The Right of Self-Determination in the Context of Climate Change

Index

Introduction

Chapter 1: The Right of Self-Determination
1. Preliminary Words
2. What is the Right of Self-Determination?
3. Classification of the Right of Self-Determination
4. The aims of the Right of Self-Determination
5. Differentiation between Statehood and Self-Determination
5.1. Statehood as an implementation of Self-Determination
5.2. Definition of Statehood
6. Conclusion

Chapter 2: New Challenge for the Right of Self-Determination in the light of Climate Change
1. Preliminary Words
2. Inundations caused by Climate Change
3. I-Kiribati recognized as “people”
4. Inundations caused by Climate Change: A threat to Self-Determination
5. The necessity of a legal rule concerning the atoll island populations
6. The protection for the Self-Determination of I-Kiribati
7. Conclusion

Chapter 3: The existing Solutions: what offers the international Law to the “Disappearing Island States”?
1. Preliminary Words
2. Planned Migration and cede of territory
2.1. Does Displacement mean Migration?
2.2. Ceding of Territory
2.2.1. Theoretical Problems
2.2.2. Practical problems
2.3. Conclusion
3. Is Statehood still necessary?: the retreat and other entities
3.1. Right of Self-Determination in the context of the retreat of Statehood
3.2. Free Association
3.3. Federalism
3.4. Other non-territorial autonomy arrangements
3.5. The Retreat of Statehood as the solution?
3.6. Conclusion

Chapter 4: The innovative solution: The idea of the “de-territorialized Nation-States”
1. Preliminary Words
2. The minimum threshold account of Statehood
2.1. Population
2.2. Government
2.3. Independence
2.4. Territory
3. Statelessness as unacceptable approach
4. The de-territorialized Nation-State as a new shape of the international entity
5. The Right of Self-Determination in de-territorialized States
6. Conclusion
7. Final remarks to the solutions

Closing Considerations

Literature

Introduction

“In a single day and night of misfortune all your warlike men in a body sank into the earth, and the island of Atlantis in like manner disappeared in the depth of the sea.”¹

What we only know from movies and histories, like the history of Atlantis from the ancient times, will become reality in the nearest future. In the South Pacific, one of the greatest inundations in the world’s history threats including the loss of territory for various islands and, in the worst case, the loss of a whole Island State - of the low-lying coral atoll island State Kiribati.

The cause for that phenomenon is one of the very present problems in the world’s discussion: the Climate Change. “Climate Change is one of the greatest challenges of our time, and climate-effected hazards have direct and irreversible consequences on people, property, business, financial systems, and state institutions worldwide.”² The importance of the Climate and its change become clear because the Earth’s climate is already granted as a “public good”.³

However, the phenomenon of the Climate Change is well-known nowadays and material for discussion, the International Law offers only a few approaches and rarely solutions for the urgent threat. How already scholars noticed that “yet they are unable to “think outside the box”, the most severe limitation being their focus on the current international framework.”⁴

Created in 1988, the International Panel on Climate Change (IPCC) was the first organ of the international community to mandate to assess scientific evidence about the Climate Change.⁵ This Panel was followed by the UN Framework Convention on Climate Change (UNFCCC), adopted in 1992, today in force in 197 States. Here, for the first time, the different responsibilities were determined dependent on the classification as developed or developing State. Moreover, the “climate-friendly policy approaches” and long-term trends, especially, concerning the “anthropogenic emissions”, were defined.⁶ The Kyoto Protocol of 1997 established the first obligations in relation to the emitted carbon emissions and set in force a market regulation system to control and limit the emissions.⁷ In 2015, the adoption of the Paris Agreement was achieved, which tried to balance development with sustainability and granted flexibility for developing country parties, questions that could not resolve the Kyoto Protocol.⁸ These three instruments represent the main and core body of the International Law on Climate Change.⁹

The Paris Agreement represents a milestone in the Climate Protection Agreements¹⁰ because it determined for the first time the binding temperature objective of the maximum increase between 1.5 °C and 2.0 °C.¹¹ Although the formulation of the Paris Agreement is very ambitious, so that we can find precisely measures about migration in Article 4, the wording does not obligate the States.¹² Moreover, the Agreement includes the Warsaw International Mechanism for Loss and Damage in Article 8, which addresses especially the high vulnerability of developing countries suffering the impacts of Climate Change.¹³ However, the measures and obligations for concrete liability and compensation will be sought in vain.¹⁴ In conclusion, nowadays, the International Law on Climate Change is still fragmented, and it needs the interrelationship with other International Legal principles as we will see later.¹⁵

Mentioning the different measures of Climate Change, we can distinguish between mitigation and adaptation measures. Mitigation concerns more the question of reduce and curb the greenhouse gas emissions and ask for the different responsibilities and so on the liability of developed countries in contrast to the developing countries. Adaptation measures focus more the already mentioned vulnerability of the single actors in the international framework.¹⁶ Deepening the question of continuing Statehood, this thesis set the focus more on adaptation measures than on mitigation measures.

