Statehood and State Extinction:

Sea Level Rise and the Legal Challenges Faced by Low-Lying Island-States

Henk Jan Scholten

S1538950

24-8-2011

Thesis

LLM International & European Law

Supervisor: Prof. M.M.T.A Brus

1

Table of contents

Introduction 2

1. Trouble in Paradise 5

2. Sinking Island-States and Statehood 12

I. Criteria of statehood 12

(A) A permanent population 14

(B) A defined territory 15

(i) Fully submerged territory 16

(ii) Uninhabited territory still above sea level 17

(C) Capacity to enter into relations with the other States 18

(D) Government 19

(i) Effective government 19

(ii) Government in relation to disappearing population and

territory 22

(E) Independence 25

(i) Formal independence 27

(ii) Actual independence 28

II. Concluding remarks 30

3. Continuing statehood 32

I. Mitigation, protection, adaptation 32

(A) Protecting existing territory 33

(B) Creating new territory: artificial islands and installations 35

II. Relocation: Cession and merger 37

(A) Cession 37

(B) Merger 39

III. Government-in-exile 40

IV. Deterritorialised States and the nation ex-situ 41

(A) The legal basis 43

(i) The Sovereign Order of Malta 45

(ii) Vatican City 46

(B) The need for novelty? 48

V. Concluding remarks 49

Conclusion 53

Bibliography 59

2

Introduction

One of the key characteristics of international law is its ability to adapt to changing

circumstances. Be it sudden or slow, and be it through treaties or customary law, modern

international law in itself offers a kind of flexibility to face ever-emerging legal questions,

issues and challenges. When Europe descended into mayhem during the religious wars of the

sixteenth and seventeenth century, the chaos of the Thirty Years War was answered with the

Treaty of Westphalia, which firmly established the system of territorial sovereignty and the

novel principle of nation-states. Likewise, when much of the world was engulfed by World

War II, the United Nations (UN) and the system of collective security were established as a

response.

In a time of rising sea levels, international law is faced with another new challenge:

the physical disappearance of the territory of island-States. Although possible answers may be

less sweeping than the San Francisco Conference or the introduction of the Westphalian

system, some fundamental elements of the latter are put into new perspective. Much is known

about secession, succession or merger of States. The fall of the Soviet Union, the dissolution

of Yugoslavia, the split of Czechoslovakia into Slovakia and the Czech Republic, they all

provide precedents and relevant information about statehood. However, much is unclear about

the end of statehood when there is no succeeding State, in what may be termed the cessation

of a State. More specifically this relates to those States which are threatened by their territory

becoming uninhabitable or by the complete disappearance of their territory due to rising sea

levels. By definition, therefore, there is no succeeding State, and this presents a novelty in

international law.

The issue of vanishing island-States raises a large variety of legal questions that touch

upon ‘the boundaries of law’.1 What will happen to the islanders themselves for example?

2

With their territory gone, they will have to find refuge in other countries, but how will they be

welcomed and what will their legal status be? Will they be refugees in the classical sense, or

will they form a new category of so-called ‘environmental’ or ‘climate refugees’?3 Will they

1 Jane McAdam, ‘“Disappearing States”, Statelessness and the Boundaries of International Law’, University of New South Wales (UNSW) Research Series, Paper 2 (2010), available at <.http://ssrn.com/abstract=1539766>;

Christel Cournil, Francois Gemenne, ‘Les populations insulaires face au changement climatique: des migration a

anticiper’, VertigO, 10 (2010) 3, p. 14. 2 See e.g. Selma Oliver, ‘A New Challenge to International Law: The Disappearance of the Entire Territory of a

State’, International Journal on Minority and Group Rights, 16 (2009), pp. 209-243; McAdam, Ben Saul, ‘An

Insecure Climate for Human Security? Climate-Induced Displacement and International Law’, Sydney Centre

for International Law Working Paper No. 4, Sydney Law School Research Paper No. 08/131, October 2008,

available at <.http://ssrn.com/abstract=1292605>. 3 Oliver, ‘A New Challenge to International Law’, pp. 209-243.

3

then be entitled to receive nationality from the State they fled to, can they retain their

nationality somehow through the former existence of their island, or does statelessness await

them? International accountability for contributions to global warming is another area of

interest. Could threatened islands such as Tuvalu or the Maldives hold the United States of

America – or any other major contributor for that matter – accountable in a court of law for its

part in global warming and rising sea levels?4 Taking things a little step further into the sphere

of private law, what would the consequences for private contracts be? An illustrative example

is the DotTV (‘.tv’) internet domain name extension. Tuvalu is the issuing country of this

highly popular and economically valuable top-level domain and derives an important part of

its national income from its lease to television stations.5 What will happen with the domain

extension and the lease contracts? These are just some of the contours of the legal

implications of the possibility of an island-State ceasing to exist as a sovereign State; from the

fate and status of the islander refugees to the accountability of other States for rising sea

levels, from private law consequences to issues of statehood and sovereignty.

Despite this ‘myriad of accompanying problems’,6 the discussion of disappearing

States seems to mainly revolve around the ‘climate’ or ‘environmental refugee’ status of the

islanders, and less around the consequences for the State as a legal entity, even though the

answer to that question could be important for the status of the refugees. While the fate of the

people is certainly the most pressing concern, many legal uncertainties depend on the more

fundamental questions relating to statehood and sovereignty.7 This thesis will deal with these

latter topics, whereas the legal status of the refugees will largely fall outside the scope of this

research. Instead, focus will lie on questions as to whether the States will lose their statehood

and sovereignty due to the complete loss of territory; whether alternatives are at hand that

offer the possibility for the island-nations to retain some of their claims based on the former

existence of their territory; whether international law as it stands today will be able to cope

4 See e.g. Rebecca E. Jacobs, ‘Treading Deep Waters: Substantive law issues in Tuvalu’s threat to sue the United

States in the International Court of Justice’, Pacific Rim Law and Policy Journal, 14 (January 2005) 1, pp. 103-

128; Jessica R. Mainprize, ‘The World is Sinking: Possible Strategies for United States International

Accountability to Pacific Island Nations for Global Warming Contributions’, King Scholar Senior Seminar

Papers (2007), available at <.http://www.law.msu.edu/king/2007/Mainprize.pdf>. 5Central Intelligence Agency (CIA), The World Factbook, ‘Tuvalu’,

<.https://www.cia.gov/library/publications/the-world-factbook/geos/tv.html>, visited on 26-8-2010; David

Amin, ‘Increase in sea levels due to global warming could lead to “ghost states”’, The Guardian, 29 September

2009, <.http://www.guardian.co.uk/environment/2009/sep/29/sea-levels-ghost-states>, visited on 8-9-2010. 6 Oliver, ‘A New Challenge to International Law’, p. 209. 7 Lilian Yamamoto, Miguel Esteban, ‘Vanishing Island States and sovereignty’, Ocean & Coastal Management,

53 (2010) 1, pp. 1-9, p. 1; Rosemary Rayfuse, ‘International Law and Disappearing States: Utilising Maritime

Entitlements to Overcome the Statehood Dilemma’, UNSW Research Series, Paper 52 (2010), p. 8, available at

<.http://ssrn.com/abstract=1704835>.

4

with this problem, or whether new ideas and principles must be explored, such as the

proposed principle of a ‘deterritorialised State’.8 To cover these fundamental points of law the

central question of this thesis will be: What are the legal consequences under international law

for the statehood of island-States following the disappearance of their territory, and can they

retain claims of statehood based on the former existence of their territory?

The first chapter will deal with the physical threats and consequences for island-States

caused by the rising sea levels on the basis of the findings of the Intergovernmental Panel on

Climate Change (IPCC).9 It will attempt to provide a proper understanding of the threats and

acts as a factual basis. It also explores some of the consequences this has for the legal

analysis. The second chapter deals with the legal consequences for the criteria of statehood of

island-States when faced with loss territory due to rising sea-levels. It provides a general

conclusion following a strict or formal analysis of the legal consequences inside the existing

system of statehood. The third chapter researches possible means for threatened island-States

to retain their statehood and whether international law is able to cope with the problem of

disappearing island-States. It will explore several traditional methods of retaining statehood,

but also considers newly proposed alternatives such as the possibility of a government-in-

exile and the principle of a ‘deterritorialised State’. The final conclusion will attempt to

answer the central question posed in this thesis.

8 Rayfuse, ‘W(h)ither Tuvalu? International Law and Disappearing States’, UNSW Research Series, Paper 9

(2009), available at <.http://ssrn.com/abstract=1412028>. 9 In spite of recent criticism on the IPCC, it must be noted that this thesis is not the appropriate place to discuss

the merits of its research.

5

1. Trouble in Paradise

‘The paperwork should be challenging if nothing else’, an official was quoted saying when

asked about an elaborate stunt of Maldivian President Mohammed Nasheed.10

On October 17

2009, Nasheed and his crew of ministers held the world’s first underwater cabinet meeting.11

In an attempt to draw attention to the threats faced by the Maldives, Nasheed and his

ministers, several meters below the ocean surface, signed an agreement calling upon the world

for carbon emission cuts. Of course their action sparked some hilarity, but their message is

nonetheless serious: the Maldives is threatened in its existence by the rising ocean waters;

there is Trouble in Paradise.12

The geographical characteristics of the archipelago State largely speak for themselves

when trying to understand the threats. The Maldives consists of 1,190 coral islands, with

about 200 inhabited islands and it has a considerable population of almost 400,000 people, of

which about 100,000 live in the capital city of Malé.13

The country is situated in the Indian

Ocean and has an average elevation of less than two meters and boasts the lowest high point

of any country at a mere 2.4 meters.14

Should sea levels rise sufficiently, the Maldives seems

destined to become the first island-State to completely disappear beneath the waves, acting

indeed as a ‘canary in the coalmine’ for the consequences of sea level rise.15

Already in 1987

high tides inundated Malé16

and when the December 2004 tsunami hit the Maldives, it simply

washed across the islands, leaving mayhem in its path.17

The case of the Maldives is perhaps the most illustrious example of an endangered

island-nation, but there are other sovereign island-States also faced with the possible loss of

10 Robin McKee, ‘Can Mohammed Nasheed save the Maldives – and the rest of the world – from the rising

seas?’, The Observer, 11 October 2009, <.http://www.guardian.co.uk/world/2009/oct/11/mohamed-nasheed-

maldives-rising-seas>, visited on 8-9-2010. 11 Randeep Ramesh, ‘Maldives ministers prepare for underwater cabinet meeting’, The Guardian, 7 October

2009, <.http://www.guardian.co.uk/world/2009/oct/07/maldives-underwater-cabinet-meeting>, visited on 8-9-

2010; Olivia Lang, ‘Maldives leader in climate change stunt’, BBC News, 17 October 2009,

<.http://news.bbc.co.uk/2/hi/south_asia/8312320.stm>, visited on 8-9-2010. 12 Christine Toomey, ‘The Maldives: Trouble in Paradise’, The Sunday Times, 1 February 2009,

<.http://www.timesonline.co.uk/tol/news/environment/article5604464.ece>, visited on 13-9-2010. 13 CIA, The World Factbook, ‘Maldives’, <.https://www.cia.gov/library/publications/the-world-factbook/geos/mv.html>, visited on 9-9-2010; U.S. Department of State, ‘Maldives’,

<.http://www.state.gov/r/pa/ei/bgn/5476.htm>, visited on 10-9-2010. 14 Ibid., visited on 9-9-2010; Food and Agricultural Organization of the UN, Regional Office for Asia and the

Pacific, ‘Asia and the Pacific National Forestry Programmes: Update 34’, December 2000, p. 102., available at

<.ftp://ftp.fao.org/docrep/fao/003/x6900e/x6900e00.pdf>. 15 Address by President Mohammed Nasheed of the Maldives to the UN General Assembly (21 September

2009), <.http://www.unmultimedia.org/tv/unifeed/d/13548.html>, visited on 13-9-2010. 16 U.S. Department of State, ‘Maldives’, <.http://www.state.gov/r/pa/ei/bgn/5476.htm>, visited on 13-9-2010. 17 Nemat Sadat, ‘Small Islands, Rising Seas’, UN Chronicle, 46 (2009) 3/4, pp. 10-15, p. 13.

6

their territory.18

Together with the Maldives, the islands seemingly most threatened in their

statehood are the low-lying atoll countries of Kiribati (112,000 inhabitants), the Marshall

Islands (64,000) and Tuvalu (12,000).19

Tuvalu’s highest point measures at a mere five meters

and the Marshall Islands sticks out ten meters at its peak. Kiribati has one island at 81 meters,

but the rest of the archipelago, like Tuvalu and the Marshall Islands, only has an average

elevation of about two meters above ocean level.20

For any meaningful legal analysis it is important to have a proper understanding of the

dangers facing these islands. In its Fourth Assessment Report (AR4) the IPCC states that

‘warming of the climate system is unequivocal’ and that a ‘rising sea level is consistent [and

inevitable] with this warming’.21

The IPCC projects a global average sea level rise between

0.18 and 0.59 meters at the end of the 21st century.

22 However, due to limited understanding

of some factors behind sea level rise, the report also says that the upper value is not to be

considered an upper bound for sea level rise.23

Because certain greenhouse gasses (e.g. C02)

linger in the atmosphere for a long period of time and due to the ‘time scales associated with

climate processes’, sea level rise due to anthropogenic global warming could continue well

beyond the 21st century.

24 Moreover, considering the outcome of the Copenhagen and Cancun

Climate Summits, a quick and dramatic drop or even stabilisation of C02-emissions is not to

be expected.

The IPCC goes on to say that ‘partial loss of ice sheets on polar land and/or thermal

expansion of seawater over very long time scales could imply meters of sea level rise’ (e.g.

