Statehood threatened by climate change: can international law provide a solution?
Under the Montevideo Convention, a requirement of statehood is determined territory. Because of climate change, the territory of some states is disappearing. How are these states to maintain their statehood in the face of disappearing territory? Is a change to the law needed?
The Republic of Maldives, an island state at risk of becoming one of climate change’s earliest victims, has a mean elevation of 1.8 metres[1] – only slightly taller than David Beckham. The football star’s height is how much space separates the island from total engulfment due to rising sea levels, a symptom of rapid climate change. Many other islands with low elevations, such as Tuvalu, Kirbati, and the Marshall Islands, face this oncoming expiration date. Alongside the obvious consequence of mass migration of peoples, rising sea levels poses serious legal implications to the sovereignty and statehood of these small island nations. How can a state continue to exist with no territory? I argue that modifications to the legal theory of statehood are necessary to address the disappearing territory of vulnerable island states. Several solutions have been suggested, including artificial islands and novel treaties, but ultimately our understanding of statehood has to adapt to accommodate new ‘deterritorialised’[2] states.
The legal importance of statehood cannot be underestimated. The golden ticket of statehood grants a country the right to participation in international affairs and legitimises the active governing body of that territory. Numerous academics affirm the Montevideo Convention on the Rights and Duties of States (Montevideo Convention) as the prime authority for the definition of a state in customary international law. While Article I lists four qualifications for statehood,[3] what concerns threatened island states prominently are (a) presence of a permanent population, (b) a defined territory, and (c) the presence of government. Each of these qualities play an essential role in the legal formula for statehood.
What’s more important for the continued existence of a state: possessing clearly defined territory, or having a population living in said territory? Though most people would intuitively think the former, Rachael Witney argues that though it may take decades for sea levels to completely engulf an island, it could deteriorate the liveability of that island to a point where it can no longer sustain human life.[4] Devastation of crops, contamination of reservoirs by saltwater, and spoiled ecosystems are all factors that could pressure populations to migrate before their islands are totally submerged.
While there is no minimum number for a valid population in customary international law, it is understood that the population must not be temporary. Presently, several Pacific Island states are grappling with the reality of half their populations living abroad. Jane McAdam highlights how more than 56% of Samoans and 46% of Tongans reside outside their home countries.[5] Although these Islands are still undisputedly recognised as states, such figures are an insight into the number of peoples exiled. Most island states do not have the privilege of larger countries with equally vulnerable coastlines, who can relocate their citizens to higher land.
Similar to the requisites for a population, international law does not stipulate a minimum territory for a state.[6] The imperative conditions related to territory are that it must be adequate for habitation, clearly defined and controlled by an effective system of government. Hence, the sovereignty of a state depends on factors – territory, population, and government – interconnected with each other. No normative standards for government are laid out, other than the facets that an effective government can maintain and exercise authority over some territory or population.[7] The Island of Palmas Case (Netherlands v United States) held that a country cannot exist ex situ from its land.[8] The judgment elucidates how even if a population is able to relocate with effective governance elsewhere, the territorial prerequisite fails once the land is completely uninhabitable.
If one part of the formula is missing, the entire sovereign mosaic caves. Once climate change dramatically renders an island unliveable, the population will inevitably relocate. Once a population has vanished, government is no longer effective, or even possible. This domino effect does not necessarily mean that, once an island is near utterly submerged, its sovereignty is instantly extinguished. Historically, the concept of statehood has adapted to dire circumstances. A “presumption of continuity”[9] in international law for existing states encourages the continuity of statehood, even during a lack of one or more elements. There are too many examples of such malleability to list, but prominent ones are ‘failed states’[10] where war and power struggles undermined the effectiveness of government, as occurred in Libya or Afghanistan, and de facto states that, satisfying all Montevideo conditions, remain unrecognised by some of the international community[11], such as Taiwan or Northern Cyprus. These examples indicate the flexibility of statehood, not exclusively defined by customary international law, nor restrained by the Montevideo Convention.
Such creative interpretations of statehood evidence the disconnect between international law and reality. As exhibited by the existence of these quasi-state entities, international law needs to be amended to look beyond traditional Montevideo factors for statehood. The international community faces several possible solutions to save these low-laying island states: sea defences, construction of artificial islands, and even transnational treaties sanctioning the worst perpetrators of climate change by obliging them to host displaced islanders.
Some states have already begun building islands to replace lost territory; the artificial island of Hulhumalé constructed by the Maldives covers 188 hectares.[12] Likewise, sea defences are further artificial efforts to conserve natural land from encroaching sea levels.[13] Unfortunately, most island states lack sufficient financing and engineering capabilities to make these options viable. Sea defences also come with harmful effects at the expense of naturally growing coral and sea life.[14] Furthermore, a German Municipal Court in In re Duchy of Sealand [15] held that only land organically formed on the Earth’s surface amounts to territory for statehood. Nonetheless, this case should not be taken as binding by any means, and the judicial and academic commentary regarding the legitimacy of artificial islands is limited.
Jacquelynn Kittel proposes that the United Nations fosters a hybrid treaty focused on the threat to low-laying island states and a strategic relocation of the endangered populations.[16] Ideally, the treaty would act as a double-edged sword addressing global contributors to climate change and offering aid to displaced populations[17]. The treaty relocates citizens of Pacific Islands to other states, maintaining the sovereignty of their Island through a state-in-exile apparatus.[18] To tackle the underlying causes of climate change, host countries would be chosen by gauges such as their current greenhouse gas emissions, previous greenhouse gas emissions, and fiscal capacity to host migrants.[19] Thus, states are urged to cut toxic gas emissions if they wish to lessen their responsibilities in receiving climate migrants.