The consequences of the above-mentioned fragmentation of the International Law and inaction of the international community are nowadays most noticeable in the disappearing Island States in the South Pacific. So, Kiribati with its 100.000 habitants¹⁷ suffers already from significant overpopulation and crowding like, for example, in the most inhabited island, the capital South Tawara, with 56.000 inhabitants.¹⁸ It has one of the largest populations concerning the landmass and, on the other hand, does not have the capacity “for long-term migration because of an absence of high land.”¹⁹ Moreover, the living standards are meager, so only 20 percent of the households have access to a sewerage system, and 64 percent do not use toilets. In consequence, the pollution is high because of beach toileting and washing.²⁰ Moreover, less than 25 percent of the inhabitants have a proper job, half of them in the government administration.²¹ All these factors show the image of a developing country.

Although developing countries like the Pacific Island States do not contribute with an account of 0.04 percent hardly to the total Greenhouse emissions (GHG) - one of the greatest “climate killers” - “these communities’ safety will be “seriously compromised.”²² So is “poverty more associated with greater dependence on climate­sensitive resources such as local water and food supplies.”²³ The former President of Kiribati expressed it more drastically: “deliberate acts by some polluting countries to secure benefits at the cost of others could only be compared to an act of terrorism - eco­terrorism if you wish.”²⁴

All these enumerated factors lead to an unavoidable result like it is described already thirty years ago in the first International Panel on Climate Change as “the gravest effect of Climate Change (...) is human migration.”²⁵ Before that, there were a lot of ideas of so-called “in-situ adaptation” to Climate Change - the maintaining of the State - which would also correspond with the desire of the former President of Kiribati. He uttered, that “I dream that some of us would stay. If we had enough resources, we could build up one of these islands to a height a few meters above sea level to render it a place where we could survive.”²⁶

However, nowadays, it becomes clear that the “in-situ adaptation” seems impossible,²⁷ and “environmental change is equally likely to make migration less possible as more pmbible. because.. .populations who experience the impacts of environmental change may see a reduction in the very capital required to enable a move.”²⁸ In point of fact, today, it is evident that “the population of the small island nations of Kiribati (.) will need to migrate to other countries because theirs will become uninhabitable due to Climate Change.”²⁹ How the President put the facts in a nutshell: “we’re not talking about reducing carbon emission because we’re already beyond that stage. What we need is urgent action’ to address the foreseeable threat of Climate Change inundation.”³⁰

In consequence, we have to ask what the international framework offers to help the inhabitants of Kiribati and enable them a comfortable adaptation to the urgent danger for their land. The mood in 2015 before the Summit of Paris was optimistic, and the hopes were based on a “New Pacific Diplomacy”. Although the Islanders succeeded in having two of their most crucial climate goals drafted into the final document - the formulation of “loss and damage” in Article 8 of the UNFCCC and the recommendation to limit temperature rise to below 1.5 degrees Celsius - it lacks already on a “migration plan”. “The plight of climate migrants is easily sidestepped, so the UNFCCC and the Kyoto Protocol do not acknowledge the great policy needs raising by climate-induced migration beyond cursory references to the threats to habitability and sovereignty that small island developing States face.”³¹

The question raises if there does not yet exist neither a migration plan nor an answer to the question, what happens with the State Kiribati when it will be inundated. So, the much more urgent matter is if “small Island States are therefore calling for the right to continuous existence as States, or more precisely, “is there a human right to exist as a people.”³² It has to find an answer to these questions, only because of “the simple reason that International Law is based on the assumption of equality among nation States that itself limits the exceptions to the rule and alternative imaginaries.”³³ So, the demand for so-called “climate justice” gets louder,³⁴ notably, in considering that “small Island States have not themselves significantly contributed to their potential extinction - they are “morally innocent”³⁵ - they should not be punished.”³⁶

In sum, this thesis will try to resolve these urgent questions, first of all, if there exist a collective right of a people (1), that is, second, applicable in that concrete context of loss of territory (2) and, third, which solutions offer the International Law in the case of loss of territory for the continuity of Statehood or, at least, for the remain of the community of people (3) and (4). More precisely, this thesis concerns the question, “How to define the statehood without territory in the case of the disappearing Island States and how can be made the Right of Self-Determination applicable in that context?”

Chapter 1: The Right of Self-Determination

1. Preliminary Words

Considering the challenges of the Climate Change with which the international community will be confronted in the near future, the return to elemental principles of the International Law is to focus.