18 Jon Barnett, W. Neil Adger, ‘Climate Dangers and Atoll Countries’, Climatic Change, 61 (December 2003) 3,

pp. 321-337. 19 Nobuo Mimura, Leonard Nurse, e.a., ‘Small islands’, in: M.L. Parry, O.F. Canziani, J.P. Palutikof, P.J. van der

Linden, C.E. Hanson (eds.), Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of

Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change,

Cambridge University Press: Cambridge 2007, pp. 687-716, p. 703; Barnett, Adger, ‘Climate Dangers’, p. 322;

McAdam, ‘“Disappearing States”’, p. 2; Rayfuse, ‘W(h)ither Tuvalu?’, p. 2; Yamamoto, Esteban, ‘Vanishing

Island States’, p. 1; CIA, The World Factbook, ‘Kiribati’, <.https://www.cia.gov/library/publications/the-world-

factbook/geos/kr.html>, ‘Marshall Islands’, <.https://www.cia.gov/library/publications/the-world-

factbook/geos/rm.html>, ‘Tuvalu’, <.https://www.cia.gov/library/publications/the-world-factbook/geos/tv.html>,

visited on 16-9-2010. 20 Fiu Mataese Elisara, ‘Effects of Climate Change on Indigenous Peoples: A Pacific Presentation’, UN

Permanent Forum on Indigenous Issues, International Expert Group Meeting on Indigenous Peoples and Climate Change, 2-4 April 2008, available at

<.http://www.un.org/esa/socdev/unpfii/documents/EGM_cs08_Elisara.doc>; for a more detailed description of

the situation on the islands see e.g. McAdam, ‘Swimming Against the Tide: Why a Climate Change

Displacement Treaty is Not The Answer’, International Journal of Refugee Law, 23 (2011) 1, available at

<.http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1718868>. 21 IPCC, Climate Change 2007: Synthesis Report. Summary for Policymakers, 2007, p. 2, p. 20. 22 Ibid., p. 8. 23 Ibid. 24 Ibid., p. 12, p. 20. IPCC, Climate Change 2007: Synthesis Report, 2007, pp. 46-47.

7

the melting the Greenland ice sheet alone would lead to a contribution of seven meters)25

and

that ‘such changes are projected to occur over millennial time scales, but more rapid sea level

rise on century time scales cannot be excluded’.26

Now, an Atlantis-style descent to the bottom of the ocean is unlikely27

and on the

surface these numbers and time scales might not seem very urgent; a fifty centimetre sea level

rise in a hundred years time would still leave Maldivian territory above water for example,28

and which lawyer can logically say anything about the world in a thousand years?

Considering the timescale of complete inundation, does it then mean that the islands are not in

danger? Does it mean that this research will end here? Asking the question in this thesis is

answering it. The sovereign States are still in danger,29

by disappearance of their territory, but

more prominently by the threat of uninhabitability of their territory before the actual

disappearance. While the tide slowly creeps in, the atolls will increasingly be faced with

consequences other than complete inundation. This leads to the question what sea level rise

effectively means for the islands, besides the apparent distant threat of their territory

disappearing.

The IPCC indicates that small islands are especially vulnerable to future sea level rise,

and outlines some of these vulnerabilities.30

Potential consequences include loss of land,

coastal erosion, coral bleaching and loss of coral reefs, increased salinisation of soil, shortages

of food and fresh water, adverse economic effects through loss of tourism, infrastructure and

foreign investment, and increased frequency and intensity of extreme weather events, such as

storms and tsunamis.31

Taking a closer look at the geography of the islands, the nature and severity of these

consequences becomes more evident. The Maldives, Kiribati, Tuvalu and the Marshall Islands

25 IPCC, Working Group II, ‘Summary for Policy Makers’, in: Parry, e.a., Climate Change 2007: Impacts,

Adaptation and Vulnerability, pp. 7-22, p. 17. 26 IPCC, Synthesis Report, pp. 53-54; IPCC, Summary for Policymakers, p. 13 27 McAdam, ‘“Disappearing States”’, p. 4; Ironically, whereas McAdam argues against ‘Atlantlis-style

predictions’, her close colleague Rayfuse does hint towards such a comparison in ‘W(h)ither Tuvalu?’ and in

‘International Law and Disappearing States’. 28 Philip L. Woodworth, ‘Have there been large recent sea level changes in the Maldive Islands?’, Global

Planetary Change, 49 (November 2005) 1-2, pp. 1-18. 29 Clive Schofield, ‘Shifting Limits? Sea Level Rise and Options to Secure Maritime Jurisdictional Claims’,

Carbon & Climate Law Review, 3 (December 2009) 4, pp. 405-416, p. 414. 30 Mimura, Nurse, e.a., ‘Small islands’, p. 689. 31 Barnett, Adger, ‘Climate Dangers’, p. 325; IPCC, Synthesis Report, p. 12; Martin Parry, Osvaldo Canziani,

Jean Palutikof, e.a., ‘Technical Summary’, in: Climate Change 2007: Impacts, Adaptation and Vulnerability,

Parry, e.a., pp. 23-78, p. 63; Achim Maas, Alexander Carius, ‘Territorial Integrity and Sovereignty. Climate

Change and Security in the Pacific and Beyond’, paper presented at the conference ‘Climate Change and

Security’ on 21-24 June 2010 in Trondheim, Norway, available at <.http://www.ecc-

platform.org/images/CCIS/Paper_Trondheim_PSIDS_CCIS_Maas_Carius_final_revised.pdf>.

8

exist entirely out of low-lying atolls.32

An atoll basically consists of a ring of coral reefs on

the outside encircling a salty water lagoon on the inside. Its average elevation and highest

point are often only a few meters above sea level.33

The stretches of land on which the

islanders live are then in between the outer section’s coral reef and the inner section’s

lagoon.34

A key vulnerability concerns fresh water, which is attained through rainfall and which

allows vegetation to grow on the island. The fresh water table is only slightly above the salty

seawater underneath the island, and through a rising saltwater table, the fresh water could

become ‘contaminated’, which could cause erosion and the destruction of food crops.35

The

bigger danger, though, is the fact that coral reefs might not be able to keep up with the sea

level rise.36

Normally, coral reefs provide a protective barrier for the atoll islands’ shorelines.

However, increases in the sea-surface temperature cause the coral reefs surrounding the atolls

to suffer from coral bleaching.

While the reefs are naturally resilient and could normally ‘grow apace with rising sea-

levels’,37

due to coral bleaching they are not expected to grow fast enough.38

The sea level

will thus rise faster than the coral reefs can grow. Together with coastal erosion this could

cause an increase in floods, which would mean saline contamination of the fresh water and a

decrease in productivity from agriculture.39

Under these circumstances, the islanders could

increasingly be faced with shortages of fresh water and food. Moreover, the islands will

become more vulnerable to extreme weather events – which in turn are expected to occur

more frequently due to global warming.40

At the same time, the atoll countries exhibit some

other features which make them so particularly vulnerable, such as a ‘high ratio of coastline to

land area, relatively high population densities, and low level of available resources for

adaptive measures’.41

32 Barnett, Adger, ‘Climate Dangers’, p. 322. 33 Ibid.; Yamamoto and Esteban, ‘Vanishing Island States’, p. 2. 34 Yamamoto, Esteban, ‘Vanishing Island States’, p. 2. 35 Ibid.; Barnett, Adger, ‘Climate Dangers’, p. 322. 36 Yamamoto, Esteban, ‘Vanishing Island States’, p. 2. 37 B. Brown, R. Dunne, M. Goodson, A. Douglas, ‘Marine ecology: Bleaching patterns in coral reefs’, Nature,

404 (9 March 2000) 6774, pp. 142-143, in: Barnett, Adger, ‘Climate Dangers’, p. 325. 38 Barnett and Adger, ‘Climate Dangers’, p. 325. 39 Ibid. 40 David Freestone, ‘International Law and Sea Level Rise’, in: Robin Churchill and David Freestone (eds.),

International Law and Global Climate Change, London: Graham & Trotman 1991, pp. 109-125, p. 115. 41 Ibid., p. 323.

9

Some of the consequences of these events can already be seen in the Carteret Islands, a

group of atoll islands part of Papua New Guinea.42

Here the islanders are slowly being

evacuated from their homeland, because the island can no longer support human settlement.

Whereas the Maldives could act as a ‘canary in the coalmine’ for the rest of the world, the

Carteret Islands could arguably play this role for the Maldives, Kiribati, Tuvalu and the

Marshall Islands, showing them what is to be expected from the rising sea.

The abovementioned processes would make it nearly impossible for a people to

continue living on the islands. They endanger the sustainability of societies on the atolls, and

Barnett and Adger argue that coupled with foreign loss of confidence in the future of atoll

countries, this could lead to the end of habitability of atolls: “[The] combination of changes in

mean conditions and extreme events may mean that ultimately, atoll environments may be

unable to sustain human habitation”.43

McAdam and Saul also emphasise this threat for the

societies of island-nations: “Shoreline erosion, coastal flooding, increasing salinity and the

particular vulnerability of small islands to rising sea levels and increased severe weather

events compromise their continued habitability, impacting upon agricultural viability, vital

infrastructure and services, the stability of governance, and ultimately human settlement.”44

What is more, Gibbons and Nicholls say that ‘looking to the future, (…) many small

low lying islands could be abandoned due to sea-level rise long before they become

physically uninhabitable.’45

Or in the words of the UN High Commissioner for Refugees

(UNHCR): “Low-lying island States are (…) very likely to be entirely uninhabitable long

before their full submersion, causing entire populations and the governments to be externally

displaced.”46

The end will thus not come as a ‘single engulfing wave’,47

yet slowly but surely

the islanders will be forced to leave their homelands. This means that if and when48

the

42 Dan Box, ‘Human Tide. The inhabitants of the Cartaret Islands are the first people to be evacuated from their

homeland due to climate change’, Geographical, 12 (2009), pp. 32-38; John Stewart, ‘Rising seas force Carteret

Islanders out of home’, Lateline, ABC Television (5 February 2007), transcript available at

<.http://www.abc.net.au/lateline/content/2006/s1840956.htm>; McAdam, Saul, ‘An Insecure Climate for Human

Security?’, p. 7. 43 Barnett, Adger, ‘Climate Dangers’, p. 326, pp. 329-330. 44 McAdam and Saul, ‘An Insecure Climate for Human Security?’, p. 1. 45 Sheila J.A. Gibbons, Robert J. Nicholls, ‘Island abandonment and sea-level rise: An historical analog from the

Chesapeake Bay, USA’, Global Environmental Change, 16 (February 2006) 1, pp. 40-47. 46 UNHCR, ‘Climate Change and Statelessness: An Overview’, 15 May 2009, available at

<.http://www.unhcr.org/refworld/docid/4a2d189d3.html>. 47 Daniel Williams, ‘Sinking Feeling’, Time International (South Pacific Edition), (2001) 33/34, pp. 26-29. 48 The author is aware of the sensitivities underlying the use of the words ‘if’ and ‘when’, especially in the light

of the uncertainties of rising sea-level predictions and its consequences. Despite the arguably hypothetical nature

of the subject of this thesis, the academic relevance relating to the questions concerning statehood remains

present. Therefore, the terms ‘if’ and ‘when’ are used more interchangeably than would normally be acceptable.

10

territories of the Maldives, Kiribati, Tuvalu and the Marshall Islands will finally be swallowed

by the sea, they will most likely already be empty of inhabitants.

As mentioned earlier, it is important to understand the threats facing the islands; ‘[t]he

way a phenomenon is understood necessarily determines the way it is regulated’, writes

McAdam.49

As she also rightly points out, the fact that an island is more likely to become

abandoned before actually physically disappearing could have important legal implications

for questions concerning the future of the State’s statehood.50

She explains: “In legal terms,

the absence of population, rather than of territory, may provide the first signal that an entity

no longer displays the full indicia of statehood.”51

Migration and island abandonment could

thus be an important element in the possible loss of statehood, arising earlier in the legal

analysis than the actual disappearance of territory itself.

To be able to grasp this important nuance – even though it is still uncertain what

exactly will happen to the islands – this thesis will assume two basic stages: (1) The territory

of the island-State has become uninhabitable due to a number of circumstances without full

disappearance of the territory and the population has abandoned the territory; (2) the territory

has completely disappeared beneath the ocean surface.

So the question will be which claims of statehood the sovereign entity of the State

could and will have once it only has an uninhabitable (and uninhabited) territory – if it can

still be considered a State as such – and what remains of once the territory is engulfed by the

ocean in its entirety. Conclusions about the consequences for statehood in the first stage will a

forteriori apply once the entire territory disappears, because the first stage allows more

ground for claims than the second one; without territory there can be no population living on

it, but without a population, the territory can still exist, on which the State could then try to

base some of its claims. The claim to statehood the island-State would possibly lose when it

still has a territory but no population living on it, would logically also be lost when both the

population and territory are gone. In other words, having territory but no population on it

prima facie appears to offer a more solid legal basis for the continued existence of an island-

State than having neither a territory nor a population living on it. This approach will be the

basis for the analysis of the legal consequences for island-States and in this light the following

49 McAdam, ‘Refusing “Refuge” in the Pacific: (De)Constructing Climate-Induced Displacement in International

Law’, UNSW Law Research Paper No. 2010-27, July 2010, available at <.http://ssrn.com/abstract=1636187>. 50 McAdam, ‘“Disappearing States”’, p. 2; Oliver, ‘A New Challenge to International Law’, p. 212; Rayfuse,

‘International Law and Disappearing States’, p. 7. 51 McAdam, ‘”Disappearing States”’, p. 2.

11

chapter will, as a legal point of departure, examine the relevant elements of international law

concerning islands-States and statehood.

12

2. Sinking Island-States and Statehood

Inside the current system of international law it is possible for the legal entity of the State to

cease to exist, but this contingency considers only the legal entity in itself, and not the

physical and literal end of a territory.52

Currently, situations of absorption by another State,

merger with another State, and dissolution of a State followed by successor States, are

formally possible within international law, yet in all these cases, while the State ceases to

exist, the territory must be taken over by another State.53

The current system thus allows for a

State to end, but ‘does so within the context of State succession. (…) There is never simply a

void.’54

In the situation if sinking islands, however, due to its very nature, State succession of

the territory is not possible. This does present a void and accordingly a novel question of law

for the existing system of statehood.

