PhD thesis available here: “Low-Lying States, Climate Change-Induced Relocation, and the Collective Right to Self-Determination”



It is increasingly likely that, due to the impacts of climate change, entire populations of low-lying States – Tuvalu, Kiribati, the Marshall Islands and the Maldives – will need to relocate to other States’ territories. Such en masse relocations would jeopardise these peoples’ national identities and manifestations of their ways of life: cultures, languages, customs, and social, political and economic systems.

Legal writers analysing this topic focus mainly on maritime boundaries and statehood questions. This thesis examines the right to self‑determination. The principal finding is that the peoples of low-lying States are entitled to enjoy self‑determination in climate change-related relocation and that there are practical ways this can occur.

After explaining the factual scenario and the approach to this research, the analysis has four key components. First, it defines the right to self-determination in context of the low-lying States, including entitlements flowing from this collective right. The populations of low‑lying States’ are “peoples” entitled to self-determination, including in relocation. Self‑determination comprises various elements, resembling a bundle of rights. A framework is devised for unpacking this bundle and understanding what self‑determination entails. The framework divides the right into strategic and operational elements. The strategic elements are the right’s objectives of peace and human rights, as well as its classic expressions; external and internal self‑determination. The operational elements seek to secure the right’s objectives through substantive and procedural entitlements. Substantive entitlements include the right of peoples to continuity of their States, to be different, to freely-determined political statuses, and to freely-pursued economic, social and cultural development. Procedural aspects include processes for determining the substantive elements, plus democratic governance, and some degree of autonomy from other political units.

The second major component of this thesis examines potential duty-bearers, and the nature of their duties. Low-lying States are the principal duty-bearers regarding their peoples’ right to self-determination. Third-party States and the United Nations have relevant duties, but these are vague and do not anticipate proactive involvement in supporting low-lying peoples’ endeavours to maintain self-determination ex situ. The duties become clearer for a third-party State that partners in a low-lying people’s relocation, but there are no obligations to become such a partner.

The third part of the legal analysis re-examines the issue of whether statehood can be maintained without inhabitable territory, but in light of the self-determination analysis. There is a presumption of continuity of statehood in international law and it applies to low‑lying States. There is no legal basis to argue that statehood would be terminated in this relocation scenario. The presumption of continuity is bolstered by self‑determination, which gives the peoples of low‑lying States exclusive competence to determine their political statuses. Prior analyses of statehood have focused on the Montevideo Convention indicia. However, these indicia only apply to the creation of States, not termination. Consequently, there is far‑reaching flexibility for extant States to decide how, or whether, the indicia are satisfied.

Finally, options for enabling ex situ self‑determination are presented concerning key questions of legal personality (since statehood is only one option), land and international frameworks. The final section also proposes ways of incorporating self‑determination into the emerging human rights-based approach to climate change adaptation.

Climate Change and Human Rights: Opportunities to Re-Think our Relationship with the Environment

A speech given at UN@75: Human Rights Day Seminar, hosted by the United Nations Association of New Zealand at Parliament House, 10 December 2020.

Good evening everyone, and my sincere thanks to the UN Association of New Zealand for inviting me to contribute to this International Human Rights Day event.

I have been asked to discuss how we might re-think our relationship with the environment in the contexts of climate change and human rights. As a case study, I’m going to focus on the situation where people are forced to migrate because of climate change impacts.

And I have three key messages. The first is an old but not yet embraced idea, which is that we are in the environment, not separate from it. Secondly, climate change is not “just” an “environment issue”; it is a context in which we live and make decisions. Thirdly, the human rights risks associated with climate change are vast, as exemplified by the impacts on people displaced by climate impacts.

Before getting started, I’d like to highlight that the question of re-thinking our relationship with Nature is not one that every community needs to ask itself. There are communities, especially indigenous communities, whose cultures, cosmologies and ways of life already reflect a healthy relationship with Nature. So, this a question that’s really aimed at what might loosely be described as “Western cultures” or “liberal economies”.

If we were asked to picture “the environment” in our minds, we might think of scenes like sunrise at Milford Sound or of Zealandia and its resident takahē. It is true, of course, that all such things are parts of the environment.