In this Chapter the idea of the Right of Self-Determination will be explained, first in the original context than in the today broader scope of application. In this framework, the “right-holder”³⁷ is to identify and to determine. Moreover, the aims of the Right of Self­Determination have to be clarified in order to set it in the context of the urgent threat of inundations caused by Climate Change. In contrast to that, the concept of statehood in its definition of the Montevideo Convention is to determine and circumscribed from the expansive scope of application of the Right of Self-Determination.

2. What is the Right of Self-Determination?

Born out of the French and American Revolution, the Right of Self-Determination is nowadays recognized as a collective human right on the one hand and as a fundamental principle in the international law. It is found in a lot of international declarations and agreements as a legal right of all people, for example in the Article 1 of the two international covenants, the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966.³⁸

The first time the right was affirmed in 1945 in the Charter of the United Nations in Article 1 (2)³⁹ and Article 55 and in 1970 in the Declaration on Friendly Relationship⁴⁰ in various Articles as a principle of international law. As “counterpoint to colonialism”⁴¹, the Right of Self-Determination is known primarily in the context of liberation of the colonial States by foreign occupations and the strengthening of indigenous rights. So, the right also found its way in the United Nations Declaration on the Rights of Indigenous People (UNDRIP). Analyzing the Article 4 of the UNDRIP, the content of the Right of Self-Determination will become more evident because there is recorded, that its exercise includes the right to autonomy and self-government.⁴²

So, nowadays, the Right of Self-Determination is categorized into two branches, the internal Self-Determination and the external Self-Determination. The internal facet of the right includes the power to select the political representation by each member of the society.⁴³ Hence, the people is free to choose the political and economic regimes as well as its leaders and participate in the selected type of a political model with the right to vote, right of peaceful assembly, freedom of association and freedom of expression.⁴⁴ Moreover, the internal part of the right serves to acknowledge cultural identity and self­governed groups of people within a State.⁴⁵

The external facet represents the choice of the political status in the international community, the “freely expressed will of peoples,”⁴⁶ which includes “the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people.”⁴⁷ One of the best examples of the right of external Self-Determination in the history was the dissolution of the Yugoslavia as well as the disintegration of the Soviet Union.⁴⁸ How it is found also in the Art. 1 (3) of the ICCPR, it has to be considered to dimensions of the Right of Self-Determination, with covers the negative duty to respect the right and the positive duty to promote its realization.⁴⁹

Although the recognition as jus cogens is controversially discussed in the international law,⁵⁰ the International Court of Justice recognized the erga omnes character of the right.⁵¹ Jus cogens represents the unity of peremptory norms in International Law. Determined in Article 53 of the generally recognized Vienna Convention, the criteria protect precisely shared essential values of the international community, which form the very base of the International Law as principles of the International Law.⁵² On the other hand, the principle of erga omnes represents the general obligation for every one of the international community like that the enforcement and validity of general interests under International Law are guaranteed.⁵³

Moreover, the recognition of a collective human right in the international framework provides the opportunity to strengthen the individual human rights of the individuals and guarantee and observe these human rights effectively.⁵⁴ So, nowadays, a tendency to reinforce the group rights is observed in the International Law.⁵⁵ One of the strongest examples of growing importance of rights of individuals in the International Law is the possibility of the arbitration claims of foreign investors against host States through investor-State arbitration.⁵⁶

This broad interpretation of the Right of Self-Determination is important in order to set it in the context of the Climate Change impacts to the disappearing States, like Kiribati. However, this thesis will concern more the figure of the general principle of International Law than the aspect of the collective human right in order to focus the theoretical question of continued Statehood. Considering that, the Right of Self­Determination goes today beyond the framework of “an exclusive, territorially bounded, one-off right to freedom from violent oppression” to a “much more complex and multilateral case situation, in which the international community is as a whole responsible for the harms of Climate Change.”⁵⁷

3. Classification of the Right of Self-Determination

It is to ask, how to define the Right of Self-Determination or which function has this right. The fact is that the Right of Self-Determination is an accumulation of rights that grew out of different rights, like indigenous and democratic rights.⁵⁸ Like in the Western Sahara Case, the Court defined the future status of the territory by means of the “free and genuine expression of the will of the contemporary inhabitants, a territorial sovereignty”.⁵⁹

However, the development goes further to an application in another context, so the essence of the Self-Determination is to impugn. So, one of a very definite opinion and definition says, that the right is applicable in the background, when it is confronted with problems concerning the destiny of a people.⁶⁰ The relation to the people is also reflected in the definition of Crawford as “a right of cohesive national groups (peoples) to choose for themselves a form of political organization and their relation to other groups.”⁶¹ In conclusion, how already noted in the Resolutions of the General Assembly, the context of the use of the right can change, but the manner - the free and voluntary choice by the peoples of the territory concerned - not.⁶²

First of all, the right arose out of the oppression of people by a foreign occupation, independent of the defined Statehood.⁶³ However, in the time of the above-mentioned decision of the Western Sahara case, the development was not so advanced, that all fields of applications of the Right of Self-Determination were defined.⁶⁴ Grown out of this approach it seems, that the right interferes, if it occurs a significant threat for the destiny of the peoplehood.⁶⁵ So, the question arises if the right can be expanded to other dangers which the people will be confronted in the near future.

