New Zealand Law Society - Disapppearing Pacific states - preparing for the deluge

Disapppearing Pacific states - preparing for the deluge

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Will small, low-lying Pacific island states retain any international legal personality after most of their people are displaced from their homelands by climate change-driven seawater inundation?

And what obligations do countries like New Zealand have to help people made stateless by climate change?

These questions are no longer simply theoretical – as Associate Professor Alberto Costi of Victoria University explains, it is only a matter of time before whole populations face evacuation from Pacific atoll nations.

“Small atoll low-lying nations won’t disappear in one go, or even entirely – but we need to find a way of enabling these disappearing states to retain some legal personality in international law, so that they can still represent the interests of their citizens,” he says.

“There is obviously some moral responsibility on the international community to address these issues. What is important is to see whether there could be an emerging duty of assistance by industrialised states.”

Alberto is carrying out a Law Foundation-backed study into the legal status of disappearing states and the potential obligations for New Zealand and other neighbouring states towards climate change evacuees. These issues gained media prominence recently with the case of Kiribati citizen Ioane Teitiota, who was deported from New Zealand after unsuccessfully arguing a claim for refugee status on the basis of environmental threats in his home country.

Alberto says that under current international law, Mr Teitiota’s claim was never going to fly: “No matter how you try to build an argument, the 1951 United Nations Refugee Convention doesn’t recognise this as a ground,” he says.

“The question is whether the existing convention should be amended, and that will be problematic. In the short term, what can work better are programmes that involve Pacific islands with governments like Australia and New Zealand.”

International legal responses to climate change have mainly been about mitigating the impacts, for example with greenhouse gas emissions – but as Alberto says, these actions have been driven more by perceived moral obligations than legal duties.

“I am looking at developments in international law that could put some legal obligations on states, in the absence of clear treaty-based obligations.”

He acknowledges that officials tend to resist the idea of a legal duty, because states like to help at their own pace, without a sense of legal obligation.

“The second component is looking at how we need to prepare as a country,” he says.

“New Zealand has to be ready to face this influx of environmental migrants, and I do not believe that we are prepared. We have great interests in the countries of this region, and there are large island communities in New Zealand. We need to ensure there is an infrastructure in place so that the rights of these people, becoming a minority here, are preserved.”

Awareness-raising is another important task, he says. “As a good international citizen, currently on the [United Nations] Security Council, New Zealand has a role in making sure that the rest of the international community is much more aware of the plight of the Pacific islands.”

The wider world has limited knowledge of the imminent threat to this region, and the cost of adapting through measures like sea walls, which are expensive and offer only temporary protection.

Alberto plans to produce research articles ahead of publishing a book around mid-2018. For more information about this and other Law Foundation funded projects, visit our website at

Lynda Hagen is the Executive Director of the New Zealand Law Foundation.

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