As the previous chapter mentioned, this part of the thesis will function as a legal point

of departure. While politically laden, statehood is, as Crawford explicitly argues, a legal

concept. As such, statehood must be based on factual criteria. Even though this provides a set

legal theorem as the basis for statehood, recognition by other States continues to play an

important role. This is reflected by the tension between the constitutive and declaratory

theories of statehood. Coupled with the strong presumption of continuity of existing States,

this allows for some leeway with regard to the ‘objective demonstration of adherence to the

criteria’, if there is large-scale international recognition of the (continued) existence of a

State.55

In order to deal with this tension in corresponding manner, it is of preliminary

importance for this chapter to focus on the objective characteristics of statehood by attempting

to analyse the legal criteria of statehood in the specific situation of sinking island-States. This

chapter will thus be a more formal or strict analysis of the legal consequences inside the

existing framework of statehood. The next chapters can subsequently explore possible

solutions, derogations and alternatives following the general conclusions made here, thereby

keeping a keen eye on the constitutive and declaratory theories.

I. The criteria of statehood

The concept of statehood is a very sensitive and politicised area of law and while international

law knows no formal definition of the term ‘State’, some objective criteria of statehood can

52 See e.g. Antonio Cassese, International Law, Oxford, New York: Oxford University Press 2005, p. 77, where

extinction is discussed in the cases of dismemberment, merger, incorporation and secession. 53 McAdam, ‘“Disappearing States”’, p. 2 54 Ibid. 55 Malcolm N. Shaw, International Law, Cambridge: Cambridge University Press 2008, p. 208.

13

nevertheless be identified.56

Article 1 of the Montevideo Convention on the Rights and Duties

of States of 1933 presents the most classic and ‘most widely accepted’ formulation of

statehood:57

The State as a person of international law should possess the following qualifications:

(a) a permanent population;

(b) a defined territory;

(c) government; and

(d) capacity to enter into relations with the other States.58

The following subsections will elaborate on these criteria of statehood, and attempt to

draw attention to those elements of specific importance for the sinking island-States. The

criteria will first be dealt with on their own merits, and afterwards as constituents of other

criteria, such as government and independence.59

(A) A permanent population

A State is in a sense a community made up out of people,60

‘an organisation of human

beings’,61

and as such a permanent population is a necessity for statehood.62

What is

important for the scenario of sinking islands is that there is no minimum required size of a

population.63

The Vatican fulfils this criterion with around 829 inhabitants, the smallest

population of any State, and Tuvalu, of specific interest here, is the second smallest State in

terms of population, with about 12,000 inhabitants.64

So theory requires no minimum population size, but in practice this could raise some

difficulties. It seems unclear whether it is actually required that the population should

(continue to) live on the territory of the State itself. McAdam accordingly raises the question

56 James R. Crawford, The Creation of States in International Law, Oxford: Clarendon Press 2006, pp. v-xi, pp.

44-46. 57 Shaw, International Law, p. 198. 58 Montevideo Convention on the Rights and Duties of States, 26 December 1933, available at

<.http://avalon.law.yale.edu/20th_century/intam03.asp>. 59 Crawford, Creation of States, p. 52. 60 Jorri C. Duursma, Self-Determination, Statehood and International Relations of Micro-States. The Cases of Liechtenstein, San Marino, Monaco, Andorra and the Vatican City, Ph.D. dissertation, University of Leiden,

1994, p. 113. 61 David Raič, Statehood and the Law of Self-Determination, Ph.D. dissertation, University of Leiden, 2002, p.

21, pp. 58-59. 62 Crawford, Creation of States, p. 52. 63 Matthew Craven, ‘Statehood, Self-Determination, and Recognition’, in: Malcolm D. Evans, International

Law, Oxford, New York: Oxford University Press 2010, pp. 203-251, p. 222. 64 CIA, The World Factbook, ‘Country Comparison: Population’ <.https://www.cia.gov/library/publications/the-

world-factbook/rankorder/2119rank.html>, visited on 10-11-2010; McAdam, ‘“Disappearing States”’, p. 8.

14

whether a State will still ‘meet this criterion of statehood when a large proportion – or all – of

its population lives outside the State’s territory.’65

She then points out that ‘the proportion of

population living on the territory does not seem to be determinative of the population criterion

for statehood.’66

This does not, however, fully answer the question if and how the population

rule could continue to be fulfilled, once the entire population has left the territory.

It must be noted that the criteria in the Montevideo Convention ‘are essentially

cumulative and interdependent.’67

As such, logic would have us assume that at the least some

proportion of the population must live on the territory; there seems to exist an implied nexus

between a State’s population and its territory.68

In an application for admission of Palestine to

become a member of UNESCO, the Executive Board wrote the following about the element

of population: “The criterion does not stand on its own, but is tied to territory and, in a sense,

also to effective government and independence.”69

Moreover, Brownlie writes: “This criterion

is intended to be used in association with that of territory, and connotes a stable community.

Evidentially it is important, since in the absence of the physical basis for an organised

community, it will be difficult to establish the existence of a state.”70

According to Raič, ‘an

uninhabited territory (…) cannot qualify as a State’, because the State ‘as a territory-based

form of political and social organisation must necessarily be an organisation of individual

human beings.’71

McAdam then specifies this relationship between territory and population

for the case of island disappearance when she voices the assumption ‘that there remains a

population on [the] territory to be governed.’72

Considered in this light, however, McAdam seems to touch upon matters too

summarily when she says that ‘the notion of a “permanent” population simply means that it

cannot be transitory.’73

Arguably, the permanency element only serves as a distinction

‘between established or fixed populations and nomadic ones.’74

However, it receives renewed

relevance when applied to fleeing islanders. It could be argued that if the entire population

flees the territory in the specific case of sinking islands – the case of territorial disappearance

65 McAdam, ‘“Disappearing States”’, p. 8, (emphasis added). 66 Ibid. 67 UN Educational, Scientific and Cultural Organisation (UNESCO), Executive Board, ‘Application for

admission of Palestine as a member State of UNESCO’, 26 May 1989, 131 EX/INF .7, p. 3, available at <.http://unesdoc.unesco.org/images/0008/000827/082713EO.pdf>. 68 Interestingly, though strictly legally speaking somewhat unrelated, Barnett and Adger in ‘Climate Dangers’,

on p. 327 and p. 332, seem to equate the population of atoll countries with the island itself. 69 UNESCO, ‘Application for admission of Palestine’, p. 4. 70 Ian Brownlie, Principles of Public International Law, New York: Oxford University Press 2008, pp. 70-71. 71 Raič, Statehood, p. 58. 72 McAdam, ‘“Disappearing States’”, p. 7. 73 Ibid., p. 8. 74 Duursma, Self-Determination, p. 113.

15

with very slight possibilities of being able to return home –, it loses its permanence and

indeed does become transitory. In that case, the answer to whether the criterion of population

continues to be satisfied does not have to be sought exclusively in its link with the criterion of

effective government, but can be also found in the element of ‘permanent population’ itself.

Raič indeed discerns two conditions concerning the notion of permanency: “[The]

population must have the intention to inhabit the territory on a permanent basis. (…) [And

the] territory claimed has to be habitable.”75

Neither of these conditions is fulfilled if the

population has to leave because the territory is disappearing or becoming uninhabitable. The

conclusion would then be that when ‘the entire population has emigrated and is situated in the

territory of one or more other States’,76

following ‘an exodus of population (...) accompanied

by, or premised on the imminent or eventual [physical] loss of territory’,77

the condition of

population will no longer be met.

(B) A defined territory

The Westphalian paradigm not only requires us to conceive a nation-state in terms of its

population, but also forces us to understand it in relation to a certain territory. After all, the

Peace of Augsburg of 1555, the historic predecessor to the Westphalian Treaty, decided:

“Cuius regio, eius religio”. As Crawford puts it: “Evidently, States are territorial entities.”78

The relevant question here is when a stretch of land can no longer be considered ‘a defined

territory’ for the purpose of this statehood criterion. To answer this question and to capture

the nuance of the gradual nature of island disappearance, the following subsection is divided

into two parts. The first part will try to focus on the statehood consequences for a fully

submerged territory, whereas the second part will concentrate on the situation where the

islands have become uninhabited, but have not yet completely disappeared.

(i) Fully submerged territory

A State must at least possess some territory, because ‘the existence of a territory [is] a

condition sine qua non for statehood’.79

However, as with population, theory does not seem to

dictate a minimum area size of that territory in order to obtain statehood.80

Prime example is

75 Raič, Statehood, pp. 58-59. 76 Alfred H.A. Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’, Netherlands

International Law Review, 37 (1990) 2, pp. 207-232, pp. 229-230. 77 McAdam, ‘”Disappearing States”’, p. 8. 78 Crawford, Creation of States, p. 46. 79 Duursma, Self-Determination, p. 489. 80 Crawford, Creation of States, p. 46, p. 72; Craven, ‘Statehood, Self-Determination, and Recognition’, p. 223.

16

again The Vatican, which holds less than one square kilometre in territory. Tuvalu only

counts a mere 26 square kilometres.81

The territory does not have to be contiguous, and small

parts of the territory can be enclaved within other States.82

Such small size and fragmentation

do not necessarily preclude independence, and subsequently statehood, but could make it

‘difficult to achieve and maintain.’83

Uncertain (i.e. not completely and precisely defined, or disputed) borders in itself do

also not stand in the way of statehood. However, as Raič mentions in passing, ‘a State may

become extinct and a people may lose its territory as a result of natural developments.’84

On

the other hand, according to McAdam, ‘loss of some territory (…) should not affect the legal

status of the entity’.85

An oft-cited exemplification is the ruling by the German-Polish Mixed

Arbitral Tribunal in Deutsche Continental Gesellschaft v. Polish State, which stated: “In order

to say that a State exists (…) it is enough that this territory has a sufficient consistency, even

though its boundaries have not yet been accurately delimited and that the State actually

exercises independent public authority over that territory.”86

However, as Higgins is quoted

by Crawford: “[W]hen the doubts as to the future frontiers [are] of a serious nature, statehood

[becomes] in doubt.”87

It is of course very well possible that the Tribunal and Higgins did not envisage the

exact scenario of sinking islands, yet their ideas prove helpful. The difficulty for the sinking

islands is that the current borders may be settled and certain, some of its land may even be

inched away by the ocean without further consequence, but once a rising sea level starts to

threaten the territory with complete inundation, it runs the risk of no longer having that

sufficient consistency. This serious uncertainty concerning the future frontiers places the

continued statehood on thin ice. In other, more simple and seemingly self-evident words, with

the islands having sunk below the sea level even at low tide, the territory criterion can no

longer be met.88

81 CIA, The World Factbook, ‘Country Comparison: Area’, <.https://www.cia.gov/library/publications/the-

world-factbook/rankorder/2147rank.html>, visited on 17-1-2010. 82 Crawford, Creation of States, p. 47. 83 Ibid., p. 4; for a more in-depth research into statehood issues of micro-states see Duursma, Self-Determination,

or Duursma, Fragmentation and the International Relations of Micro-States. Self-determination and Statehood, Cambridge: Cambridge University Press 1996. 84 Raič, Statehood, p. 60; ‘a people may lose its territory and a State may become extinct’ would, for the purpose

of this thesis, perhaps be a more fitting formulation. 85 McAdam, ‘“Disappearing States”’, p. 7. 86 German-Polish Mixed Arbitral Tribunal, Deutsche Continental Gas-Gesellschaft v. Polish State (1929),

Annual Digest/International Law Reports, 5 (11), pp. 14-15, in: Crawford, Creation of States, pp. 48-49. 87 Rosalyn Higgins, The Development in International Law through the Political Organs of the UN, London:

Oxford University Press 1963, p. 20, in: Crawford, Creation of States, p. 49. 88 Soons, ‘The Effects of a Rising Sea Level’, p. 230.

17

(ii) Uninhabited territory still above sea level

So far, this subsection has only assumed the scenario of complete submersion of the

territory. However, as emphasised earlier, such disappearance is more likely to happen

gradually than with complete suddenness. The question that arises next, is whether the islands

can still satisfy the territory criterion of statehood, when they have become deserted or

uninhabitable, but have not yet fully disappeared below the sea level. A more definite answer

to this question can be found in the central conditions of government and independence, but

some indications can be inferred from the territory criterion itself.

The first indication lies in the implicit link between territory and population, which has

been elaborated upon in the previous subsection. As McAdam explains, the formulation of ‘a

certain territory effectively governed’ assumes that there remains a population on that

territory which is to be governed.89

Furthermore, if a population requires a territory as the

physical basis for an organised community, that territory must in turn be inhabited by this

population if it is to serve as its physical basis. As Raič was quoted earlier: ‘[A]n uninhabited

territory – like Antarctica – (…) cannot qualify as a State.’90

However, this seems to relate in

a larger degree to the conditions for the creation of a State, and possibly in a lesser degree to

the consequences of a State already in existence. Thus, while it does provide a strong

indication for the possible end of statehood, the strong presumption of State continuity and the

possibility of derogations from the general statehood criteria, which will be discussed later on,

necessitate further investigation.

A second indication can be found in the legal regime concerning islands and maritime

boundaries as set out by the UN Convention on the Law of the Seas (UNCLOS)91

. Art. 121(1)

UNCLOS describes an island as ‘a naturally formed area of land, surrounded by water, which

is above water at high tide.’ Normally an island can generate all maritime zones, being the

territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf.

However, when the population has to leave an island in the face of the rising sea, it could

revert back into a ‘rock’ which cannot sustain human habitation or economic life of its own ex

Art. 121(3). An island in this sense loses the capacity to generate an exclusive economic zone

89 McAdam, ‘“Disappearing States”’, p. 7. 90 Raič, Statehood, p. 58. 91 United Nations Convention on the Law of the Seas (UNCLOS), 10 December 1982, available at

<.http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm>.

18

and continental shelf and can only have a territorial sea and a contiguous zone.92

A ‘rock’ can

in turn become a low-tide elevation, which Art. 13(1) considers as a ‘naturally formed area of

land, which is surrounded by and above water at low tide but submerged at high tide.’ They

are considered distinct from islands, because they are inundated at high tide.93

Following Art.

7 a low-tide elevation can only generate a territorial sea, and even for this it must be situated

wholly or partly inside the territorial sea of the mainland or an island.

