Rising Statelessness Due to Disappearing Island States political interest to uphold continuing statehood of disappearing island states will prevail over the lack of ‘factual’ statehood. However, the question of how effectively a government acting from foreign territory is able to protect its citizens remains uncertain. Even if the international community could agree on the continuity of disappearing island states as legal entities, 116 the externally displaced population would struggle to enjoy protection from a government forced to act in exile without territory; a situation, which according to UNHCR, would most likely amount to de facto statelessness. 117 To conclude, the discussion regarding the continuance of statehood of disappearing island states is far from being uniformly acknowledged. Even the ILA Sea Level Rise Committee considered the question of continuing statehood of such ‘great sensitivity’ that it refrained from discussing it in more detail in its Sydney Conference: Final Report 2018. 118 Instead, the ILA Sea Level Rise Committee evaluated that it would be useful to continue its work on the issue of statehood after the end of its current mandate. 119 Unfortunately, it also did not touch upon the issues of nationality and statelessness in its report. 120 The legal status of a submerged state and its population still remains unresolved. 121 Note that we have not argued that in fact states will not continue to recognize submerged island nations as states. We have argued that the principle of presumption of continuity does not necessarily recommend that they do so, and we have argued that even if it did, it would not follow that these submerged entities really were states, any more than a boiled egg would be a state if recognized by the community of nations to be. 116 117 118 119 120 Stoutenburg (n 11) 405. Climate Change and Statelessness (n 82) 2. See also Stoutenburg (n 11) 427. Sydney Conference Final Report (n 104) 25–26. ibid. Ibid. However, the Committee’s mandate also includes to develop proposals for the progressive development of international law in relation to the possible loss of all or of parts of state territory and maritime zones due to sea level rise, including the impacts on statehood, nationality, and human rights. at 1. 121 See also Stoutenburg (n 11) 404. Some commentators have argued that former islanders will become de jure stateless even if the international community continues to recognise statehood of disappearing island states. They base their arguments on the premise that non-territorial states cannot comply with their duty to readmit nationals if other states request it; thus, they lose their ability to confer nationality under the operation of their law. This allegedly flows from the basic concept that a state cannot assume a duty (here: the international obligation to readmit nationals) if it cannot discharge it. For further details on this obligation, see also Kay Hailbronner, ‘Readmission Agreements and the Obligation on States under Public International Law to Readmit their Own and Foreign Nationals’ (1997) 57(1) Heidelberg Journal of International Law 1. Regarding that argument, see Heather Alexander and Jonathan Simon, ‘No Port, No Passport: Why Submerged States Can Have No Nationals’ (2017) 26(2) Washington International Law Journal 307. In the author’s opinion, this seems a rather unconvincing argument. Under international law, the consequence of a state’s ‘factual’ inability to comply with its obligation to readmit nationals cannot result in the loss of its sovereign right to confer nationality. In general, the violation of an international obligation towards another state must lead to state responsibility, if no circumstances precluding wrongfulness apply. Disappearing island states could, for example, try to argue force majeure (art 23 ILC Articles on State Responsibility (n 110)); that is the occurrence of an irresistible force, beyond the control of the state, making it materially impossible in the circumstances to readmit nationals to the state. The state as such, however, exists further and may, under the operation of its law, confer, regulate and withdraw nationality (in the limits of international law as elaborated further above). 57