Considering that, the question of the right-holder is to resolve. How already shown above, the Right of Self-Determination represents “a right of the people, not of the governments.”⁶⁶ So, actually we go back to the origin of the International Law, the Peace of Westphalia in 1648, where the first time the relationship between “nation” and “people”, or so-called “communities” and “societies”, are regulated.⁶⁷ It has to be distinguished succinctly between the people and the State and, in addition to that, clarify the position of both parties to the principle of Self-Determination.⁶⁸ So, the International Law sets the focus “less state centered and more centered on people.”⁶⁹ The State does not hold the right itself but is responsible to ensure an adequate enforcement of the right by the people.⁷⁰ However, the State cannot be considered entirely different from the peoplehood, so the State as such is “the plenipotentiary or international dimension of peoples”.⁷¹

However, the question comes up, how to define “people”. One of the definitions exact and straightforward is the [collectively organized] conglomerates of individuals whose wishes and aspirations must be taken into account and given as much legal force as possible.⁷² Especially the collective organization or a collective identity, like common history, race and ethnicity or other connecting belts are required for the acknowledgment of the peoplehood.⁷³ On the other hand, people can also defined - how already mentioned above - only by “populations of non-self-governing territories or who are subject to foreign occupation or subjugation and racial minority groups that are denied fair access to political institutions without any additional requirement”.⁷⁴ In conclusion, the only requirement of the holders is the faced threat, so the protection by the right is justified.

However, this broader definition can provoke some problems, especially in the cases where the Statehood is already valued and, therefore, helps to affirm the ownership in that case. Moreover, also in the Western Sahara case the ICJ required the condition of a “common institutions or organs.”⁷⁵ However, there has to exist the possibility also for undemocratic or oppressed populations to invoke to the Right of Self-Determination, so the definition cannot depend on a political relationship or political history.⁷⁶

Furthermore, there has to exist at least collective interest or a collective autonomy between the people to confront the threat. So, for example, the German nation was recognized as collective autonomy in the case of the temporarily loss of independence after the World War II.⁷⁷

In sum, the Right of Self-Determination represents a right, which finds its exertion, especially in the political participation, in condition of an existing State through political institutions of this State. Moreover, the holders of the right are not the State itself, but the peoplehood, which goes along with a shared collective identity of people, not only the participation in an institution of a nation.

4. The aims of the Right of Self-Determination

In summing up the above mentioned considerations, the aims of the Right of Self­Determination are developed. Every time when the “destiny of the people” is limited in any manner, the intervention of this right is to consider. At the beginning of the development, the aim persisted in finishing the colonialism as fast as possible.⁷⁸ However, nowadays, the scope of application is much more advanced than only in the case of decolonization. The right should also serve to secure international peace, stability and security, like it is recognized as a general principle in the Article 1 (2) of the Charter of the United Nations. Moreover, it “promotes friendly relations and cooperation among States”.⁷⁹ However, that cannot be the primary aim of the Right of Self-Determination, only shows the capacity or the narrowest possible scope of this right.⁸⁰

Furthermore, the application in the context of secession from an unlawful regime is affirmed in various settings as well.⁸¹ So, the Right of Self-Determination is not only applicable in the context the liberation “non-self-governing territories”, like it was mentioned in the Namibia Decision of the ICJ,⁸² based on the Article 73 of the UN Charter.⁸³ Moreover, the development goes also to the “integration with an independent State.”⁸⁴ Following these considerations, the right is applicable in the context of a conflict about one territory or in the case of losing territory.⁸⁵

Besides, the facet of protection against a grave violation of human rights, especially if the harmed group is a minority or it is in general related to political participation.⁸⁶ In conclusion, it can be resumed, that the prior-ranking aim is the protection of the individual human rights, especially in the context of political participation, for example, for minorities.⁸⁷

In the illustrated broader scope of application, the question raises again, in which context the destiny of the people plays a role. How already shown, the Article 1 of the ICCPR and ICESCR, the people has to have the capacity to “determine freely the political status and economic, social and cultural development”. So, the people must enjoy autonomy - the ability to make their own law - as well as independence - the freedom from external control.⁸⁸ In conclusion, the Right of Self-Determination has the task to “protect peoples’ collective interest in autonomy and independence against grave external threats over which they have little control.”⁸⁹

5. Differentiation between Statehood and Self-Determination

5.1. Statehood as an implementation of Self-Determination

While Self-Determination is known as a principle of international law, Statehood is a manner to exercise the Right of Self-Determination in an active form. According to the Declaration of Friendly Relations, there are three “modes of implementation” of the Right of Self-Determination, the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people. In general parlance, it represents the right to elect independence under international law.⁹⁰ Whereas the Right of Self­Determination is “a principle concerned with the right to be a State.”⁹¹