The applicability of the UNCLOS, as a treaty, naturally hinges upon the existence of a

State. This notwithstanding, to consider this legal regime as an analogy for the territory

criterion of statehood can shed new juridical light on the situation. In this light, – even though

such a claim may be difficult to maintain in practice due to the aforementioned necessary link

between population and territory – an island which has become a rock in the sense of Art.

121(3), cannot categorically be excluded as a possible territorial basis for continued

statehood, because under the UNCLOS a ‘rock’ can still generate some (diminished)

territorial maritime claims.

However, the abovementioned UNCLOS-definitions ‘suggest that territory over which

jurisdiction can be exercised depends upon features existing above water at high tide’.94

Therefore, once the territory becomes submerged at high tide, when the island becomes a low-

tide elevation ex Art 13(1), the conclusion would be that it may no longer be relied upon for

the territory criterion of statehood, because it cannot be used autonomously for any

jurisdictional or territorial maritime claims.95

The only exception which could possibly remain

open in this case, is when lighthouses or similar installations which are permanently above sea

level ex Art. 7 have been built on the low-tide elevation. This so-called idea of a ‘sovereignty

marker’ as a possibility for continued statehood will be considered in the following chapter.

92 The exact meaning of the elements ‘human habitation’ and ‘economic life’ remains unclear. Considering the

more specific reasons why people have to leave an island, in the case of sinking islands, it would be a fair

argument to say that once they leave, an island no longer satisfies these elements. On the other hand, however, it

is also argued that an island can still meet these criteria if ‘lighthouses or similar installations which are

permanently above sea level have been built on them’. This, for example, leaves open the possibility of a

‘sovereignty marker’. See also Barbara Kwiatkowska, Soons, ‘Entitlement to Maritime Areas of Rocks Which

Cannot Sustain Human Habitation or Economic Life of their Own’, Netherlands Yearbook of International Law, 21 (1990), pp. 139-181, pp. 167-168, and Schofield, ‘The Trouble With Islands’, University of British Columbia

(August 2009), pp. 92-124, available at <.https://circle.ubc.ca/handle/2429/12624>. 93 Roberto Lavalle, ‘Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the

UN Law of the Sea Convention’, International Journal of Marine and Coastal Law, 19 (2004) 1, pp. 43-69, pp.

56-64. 94 Jared Hestetune, ‘The Invading Waters: Climate Change Dispossession, State Extinction, and International

Law’, California Western School of Law (January 15 2010), p. 30, available at

<.http://works.bepress.com/jared_hestetune/1/>. 95 Lavelle, ‘Not Quite a Sure Thing’, pp. 56-69.

19

(C) Capacity to enter into relations with the other States

The Montevideo Convention mentions this capacity as one of the requirements for statehood,

but it is not a capacity exclusive to States. International organisations, non-independent States

and other bodies can also enter into international legal relations.96

Instead, the more accepted

view is that it is a consequence of statehood, rather than a constitutive requirement.97

Crawford accordingly argues that this capacity is dependent on the power of government, and

this leads him to say that it ‘is a conflation of the requirements of government and

independence.’98

Shaw for example writes: “The essence of such a capacity is

independence.”99

Brownlie, in similar fashion, states that ‘the concept of independence is

represented by the requirement of capacity to enter into relations with other states.100

Therefore, focus will instead be had on the two elements of government and independence

respectively.

(D) Government

This chapter has up until now tried to deal with the population and territory criteria on their

own merits. However, as mentioned earlier, these criteria are generally interpreted as

constituents of the criteria of government and independence, because they ‘cannot be

separated’ from them.101

In fact, Crawford argues that government is ‘the most important

single criterion of statehood, since all the others depend on it.’102

Additionally, it is considered

key, because it satisfies ‘the other central criterion of independence’,103

which will be

considered hereafter. The legal foundation of the government criterion can be found in the

relation between the principle of effectiveness and the statehood criteria of population and

territory. It is therefore now question to explore how this remains to be interpreted when the

criteria of territory and population are no longer satisfied in the manner described earlier.

(i) Effective government

‘For a political society to function reasonably effectively it needs some form of

government or central control’, writes Shaw drawing from the Western Sahara case, but this

rather indicates ‘some sort of coherent political structure and society, than the necessity for a 96 Shaw, International Law, p. 202 97 Crawford, Creation of States, p. 61; Raič, Statehood, p. 74. 98 Crawford, Creation of States, p. 62. 99 Shaw, International Law, p. 202; Raič, Statehood, p. 74. 100 Brownlie, Principles, p. 71. 101 Crawford, Creation of States, p. 52; Raič, Statehood, p. 62. 102 Crawford, Creation of States, p. 56. 103 Ibid., p. 55; McAdam, ‘“Disappearing States”’, p. 8.

20

sophisticated apparatus of executive and legislative organs.’104

In similar fashion, Crawford

writes: “[T]o be a State, an entity must possess a government or a system of government in

general control of its territory. (...) International law lays down no specific requirements as to

the nature and extent of this control, except that it include some degree of maintenance of law

and order and the establishment of basic institutions.”105

Thus, while a wide array of definitions, interpretations and necessary elements is

conceivable, international law does not prescribe any exact form of government. In the end,

the requirement of government, whichever definition is chosen, is essentially found on the

principle of effectiveness. The essence of government or governmental control, is that it be

effective. It is firstly important to understand this principle in the light of the government

criterion for statehood itself, and next, if a government can still be considered effective once

population and territory are gone.

Raič says that to be effective, ‘there must be an entity or an organ capable of

establishing and maintaining a legal order throughout the territory.’106

The Aaland Island

Question is often used as a clarification for these issues surrounding government,

effectiveness and statehood, because the International Commission of Jurists had to determine

if and when Finland came into being as a State under international law. It applied the

government criterion – ‘in the absence of an exclusive right or title to exercise territorial

jurisdiction’ – strictly, and interpreted it as the ‘actual exercise of authority’.107

The necessary

existence of an effective government under these circumstances thus requires the actual

exercise of state authority over the claimed territory and the people residing in that

territory.108

However, there are some important exceptions to the general rule that the government

criterion must be satisfied on the basis of effectiveness.109

In 1960, the Republic of Congo’s

claim for statehood was recognised, even though ‘anything less like effective government (…)

would be hard to imagine’, according to Crawford.110

Admittedly, this took place to the

background of a formal grant of independence and the applicability of the right of self-

determination, but regardless, it demonstrates that under certain circumstances, statehood can

104 Shaw, International Law, p. 200. 105 Crawford, Creation of States, p. 58. 106 Raič, Statehood, pp. 62-63. 107 The Aaland Islands Question: Report of the Committee of Jurists, League of Nations Official Journal, Special

Supplement, 3 (1920), pp. 3-19, pp. 8-9; Crawford, Creation of States, pp. 58-59; Raič, Statehood, pp. 62-64,

72-73. 108 Raič, Statehood, p. 62. 109 Ibid., p. 65, p. 72. 110 Ibid., pp. 64-67; Crawford, Creation of States, p. 57.

21

be acquired, ‘despite a substantial lack or sometimes even a total absence of effective

government.’111

Belligerent occupation and annexation of a State are other examples where the lack of

effective government does also not directly lead to the extinction of the State. The occupation

of large parts of Europe during World War II, and the Dutch government, for example, which

went in exile in London during the war, show this much. This is in fact underlined by the

entire concept of government-in-exile, which will be discussed in further detail as a possible

solution for the islands’ statehood problems in the next chapter.

Civil war or anarchy does also not directly affect the continuity of a State’s

international personality. Such a situation transpired in Albania from 1997 until 2001, for

example, and ‘shows that even in a case of a temporary but completely ineffective

government (…) the presumption is against extinction and in favour of continuity of

statehood.’112

Key phrase is indeed ‘temporary’, because island disappearance is in all

likelihood and reality to be reckoned as permanent.

The situation in Somalia is perhaps the strongest argument in favour of the

presumption of state continuity. Somalia is generally considered a ‘failed State’, and has been

engulfed by civil war and arguably complete anarchy since 1991. There seems to be no form

of any governmental control whatsoever, society and economic life appear entirely

disintegrated, and no lasting solution is presented as readily available. Still, Somalia as a legal

entity does not appear to be genuinely challenged. Instead, the case of Somalia ‘seems to

suggest that in the case of an established State, the presumption is in favour of the continuity

of statehood not only when there is a prolonged period of ineffective government but even if

there is a prolonged period of absence of government.’113

Even though the precedence of the Somali case can be put into question, it does show

that not only a protracted period of ineffective government, but also a period of complete

absence of government does not by definition lead to the extinction of a State.114

‘[T]he

collapse of governance within a state (sometimes referred to as a “failed state”) has no

necessary effect upon the status of that state as a state’, says Shaw.115

How long such a period

may take is unclear unfortunately, but it is inherently of ‘provisional character’.116

This is

probably where the most fundamental problem for sinking islands lies, because for all

111 Raič, Statehood, p. 67. 112 Ibid., pp. 68-72. 113 Ibid., p. 71. 114 Ibid., p. 65, p. 72. 115 Shaw, International Law, p. 201. 116 Raič, Statehood, p. 72.

22

practical and legal purposes, the disappearance of territory and population is likely to be of

such permanent nature, that even the strong presumption of State continuity can bring no

solace.

And so, despite these exceptions, in the end ‘the subsistence of both new and

established States essentially depends on the (continued) existence of an effective

government.’117

This means that ‘if a situation of substantial lack of effective government

persists’, the government criterion can no longer be considered to be fulfilled; or putting it

more directly: “The persistent lack or absence of effective government will eventually lead to

the extinction of the State as an international person.”118

Indeed, Raič says that the

‘exceptions reflect the principle that international law is in favour of the continuity of a

State’s international personality in the absence of clear evidence to the contrary.’119

Such

evidence can arguably be found in the disappearance of population and territory.

(ii) Government in relation to disappearing population and territory

What must be examined next, is how the principle of effectiveness is translated when a

government is faced with the disappearance of its population and territory. Crawford writes

that a ‘State must consist of a certain coherent territory effectively governed’.120

Governmental power must then be ‘exercised, or capable of being exercised, with respect to

some territory and population.’121

McAdam, as quoted earlier, clarifies this: “[T]he general

requirement that States have ‘a certain coherent territory effectively governed’ assumes that

there remains a population on that territory to be governed.”122

It is in this way that the

population and territory criteria are considered constituents of the government criterion; if

they can no longer satisfied, consequently neither can the government criterion.

Following the gradual nature of island disappearance, the first problem for government

arises when the population criterion is no longer fulfilled. Crawford writes that governmental

power must be exercised with respect to some population: “[G]overnment is treated as the

exercise of authority with respect to persons and property within the territory of the State.”123

If governmental power is understood in this way, it would seem that without a population

there remains little effective authority to exercise in relation to them, because when the

117 Raič, Statehood, p. 67, emphasis added. 118 Ibid., p. 67, p. 73. 119 Ibid., p. 72. 120 Crawford, Creation of States, p. 52. 121 Ibid., p. 46, 56. 122 McAdam, ‘“Disappearing States”’, p. 7. 123 Crawford, Creation of States, p. 55.

23

population has left the State’s territory, most realistically they will eventually come to fall

under the jurisdiction of the State in which they then reside.124

McAdam accordingly says that

‘a substantial loss of population would start to erode the effectiveness of the State’s

government’.125

Along these lines, even though the territory might still physically exist, as

McAdam pointedly argues, the absence of population may provide the first indication of the

loss of statehood.126

This population issue links to the question which has been put forward earlier, whether

an uninhabited territory still above sea level at high tide could continue to fulfil the territory

criterion. The answer lies in the implicit link between population and territory, which has

been explicated earlier, and the assumption that there remains a population on the territory to

be governed. Governmental power must be exercised in relation to some population and

territory, but it does not seem that much relevant ‘governmental power’ in the sense of

statehood can be exercised if the entire territory of the State has become completely

uninhabited. By itself then, a territory which has become fully uninhabited can no longer

reasonably act as the constituent of the government criterion.

This conclusion applies a forteriori if in addition to no population the territory has

entirely disappeared, as Soons indicates in very strong wordings.127

If both criteria of

population and territory can no longer be met, there remains too little left to effectively

govern; the governmental powers are no longer capable of being exercised. In the words of

the UNHCR: “Should, the entire territory of a State be permanently submerged, inevitably

there could be no permanent population attached to it or a government in control of it.”128

Accordingly, the more decisive criterion of government could no longer be expected to be

met. In other words, a government cannot exist without a territory on which it bases its claim

to statehood, because without a population and territory, it cannot effectively exercise its

governmental authority. In fact, in the long run, lack of population and territory will likely

result in failure to maintain any State authority at all.129

It would seem rather self-evident that the government criterion can no longer be

fulfilled if there is no population or territory to govern, but the previous subsection delineated

certain exceptions to the general rule of actual exercise of authority, which allow for a lack of

124 McAdam, ‘“Disappearing States”’, p. 12. 125 Ibid., p. 22. 126 Ibid., p. 2. 127 Soons, ‘The Effects of a Rising Sea Level’, p. 230. He seems to jump right to the conclusion when he writes:

“If in addition there is no island territory left it can be concluded that the State no longer exists.” 128 UNHCR, supra note 44. 129 Crawford, Creation of States, p. 92.

24

effective government or indeed absence of government without the State directly becoming

extinct. These exceptions to effective government are based on the strong presumption of

State continuity and reflect the ‘distinction between creation of a new State on the one hand

and the subsistence or extinction of an established State on the other.’130

This means that in

the case of State continuity, the criterion of effective government may be applied less

strictly.131

More practically, it is premised on the idea that government has two aspects, being

the actual or effective exercise of authority, and the right or title to exercise that authority. If

one of these aspects is present, the government criterion is to be considered satisfied.132

Government may thus be understood as ‘based on a legitimate title to exercise

authority over territory and people’, which does not necessitate the exercise of ‘full control

over the territory of the State and its inhabitants.’133

Full control may not be necessary, but,

some form of central or general control does seem implicitly required. As was argued earlier,

without population or territory, no government authority or control can be exercised in

relation to it. The first aspect of actual or effective government is thus not present. This need

not stand in the way of fulfilment of the government criterion, however, if the second aspect

of government, a right or title, is present.

