By Madhulika Tyagi
In July 2025, the International Court of Justice (ICJ) issued its Advisory Opinion on the Obligations of States in respect of Climate Change. Although the Court did not expressly rule that a State may survive the loss of all its territory, its reasoning strongly supports that conclusion. A State, once validly formed, does not necessarily cease to exist simply because rising seas render its territory uninhabitable. For low-lying island States such as Tuvalu and Kiribati, this has rightly been welcomed as an affirmation that statehood can survive even when territory is lost.
That should be good news. Instead, it exposes a problem refugee law has never had to confront: what happens to someone whose nationality survives even though the State can no longer provide the protection that nationality is supposed to guarantee?
The Opinion has understandably been read as a doctrine of state survival, an answer to whether States such as Tuvalu or Kiribati continue to exist as their islands disappear beneath rising seas. But statehood was never really the hard problem.
States are legal abstractions. They can be sustained through recognition and diplomacy, much as governments-in-exile have been throughout history. Poland’s government, for instance, operated from London throughout the Second World War and continued to be recognised by the Allied powers long after Warsaw had fallen. A Pacific State facing submergence could, in principle, continue in much the same way: through diplomatic recognition and institutional continuity, wherever its officials happen to be located.
The hard problem is the individual who holds a valid passport to a country that no longer has anywhere for them to live as one of its citizens. It is that person who discovers that refugee law was never built with them in mind.
The premise nobody had to name
Every protection regime rests on assumptions so basic they are rarely stated. Refugee law’s unstated assumption is this: nationality names an address.
It identifies the State whose job it is to protect you. The entire refugee framework functions as a second-best entitlement, one that switches on only when that first address turns against you.
Article 1A(2) of the 1951 Refugee Convention does not ask whether protection is available. It asks whether the State of nationality has become your persecutor, or has become unable or unwilling to shield you from one. The regime detects hostility. It was never built to detect absence.
Statelessness law rests on the mirror-image assumption. It exists to catch the person for whom the address itself was never recorded, or has been struck from the register, someone no State claims. It responds to a missing bond, not to a bond that persists in form while the place at the end of it disappears.
Both regimes assume nationality always points somewhere. Climate change is the first phenomenon in the history of the international legal order to make that assumption falsifiable at scale. A State can now, plausibly, continue to exist in law while the territorial ground beneath its nationality has gone. The passport remains valid. The address does not.
Refugee law asks who your protector has become. Statelessness law asks whether you have a protector at all. Neither asks the question this blog is concerned with: what do you do with a bond that survives its own function?
I want to propose a name for this condition, hollow nationality: the legal bond intact, the protective content emptied out. This is not a label for a category the field already recognises; it is a diagnostic term for something no existing category was built to catch. Refugee law, statelessness law, and non-refoulement all fail for exactly the same reason. Each was engineered to catch a specific kind of breakdown. None of them was engineered to catch this one.
Why the ICJ is the trigger, not the answer
It is tempting to treat the Advisory Opinion as a panacea. However, it solves one problem, the disappearance of legal personality, precisely by generating another.
If the Court had concluded that submerged States simply cease to exist, the law would have had a ready-made, if brutal, answer: dissolution converts former nationals into stateless persons, and the 1954 Convention Relating to the Status of Stateless Persons, threadbare as it is, would at least apply.
By preserving statehood, the Court closes off that trapdoor. It keeps the legal form standing and, in doing so, removes the one category, statelessness, into which climate-displaced nationals might otherwise have fallen.
This is the accidental cruelty of a doctrinally conservative outcome. State continuity was almost certainly the right answer as a matter of law. Nothing in the Montevideo Convention’s criteria for statehood, or in the jurisprudence on governments-in-exile, requires physical habitability as a condition of ongoing statehood. Abandoning that continuity would have stripped populations of far more than territory: diplomatic representation, treaty rights, standing before international bodies.
But the same reasoning that rescues the State abandons the individual to a status the law has no name for. The Opinion is not the destination of this argument. It is the event that makes the gap visible.
This is not happening in a vacuum, and it would be misleading to write as if it were. The International Law Commission (ILC)’s Study Group on Sea-Level Rise reached the same conclusion months earlier, in its own 2025 final report, finding “strong support among States for the continuity of statehood and sovereignty” despite territorial loss. The Australia–Tuvalu Falepili Union Treaty (signed in November 2023, in force since August 2024) already writes that continuity into a bilateral instrument, alongside a mobility pathway for Tuvaluan citizens.
So the doctrinal direction of travel is not in doubt, and it is not only the ICJ saying it. What none of these instruments do, not the Opinion, not the ILC’s report, not the Falepili Union, is specify what happens to the protective content of nationality once it is separated from territory. The ILC flagged the question of legal consequences for future work; it did not answer it. Bilateral treaties like Falepili solve it one relationship at a time, for one population, at the discretion of one neighbouring State. Neither is a general answer. That is the gap this piece is about.
A common architecture, not three separate gaps
Much of the existing literature has treated these as separate inadequacies: Jane McAdam’s work on the limits of the refugee definition; Michelle Foster’s account of how the Convention’s persecution requirement excludes harm without an identifiable persecutor; Walter Kälin’s early diagnosis of the normative gaps facing people displaced by climate change; Maxine Burkett’s and Rosemary Rayfuse’s arguments for deterritorialised statehood.
Refugee law is too narrow because persecution is the wrong trigger. Statelessness law is too narrow because it requires the absence of a legal bond. Non-refoulement is too thin because it is negative, forbidding return without conferring residence.