But when we think of those sorts of things as “the environment”, then it is “something else”, “out there”, and we perceive ourselves to be disconnected from it in our everyday lives. And depending on your perspective, this “other world” is something else to be enjoyed and conserved, or bought or taken.

But we Homo sapiens (“highly intelligent primates”, according to the Internet) are in and part of the environment. My talk tonight would be better titled, “Opportunities to Re-Think our Place in the Environment”, rather than our “relationship with it”.

The false separation of humans from nature was popularised in “sustainable development” discourse following the report of World Commission on the Environment in 1987. Even today, more than 30 years later, “sustainable development” is still often presented graphically as three circles side by side: environment, economy and society. Or, at a pinch, as a Venn diagram with a little but of overlapping.

Conceptually, at least, the international community has moved past this mistake. The 2030 Agenda for Sustainable Development, states up front that, “The interlinkages and integrated nature of the Sustainable Development Goals are of crucial importance” [UNGA Res 70/1 (2015), page 2]. The 17 SDGs deal with a wide range of fundamentals: poverty, hunger, health, gender equality, decent work, and climate change, to name a few. Policies and projects on any one of those issues will almost certainly affect others, and so that fact needs to be built into our work.

These interrelationships reflect the fact that the environment is something we live in and are reliant upon, and this is no more obvious than when considering climate change.

People sometimes think of climate change as “just” an environmental issue, as if the impacts of climate change will be as discrete as, for example, a mammal species going extinct. Such extinctions are tragic moral failings, absolutely, but their impacts on humanity are very limited compared to climate change.

Let me now turn to climate change as an environmental problem and then as more than an environmental problem.

For humanity, arguably the most important macro-scale impact of climate change is its effects on the hydrological cycle. Remembering back to school, the hydrological cycle involves water storage systems, such as the polar ice caps, the ocean, ground water and forests. It involves processes of evaporation, condensation and rainfall, and events such as storms and droughts. As global warming heats the ocean and atmosphere, it’s interfering with every component of that hydrological cycle.

For us in the Pacific, the key problems appear to be sea level rise, and more frequent or more intense extremes, especially cyclones, flooding and droughts. Sea-level rise is causing salt water to pollute freshwater supplies and agricultural soils. It’s also drowning marine ecosystems that are important fisheries breeding habitats – mangroves and coral reefs. Adding to those sea level rise problems, as extreme events like cyclones more frequent or larger, there’s less time to recover or more to recover from, before the next event hits, increasing communities’ vulnerability.

All of these sorts of “environmental issues” are impacting on the human rights people of right now: direct mortality and injury from extreme events; compromised health from food and water insecurity, to note some critical ones. And there are mental health challenges associated with disaster events and the chronic uncertainties of looking down the barrel at a climate change future.

There’s are all issues that have already been observed in our region.

The combined impact of all these climate change symptoms is that it can overwhelm people’s resilience and force them into decisions about whether to relocate. And that’s the next suite of human rights risks.

In lifestyle migration, people can end up better off. But climate migration is a form of, what’s known in the literature as, “forced relocation”, which is an entirely different scenario.

How is climate migration forced migration? By and large, people do not want to be forced from their homes. Think about it locally here in New Zealand: People don’t want to be forced from their home to make way for a highway, or because their land becomes more prone to flooding and landslips. They don’t want to walk away; they want the council to undertake works that will make their homes safe. Don’t get me wrong: these people often have legitimate concerns.  

But, adding to those concerns, in Pacific Island countries, we’re also talking about land held under customary title, which has been in the family for many generations, and which has many generations living on it today and many generations buried on it. It’s land that people know how to use and manage sustainably. If they have to move, they’re giving up all of that.

The research into the effects of forced relocation has found wide ranging human rights impacts, and I’m going to give you a fulsome list of examples to paint a clear picture.