Full control over the territory and its inhabitants is not a condition sine qua non ‘in

those cases where there is an exclusive right to exercise authority or jurisdiction’.134

The case

of sinking island-States involves State continuity and no (legitimate) competing claims over

the territory. The effective government criterion may accordingly be applied less stringently,

and does not have to interpreted as the ‘actual exercise of authority’. The existence of a right

or title to exercise that authority will satisfy the criterion of government. However, when the

population and territory no longer exist, the legal right or title of the second aspect would

become void, because there is nothing to exercise authority over.

The exceptions to the necessity of an effective government do hence not apply and

consequently the government criterion could no longer be considered fulfilled, because

neither of the two aspects which Crawford distinguishes is present. Raič indeed says that lack

of an effective government does not stand in the way of statehood when there is an exclusive

right to govern, ‘provided that the other criteria for statehood are satisfied’.135

However, as

has been argued earlier, the constituent criteria for government, a permanent population and a

130 Crawford, Creation of States, p. 59. 131 Ibid. 132 Ibid.; Raič, Statehood, p. 408. 133 Raič, Statehood, p. 413. 134 Ibid., p. 408, 413. 135 Ibid., p. 72, emphasis added.

25

defined territory, can at a certain point of sufficient sea level rise no longer be considered

satisfied.

On a more fundamental level, the government requirement no longer appears satisfied,

because the basic legal principles of statehood are premised on the continued existence of

population and territory. All other criteria may depend on the criterion of government, but a

government also depends on the continued existence of its population and territory. The

exceptions to the government criterion are essentially also based on this idea and are

ultimately of temporary and exceptional nature.136

For example, ‘in the case of Somalia’, as

Maas and Carius say, ‘there is at least the prospect of return to a defined territory – an option

which may be unavailable for island states until sea levels begin to fall again.’137

Both aspects of Crawford’s distinction concerning government also require this

continued existence. This reflects the Westphalian understanding of a State in terms of

population and territory which are indeed inseparable from the government criterion. The

presumption may be strongly against extinction and in favour of continuity of statehood, but

the lack of population and territory provides arguably even firmer evidence to the contrary.

Despite the broad limits of State continuity, as constituents of the central criterion of

government, the presumptions of continued existence of population and territory seem to form

the outer limits within which government can be deemed to exist.

(E) Independence

So far only the explicit or formal criteria set out by the Montevideo Convention have been

subject of analysis, and albeit authoritative, Brownlie finds it ‘no more than a basis for further

investigation.’138

This leads to examination of another criterion, independence, which

Crawford calls ‘the central criterion for statehood’.139

It is essential, because ‘[t]o become a

State a territorial and political entity must be “independent”’.140

Elaborating, Duursma notes

that ‘[i]t is not so much the independence of States but of governments that is required.’141

The relevance of the requirement of an effective government, for instance, lies in the fact that

it is ‘directly related to the idea that a State must be independent.’142

Loss of independence as

a consequence means loss of statehood: “La perte de l’indépendence coïncide nécessairement

136 McAdam, ‘“Disappearing States”’, p. 7. 137 Maas and Carius, ‘Territorial Integrity and Sovereignty’, p. 9. 138 Brownlie, Principles, p. 70. 139 Crawford, Creation of States, p. 62. 140 Raič, Statehood, p. 74. 141 Duursma, Self-Determination, p. 116. 142 Raič, Statehood, p. 73.

26

avec la disparition de l’Etat”.143

Therefore, the relevant central question is whether an island-

State faced with the physical loss of population and territory can still be considered

independent for the purpose of statehood requirement. It is this decisive criterion which will

be discussed next.

Crawford notes the preliminary importance of distinguishing between independence as

‘an initial qualification for statehood and as a condition for continued existence.’144

In the

latter case, the strong presumption of State continuity may, even for a considerable time,

allow a State to continue to exist as a legal entity even though it lacks effectiveness.145

Thereupon, Crawford says that ‘[t]he context in which the claim to independence or to loss of

independence is made is thus highly significant.’146

The context in the case of sinking island-

States, however, is that of permanent physical loss of population and territory following

which the formal criteria of statehood will no longer be satisfied. As argued earlier, the legal

presumption of State continuity could therefore lack a factual basis to support the continued

existence of a sinking island-State over a prolonged period of time.

The explanation given by Judge Anzilotti in the Austro-German Customs Union case

has become the most commonly accepted definition of independence. He stated:

[T]he independence of Austria (…) is nothing else but the existence of Austria, within the

frontiers laid down (…), as a separate State and not subject to the authority of any other State

or group of States. Independence as thus understood is really no more than the normal

condition of States according to international law; it may also be described as sovereignty

(suprema potestas), or external sovereignty, by which it is meant that the State has over it no

other authority than that of international law.147

As long as a State is thus not placed under the legal authority of another State, it

‘maintains its status as an independent country.’148

Raič explains this as that a State as a

separate territorial and political entity must possess ‘the legal capacity to act as it wishes,

within the limits given by international law.’149

Crawford correspondingly discerns two main

elements of independence: “[T]he separate existence of an entity within reasonably coherent

143 Charles E. Rousseau, Droit International Public, Vol. III (1997), p. 330, in : Duursma, Self-Determination, p.

116. 144 Crawford, Creation of States, p. 63. 145 Ibid. 146 Ibid. 147 Permanent Court of International Justice, ‘Customs Régime between Germany and Austria’, Series A/B 41

(1931), Individual Opinion by Judge Anzilotti, p. 57. 148 Shaw, International Law, p. 212. 149 Raič, Statehood, p. 75.

27

frontiers; and its not being ‘subject to the authority of any other State of group of States’,

which is to say that it has over it ‘no other authority than that of international law’.”150

The first element of a State’s ‘separate existence’ is dependent ‘upon the exercise of

substantial governmental authority with respect to some territory and people.’151

As this thesis

argues, when sea level rise persists, most realistically these statehood criteria of population,

territory and government will eventually no longer be satisfied by the sinking island-States.

Accordingly, their separate existence as a political and territorial entity becomes in doubt. The

second element, ‘the legal capacity to act as it wishes’ or ‘the absence of subjection to the

authority of another State or States’, leads to the distinction between formal and real or actual

independence.152

(i) Formal independence

Independence is generally divided between formal and real or actual independence,

both of which an entity must possess in order to qualify as a State.153

According to Crawford

‘[f]ormal independence exists where the powers of a government of a territory (in internal and

external affairs) are vested in the separate authorities of the putative State.’154

Raič specifies it

slightly more when he says that these powers must be ‘vested exclusively in one or more

separate authorities (…) as a result of its national law’.155

Considering that the island-States

discussed are already in existence, have functioning governmental apparatuses and that they

have been widely recognised as such, formal independence will not likely be the stumbling

block. As Brownlie says, ‘if an entity has its own executive and other organs, conducts its

foreign relations through its own organs, has its own system of courts and legal system and,

particularly important, a nationality law of its own, then there is prima facie evidence of

statehood.’156

However, formal independence can act to mask the lack of actual

independence.157

A formally independent entity can effectively be controlled by another State

for example when foreign control ‘is exercised in fact through the ostensibly independent

150 Crawford, Creation of States, p. 66. 151 Ibid., p. 66. 152 Ibid., p. 66 ff; Raič, Statehood, p. 75 ff. 153 Duursma, Self-Determination, p. 117; Raič, Statehood, p. 77, 82. 154 Crawford, Creation of States, p. 67. 155 Raič, Statehood, p. 76. 156 Brownlie, Principles, p. 72. 157 Crawford, Creation of States, p. 88.

28

machinery of state.’158

Because a State needs to remain in charge of its own decision-making

process, actual independence is also required.159

(ii) Actual independence

Actual or real independence is defined by Crawford as ‘the minimum degree of real

governmental power at the disposal of authorities of the putative State that is necessary for it

to qualify as “independent”.’160

According to Raič it ‘means that the decisions and actions of

the putative State must be its own, that is to say, it must be the putative State as such, and not

a third State, which can be held responsible under international law for the actions of the

putative State.’161

Still, it can be difficult to reach a conclusion on actual independence,

because it is a ‘matter of degree [and] political fact’ which means that evaluation is very

casuistic; ‘specific cases may raise serious problems of appreciation’, in the words of

Crawford.162

Nevertheless, he identifies some factors relevant to the case of sinking islands.

One of these is diminutive size and resources, which do not in themselves stand in the way of

actual independence, yet due to the requirement of a defined territory, such cannot be said of a

territory fully disappeared.

A situation which does derogate from actual independence is substantial external

control of the State. As Duursma notes, a State must demonstrate sufficient control over its

external and internal affairs if it wants to qualify as actually independent.163

According to

Crawford, ‘[a]n entity, even one possessing formal marks of independence, which is subject

to foreign domination and control on a permanent or long-term basis is not “independent” for

the purposes of statehood in international law.’164

Following these considerations, even

though ‘the degree of actual independence necessary (…) is slight’, actual independence

cannot be proved when there is ‘foreign control overbearing the decision-making of the entity

concerned on a wide range of matters of high policy and doing so systematically and on a

permanent basis.’165

While it is arguably difficult to determine exactly when ‘foreign

influence becomes “control” or “domination”’,166

there are some important factual

consequences for sinking islands which cannot be overlooked.

158 Brownlie, Principles, p. 72. 159 Raič, Statehood, pp. 77-78 160 Crawford, Creation of States, p. 72. 161 Raič, Statehood, p. 78. 162 Crawford, Creation of States, p. 72. 163 Duursma, Self-Determination, pp. 120-121. 164 Crawford, Creation of States, p. 76. 165 Brownlie, Principles, p. 72; Crawford, Creation of States, pp. 85-86; Duursma, Self-Determination, p. 121. 166 Crawford, Creation of States, p. 76.

29

First of all, once the entire population has had to abandon the island-State’s territory,

the people will essentially fall under the territorial jurisdiction of the State they then reside

in.167

With respect to its population, the island-State’s government will thus be severely

restricted in its ‘legal capacity to act as it wishes’. A ‘government should be able to take

decisions without having to abide by external rules’, according to Duursma,168

but with its

population under external jurisdiction this is doubtful at best. One can imagine the serious

impediment to some of the elementary functions of a State, such as the taxation of income, the

monopoly of power and judicial enforcement. Secondly, unless some territory will be ceded to

the vanishing State – a possibility which will be discussed further on in this thesis –, once the

territory fails to meet its statehood criterion, the State’s sovereignty will be frustrated even

more decidedly.

Because the government will have to function outside its own territory, McAdam

considers this situation within limits analogous to that of a government in exile. She says:

“[P]rovided the government in exile’s functions are not interfered with, or controlled by, the

host State (or any other), its independence is preserved.”169

When both population and

government are ultimately under foreign jurisdiction, the government’s functions are

interfered with by definition almost, especially in the case of sinking islands. Still, the concept

of government in exile is often used in the case of belligerent occupation or illegal

annexation, and is as such seen as not derogating from actual independence.170

However,

McAdam also says that ‘it has [traditionally] operated on the assumption that it is a time-

bound mechanism’, and at the same time she recognises that ‘[o]ver time, the function of the

government in exile will wane’ exactly because both population and government reside in a

host State permanently.171

This means that ultimately the island-State’s government-in-exile

falls and, most importantly, will continue to fall under foreign control systematically and on a

permanent basis, inevitably resulting in lack of actual independence.

Duursma says that a ‘substantial limitation of sovereignty in favour of a third State,

leads to loss of independence’.172

While a sinking island-State can arguably retain its formal

independence, eventually, due to the specific factual consequences of this case, the

government will come to fall under such substantial external control that it will lack sufficient

actual independence. Importantly, as Brownlie writes, ‘there is no justification for ignoring

167 McAdam, ‘“Disappearing States”’, p. 11. 168 Duursma, Self-Determination, p. 117. 169 McAdam, ‘“Disappearing States”’, p. 9. 170 Crawford, Creation of States, p. 73. 171 McAdam, ‘“Disappearing States”’, pp. 10-11. 172 Duursma, Self-Determination, p. 116.

30

evidence of foreign control’.173

Despite the fact that exceptions in the light of political

considerations remain possible, something Brownlie also recognises,174

in the light of all the

foregoing and the particular circumstance of both population and government ultimately

falling under foreign control, the general conclusion must be that a sinking island-State will

eventually no longer be able to be considered independent for the purpose of statehood.

II. Concluding remarks

This chapter has attempted to approach statehood as a set legal system, thereby following an

arguably strict interpretation of the legal framework, while focusing on the formal legal

consequences for statehood in the light of complete physical loss of territory. It has evaluated

if and how the criteria of statehood – permanent population, defined territory, effective

government and independence – can continue to be satisfied for sinking island-States.

The first conclusion is that if and when sea level rises persistently, eventually a

population having had to abandon the island-State’s territory means that the population

criterion will no longer be fulfilled. This will probably be the first indication of the loss of

statehood, a strong argument introduced by McAdam. Secondly, with sufficient sea level rise,

at a certain point in time the territory criterion can also no longer be met. While it is difficult

to determine exactly when this will happen, at a minimum, a territory completely inundated at

high tide will not be able to satisfy the territory criterion. In any event, disappearance of

territory will certainly reinforce the indication of end of statehood due to loss of population.

While it is important to understand the facts and to see what consequence this has on

the criteria of population and territory, the legal crux for statehood lies in the effect physical

loss of these criteria in turn has on those of government and independence. A government will

no longer be able to exercise any authority, let alone effective authority, in relation to a

population and territory which no longer exist. International law provides certain exceptions

to the general requirement of effective government, but these exceptions are in the end

premised on the continued existence of population and territory, a proviso not present in the

case of sinking island-States.

Most centrally and decisively, due to the loss of the formal statehood criteria, a sinking

island-State will ultimately no longer be able to be considered as a separate or independent

legal entity for the purpose of statehood. This means that the general conclusion inside the

formal legal framework of statehood will be that eventually the Maldives, Kiribati, the

173 Brownlie, Principles, p. 72. 174 Ibid.

31

Marshall Islands and Tuvalu are faced with the imminent loss of their statehood with all due

consequences. Crawford writes that ‘[a] State is not necessarily extinguished by substantial

changes in territory, population or government, or even, in some cases, by a combination of

all three’,175

but it appears that complete physical disappearance goes beyond ‘substantial

change’.