Each of these observations is correct, and each stops one step short of the more interesting question. The reason all three regimes fail is not that they were drafted too narrowly by accident. It is that all three share a single organising commitment: they treat nationality as the mechanism by which protection is located, never as something that can go on existing after the place it locates has gone.
Non-refoulement, as the UN Human Rights Committee’s Teitiota v. New Zealand decision shows, asks only whether returning you would kill you. Seen side by side, the shape of the problem is easier to see than to argue:
| Regime | What it asks | What it can’t see |
| Refugee law | Has your State of nationality turned against you? | A bond that persists while the place behind it disappears |
| Statelessness law | Do you have a legal bond to any State at all? | A bond that is intact but empty of function |
| Non-refoulement | Would returning you put your life at risk? | Everything short of death: residence, status, belonging |
Seen this way, complementary protection and “non-refoulement plus” are not competing remedies scattered across different doctrinal shelves. They are partial patches applied to the same underlying design flaw, an architecture of international protection that has never had to imagine a citizenry with a valid passport and no viable place to use it.
What nationality is for
This is where the deeper stakes lie, and they extend well past climate migration. The “genuine link” from the ICJ’s Nottebohm judgment was never meant to describe a formality. It described a relationship comprising diplomatic protection abroad, membership in a political community, and, not incidentally, a place to stand.
International law has spent a century treating that last element as so obvious it barely needed defending. Hollow nationality asks what remains of the concept once the place is subtracted.
Is nationality a status, durable independent of geography, something closer to membership in a family that survives the loss of a house? Or is it, at bottom, always a claim on territory, in which case the whole edifice of state continuity the ICJ has just reinforced amounts to preserving an empty shell and calling it protection?
International law cannot have it both ways. If it insists, rightly, that a State does not dissolve merely because its land does, it takes on an obligation it has not yet acknowledged: to explain what obligations, if any, attach to nationals whose State persists in exactly this hollowed-out form.
A doctrine of state continuity purchased at the expense of an equivalent doctrine of protection continuity is not a neutral legal achievement. It is a transfer of cost from the abstraction to the human beings nominally attached to it.
None of the existing remedies fully answers this. Mobility arrangements like the Falepili Union are valuable precisely because they let nationality and relocation coexist, but they remain bilateral favours, not entitlements. Institutional continuity, governments-in-exile issuing passports from abroad, solves the problem of representation, not residence. Loss-and-damage finance addresses the economics of displacement, not its legal status.
Each pathway assumes the answer will come from strengthening an existing regime. The more unsettling possibility is that no existing regime was built to be strengthened in this direction at all, because none of them was built around the person whose nationality is intact and whose protection is not.
What should follow
The question refugee law now faces is not whether climate-displaced people can be squeezed into the Convention’s language of persecution, or shoehorned into statelessness through some act of ministerial generosity. That accepts the premise that the existing categories were merely drawn too narrowly, rather than built on a mistaken assumption.
The right question is what it means for an international legal order to keep issuing nationality to people it no longer has any way of protecting, and whether it can go on calling that arrangement a form of belonging.
If international law is prepared to preserve States after they lose their territory, it cannot go on treating protection as something that automatically travels with the nationality it has just chosen to keep alive.
Concretely, that means at least three things worth putting on the table now, while the ICJ Opinion and the ILC’s report are both still fresh enough to shape what comes next:
- a status, whether inside the 1954 Convention’s framework or alongside it, for nationals of a State whose territory can no longer sustain them;
- clearer guidance from the ILC’s ongoing sea-level rise work on what protection obligations, if any, attach to continuity of statehood; and
- a willingness from destination States to negotiate mobility arrangements as a general entitlement, not bilateral discretion extended one country at a time.
The next frontier of refugee law may not be about who qualifies as a refugee at all. It may be about what nationality is still for, once the ground it was always presumed to point to has quietly ceased to exist.
Further reading
- International Court of Justice, Obligations of States in respect of Climate Change, Advisory Opinion of 23 July 2025
- International Law Commission, Final report of the Study Group on Sea-Level Rise in relation to International Law (2025)
- International Court of Justice, Nottebohm (Liechtenstein v. Guatemala), Judgment of 6 April 1955
- UN Human Rights Committee, Teitiota v. New Zealand, CCPR/C/127/D/2728/2016 (2020)
- 1951 Convention Relating to the Status of Refugees and its 1967 Protocol
- 1954 Convention Relating to the Status of Stateless Persons
- Montevideo Convention on the Rights and Duties of States (1933)
- Australia–Tuvalu Falepili Union Treaty (signed 2023, in force 2024)
- Jane McAdam, Climate Change, Forced Migration, and International Law (Oxford University Press, 2012)
- Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge University Press, 2007)
- Walter Kälin, Displacement Caused by the Effects of Climate Change: Who Will Be Affected and What Are the Gaps in the Normative Framework for Their Protection? (Brookings–Bern Project on Internal Displacement, 2008)
- Maxine Burkett, The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood, and the Post-Climate Era, 2 Climate Law 345 (2011)
- Rosemary Rayfuse, International Law and Disappearing States: Maritime Zones and Criteria for Statehood, 41(6) Environmental Policy and Law 281 (2011)
Madhulika Tyagi is an LL.M. candidate in International and Comparative Law at The West Bengal National University of Juridical Sciences (WBNUJS), Kolkata. Her research focuses on international refugee law, climate change, international environmental law, and the law of international organizations.
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