Statehood is in comparison to the Right of Self-Determination a very fixed notion of a central organizing idea.⁹² So, the construct of a State is a feasible permutation of the abstract principle of the Right of Self-Determination, especially the preferred one, because the independence and the establishment of the own State is the most wanted result of the legitimate claim to Self-Determination comparing the UN practice.⁹³ The States are the “principal maker and subject of International Law,” because that implicates the privileges in standing before the International Court of Justice as well as the membership of the United Nations.⁹⁴ Moreover, the enforcement of rights and duties to the individuals within the international community “is only possible through the intervention of a state on their behalf”.⁹⁵ Concluding, statehood with all its benefits and advantages represents “a ticket of general admission to the international arena”.⁹⁶

5.2. Definition of Statehood

Developed in the Article 1 of the Montevideo Convention on Rights and Duties of States in 1933, the State is usually determined by four requirements, a permanent population, a defined territory, a government and the capacity to enter into relations with other States.

First of all, the permanent population represents a collective settlement or a stable community.⁹⁷ The criterion of a stable community serves for the differentiation between islands in the sense of Article 121 (1) UNLOSC and uninhabitable rocks according to Article 121 (3) UNLOSC.⁹⁸ Moreover, a quantity of habitants of the State is required, however a minimum count of people are sufficient in order to recognize their ownership of the Right to Self-determination and independence and above all their Statehood.⁹⁹ Furthermore, the corporate feeling of living together has to tie the population. So, it is insufficient that there exists “basis infrastructure at its disposal providing for the vital necessities of human life.”¹⁰⁰ This criterion goes hand in hand with the above mentioned peoplehood and can therefore become much more important, especially in the coming up problem of loss of territory.

The second criterion - the territory - represents the bordered area, where the subject of the international law can exercise its authority.¹⁰¹ A State, defined about its territory, complies a crucial role in the landscape of International Law. First of all, they circumscribe the border in order to clarify, where to exercise the jurisdiction and authority. Secondly, the Statehood in a territory promotes relative stability between people, which are parts of different ethnos, so it creates a “jigsaw puzzle of solid color pieces fitting neatly together.”¹⁰² On the other hand, this stability and integrity recognized by the International Law, promotes peace and security in the international community.¹⁰³ Moreover, a stable Statehood support that Self-Determining people sustain the exercise of the Right of Self-Determination, especially the political participation. In conclusion, a territory creates “the physical basis that ensures that people can live together as organized communities.”¹⁰⁴

The third requirement - the effective government - “is closely tied to the principle of territorial control,”¹⁰⁵ whereas the criterion of effectiveness is especially to highlight. In making the distinction between internal and external dimension, the government enforces its authority towards their habitants and executes its obligations under international law.¹⁰⁶ So, the effectiveness of the government reflects in the standing within the international Community.¹⁰⁷ Moreover, the criterion is strongly dovetailed with the criterion of population, because the execution of effectiveness depends to the remaining of a “population nucleus” to enforce the obligations on their population.¹⁰⁸

Forth, the criterion of independence is found in the Article 1 of the Montevideo Convention in the “Capacity to enter into relations to other States.” In distinguishing between the factual capacity - the government as the executive element - the fulfillment of obligations under the International law and the legal position, the pure recognition of the State as an entity, is challenging to vitalize this criterion. Especially in the context of the loss of territory and lack of government, the mere question of legal capacity remains. Beyond that, this requirement is often equated with the sovereignty, especially in conjunction with the effective government. However, this rule does not be competent in all cases, so a State among occupation or management can reach individual sovereignty, if he has granted any rights of government.¹⁰⁹ Moreover, after the two World Wars the striving for sovereignty in the manner of maximal liberty and stability at any costs has changed to “an accomplice to the subjugation of human rights or act as a shield against international concern that coalesces to promote human values.”¹¹⁰

Concluding, the Montevideo Convention defines statehood with its four criteria in a very straightforward and determined manner. However, all of these requirements give the scope of a broader interpretation. Especially in the context of the Right of Self­Determination, we can find new ways of interpretation so that we pave the way for present or future challenges for the definition of statehood.

6. Conclusion

Grown out of the idea of a right to liberate of the decolonization, the Right of Self­Determination represents nowadays a much more developed scope of application. That shows primarily the references in various international rules as well as the recognition as erga omnes norm and jus cogens. Devised by the jurisdiction of the ICJ like by various opinions in the International Law, the right has the external and internal facet. Primarily notable as “a very strong moral and political force,”¹¹¹ the right is defined today more about the peoplehood than about a legal construct - like a State or a government.

