory. This can result in significant financial challenges considering that the economy of Kiribati heavily relies on the income generated by access to these marine resources. Secondly, it would be highly difficult to find states that would be willing to sacrifice control over part of their territorial jurisdiction voluntarily.

            The second solution also involves the relocation of the Kiribatian people, but to an artificially created island (Johnstone, 2019). This is not an unrealistic solution as current technology is able to generate artificial islands that can sustain human life (Johnstone, 2019). Kiribati has decided to explore this solution as well and therefore consulted the United Arab Emirates, who are more familiar with such technology (Osborne, 2016). International maritime law would have to be adjusted slightly,13 but if concessions are made, it would be possible for Kiribati to continue being an independent state with access to its fishing rights and marine resources. Nevertheless, if states do not agree on granting Asian-Pacific Islanders sovereignty over such artificially created islands, this solution cannot be applied. In that sense, states have a legal responsibility as well to support this solution as it would allow for a continuation of recognition of rights of Asian-Pacific Island states.

13 According to the UN Convention on the Law of the Sea artificial islands are not allowed to qualify for statehood or have an exclusive economic zone. See United Nations Convention on the Law of the Sea 1833 UNTS 397 (opened for signature 10 December 1982, entered into force 16 November 1994), Art 2.

Clash Between Western and Asian-Pacific Discourse

            The ‘sinking islands’ paradigm can be described as both a material and discursive occurrence (Farbotko & Lazrus, 2012). For instance, when discussing global solutions for this paradigm the term ‘climate refugee’ is  continuously repeated. This discourse involves a wide range of actors (e.g. climate change experts, journalists, research institutions, governments, non-governmental organizations) that make strong assertions in regards to the ‘victims’ of this paradigm (Bravo, 2009). One example of such a (Western) narrative is the idea that Asian-Pacific Islanders ‘‘are weak, passive victims with little internal resilience to fight for much more than relocation’’ and that they ‘‘thus ought to be given protection and options to legally resettle elsewhere’’ (McNamara & Gibson, 2009, p. 479). The aim of such narratives is to attract attention to the urgentness of this issue, but it simultaneously creates representational and material marginalization (Bravo, 2009). After all, this narrative perpetuates a discourse in which the inaction of Western states in regards to reduction of CO2 emission is omitted (McNamara & Gibson, 2009). This can have pernicious consequences for an emancipatory approach to this paradigm (Bettini, 2013). Hence, it’s important to realize that the framing of these narratives impact the representations of those termed ‘climate refugees’. In this sense, these narratives and climate change refugee discourse are performative, meaning that the ways in which one talks and writes about those termed ‘climate refugees’ subsequently influences the current and future meaning, understanding and legitimization of the term ‘climate refugees’ (Crate & Nuttall, 2009).

            Nevertheless, one can notice that one aspect is strongly neglected in these dominant narratives, namely the experiences of those who are directly affected by the ‘sinking islands’ paradigm and their views on the idea of climate change mobility (Farbotko & Lazrus, 2012). For instance, McNamara and Gibson (2009) found that the narratives perpetuated in the media and the solutions visualized by U.N. Asian-Pacific ambassadors14 contrasted each other. While states such as Australia and the U.S. focused on the aspect of legal resettlement of Pacific Islanders elsewhere, the Asian-Pacific ambassadors were in favour of a strong, global approach to climate change mitigation efforts so that Asian-Pacific Islanders would not have to leave their own states (McNamara & Gibson, 2009). Attention should be drawn to two specific sentiments that were shared among all ambassadors. Firstly, the idea of other states to perceive migration as opposed to mitigation as a strategy to use for the ‘sinking islands’ paradigm signals a defeatist and irresponsible approach to the issue. The ambassadors did not consider migration an acceptable solution but were of the opinion that states which heavily contribute to carbon emission change must undertake action to severely limit the impacts of climate change (McNamara & Gibson, 2009). Secondly, the categorization of ‘climate refugees’ was not well-received since such categorization takes away the acknowledgement of sovereignty of the Asian-Pacific Islands and it harms the identity of the Asian-Pacific Islanders (McNamara & Gibson, 2009).

14 Interviews were held with ambassadors from the following states: Federated States of Micronesia, Marshall Islands, Nauru, Papua New Guinea, Samoa, Tonga and Tuvalu.

            Since the Asian-Pacific Islands are each dealing with different stages of climate change (e.g. different levels of seawater intrusion, degrading coastal soil fertility, changing rainfall patterns, depleting coastal fisheries), Islands are also undertaking different climate change mitigation measures (McNamara & Gibson, 2009). For instance, the Solomon Islands are considered to be Asian-Pacific Islands that are the most susceptible to increasing sea levels (Van der Ploeg et al., 2020). As a result, one resilience measure taken by Islanders of these islands is internal migration in the form of relocation to higher ground or the main-island in Malaita. On the other hand, there are Asian-Pacific Islands that are more focusing on implementing resilience measures that strengthen, for instance, the protection of coastal communities in case national disasters (e.g. tropical cyclones) strike (Daly et al., 2010). One example of an island that is incorporating such an approach is Samoa. Aside from building sea walls, Samoa is focused on using natural resources such as offshore sand as a means to mitigate the impacts of, for example, a cyclone (Daly et al., 2010).