Still, as has been asserted, this is the general conclusion following a strict

interpretation of the formal legal framework of statehood. Because the field of tension

between the declaratory and constitutive theories allows for special exceptions and

derogations in the light of political considerations which could have a bearing on statehood,

this chapter has acted as a legal point of departure, and it is next necessary to investigate

which options could remain open for the sinking island-States.

175 Crawford, Creation of States, p. 700.

32

3. Continuing statehood

Up to this chapter, this thesis has looked at the legal issues in a strict or formal manner, trying

to find a more general conclusion as to the fate of sinking island-States; as said, to find a legal

point of departure. The previous chapter then came to the preliminary or general conclusion

that the Maldives, Kiribati, the Marshall Islands and Tuvalu will be faced with the loss of

their statehood, should sea levels rise sufficiently to threaten the continued habitability of

their territories. It is said preliminary or general with reason, because several possibilities

arguably remain open through which statehood, or some alternative form or manner of

international legal personality, can be retained in the face of rising sea levels. On the one

hand, the existing legal framework of statehood possibly offers some traditional methods in

which the islands can deal with the physical and subsequent legal threats to their statehood.

On the other hand, it is possible to argue that international law is currently not sufficiently

equipped or developed to address the issue of sinking island-States adequately and that

alternatives or novel principles must be explored in order to deal with the islanders’

predicament in a satisfactory manner. Either way, this chapter attempts to explore such

possibilities open to island-States; it attempts to explore the possibilities of if, how and why

threatened island-States could continue to exist as legal entities recognised by international

law.

I. Mitigation, protection, adaptation

The primary concern of endangered island-States would of course be to somehow mitigate the

effects of climate change and to halt sea level rise. For example, the Ambo Declaration of 10

November 2010 issued at the Tarawa Climate Change Conference calls for ‘more and

immediate action to be undertaken to address the causes and adverse impacts of climate

change’.176

That mitigation is the primary concern was also continually stressed at the

Threatened Island Nations Conference held at Columbia University in May 2011 (hereinafter:

Columbia Conference).177

Nevertheless, it is a very real possibility that such endeavours to

prevent or mitigate sea level rise will ultimately be unsuccessful, because international

support and cooperation may prove to be an important stumbling block. The Kiribati

176 Ambo Declaration, 10 November 2010, available at

<.http://www.climate.gov.ki/pdf/Government%20Policies/political%20statements/AMBO_DECLARATION%2

010th%20November%202010.pdf>. 177 Columbia Law School, Center for Climate Change Law, ‘Threatened Island Nations: Legal Implications of

Rising Seas and a Changing Climate’, Columbia University, 23-25 May 2011,

<.http://www.law.columbia.edu/centers/climatechange/resources/threatened-island-nations>, see also the

Detailed Conference Notes.

33

government, for example, recognises this problem and states that ‘while the climate talks on

Tarawa may have put the drowning atoll nation on the map, this will not promise its continued

existence.’178

It is thus necessary to look beyond mitigation of sea level rise itself. The first serious

option open to island-States such as the Maldives, Tuvalu, Kiribati and the Marshall Islands

would then logically be to protect their territory through some form of physical adaptation,

such as elevation, reinforcement or the construction of sea walls.179

The Office of the

President of Kiribati indeed states that ‘Kiribati is much more focused on adapting to rather

than mitigating climate change.’180

Such protective measures may seem pretty factual, but

there are still some legal issues which arise in this context. The discussion basically becomes

how far an island-State can go to maintain the natural and inhabited status. The question has

been raised, for example, whether such protection activities should be considered as

reinforcement or at some point as the construction of an artificial island.181

This means

exploring whether an artificially constructed island or installation could satisfy the defined

territory criterion.

(A) Protecting existing territory

It is generally recognised under international law that in order to maintain status as a natural

and inhabited island, threatened coastal States can act to physically protect the integrity of

their territory.182

The Japanese island of Okinotorishima is probably the most famous (and

most debated) example of the possible extent of such protection measures. If the island-State

wants to maintain a defined territory for the purposes of statehood, the adaptation plan would

have to make sure that at least some part of the territory remains habitable, and moreover that

the territory actually stays inhabited.183

Yamamoto and Esteban describe human inhabitation

178 The climate change portal of the Office of the President of Kiribati, Climate change in Kiribati, ‘Tarawa

Climate Change Conference issues the Ambo Declaration’,

<.http://www.climate.gov.ki/news/20101112_Ambo_declaration.html>, visited on 15-7-2011. 179 Freestone, ‘Maritime Jurisdiction Zones and Challenges Faced by Threatened Island Nations in Asserting

Climate Change’, presentation held at the Columbia Conference, available at

<.http://www.law.columbia.edu/centers/climatechange/resources/threatened-island-nations/tin_video_archives>. 180 The climate change portal of the Office of the President of Kiribati, Climate Change in Kiribati, ‘Strategies for dealing with climate change in Kiribati: Mitigating climate change’,

<.http://www.climate.gov.ki/Kiribati_climate_change_strategies.html#apm1_1>, visited on 15-7-2011. 181 Joeli Veitayaki, Pio Manoa, Alan Resture, ‘Pacific Islands and the Problems of Sea Level Rise Due to

Climate Change’, Ocean Policy Research Foundation, Proceedings of International Symposium on Islands and

Oceans, 22-23 January 2009, pp. 55-69 , p. 60, available at

<.http://www.sof.or.jp/en/report/pdf/200903_ISBN978-4-88404-217-2.pdf>. 182 Rayfuse, ‘W(h)ither Tuvalu?’, p. 4. 183 Jenny Grote Stoutenburg, ‘When Do States Disappear? Thresholds of Effective Statehood and the Continued

Recognition of "Deterritorialized" Island States’, presentation held at the Columbia Conference.

34

in this sense as ‘the capacity of living in the island on the basis of the natural resources of the

island, in a stable community which is an institutionalized human group without external

assistance’.184

One question thereupon relates to the size of the population that must remain on the

island for it to qualify as territory for the purposes of statehood. In the previous chapter it was

established that there is an implied nexus between territory and population. It is therefore

necessary that at least some part of the population will be able to remain on the reinforced and

protected island. According to Groute Stoutenburg, the first option would be to retain a

‘population nucleus’, which would serve as the ‘legal’ anchor for the population which has

relocated.185

At the Columbia Conference it has been proposed that this ‘population nucleus’

should number around fifty people and also Yamamoto and Esteban have said that ‘five

people would be considered few, but if there were fifty people it would be enough for [the

island] to be classified as inhabited’ in the sense of the definition mentioned in the previous

paragraph.186

In theory, however, there is still no minimum population size and it may indeed

be very casuistic. Any exact number will on these grounds seem arbitrary. However, while

theory dictates no minimum size, the people that remain on the island, the ‘population

nucleus’, must in practice still be able to objectively qualify as a permanent population. In

other words, if the island wants to retain its inhabited status, the protected territory must be

able to house a population ‘in the true sense of the term’, meaning that the people must meet

certain minimum qualitative standards, such as having the will to live together and a basic

infrastructure that enables them to do so.187

When the territory becomes truly uninhabitable, the other option, she argues, would be

a ‘caretaker population’ charged with some specific task, such as taking care of a

lighthouse.188

Grote Stoutenburg mentions Vatican City as an example, but Duursma argues

that because the inhabitants of the Vatican City do ‘not have a permanent attachment to the

Vatican territory’ there is no permanent population in the meaning of the criteria for

statehood.189

This ‘caretaker population’ would thus keep up ‘a semblance of a population’,

but would not objectively satisfy the statehood criterion of a permanent population.190

However, Grote Stoutenburg argues that this semblance of a population kept up by the

184 Yamamoto, Esteban, ‘Vanishing Island States’, p. 5. 185 Grote Stoutenburg, ‘When Do States Disappear?’. 186 Yamamoto, Esteban, ‘Vanishing Island States’, p. 5. 187 Grote Stoutenburg, ‘When Do States Disappear?’. 188 See also Yamamoto, Esteban, ‘Vanishing Island States’, p. 5, who draw more heavily on the UNCLOS. 189 Duursma, Self-Determination, p. 458. 190 Grote Stoutenburg, ‘When Do States Disappear?’.

35

‘caretaker population’ would help other States in continuing to recognise the statehood. She

argues that the continuation of recognition would then be constitutive rather than declaratory

and that this would ‘preserve statehood in the sense of a legal fiction.’ Under general

international law the island-State would thus lose its statehood, but its international legal

personality could be retained through and based on the continued recognition and the

continuation of diplomatic relations. In that case, however, it might be more useful to turn to

the novel principle of ‘deterritorialised State’ or ‘nation ex situ’ as introduced by Rayfuse and

Burkett respectively, which would achieve the same result as a ‘caretaker population’, without

the need of such ‘a semblance of a permanent population’. This option will be discussed in

further detail later in this chapter.

This first form of traditional sea defences seemingly offers the most straightforward

and least complicated legal solution, but there are many practical difficulties which are likely

to prove too difficult to be overcome.191

Freestone provides a powerful example of Fanafuti,

the main island of Tuvalu on which a large part of the population lives: “The land form of

Fanafuti is so narrow and attenuated that in order to protect its 2.5 square kilometres, 54

kilometres of sea defences would have to be constructed.”192

The vulnerabilities of small

island nations are furthermore not only due to their physical traits, but also due to their low

adaptability. Whereas a wealthier country such as The Netherlands, which is threatened by the

seas as well, has more means to protect itself, small atoll nations have limited adaptation

options due to their restricted resources.193

It is often claimed that such protective measures by

small islands-States are ‘likely to prove prohibitively expensive and generally unrealistic in

light of the sheer scale of the challenge.’194

This leads Yamamoto and Esteban to claim that

‘[g]enerally the creation of (...) protection works could ultimately prove to be

unsustainable.’195

(B) Creating new territory: artificial islands and installations

If protection of the existing territory proves impossible, even in keeping the tiniest bit

habitable for the statehood purposes of territory and population as defined in the previous

191 Maas, Carius, ‘Territorial Integrity and Sovereignty’, p. 7; Yamamoto, Esteban, ‘Vanishing Island States’, p.

3, p. 7. 192 James Lewis, ‘Sea Level Rise: Some Implications for Tuvalu’, Ambio, 18 (1989) 58, in: Freestone,

‘International Law and Sea Level Rise’, pp. 115-116. 193 Mimura, Nurse, e.a., ‘Small Islands’, pp. 706-707; Veitayaki, Manoa, Resture, ‘Pacific Islands and the

Problems of Sea Level Rise Due to Climate Change’, p. 56. 194 Schofield, ‘Against a Rising Tide: Ambulatory Baselines and Shifting Maritime Limits in the Face of Sea

Level Rise’, Proceedings of International Symposium on Islands and Oceans, pp. 70-77 , p. 76. 195 Yamamoto, Esteban, ‘Vanishing Island States’, p. 7.

36

subsection, another option, according to Grote Stoutenburg, would be to create new territory

by means of an artificial island or installation.196

The following discussion concerns the

creation of entirely new territory, unconnected to existing territory. In theory this option exists

and is distinct from the protection or reclamation of existing territory, yet this proposition

knows several legal as well as practical difficulties.

Firstly, Grote Stoutenburg distinguishes between artificial islands and artificial

installations, the former of which, she argues, would still qualify as defined State territory on

the basis of fairness, despite the different status under the law of the seas than a natural island

and the incapacity of the artificial island to generate maritime zones.197

In practice, however,

it might be impossible, if not meaningless, to distinguish between an artificial island and an

artificial installation. The UNCLOS arguably provides an example of the distinction’s

inapplicability, because it differentiates between artificial and naturally formed islands, but

not between artificial islands and installations, which are both caught under article 61(8).

Secondly, if the challenge to protect the existing islands’ habitability already proves to

be too big, creating an entirely new artificial and habitable island will presumably be even

more gargantuan a task and thus not very realistic. In that light, it might in fact be more

efficient and realistic to construct an installation or structure on some existing stretch of land,

rather than to create land entirely anew. Still, the thought can be entertained that an island-

State attempts to create some sort of artificial structure, in- or outside of its territory, on which

it could try to base its territorial statehood claim. In fact, it is not even without precedent.

In the case re Duchy of Sealand, a claim to statehood was made for the Principality or

Duchy of Sealand.198

The Principality was vested on a former anti-aircraft platform, which

was outside the territorial waters of the United Kingdom and which served as the legal basis

for its statehood plea. First of all, the German administrative court described the installation

as an artificial island, which demonstrates the difficult and possibly irrelevant distinction

between both. Secondly, the court ruled that the Principality did not meet the criteria of

statehood, among others because it did not possess ‘a State territory within the meaning of

international law.’ It came to the following conclusion: “[O]nly those parts of the surface of

the earth which have come into existence in a natural way can be recognised as constituting

State territory. A man-made artificial platform, such as the so-called ‘Duchy of Sealand’,

cannot be called either ‘a part of the earth’s surface’ or ‘land territory’ because it does not

196 Grote Stoutenburg, ‘When Do States Disappear?’. 197 Ibid. 198 In re Duchy of Sealand Administrative Court of Cologne, 3 May 1978, International Law Reports, 80 (1989),

pp. 683-685.

37

constitute a segment of the earth’s sphere.” Thirdly, the Principality could not satisfy the

permanent population criterion, because life of a community was lacking and because the

persons living on the platform did not form ‘a cohesive vibrant community.’

In the light of this ruling it appears that an artificial installation will certainly not

suffice to objectively qualify as a defined territory. A so-called ‘sovereignty marker’, whereby

some sort of tall lighthouse structure would be built on the submerged island, does, in the

light of these considerations, also not seem a viable legal solution, because in any case it must

be able to house a permanent population.199

The ruling, however, does appear to leave room

for the creation of a new piece of the earth’s surface, but even if for all practical purposes this

can be distinguished from an artificial installation, the option surely does not appear realistic

if the protection of existing territory has already proven an insurmountable obstacle.