The people as “right-holder” have to be identified about its collective autonomy. Moreover, this collective autonomy has to be threatened by a force majeure so that the peoplehood can invoke the Right of Self-Determination. This detail, in particular, is important for the consideration following in the next chapter.

In contrast, the statehood represents a very rigid instrument of International Law, which is in danger, if one of the criteria is ceased. However, because of the closeness to the Right of Self-Determination, the single requirements can be interpreted in a different and broader manner.

Especially, in the legal problem of the inundation caused by Climate Change where the question of the loss of territory raises - one of the essential criteria of Statehood - the Right of Self-Determination will be served as basis for the next chapters. So, the thesis is focused on the approach to resolve the threat of inundations via the concept of Self­Determination. Because, this principle of International Law is capable of embracing much more nuanced interpretations and applications, particularly in an increasing interdependent world in which the formal attributes of Statehood mean less and less.”¹¹²

Chapter 2: New Challenge for the Right of Self-Determination in the light of Climate Change

1. Preliminary Words

In the previous chapter it is shown that the legal concept of Self-Determination is constructed on two ideas to support the freely expressed wishes of the people in any situation in which its destiny or autonomy is at stake and the identity of the Self­Determining “peoples”.

In this chapter, the phenomenon of inundations caused by Climate Change is to explain and the question to resolve if the citizens of Kiribati can rely on the Right of Self­Determination in this particular case. Going beyond that, we will consider if there are the necessity of a legal rule concerning this present threat for the Right of Self­Determination because of an existing gab in the International Law. Going further, the question of a concrete protection for the I-Kiribati in that case shifts in the focus and has to be affirmed because of various arguments.

2. Inundations caused by Climate Change

First of all, we have to explain the phenomenon of inundations caused by Climate Change. Climate Change - how already shown above - is not a single act of menace, but an “impact multiplier and accelerator.”¹¹³ Inundations of reef islands are described as “the diffusion of a high water level into or across an island, and flooding as the accumulation or flow of water from adjacent areas, as when rainwater ponds in island interiors during heavy precipitation such as may accompany tropical cyclones.”¹¹⁴ It provokes both a “rapid and slow-onset processes” of multiplier consequences like displacement of the inhabitants, among other.¹¹⁵ So, the relationship, in particular, to the displacement of people is no mono-causal to the Climate Change, but results from an accumulation of a lot of factors.

[...]

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¹ Timaeus by Plato.

² GA -Res. 66/288 (2012), para. 190; Vaha, We as People have the Right to exist (2017), p. 771.

³ Pfeiffer/ Nowak, All in the game (2006), p. 583.

⁴ Vaha, We as People have the Right to exist (2017), p. 771.

⁵ Minnerop, Climate Protection Agreements (2018), para. 1; Lucas Garin, Cambio Climatico en Chile (2019), p. 25.

⁶ Minnerop, Climate Protection Agreements (2018), para. 2, 9.

⁷ Minnerop, Climate Protection Agreements (2018), para. 2.

⁸ Minnerop, Climate Protection Agreements (2018), para. 3, 6, 10.

⁹ Van Asselt/Sindico/Mehling, Global Climate Change (2008), p. 424.

¹⁰ Lucas Garin, Cambio Climatico en Chile (2009), p. 25.

¹¹ Minnerop, Climate Protection Agreements (2018), para. 18.

¹² Minnerop, Climate Protection Agreements (2018), para. 20.

¹³ Minnerop, Climate Protection Agreements (2018), para. 22,23.

¹⁴ Minnerop, Climate Protection Agreements (2018), para. 23.

¹⁵ Van Asselt/Sindico/Mehling, Global Climate Change (2008), p. 424.

¹⁶ NASA, Responding to Climate Change.

¹⁷ PBS, Planning to sink: What happens if Kiribati drowns?, 27.7.2014.

¹⁸ Report on the Kiribati Census (2010), p. 10; McAdam, Climate Change, Forced Migration, and International Law (2012), p. 124.

¹⁹ Republic of Kiribati, NAPA (2007), p. 28 ff., McAdam, Climate Change, Forced Migration, and International Law (2012), p. 124.

²⁰ Compare: Report on the Kiribati Census (2010); McAdam, Climate Change, Forced Migration, and International Law (2012), p. 125.

²¹ Compare: Republic of Kiribati, NAPA (2007), p. 28 ff; McAdam, Climate Change, Forced Migration, and International Law (2012), p. 125.

²² UN Human Development Report (2011): Sustainability and Equity: A Better Future for All.

²³ Wyman, Responses of climate migration (2013), p.174.

²⁴ Scoop Independent News, Leaycraft, Thomas, “Kiribati and Kapiti: President Anote Tong on Climate Change”, 15.2.2016.

²⁵ IPCC, AR 1 - Report (1990), para. 5.0.10, p. 103.