In forced relocation,

  1. People lose their land; their base for productive and commercial activity.
  2. When they lose their home, they also lose an important cultural space and traditional setting.
  3. They can have prolonged challenges with unemployment and underemployment.
    1. In turn, that can lead to children, especially girls, being taken out of school to help with running the home.
  4. They can suffer economic, social and psychological marginalisation.
    1. The psychological stresses can add to gender-based and intimate partner violence, and the marginalisation can be experienced more acutely for already marginalised groups, such as people with disabilities and LGBTI people.
  5. For people who rely on subsistence or micro-scale agriculture, food becomes insecure and the skills they had for their own land may not translate to the new land – old expertise becomes redundant and new expertise needs to be developed.
  6. They can lose access to common property that belonged to whole communities. This can include such things as the sea and its natural resources, and public sector infrastructure, such as schools, that reflected their values, their norms, their ways of doing things.
  7. Communities can become fragmented, undermining the informal interpersonal and reciprocal relationships that are relied on for social organisation and social capital that enables social, cultural and economic life.

That’s quite a list of risks. People who are forced to relocate may not experience all of these problems, but it is extremely likely they will experience some or most of them.

And what about the communities into which they move? If the relocating community only has to move 100 metres away from some new coastal hazard, there may not be freehold land they can buy; they may be looking at a neighbouring community’s customary land, and there may be some long running dispute that needs to be solved first.

And there will be a lot of potential for new disputes: competition for land, for jobs, for access to public investment and public services, for market share, and, crucially, for culture.

Similar triggers for dispute will exist where people have to cross international borders.

What would be the view of New Zealanders if, for example, we decided to support people from the region moving here? Would we enable, or even allow them to live traditional lives, if that was what was wanted? The entire territories of some states are at risk of becoming uninhabitable. What if those countries wanted to set up their state here?

As we think about those sorts of questions, it’s worth remembering that Pacific islanders bear no responsibility whatsoever for causing climate change – there is a massive justice issue here – so how do we respond fairly and effectively?

I’m going to have to leave that big question hanging because I don’t have time now to explore it, but the wider issue is that climate change isn’t “just” another environmental issue. It impacts on the human rights of people in our region today, and those impacts are both vast and increasing. In turn, that highlights the environment isn’t separate from us, but a critical context of our lives and the decisions we make.

Climate migrants will need more than “dignity”

This article originally appeared on Newsroom

Moving large portions or even whole populations of low-lying states in the Pacific is a long-term enterprise that could go wrong if New Zealand doesn’t engage with it fully.

Climate Change Minister James Shaw and Pacific Peoples Minister Aupito Su’a William Sio have given strong statements about supporting climate migration from Kiribati and Tuvalu. They signalled something more sophisticated than simple migration, and innovation will be needed.

There are 114,000 I-Kiribati and only 11,000 Tuvaluans. New Zealand’s net immigration is around 70,000 people annually. Even though this may come down with the new government, the numbers of climate migrants under consideration are not significant, especially if relocation is done over years or even decades.

But while the numbers may be small for New Zealand, the move is significant for I-Kiribati and Tuvaluans.

The concerns about climate migration relate to transforming from being members of outright majorities in their home countries to members of small minorities elsewhere, especially if communities are fragmented throughout the region. Relocation could threaten the social fabric that enables I-Kiribati and Tuvaluans to manifest their national identities through culture, language, norms, customs, and so forth.

On its own, therefore, simple migration threatens their ways of life: te katei ni Kiribati and tuu mo aganu Tuvalu.

Kiribati Independence

Kiribati (1979) and Tuvalu (1978) were among the last Commonwealth states to recover their independence from the UK, and but again their existence as nations and peoples is threatened by exogenous forces.

To deal with Pacific climate migration, Shaw signalled interest in the Nansen Initiative Protection Agenda. This is a voluntary framework for states to protect peoples who move across borders to escape sudden-onset disasters, like cyclones, and slow-onset disasters, like sea-level rise.

The Protection Agenda contains a number of recommendations. First, states need to collect data. They need to know which areas and communities are most at risk, and collaborate on developing scenarios for when and how cross-border relocation might occur.

Destination states, like New Zealand, also need to review their legal frameworks for managing incoming peoples: can existing visa schemes be adapted, or can visa requirements be waived altogether? Shaw is looking at developing an experimental humanitarian visa. Also, since returning to low-lying states will get more difficult and perhaps impossible, can the requirements for permanent residency and/or (dual) citizenship be simplified?

