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

Abstract

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.

Making Gold

[This piece is adapted from a similar piece written for the newsletter of Victoria University of Wellington’s Postgraduate Students Association.]

If anyone has found their PhD experience to be entirely fabulous, it hasn’t been me, but I’m still pleased to be doing it. There are nuggets of gold that make the difficulties worthwhile.

The key challenge for me is that, throughout the process, there are those ever-present, gnawing questions, like

  • “Have I read enough?”
  • “Will I have enough / too many words?”
  • “Am I working hard enough on getting published?”
  • “Is my reasoning robust?”

… and so on. Regardless of the answers, the mere presence of these questions is draining.

And yet, during a particularly stressful period a while back, I said to someone in an unfiltered stream of tedium, “I have to work out how to deal with this because, when I’m not stressed, I love my PhD.” 

Do I?!

Actually, yes. But that was an “aha” moment that led me to thinking about why: what is it about my PhD that I enjoy so much? Here are some of the answers; some of the things I think back to when it doesn’t otherwise feel fantastic.

First, the content. I care about what I’m researching, i.e. how to use international law to protect the collective rights of peoples forced to leave their low-lying atoll countries by climate change.

Secondly, the new or enhanced knowledge and skills. Every sentence in those 100,000 words has to be beyond scrutiny. That forces me to read widely and have a full understanding of the methods I need to use as well as the data I’m analysing. No matter how educated or experienced you are, you can’t help but come to understand more about the world—and how to understand it—through this process.

Thirdly, being in charge. I love being the pilot of my journey. My supervisors might be flight attendants (or, maybe co-pilots, if I’m being generous), but the flight plan isn’t theirs; it’s dictated by the problem as I define it, and by the data.

Fourthly, being right. Not always, of course, but it’s fantastic when the data backs up my intuition.

Fifthly, being wrong. Not always, of course, but it’s fantastic to be made to re-examine why I was wrong or, more usually, not nuanced enough to be entirely right. It  forces me to look into something more deeply and more widely.

Finally, above all else, I love seeing my original ideas come together and emerge as tangible, delightful words and sentences and paragraphs. There have been moments where I’ve looked at my work and thought (in private), “This is fantastic”. These moments are real treasures. They’re secret treasures because we tend to value modesty, and because few people really understand my work and the value of these ideas. But that’s not going to stop me from enjoying them on my own.

These are the nuggets of gold that make it an enriching process.

An Alchemist in his Laboratory - by a follower of David Teniers the Younger

An Alchemist in his Laboratory by a follower of David Teniers the Younger [source]