“You are concerned about saving your economies… I’m concerned about saving my people.” - Tuvalu Prime Minister Enele Sopoaga [20]
Kittel’s treaty is optimistic to say the very least, and a solution I do not foresee succeeding practically. Dominant players of the international economic arena are unlikely to partake in such a balancing game. If world superpowers struggle to follow their obligations set by the Paris Agreement 2015,[21] the chances of abiding by more demanding requirements are dismal. Rather, international law needs to acknowledge a new class of de-territorialised states in the first place.[22] In such a state, a government-in-exile could continue to authorise control over the vanishing island territory and maintain some jurisdiction over their original population – by dual citizenship agreements with the host countries[23]. The government-in-exile would effectively act as a trustee and “govern” the remaining territory for the benefit of the citizens and their dependants, explains Burkett.[24] Governments-in-exile have previously been recognised as legitimate during WWI and WWII, but an implied condition in their acceptance was the temporariness of these governments.[25] It is uncertain how a government-in-exile can retain control over citizens indefinitely. The presumption of continuity of statehood may shield Pacific Island states from refutations of their sovereignty, but is not a permanent solution. Barring detailed agreements with host states, the authority of the government-in-exile will inevitably wane.
However, despite copious legal complications involved in departing from the Montevideo Convention, recognising de-territorialised states ex-situ from their territory is the first step to preserving statehood for threatened islands. Additionally, the human element of this commentary cannot be brushed aside. At the heart of any international effort should be humanitarian protection for migrants displaced by coastal erosion, flooding, and anthropocentric climate change. A ruling by the United Nations Human Rights Committee in January[26] recognising climate refugees is an exceptional step in urging all nations to respect their non-refoulment obligations. Yvonne Su highlights that, regardless of the particular negative ruling, the Committee’s acknowledgement that climate refugees do exist signals powerfully to governments the legal basis for protecting those whose lives are threatened by climate change.[27] Ultimately, a new instrument should be implemented to thoroughly safeguard climate refugees. Personally, I doubt whether, amid a wave of right-wing and exclusionary politics sweeping many nations, reopening the 1951 Refugee Convention to include peoples fleeing climate change is a safe option.
What is clear is that a widened perspective on statehood, territory, and refugees is necessary for international solidarity with Pacific Islanders most imperilled. The urgency of the situation to Pacific Island states, among the lowest contributors to climate change globally, is summed up by Tuvalu Prime Minister Enele Sopoaga’s cry for help: “You are concerned about saving your economies… I’m concerned about saving my people.”[28]
[1] Rachael Witney, ‘The Atlantis of the Modern World? The Legal Implications of Sea Level Rise for the Statehood of Small Island States’ (2016) 20 NZ J Envtl L 77, 83.
[2] Maxine Burkett, ‘The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood and the Post-Climate Era’ (2011) 2 Climate Law 345.
[3] Montevideo Convention on Rights and Duties of States, 165 LNTS 19 (Signed 26 December 1933, entered into force 26 December 1934), art 1.
[4] Witney (n 1).
[5] Jane McAdam “‘Disappearing States,” Statelessness, and the Boundaries of International Law’ in Jane McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Hart Publishing 2010), 113.
[6] Witney (n 1), 86.
[7] ibid 87.
[8] Island of Palmas Case (United States v Netherland) Perm. Ct. of Arbitration, 2 U.N. Rep. Int’l Arb. Awards 829 (1928).
[9] McAdam (n 4), 110.
[10] Jacquelynn Kittel, ‘The Global “Disappearing Act”: How Island States Can Maintain Statehood in the Face of Disappearing Territory’ [2014] Michigan State Law Review 1207, 1225.
[11] Ibid 1227.
[12] Witney (n 1), 100.
[13] Jörgen Ödalen, ‘Underwater Self-Determination: Sea Level Rise and Deterritorialized Small Island States’ (2014) 17 Ethics, Policy & Environment 225, 225.
[14] Kittel (n 9), 1231.
[15] Re Duchy of Sealand, (1989) 80 ILR 683.
[16] Kittel (n 9), 1237.
[17] ibid.
[18] ibid 1243.
[19] Ibid 1244.
[20] Yvonne Su, ‘UN ruling on climate refugees could be gamechanger for climate action,’ (Climate Home News, January 2020) < https://www.climatechangenews.com/2020/01/29/un-ruling-climate-refugees-gamechanger-climate-action/> accessed on 10 February 2020
[21] Brady Dennis and Chris Mooney, ‘'To date, we have failed': Worldwide nations struggling to meet goals outlined in Paris climate agreement two years ago” (National Post, February 2018) <https://nationalpost.com/news/world/to-date-we-have-failed-worldwide-nations-struggling-to-meet-goals-outlined-in-paris-climate-agreement-two-years-ago> accessed on 24 May 2020.
[22] Witney (n 1) 100.
[23] Kittel (n 9), 1249.
[24] Maxine Burkett, ‘The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood and the Post-Climate Era’ (2011) 2 Climate Law 345, 363.
[25] Witney (n 1), 102.
[26] ‘Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016’ UN Human Rights Committee CCPR/C/127/D/2728/2016.
[27] Yvonne Su, ‘UN ruling on climate refugees could be gamechanger for climate action,’ (Climate Home News, January 2020) < https://www.climatechangenews.com/2020/01/29/un-ruling-climate-refugees-gamechanger-climate-action/> accessed on 10 February 2020
[28] ibid.
About the author:
Myriam Atassi is a second-year Law with Humanities student at the University of Warwick. Her research interests are primarily international law, international economic law and international migration law. She plans on pursuing a career in international legal affairs and public policy.
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