The Protection Agenda also recommends destination states provide assistance with basics: shelter, food, medical care, education, livelihoods, security, family unity, and respect for social and cultural identity.

For long-term settlers, measures to support sustained cultural and familial ties are recommended, along with recovery and reconstruction assistance.

The Protection Agenda is designed to be adapted for particular situations. What, then, are the local issues New Zealand, Kiribati and Tuvalu need to address?

Internationally, most cross-border displacement involves only a small part of a country’s population, but for Kiribati and Tuvalu climate change could require most or even entire populations moving permanently, and this has different implications.

Sio recognises low-lying islanders’ concerns about loss of national identity and suggests legislative protection for I-Kiribati and Tuvaluan languages.

But there is a broader issue, relevant in international law, but frequently overlooked in climate migration talks: the right to self-determination.

Self-determination is more than “migration with dignity” or being consulted.

According to the International Covenant on Civil and Political Rights, which New Zealand ratified in 1978, self-determination is an inalienable, collective right of peoples to freely determine their political status and to freely pursue their economic, social and cultural development.

Climate migration risks self-determination in two important ways. First, communities may be fragmented: some move to Auckland, some to Suva, some to Brisbane. Second, communities transform from outright majority to small minority.

No matter how well-intentioned, if climate migration allows these things to happen, the result is the peoples’ right to self-determination will be undermined.

New Zealanders know well that depriving peoples, like iwi and hapū, of their enjoyment of self-determination is catastrophic.

Being forced to move to New Zealand might end up as a kind of inverse colonisation: instead of the coloniser coming to peoples and forcing them to assimilate the coloniser’s culture, peoples now have to come to another society and integrate into that society’s culture.

While cultures are not static phenomena, and the peoples will enjoy some measure of protection of their culture, within a couple of generations the changes for migrant I-Kiribati and Tuvaluans in a new, dominant culture will be profound.

In the short term, rescue and protection is the fundamental requirement, and that’s where New Zealand will likely start. But, working with I-Kiribati and Tuvaluan as equals, New Zealand must recognise these peoples’ inalienable right to self-determination.

We need to recognise, too, that te katei ni Kiribati and tuu mo aganu Tuvalu are different ways of life to Pākehā’s ‘Homo economicusmodus operandi, and also need to be enabled.

Long term, as well as providing humanitarian visas, we can work with the low-lying states on innovations to determine:

  • How Pacific islanders might own land (whether individually, or in common; perhaps in a form similar to Māori Freehold Land)
  • The type of legal person that represents their communities in New Zealand (like a trust or a corporation) and internationally (how their states continue or change into some other international legal personality)
  • How to enable cultural norms and practices, language, and national identity
  • Whether these countries can access global climate change adaptation funding to buy land and otherwise re-establish communities here in New Zealand
  • Whether we have another system of laws and norms – along with common law and Māori custom – and, if so, how that might work.

If New Zealand and the global community reduce greenhouse gases urgently and fund in situ adaptation, these innovations should be unnecessary.

But if migration becomes necessary for low-lying states and New Zealand wants to help, we have to do so in ways that are socially and culturally sustainable.

On Environmental Guilt

Christmas carols are loathed by many, but I love them. It’s got nothing to do with any musical or religious values. Instead, like the smell of sunscreen, these songs signal the end of the year’s labours: functional, intellectual, social and emotional. No matter how good or awful, Bing Crosby, Band Aid, Michael Bublé and Wham all bring a sense of delightful nothingness; sincere relaxation.

reading - Henri Roger Viollet.jpg

(Reading by Henri Roger Viollet)

Stress-free time with family and friends deepens this feeling, as do new books and CDs, board games, old episodes of QI, the long summer days, and briefly ignoring my paunch.

In spite of what critics sayincluding my inner, righteous voice (the only part of me that can still appear youthful)Christmas sales shopping is fun, too.

Those of us who understand environmental non-sustainability are often prohibited from such simple pleasures by our own knowledge and principles. But I’m far less imprisoned by these things nowadays.