Furthermore, if it is treated as an analogy – and thereby bypassing what Grote Stoutenburg

has said about the irrelevance of the different status and the incapacity of artificial islands to

generate maritime zones –, the fact that the UNCLOS does not allow artificial islands or

installations to generate maritime zones arguably demonstrates that neither will be readily

accepted as State territory.

II. Relocation: cession and merger

If it proves impossible to protect the territory and sustain its habitability, it is possible for the

State and the population to find new (existing) territory in order to retain statehood. This can

be achieved through either cession of territory or merger with one or more other States.

(A) Cession

Relocation following cession of territory from another State is a more apparent and traditional

possibility to retain statehood.200

The Kiribati government, for example, states that ‘relocation

will always be viewed as an option of last resort’ and that it wants to ‘preserve Kiribati as a

sovereign and habitable entity’, but at the same time acknowledges the reality that relocation

199 Yamamoto, Esteban, ‘Vanishing Island States’, p. 3, p. 5; Robert Jennings, Arthur Watts, (eds.), Oppenheim’s

International Law. Volume I. Peace: Parts 2 to 4, London: Longman Group 1992, p. 604. 200 Soons, ‘The Effects of a Rising Sea Level’, pp. 229-230; Brownlie, Principles, pp. 128-129; Moritaka

Hayashi, ‘Sea Level Rise and the Law of the Sea: Legal and Policy Options’, Proceedings of International

Symposium on Islands and Oceans, pp. 78-90, pp. 84-85; Susin Park, ‘Climate Change and the Risk of

Statelessness: The Situation of Low-lying Island States’, UNHCR, Division of International Protection, Legal

and Protection Policy Research Series, May 2011, PPLA/2011/04, p. 18; Shira Honig, ‘Climate Change and

Statelessness: When does a state disappear?’, Climatico, 15 June 2011, available at

<.http://www.climaticoanalysis.org/post/climate-change-and-statelessness-when-does-a-state-disappear/>.

38

of the I-Kiribati may be inevitable.201

Some States have already begun to explore this option

and the Maldives has actually set up a fund for possible future land purchase.202

If the island-

State can obtain a habitable piece of land through cession, the constitutive criteria for

statehood can positively still be satisfied.203

As Soons suggested at the Columbia Conference, cession may not be the most realistic

option, but at least in theory the option exists. ‘Cession of state territory is the transfer of

sovereignty over state territory by the owner-state to another state’ and ‘every state as a rule

can cede a part of its territory to another state’.204

There are accordingly many historic

examples and precedents of cession, such as the sale of Alaskan territory by Russia to the

United States in 1867.205

Such transfer of territory is often arranged through a treaty of

cession.206

Nevertheless, cession carries many practical problems, among which is the quality of

land.207

While cession may not even seem probable in itself, any territory ceded will likely not

be very valuable to the ceding State and may in fact be largely uninhabitable.208

Hayashi, for

example, writes: “[Cession] would be a best solution for the island State. In practice,

however, it appears to be rather unrealistic today for any State to donate or sell part of its

territory fit for human settlement to another State.”209

Maas and Carius state: “While this

option may be conceivable, it appears unlikely today that territory may be ceded unless it is

devoid of any other use or purpose, including being culturally insignificant to the selling

State.”210

If ceding complete sovereignty over territory proves too much of an obstacle for the

ceding State, a somewhat of a middle-way, and arguably even more theoretical, solution could

be a condominium, following which both States would exercise sovereignty equally

201 The climate change portal of the Office of the President of Kiribati, Climate change in Kiribati, ‘Strategies:

Relocating from climate change’, available at

<..http://www.climate.gov.ki/Kiribati_climate_change_strategies.html#apm1_3>. 202 See e.g. Randeep Ramesh, ‘Paradise almost lost: Maldives seek to buy a new homeland’, The Guardian, 10

November 2008, <.http://www.guardian.co.uk/environment/2008/nov/10/maldives-climate-change>, visited on

4-8-2011, or Nicolas Schmidle, ‘Wanted: A New Home for My Country’, The New York Times, 8 May 2009,

<.http://www.nytimes.com/2009/05/10/magazine/10MALDIVES-t.html>, visited on 16-7-2011; Maas, Carius, ‘Territorial Integrity and Sovereignty’, p. 9. 203 Soons, ‘The Effects of a Rising Sea Level’, p. 230; Rayfuse, ‘W(h)ither Tuvalu?’, p. 7. 204 Jennings, Watts, Oppenheim’s International Law. Part 2, pp. 679-680. 205 Ibid., p 682. 206 Cassese, International Law, p. 83; Shaw, International Law, pp. 499-500, pp. 973-974. 207 Oliver, ‘A New Challenge to International Law’, pp. 214-215. 208 Rayfuse, ‘W(h)ither Tuvalu?’, p. 8. 209 Hayashi, ‘Sea Level Rise and the Law of the Sea’, p. 85. 210 Maas, Carius, ‘Territorial Integrity and Sovereignty’, p. 10.

39

conjointly over the territory and its inhabitants.211

There are some examples of condominia in

international law, but it is unclear whether it will be enough to satisfy statehood when this is

the only territory a State has sovereignty over. It could furthermore be hindered by the fact

that it is not an exclusive claim or title to territory. Even if pursuing this option is seen as

having merit, again there will likely be many practical issues, such as the exploitation of the

land and possibly the different maritime zones. Such troubles could be resolved through some

sort of joint or shared exploitation agreement, but much like the problem with cession, the

question is whether any State can be found willing to relinquish or share even some of its

profitable land and sovereignty.

(B) Merger

Merger of the island-State with a non-threatened State is a second possibility of relocation

recognised by international law.212

This could be achieved either by creating a new State or by

absorption into an existing State.213

This new State could take the form of a federation or

confederation, through which the possibly still existing maritime zones could be

administered.214

Hayashi, for example, writes: “[T]he best solution, is for the island State,

through a treaty, to establish a fusion with another State, or form some kind of federation with

another State, and the entire population migrates into the new territory.”215

According to

Soons, merger or fusion is a realistic and attractive solution, also because ‘the remaining

uninhabitable islands may still generate maritime zones for the new State, and also the pre-

existing maritime delimitation treaties may remain effective.’216

Rayfuse is more critical of the consequences of an entire population having to be

relocated into what she believes will essentially be a host State. While the maritime zones can

be retained in this way, these rights would next belong to the host State. According to her,

‘[t]he disappeared State would basically have purchased its relocation with its maritime

211 Jennings, Watts, Oppenheim’s International Law. Part 1, pp. 565-567; Shaw, International Law, pp. 228-

230; Brownlie, Principles, pp. 114-115. 212 Rayfuse, ‘W(h)ither Tuvalu?’, pp. 8-9; Park, ‘Climate Change and the Risk of Statelessness’, pp. 18-19;

Jennings, Watts, Oppenheim’s International Law. Part 1, pp. 210-219. 213 Park, ‘Climate Change and the Risk of Statelessness’, p. 18. 214 Much is said about changing from the current system of ambulatory baselines to fixed, static or stable baselines or outer limits, especially in the light of sinking island-States. If the maritime zones were to be fixed,

they could be used as a bargaining chip by the sinking islands. See e.g. David D. Caron, ‘When Law Makes

Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level’, Ecology Law

Quarterly, 17 (1990), pp. 621-653, p. 650; Grote Stoutenburg, ‘Implementing a New Regime of Stable Maritime

Zones to Ensure the (Economic) Survival of Small Island States Threatened by Sea-Level Rise’, The

International Journal of Marine and Coastal Law, 26 (2011), pp. 263-311 ;Schofield, ‘Shifting Limits?’; Soons,

‘The Effects of a Rising Sea Level’. 215 Hayashi, ‘Sea Level Rise and the Law of the Sea’, p. 85. 216 Soons, ‘The Effects of a Rising Sea Level’, p. 230.

40

zones.’217

Again, as with cession, there is the practical feasibility issue and Rayfuse points to

an earlier demonstrated unwillingness by Australia and New Zealand to take in the Tuvaluan

population should Tuvalu lose its territory.218

At the Columbia Conference, Grote Stoutenburg

has called it legally viable, but not likely to be politically viable. She also raised concerns

about second-class citizenship, but in the end it may have to be weighed against arguably less

attractive alternatives, such as (climate-)refugee status or statelessness.

III. Government-in-exile

As an extension of a more traditional method, it has been proposed that the government of a

threatened island-State could be recognised as having gone into exile.219

There are many

historic examples, most famously those governments that went into exile during the Second

World War, such as the Polish and Dutch governments. It is based on the strong presumption

of State continuity, and ‘the legal position of governments-in-exile is dependent on the

distinction between government and State.’220

The government-in-exile needs the consent of

the State in which it is located, the host State. According to McAdam this institution of

international law might ‘suggest that States are willing to tolerate a hiatus between the loss of

indicia of statehood and acknowledgement that a State has ceased to exist’ and ‘that the

existence of territory, while essential to the original constitution of that entity as a State, is not

integral to the exercise of certain governmental functions.’221

McAdam notes that ‘traditionally, it has operated on the assumption that it is a time-

bound mechanism’.222

This means that, as Grote Stoutenburg argues, the rationale for the

recognition of the government-in-exile would be new, because the exile would be permanent

rather than temporary.223

Furthermore, McAdam states that normally the idea of government-

in-exile is ‘premised on there still being an identifiable population over which the government

has jurisdiction’ and according to Cassese it ‘is warranted by the hope of recovering control

over territory.’224

In the case of sinking island-States, however, it would instead be premised

on the uninhabitability or disappearance of the island-State’s territory.225

217 Rayfuse, ‘W(h)ither Tuvalu?’, p. 9. 218 Ibid. 219 McAdam, ‘“Disappearing States”’, p. 10. 220 Ibid.; Crawford, Creation of States, p. 34. 221 McAdam, ‘“Disappearing States”’, pp. 10-11. 222 Ibid., p. 11. 223 Grote Stoutenburg, ‘When Do States Disappear?’. 224McAdam, ‘“Disappearing States”’, p. 11; Cassese, International Law, p. 73. 225 McAdam, ‘“Disappearing States”’, pp. 11-12.

41

McAdam claims that without its own territory, the island-State’s population will

eventually come to fall under foreign jurisdiction.226

In the previous chapter it has already

been argued that the State’s independence will be seriously curtailed and that ‘[o]ver time, the

function of the government in exile will wane’, as McAdam argues, which would normally

result in the State’s extinction.227

The exile would thus still be temporary and provided a host

State can be found, recognition of this new rationale of government-in-exile can accordingly

be used as a temporary solution, indeed as a ‘a hiatus between the loss of indicia of statehood

and acknowledgement that a State has ceased to exist’. The sinking island-State could retain

its legal identity and subsequently the interests of the island-State’s population can be

defended and the population can be protected from statelessness.228

What is more, according

to Yamamoto and Esteban, such a government-in-exile would have similar functions as the

newly proposed principle of a ‘deterritorialised State’ and could arguably be complementary

to it.229

Attention will now turn to this newly proposed principle of international law.

IV. Deterritorialised States and the nation ex-situ

‘A State without a territorial basis, however tiny it may be, is inconceivable’, writes Cassese.

According to him ‘there (…) exists an absolute nexus between territory and sovereignty’.230

He accordingly says: “Territory may be large or small, but it is indispensable if an organised

structure is to qualify as a State and an international subject.”231

Still, Cassese also recognises

that ‘[o]nly in exceptional circumstances does [international law] allow corporate entities that

have lost effective control over territory to survive as international entities for some time’.232

He provides several historical examples of governments in exile and notes that ‘[i]n those

cases the “survival” of the international subjects rests on a legal fiction – politically motivated

– and is warranted by the hope of recovering control over territory.’233

However, it has also

been said that ‘[t]he core issue is that we have written our laws, regulations, subsidies on the

assumption that the environment is a constant, and it is not.’234

Therefore, owing to the

exceptional circumstances surrounding extinction of island statehood and considering some of

226 McAdam, ‘“Disappearing States”’, p. 11. 227 Ibid., p. 12. 228 Ibid., p. 11. 229 Yamamoto, Esteban, ‘Vanishing Island States’, p. 8. 230 Cassese, International Law, pp. 81-83. 231 Ibid., p. 73. 232 Ibid. 233 Ibid. 234 Lisa Friedman, ‘If a Country Sinks Beneath the Sea, Is It Still a Country?’, The New York Times, 23 August

2010, <.http://www.nytimes.com/cwire/2010/08/23/23climatewire-if-a-country-sinks-beneath-the-sea-is-it-sti-

70169.htm>, visited on 6-8-2011.

42

the practical and sometimes legal difficulties in the scenarios explained above, an argument

can be made for a novel, politically motivated, legal fiction: the principle of a

‘deterritorialised State’ or the ‘nation ex-situ’.235

In the words of Rayfuse: “Ultimately, a more

equitable solution may lie in recognition of a new category of deterritorialised state.”236

Although determining the exact form and substance is necessarily subject to some

degree and manner of speculation and sensitivity, some extrapolations or projections of what

such a principle would entail in practice are nonetheless possible. According to Rayfuse, it

would have to consist of some form of government or authority, which would be elected by

the registered voters of the deterritorialised State.237

‘In essence [it] would act as a trustee of

the assets of state for the benefit of its citizens wherever they might now be located’, she

says.238

In this sense, Burkett has suggested that the trusteeship system could be used as a

model for the organisation of such a government or authority.239

This could be accompanied

by the earlier explored extension of the principle of government-in-exile and thus provide

extra legal footing.

Even if government and State continue to be recognised, its powers, capacities, rights

and duties will naturally be more circumscribed than would normally be the case.240

One

consequence is that the deterritorialised State will in all probability not be able to adhere to

many of its treaty obligations and certain treaties may therefore ‘be terminated (or suspended)

for reasons such as impossibility of performance or a fundamental change of

circumstances.’241

Also, the government will not be able to exercise full powers with regards

to its own population, because the population will effectively have come to fall under foreign

jurisdiction. In this light, McAdam states: “[G]iven that the bulk of the population will be

residing in other sovereign States, they will be subject to the laws and jurisdiction of those

States. The role of the home State therefore becomes the same as jurisdiction that any State

can exercise with respect to its nationals abroad (predominantly diplomatic protection).”242

It

is, however, exactly this diplomatic protection which is important for the principle of a

deterritorialised State.

