Soli, Sanguinis and Sinking States. The legal foundations of upholdning the right to nationality in the event of climate change turning sovereign territories uninhabitable
Abstract: The argument of this paper is that the two main principles of nationality law used by nation states are not designed to handle the possible scenario of states sinking due to climate change. With the consequence of its habitants having to seek haven elsewhere, the focus is to illustrate how the application of the principles ius soli and ius sanguinis stand in relation to the universal human right to a nationality in the event of a state becoming uninhabitable and/or physically extinct. The aim is to highlight the flaws inherent in the reading of the principles due to a neglect both of the complex intertwining of the nation states and human rights and due to an understanding of territory as spatially relative. Such aim originates from the notion that the international legal order ought to become more well-adapted to the climate changes ahead for the universal legal rights to remain purposive. Since the principles are established as customary law within the international community, a number of case studies such as the Bikini Atoll and the Swedish Alien Act are presented in order to describe their practical (in)applicability. Inevitably, when discussing potential future scenarios the examination also has to entail a degree of hypothetical reasoning. Such reasoning will here find its bearings in the underlying impetuses of the principles and the concepts permeating them. Theoretically, this paper is inspired by post-structural reasoning arguing that the current interpretation of the two principles are imbued with an implicit understanding of nation states as physically omnipresent and independent of their habitants. The paper contends that such unreflexive Westphalian interpretation and application of nationality law principles risks leading to climatic statelessness and unavoidable violations of rights claimed to be universal. This leads to the conclusion that international law and the understanding of its subjects, simply put, needs to become more environmentally sustainable and reconstructed to fit a world which is physically changing.
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