Logic and ethics are clearly against gratuitous consumerism, but there’s no escaping the fact that it feels nice to buy books and CDs, and to have new clothes and household items, even when we have ample selections already.

How do we reconcile these pleasures against our desire to act in accordance with nature?

Individual Action

There’s a lot going on when we’re implored to make environmentally-conscious spending decisions. We know it’s right and hence we feel empowered when we act consistently with ecological facts. We control certain environmental outcomes, and this satisfies our desires to be persons of ethical integrity and to show our peers that we’re intelligent and principled.

We should remind ourselves of these positive feelings so we can decide in a rigorous way whether or not to mine non-essential goods from the open-cast shops.

Unfortunately for nature and those who are most affected by non-sustainability, those positive feelings of integrity may not be as strong as the pleasures we derive from buying stuff like The Beatles’ back catalogue, as I did on Boxing Day.

Collective Action

However, feeling guilty when we make ecologically impure decisions is counter-productive.

When we claim ownership of environmental problems as individuals, we are at the same time removing responsibility from those who have the greatest powers for minimising the impacts of human beings’ naturally-inclined behaviours: governments and industry.

The decline of all environmental indicators over the 50+ years since Silent Spring* proves that our decisions are doing very little to solve the biodiversity, water and climate crises. They are assisted, slowed down and delayed, but clearly not stopped or reversed.

The potential benefits of centralised decision-making eclipses that of individuals’ collective actions.

Take transport, for example. At a recent meeting of a climate change-focused NGO, a participant suggested that the organisation should look at making everyone use bicycles. I asked, “And how will I get my daughter’s rowing team to regattas?” and the well-meaning young chap slumped back into his chair and said, “I guess I didn’t think of that.”

Whilst walking, cycling and public transport are critical parts of the overall puzzle of sustainable transport, the problems are systemic, not individual. An ethical government could quite easily implement a suite of policies aimed at making our carstechnologies that are absolutely essential for 21st Century urban liferun on sustainable energy, whether renewable electricity (electric cars), renewable liquid fuels (biofuels), or both.

Take electricity as a second example. I’ve written previously on how solar energy does nothing in New Zealand to reduce a home-owner’s carbon footprint and might, in fact, increase the global carbon footprint. The idea of generating your own renewable electricity sounds powerful, but you’re only avoiding the use of centralised renewableshydro, wind and geothermaland therefore saving no greenhouse gas emissions. If New Zealand decides to progress from its current 80 percent renewable electricity to 90 or 100 percent then, again, an ethical government could quite easily implement a suite of policies that make that happen.

In these examples of sustainable transport and electricity, the benefits of individuals’ actions are negligible, at best, and pale in comparison to the potential of government intervention.

That’s not to say that our individual decisions don’t matter. They absolutely do. As much as I enjoy V8 cars, I would never buy one because they are plainly unethical. As much as I enjoy hamburgers, eating beef is plainly unethical. Our individual decisions have some effect on the demand for non-sustainable goods; they satisfy our sense of self; and they help educate the people around us. We should continue to make ethical individual decisions.

At the same time, however, we should be alert to the fact that most causes of our non-sustainability are systemic and, critically, could be solved by the ordinary machinery of government policy-making. Quite easily, in many instances.

For example, the decision to subsidise insulation has led to, in just 7 years, nearly 300,000 homes (about 20 percent of all New Zealand households) being warmer and healthier, and demanding less electricity. The impact of this large-scale programme has included reducing New Zealand’s demand for electrcity at peak times (morning and evening), thereby removing any need for new large-scale generation. Without that government intervention, perhaps a few thousand households would have done this on their own accord. Instead, the centralised policy decision created these enormous private and public benefits.

Collective Responsibility, Not Individual Guilt

Instead of feeling guilty about hopping into your car and zipping into town to replace the coffee table you’ve had since you were a student, remember that the question of ecological integrity rests with government and industry far more than it rests with us because of the simple matter of their powers compared to ours.

Balancing our needs for global responsibility and personal pleasure in an informed and ethical way helps us live with integrity, but more happily. And it reminds us that, ultimately, we need to put the onus on governments to intervene scientifically in environmental stewardship.

