2021
Statelessness & Citizenship Review
3(2)
problem for the UNHCR in engaging with state parties,50 but it is nevertheless
relevant to any discussion on the implementation of the 1954 Convention.
In summary, even if EDPs from LLISs were to qualify as stateless under the
1954 Convention upon the de jure extinction of their state of nationality, they
would be (1) unlikely to be able to avail themselves of the protection provided by
the 1954 Convention; and (2) even if they were, it is doubtful whether the
protection would add anything worthwhile to that already provided by other
international instruments. As a result, it is safe to say that the law on statelessness
does not provide a ‘solution’ to protect EDPs from LLISs. This is the conclusion
reached by most scholars who have discussed the issue thus far: ‘the Statelessness
Conventions do not provide a ready solution to their plight’.51 McAdam frames
the issue as such: ‘Accordingly, the statelessness treaties provide a very weak
“solution” in the present context, which is already contingent on other factors’.52
While a fairly clear rebuttal to any attempt at framing statelessness as a possible
‘solution’, McAdam’s statement nevertheless leaves open the possibility that in
some scenario(s), the law on statelessness could still play a role in the protection
of EDPs.
WORST-CASE SCENARIO
Legal research, particularly that concerned with international law, is ill-equipped
to project itself into the future. The sheer scope of possibilities deals a severe blow
to any claim of certainty a fortiori once one takes into account the political nature
of some of the deciding factors to be considered in order to reach any conclusion.
Rather than to elaborate a complex analysis and present it as ‘the future’, it may
thus be more practical to adopt a context-based approach to assess the multiplicity
of legal futures. In doing so, one can hope to better identify the implicit
assumptions necessary to prioritise one conclusion over another. Beyond the
methodological value of this approach, it also benefits the overall value of the
analysis it produces by ensuring that the preconditions for its relevance are
discussed.
This article is not an attempt to create a mutually exclusive alternative to
previous research on the relevance of the law on statelessness in the context of
climate change. Other analyses discussed are all likely to have added value to the
common understanding of the future(s) LLISs may face. Instead of presenting a
single timeline that relies upon a specific chain of events and legal interpretations
as ‘the’ future, this article approaches legal analysis of the future as part of a broad
spectrum consisting of multiple, possible parallel futures, with the eventual aim of
discussing ‘a’ future. One could imagine this spectrum to range from ‘optimistic’
futures to more ‘pessimistic’ ones. At one end of the spectrum is a reversal in
current environmental trends and the withdrawal of current threats to the existence
50
51
52
Mark Manly, ‘UNHCR’s Mandate and Activities to Address Statelessness’ in Alice Edwards
and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge
University Press 2014) 88, 91.
Alexander and Simon, ‘Sinking into Statelessness’ (n 17) 25.
McAdam, ‘Forced Migration’ (n 6) 142. McAdam had earlier stated that ‘the instruments’
tight juridical focus leaves little scope for arguing for a broader interpretation that would
encompass people whose State disappears’: see Jane McAdam and Ben Saul, ‘An Insecure
Climate for Human Security? Climate-Induced Displacement and International Law’
(Research Paper No. 08/121, The University of Sydney, Sydney Law School, October 2008)
9.
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