²⁶ Stoutenburg, When does States disappear? (2015), p. 65; McAnaney, Sinking Islands (2012), p. 1187.

²⁷ McAdam, Climate Change, Forced Migration, and International Law (2012), p. 159,

²⁸ Wyman, Responses to Climate Migration (2013), p. 174, Foresight, Migration and Global Environmental Change (2011), p. 9.

²⁹ Wyman, responses of climate migration (2013), p. 175; Kristof, Island Nations fear Sea could swamp them, New York Times, 1.12.1997.

³⁰ ABC News , “Our Entire survival is at Stake”, 11.7.2014.

³¹ Burkett, The Nation-Ex-Situ (2011), p. 350.

³² Pacific Island Development Forum, Suva Declaration on Climate Change, 3rd Leaders Summit 2-4.9.2015.

³³ Vaha, We as People have the Right to Exist (2012), p. 774.

³⁴ Skillington, Disappearing States (2016), p. 9, Vaha, We as People have the Right to Exist (2012), p. 770.

³⁵ Vaha, We as People have the Right to Exist (2012), p. 772.

³⁶ Stoutenburg, When does States disappear? (2015), p. 373-374.

³⁷ Berman, Sovereignty in Abeyance (1988), p. 69.

³⁸ Art. 1 of the Int. Covenant on Civil and Political Rights/ Int. Covenant on Economic Social and Cultural Rights: “All peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.”; also mentioned in: Knox, Human Rights, Environmental Protection, p. 519.

³⁹ Art. 1 (2) of the Charter of the United Nations: “The purposes of the United Nations are (...) to develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”

⁴⁰ Declaration on Principles of International Law Friendly Relationships and Co-operation among states in accordance with the chapter of the United Nations.

⁴¹ Berman/ Lyons/ Falk, Indigenous Peoples and the Right to Self-Determination (1993), p. 190.

⁴² Art. 4 UNDRIP: “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”

⁴³ GA-Res. 2625 (XXV) (1970).

⁴⁴ Crawford, The Right of Self-Determination in International Law: Its Development and Future, in Alston, Peoples’ Rights (2001), p. 25.

⁴⁵ Crawford, State Practice and Intern. Law (1999), p. 117.

⁴⁶ Western Sahara, ICJ (1975), p. 33, para. 59.

⁴⁷ GA-Res. 2625 (XXV) (1970), p. 4; compare: Willcox, Climate change Inundation and Atoll Island States (2015), p. 95.

⁴⁸ Hofbauer, Sovereignty in the exercise of the right of Self-Determination (2016), p. 76.

⁴⁹ Art. 1 (3) ICCPR: „The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of Self­Determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations”; s. GA-Res. 2625 (XXV) (1970).

⁵⁰ Affirmed: Willcox, Climate change Inundation and Atoll Island States (2015), p. 95; critical: Hannum, Rethinking Self-Determination (1993), p. 32.

⁵¹ East Timor, ICJ (1995), para. 29; Barcelona Traction, ICJ (1964), para. 33.

⁵² Art. 53 Vienna Convention: “Treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”

⁵³ Tams, Enforcing Obligations Erga Omnes (2005), p.40.

⁵⁴ Hannum, Rethinking Self-Determination (1993), p. 61 ff..

⁵⁵ Anaya, The Capacity of International Law (1991), p. 410.

⁵⁶ Abhimanyu, The 21th century Atlantis (2014), p. 8.

⁵⁷ Willcox, Climate Change Inundation and Atoll Island States (2015), p. 100.

⁵⁸ Anaya, The Capacity of International Law (1991), p. 407 ff.

⁵⁹ Western Sahara, ICJ (1975), para. 56, 162.

⁶⁰ Cassese, Self-Determination of People (1996), pp. 319-320.

⁶¹ Crawford, Brownlie’s principles of Public International Law (1990), p. 595.

⁶² GA-Res. 2625 (XXV) (1970), p. 4; GA-Res. 1541 (XV) (1960), principle VII.

⁶³ GA-Res. 2625 (XXV) (1970), p. 4.

⁶⁴ Compare: Western Sahara, ICJ (1975): especially references to the right of decolonization.

⁶⁵ Alston, People’s rights (2001),p. 272.

⁶⁶ Crawford, The Right of Self-Determination, in Alston, People’s rights (2001), p. 29.

⁶⁷ Abhimanyu, The 21st Century Atlantis (2014), pp. 6-7.

⁶⁸ Willcox, Climate Change Inundation and Atoll Island States (2015), p. 105.

⁶⁹ Anaya, Indigenous People in International Law (2004), p.156.

⁷⁰ Willcox, Climate Change Inundation and Atoll Island States (2015), p. 105.

⁷¹ Obiora, Beyond the Rhetoric of a Right to Development (1996), p. 370.