Dreaming or October by Maxfield Parrish 1928.jpg

Living in harmony with nature is fulfilling as an individual, but essential for the collective powers of governments and industry. (Dreaming of October by Maxfield Parish, 1928)


Migration = Assimilation

A great deal of the discussion about relocating people from low-lying atoll countries focuses on migration; a flexible but particular legal mechanism for managing the movement of individuals between countries.

But migration does not need to be the only way of moving from one territory to another. New ways are entirely possible. Ways that keep communities functioning together.

Migration as Assimilation and Colonisation

But the migration paradigm is deeply set. A new report, Tuvalu: Climate Change and Migration, is the latest example. It directly acknowledges the risks posed by migration, saying that:

“A previous study found that many Tuvaluans will not consider migration … as it will lead to a loss of sovereignty and cultural identity.” [p 64]

In spite of these concerns, the authors specifically recommend that:

“migration … should be promoted” [p 64]

The authors attempt to appease the Tuvaluans’ concerns, saying that their “perspectives need to be acknowledged in order to facilitate dignified migration”. [p 64]

First of all, it’s not a mere “perspective”. It is culture, and culture is life.

As the President of the Marshall Islands, Hilde Heine, recently said:

“Marshallese people, culture and land have a symbiotic relationship – one that can’t exist without the other. That’s why moving is not a viable option. As a nation facing cultural extinction due to climate change, we plead to stronger and major polluting countries to spare us the eminent fate of being climate refugees.”

Similarly, in an outstanding case study of the Carteret Islanders’ relocation, Sophie Pascoe found that:

“Leaving the islands is very traumatic for the Carteret Islanders because it means leaving their livelihoods, values, culture and ancestors behind.”

Migration with dignity is a noble idea. But given the scale of loss facing low-lying islanders, the forced relocation of peoples with deep cultural, spiritual and ancestral ties to land and sea is a catastrophic result of carbon pollution, no matter how well their movement is planned and managed.

Forced migration is nothing like lifestyle migration, and it should not be equated with it or confused with it.

Think of it as a kind of inverse colonisation. Instead of the coloniser coming to a peoples and forcing them to assimilate into the coloniser’s culture, they’re now forcing the peoples to come to them and integrate into wider society.

Culture is not a static phenomenon, so cultures change. Also, the people will enjoy a nominal measure of protection in their new country. (For example, in the New Zealand Bill of Rights, minorities have a right to enjoy their culture.) However, within just a couple of generations, the changes for migrant people and families in a new, dominant culture will be massive and inevitable. This is the risk that President Heine is referring to in her comments above.

Relocation: A Long-Term Enterprise with Self-Determination at its Very Core


Woman on Funafuti, 1900 (source: Wikipedia)

Discussion on migration – despite its good intentions – almost never addresses the fact that Tuvaluans, as a peoples, have a collective right of self-determination in international law. In the new report about Tuvalu and migration, the term “self-determination” does not even appear.

Self-determination is far more than mere dignity, or simply the acknowledgement of a perspective. It is a right to autonomy, governance, and – indeed – continuity of statehood.

The collective right of self-determination is international law of jus cogens* and erga omnes* character and status. It is one of the most fundamental aspects of international law, critical to achieving all other human rights, and a basis for international peace and security.

But relocation discourse rarely entertains the concept and this must change. Focusing on migration is a massive breach of the right of self-determination, and the concomitant right for these sovereign States to continue, and to continue to give effect to the values, cultures and aspirations of their peoples.

Ensuring continued enjoyment of self-determination in the territory of another State is a challenge. But it just requires some innovating thinking.

At the most basic level, the lexicon must change from “migration”, “displaced persons” and “refugee”, to “relocation” or “human mobility”: words and phrases which don’t have particular legal meanings or any existing political baggage, to ensure our minds are open to a more creative range of solutions.

For the nations, cultures, languages, traditions, customs and – therefore – the peoples of low-lying States, relocation must then be considered as an extremely long-term enterprise, that has their collective right of self-determination at its core, along with all the substantive and procedural rights that follow.

Given that low-lying islanders bear absolutely no responsibility for climate change, this is the least we can do. If not, then we’re hitting them twice: once in the territory; once in the nation.