Rising Statelessness Due to Disappearing Island States will physically disappear by 2100 due to unavoidable sea level rise. 80 In scholarly debate, there has already been discussion on whether the population of such states would lose its nationality if territory permanently disappears. 81 If an island state should extinguish legally, the populations’ citizenship to that state would also cease to exist, as the essential attachment to a state will be lacking. 82 Accordingly, if there exists no state who grants citizenship to a person, it must follow that this person is stateless. 83 The imminent global challenge of sea level rise could therefore lead to massive deprivations of citizenships and thus induce a global rise in statelessness in the future. It goes without saying that this would be detrimental to the vision of the UNHCR to end statelessness by 2024. 84 This ultimately leads to the question of how to treat the population of a sinking island state — would they fall under the de jure definition of the 1954 Convention? Would it be desirable to have former islanders be considered as stateless? If not, how can they be protected by international law if they do not fall under the statelessness regime? In order to find an answer to these questions, one first needs to determine the general criteria of statehood and thus whether a sunken island state could still be considered to fulfil the requirements. A Continuing Statehood of Disappearing Island States? To begin with, there is no commonly agreed legal definition in international law on what constitutes a state. 85 In order to evaluate the elements of statehood, scholars have however oriented themselves on a definition contained in the Convention on the Rights and Duties of States (‘Montevideo Convention’), which reflects customary international law. 86 According to art 1 of the Montevideo Convention, the criteria for statehood are ‘a) a permanent population; b) a defined territory; c) an effective government; and d) the capacity to enter into relations with other states’. 87 Additionally, criterion d) is also often replaced with the criterion of independence. 88 Those criteria are not absolute and, when concerned with already existing states, not even the loss of all elements will immediately lead 80 81 82 83 84 85 86 87 88 See generally, Stoutenburg (n 11); See also McAdam, Climate Change, Forced Migration (n 29) 127; Nurse et al (n 10) 1613–54; Nerem et al (n 10) 2022–25. This is different to other scenarios of state dissolution such as merger or succession, where state practice is available. There has not been an example of the entire loss of state territory so far. For more details on the extinction of states, see generally James Crawford, The Creation of States in International Law (Oxford University Press, 2nd edn, 2006) 715–17. See United Nations High Commissioner for Refugees, Climate Change and Statelessness: An Overview (Report, 15 May 2009) 1 (‘Climate Change and Statelessness’). Heather Alexander and Jonathan Simon, ‘Sinking into Statelessness’ (2014) 19 Tilburg Law Review 20, 20–21. See also Paul Weis, Nationality and Statelessness in International Law (BRILL 1979) 136; McAdam, Climate Change, Forced Migration (n 29) 159. Unfortunately, it must also be noted that the goal to prevent statelessness due to sea level rise was not adopted among the ten specific actions to end statelessness by United Nations High Commissioner for Refugees. Crawford, The Creation of States in International Law (n 81) 45–95; McAdam, Climate Change, Forced Migration (n 29) 128; Climate Change and Statelessness (n 82) 1. James Crawford, The Creation of States in International Law (n 81) 45–95; James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th edn, 2012) 128. Convention on the Rights and Duties of States, opened for signature 26 December 1933, 165 LNTS 19 (entered into force 26 December 1934); See Stoutenburg (n 11) 250; See also Shaw (n 50) 157. Stoutenburg (n 11) 250. Cf Shaw (n 50) 160. 53