⁷² Cassese, The International Court of Justice, in Lowe, Fifty years of the ICJ (1996), p. 352.

⁷³ UNESCO, ‘International Meeting of Experts on Further Study of the Concept of the Rights of Peoples’, UN Doc. SHS89/CONF.602/7 (1989), at paras.22-23.

⁷⁴ Willcox, Climate change Inundation and Atoll Island States (2015), p. 105.

⁷⁵ Western Sahara, ICJ (1975), p. 54, para. 149.

⁷⁶ Stilz, Nations, States and Territory (2011), p. 592.

⁷⁷ Stilz, Nations, States and Territory (2011), p. 591.

⁷⁸ GA-Res. 2625 (XXV) (1970); compare: GA-Res. 1541 (XV) (1960), principle IV-VIII.

⁷⁹ GA-Res. 2625 (XXV) (1970).

⁸⁰ Willcox, Climate change Inundation and Atoll Island States (2015), p. 112.

⁸¹ Crawford, State practice and intern. Law (1999), p. 86.

⁸² Namibia, ICJ (1971), para. 52.

⁸³ Compare Art. 73 UN-Charter : Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: (...)

⁸⁴ Crawford, State practice and intern. Law (1999), p. 89.

⁸⁵ Willcox, Climate change Inundation and Atoll Island States (2015), p. 114.

⁸⁶ Compare: Art. 2, Chapter 1, Vienna Convention: All peoples have the Right of Self-Determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development. Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Conference on Human Rights recognizes the right of peoples to take any legitimate action, in accordance with the Charter of the United Nations, to realize their inalienable right of Self-Determination. The World Conference on Human Rights considers the denial of the right of Self­determination as a violation of human rights and underlines the importance of the effective realization of this Right. In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and Self-Determination ofpeoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.

⁸⁷ Willcox, Climate change Inundation and Atoll Island States (2015), p. 114.

⁸⁸ Jennings/ Watts, Oppenheim’s International Law (2008), pp. 382 ff.

⁸⁹ Willcox, Climate change Inundation and Atoll Island States (2015), p. 116.

⁹⁰ Crawford, Brownlie’s Principle of Public International Law (2019), p. 131.

⁹¹ Crawford, The Creation of States in International Law (2006), p. 107.

⁹² Berman, Sovereignty in Abeyance (1988), p. 53.

⁹³ Berman, Sovereignty in Abeyance (1988), p. 55.

⁹⁴ s. Art. 4 (1) UN-Charter; Art. 34 (1) Statute of the ICJ.

⁹⁵ Abhimanyu, The 21th Century Altantis, p. 7.

⁹⁶ M. Fowler and J. Bunck, Law, Power and the Sovereign State (1995), p. 12; compare: Crawford, Brownlie’s Principles of Public International Law (2019), p. 127.

⁹⁷ Crawford, Brownlie’s Principle of Public International Law (2019), p. 118.

⁹⁸ Stoutenburg, in Wannier/ Gerrard, Threatened island nations (2015), p. 64.

⁹⁹ GA-Res. 2869 (XXVI) (1971).

¹⁰⁰ Stoutenburg, in Wannier/ Gerrard, Threatened island nations (2015), p. 64.

¹⁰¹ Jennings/ Watts, Oppenheim’s International Law (2008), p. 564.

¹⁰² Knop, Statehood, in Crawford/ Koskenniemi, The Cambridge Companison to International Law (2012), p. 95.

¹⁰³ Brownlie, Rebirth of Statehood, in Evans: Aspects of Statehood and Institutionalism in Contemporary Europe (1997), p. 6.

¹⁰⁴ Stoutenburg, in Wannier/ Gerrard, Threatened island nations (2015), p. 61.

¹⁰⁵ Willcox, Climate Change Inundation and Atoll Island States (2015), p. 180, 182.

¹⁰⁶ Stoutenburg, in Wannier/ Gerrard, Threatened island nations (2015), p. 66.

¹⁰⁷ Stoutenburg, in Wannier/ Gerrard, Threatened island nations (2015), p. 66.

¹⁰⁸ Crawford, The Creation of States in International Law (2006), p.57.

¹⁰⁹ Crawford, Creation and Incidence of statehood in Brownlie’s principles (2019), p. 124.

¹¹⁰ Anaya, The Capacity of International Law (1991), p. 410 f.

¹¹¹ Thürer/ Burri, Self-Determination (2008), para. 8.

¹¹² Anaya, The Capacity of International Law (1991), p. 409.

¹¹³ The Nansen Conference (2011), p. 18; UNHCR, Summary of Deliberations on Climate Change and Displacement (2011), p.2.

¹¹⁴ Woodroffe, reef-island topography and the vulnerability of atolls to sea-level rise (2007), p. 90.

¹¹⁵ UNHCR, Summary of Deliberations on Climate Change and Displacement (2011), p. 1.