235 Rayfuse, ‘W(h)ither Tuvalu?’, p. 9; Maxine Burkett, ‘The Nation Ex-Situ’, presentation held at the Columbia

Conference. 236 Rayfuse, ‘W(h)ither Tuvalu?’, p. 9. 237 Ibid., p. 11. 238 Ibid. 239 Burkett, ‘The Nation Ex-Situ’. 240 McAdam, ‘“Disappearing States”’, p. 10. 241 Ibid., p. 11. 242 Ibid., p. 12.

43

The limitations notwithstanding, certain privileges of sovereign entities could be

maintained and some important functions for the benefit of its citizens could therefore still be

exercised. An oft-cited example is the Sovereign Military Hospitaller Order of St. John of

Jerusalem of Rhodes and of Malta (hereinafter the Sovereign Order of Malta), which

maintains bilateral diplomatic relations with 104 countries, has permanent observer status at

the UN and several other important international organisations, and issues passports to its

members.243

McAdam also points to several functions that governments-in-exile have

continued to perform, such as treaty-making, maintaining diplomatic relations and exercising

several forms of diplomatic protection.244

If some of these privileges were upheld, such as the recognition of passports and the

continuation of diplomatic relations, the government could continue to represent the

deterritorialised State and defend the interests of its population in the international arena.245

It

could, for instance, continue to administer the maritime zones – especially if this is

accompanied by the fixing of baselines or outer boundaries – for the benefit and support of its

resettling and resettled population. It could also continue to negotiate in the resettlement

issues of the population, but perhaps most importantly, it could prevent the citizens of the

threatened island-States from becoming stateless.246

Although it has been proposed by Burkett that the nation ex situ should be considered

to exist into perpetuity (something which will be discussed later), Rayfuse proposes it to be

transitory:

[I]n an international community still based on the Westphalian notion of states, it may

not be appropriate or realistic to envisage the permanent establishment and

continuing existence of deterritorialised states ad infinitum. Rather it may be useful to

view this status as transitional, lasting perhaps one generation (30 yrs) or one human

lifetime (100 yrs), by which time it is likely that much else in the international legal

regime, including the existing law of the sea regime, will have to be reconsidered and

reconfigured, in any event. In the meantime, however, freezing existing baselines and

accepting the notion of the sea level affected deterritorialised state would give

certainty and security to those states which fear inundation and allow them to

243 See also the Order’s website, <.http://www.orderofmalta.org>; Maas, Carius, ‘Territorial Integrity and

Sovereignty’, pp. 9-10. 244 McAdam, ‘“Disappearing States”’, p. 11. 245 Rayfuse, ‘W(h)ither Tuvalu?’, p. 11. 246 McAdam, ‘“Disappearing States”’, p. 11.

44

concentrate on the tasks of sustainable development and adaptation for as long as they

can.247

In this way and with regard to the gradual nature of island disappearance, the principle

of deterritorialised States could offer a transitional period during which the islanders, the host

countries and the international community as a whole can adapt to the novel situation. In

effect, this would allow the islanders a reasonable opportunity to resettle and find their place

in different societies, supported and protected by a recognised and representative government.

(A) The legal basis

To understand such a novel principle properly and more thoroughly, it is necessary to look for

some existing legal basis in international law and to consider to what extent the proposed idea

is indeed novel. How does it fit into the existing system of statehood and the theories

surrounding it, and to what extent does international law allow for such a principle?

According to Rayfuse, ‘the concept (...) is neither new, nor is it rejected under current

international law.’248

Indeed she says: “International law also recognises the notion of

functional, or non-territorial, sovereignty. Historically such claims have been recognised in

the context of ‘governments-in-exile’”.249

Burkett also argues that it is not entirely novel and

that there exist some ‘rough, but relevant’ historical analogues and precedents, such as the

Sovereign Order of Malta and the Vatican City.250

Much of this relates to the declarative and

constitutive schools of thought surrounding statehood and recognition, the latter of which

could allow for some leeway in exceptional cases. The words of Duursma shed some light on

this and the precedence these entities may have to offer: “In principle, the declaratory view is

adopted, although recognition can have constitutive effect in certain cases. This is the

situation of entities which under the general criteria do not possess statehood.”251

On a theoretical level, it is sometimes said that a deterritorialised State could be

qualified as an entity sui generis. Freestone and Pethick, for instance, state: “It is clearly

possible for an inundated State to maintain its recognition by other States as an international

person sui generis.”252

Crawford, however, believes that ‘[t]he denomination “sui generis,

247 Rayfuse, ‘W(h)ither Tuvalu?’, p. 13. 248 Ibid., p. 10. 249 Ibid. 250 Burkett, ‘The Nation Ex-Situ’. 251 Duursma, Self-Determination, p. 110. 252 Freestone, ‘International Law and Sea Level Rise’, p. 116; Freestone, John Pethick, ‘Sea Level Rise and

Maritime Boundaries. International implications of impacts and responses’, in: Gerald H. Blake (ed.), Maritime

Boundaries. World Boundaries volume 5, London: Routledge 1994, pp. 73-90 , p. 79.

45

often applied to entities that for some reason it is desired not to characterise as States, is of

little value.’253

Nevertheless, as Brownlie points out, attention must also be had for those

entities which are not adequately covered by legal norm: “Whilst due regard must be had to

legal principle, the lawyer cannot afford to ignore entities which maintain some sort of

existence on the international legal plane in spite of their anomalous character.”254

Cassese

further explains this deviation from the formal norms of statehood: “There exist in the

international community some international subjects that exhibit two characteristics: they (1)

have come to acquire a legal status there on account of specific historic circumstances; (2) do

not posses any distinct territory or, if they do use a territory, this belongs to another entity; (3)

have a very limited international personality.”255

It is next necessary to explore what the legal

situation of these entities implies for the principle of deterritorialised States.

(i) The Sovereign Order of Malta

The Sovereign Order of Malta is often referred to as a legal entity that exists on the

international plane and has some form of sovereignty, despite its lack of any territory. It is

therefore often put forth as a precedent for a deterritorialised State. However, while it is

certainly a legal identity possessing some form of international legal personality, it is doubtful

whether it is an actual State under general international law. According to Cassese ‘[i]t has an

extremely limited, almost evanescent international personality.’256

Shaw is more explicit and

writes: “It is not a State and it is questionable whether it has general international personality

beyond those States and organisations expressly recognising it.”257

Crawford explains the

underlying system:

A distinction is thus drawn between ‘objective international personality’ and

personality recognised by particular States only. It would appear that the former

exists wherever the rights and obligations of an entity are conferred by general

international law, and the latter where an entity is established by particular States for

special purposes. States clearly are included in the former category: the Order of St.

John of Jerusalem, Rhodes and Malta is an example of the latter. (...) There is thus a

distinction between ‘general’ (or ‘objective’) and ‘special’ (or ‘particular’) legal

253 Crawford, Creation of States, p. 88. 254 Brownlie, Principles, p. 64. 255 Cassese, International Law, p. 131. 256 Ibid., p. 132. 257 Shaw, International Law, p. 243.

46

personality. General legal personality arises against the world (erga omnes):

particular legal personality binds only consenting States.258

Thus, rather than possessing objective statehood conferred by general international

law, The Order instead appears to be recognised as an entity possessing special or particular

international legal personality in relation to the recognising States, and it is accordingly

endowed with sovereign rights and duties for certain purposes.259

According to Shaw, its legal

personality is indeed ‘predicated upon the functional needs of the entity as accepted by third

parties.’260

The precedent it then seems to offer is that while a legal entity might not

objectively qualify as a State under general international law, it is through recognition still

possible for that legal entity to be conferred some form of legal personality in relation to the

recognising parties, thereby possessing some of the same rights and duties as States. More

specifically, the Sovereign Order of Malta shows that such recognition is possible even

despite the lack of any territorial basis.

(ii) Vatican City

The Vatican City is another precedent often referred to, because it is recognised as a

State despite not truly meeting the criteria of statehood under international law. It is said, for

example, that ‘the constituent elements of statehood are, in the case of the Vatican City,

highly abnormal or reduced to a bare minimum.’261

This relates more specifically to the

population criterion. According to Duursma, there is ‘no permanent population in the Vatican

City’, not because of the functional nature of its inhabitants, but because the inhabitants do

not have a permanent attachment to the Vatican territory. 262

Due to the fact that the Vatican City does not meet the formal criteria, it does not

possess statehood under general international law. Instead, Duursma argues, ‘the Vatican City

was recognised as a State by the international community for special purposes relating to the

presence of the Holy See in the Vatican territory. It can therefore neither be argued that the

Vatican City was recognised as a State because it fulfilled all the criteria for statehood, nor

that international law does not require a permanent population in order to be a State.’263

She

concludes: “The Vatican City is a State in international law, because it has been recognised as

258 Crawford, Creation of States, p. 30. 259 Raič claims that Monaco is another ‘State’ created for certain purposes, but Duursma does consider it to be a

State under general international law. See Raič, Statehood, p. 77 and Duursma, Self-Determination, pp. 277-342. 260 Shaw, International Law, p. 243. 261 Jennings, Watts, Oppenheim’s International Law. Part 1, p. 327. 262 Duursma, Self-Determination, p. 458. 263 Ibid., pp. 462-463.

47

such due to the presence of the Holy See in its territory. This international recognition has a

constitutive effect, as the Vatican City possesses no permanent population”.264

As to this

constitutive effect, Shaw writes: “It would appear that by virtue of recognition and

acquiescence in the context of its claims, it does exist as a State.”265

This could indeed be a legal basis the principle of deterritorialised States seeks, though

there remain some difficulties. First of all, it is argued that the Vatican City only exists as a

relatively existing State and not as a State as such under general international law.266

This

would mean that both the Vatican City and the Sovereign Order of Malta possess only, in the

words of Crawford, special or particular personality in relation to those other international

actors recognising it, rather than general or objective personality erga omnes. Brownlie

summarises it as follows: “It would seem that the personality of political and religious

institutions of this type can only be relative to those States prepared to enter into relationships

with such institutions on the international plane. Even in the sphere of recognition and

bilateral relations, the legal capacities of institutions like the Sovereign Order of Jerusalem

and Malta must be limited simply because they lack the territorial and demographic

characteristics of States.”267

Secondly, despite the apparent recognition of the Vatican City as a State, there

arguably remains a fundamental difference between the Vatican City and a deterritorialised

State: the Vatican City is recognised as a State despite not satisfying the permanent

population criterion, but does possess a defined territory, whereas a deterritorialised State

arguably satisfies neither criterion. This is underlined by the legal status of the Sovereign

Order of Malta, which does enjoy international legal personality, but does not appear to be a

State as such. Thus, despite the extraordinary legal form of the Order’s sovereignty, existing

international law still seems to understand States as territorial entities. Territory is, in the

words of Shaw, ‘a fundamental axiom of classical international law’, which leads him to say:

“Without territory a legal person cannot be a State.”268

Indeed, Duursma also argues, after

having explored the statehood of the Vatican City, that ‘[t]he existence of a territory remains a

condition sine qua non for statehood, though no minimum territorial size is required.’269

Nevertheless, as Shaw says: “International society is not an unchanging entity, but is

subject to the ebb and flow of political life. (...) Each state will have to decide whether or not

264 Duursma, Self-Determination, pp. 465-466. 265 Shaw, International Law, p. 244. 266 Brownlie, Principles, p. 64. 267 Ibid. 268 Shaw, International Law, p. 487. 269 Duursma, Self-Determination, p. 489.

48

to recognise the particular eventuality and the kind of legal entity it should be accepted as.”270

The aforementioned difficulties do therefore not mean that a deterritorialised State cannot be

treated or regarded as a State for those purposes required. Indeed, it is said in Oppenheim that

‘[a]n entity which is not a state in the true sense may nevertheless be regarded as a state for a

particular purpose, or within the meaning of the term ‘state’ as used in a treaty or other

document. This is less a matter of acknowledging statehood than of construction or

interpretation.’271

Both the Vatican City and the Sovereign Order of Malta demonstrate this

much. Also Crawford writes that ‘in some cases at least, an entity that for some reason may

not qualify as a State (...) may nonetheless be recognised as such.’ Therefore, in spite of the

predominance of the declaratory theory of statehood, it could be upheld that international law

at the least allows recognition to have relative constitutive effect in exceptional cases when

the merits of statehood are required for special purposes.

(B) The need for novelty?

While the interpretation set out above provides a possible legal basis for the recognised

existence of deterritorialised States as entities with an international legal personality and thus

allows for a measure of legal protection of its citizens, it has also been argued that there is a

need to go further and that it is necessary to change some of the rules of international law

concerning statehood, more specifically to drop the defined territory criterion. Burkett, for

example, wants to introduce an ‘entirely new category of international actors’, namely the

‘nation ex-situ’, which she considers could exist into perpetuity.272

In her words:

“International law (...) should affirmatively consider abandoning territories for requirement of

statehood (...) in the light of the changing climate.”273

According to her, the extraordinary

circumstances of threatened island nations justify such a ‘unique departure from the norm’.274

However, the actual possibility, necessity and thus political likelihood must not be

overlooked.

‘From a legal point of view it is incomprehensible that a State may exist outside of

international law’, says Raič.275

The declaratory theory is thus usually preferred and as a

consequence the deterritorialised State cannot acquire objective statehood under general

270 Shaw, International Law, p. 444. 271 Jennings, Watts, Oppenheim’s International Law. Part 1, p. 121. 272 Burkett, ‘The Nation Ex-Situ’. 273 Ibid. 274 Ibid. 275 Raič, Statehood, p. 34.

49

international law.276

However, this could be possible if the rules of statehood were to be

changed and in the words of Raič, it is generally accepted that recognition can also have the

function or capacity of ‘law-making’.277

Also Crawford states that recognition ‘can resolve

uncertainties as to statehood and allow for new situations to be regularised’ and that ‘it may

tend to consolidate a general legal status at that time precarious or in the process of being

constituted.’278

Along these lines Raič writes: “When either a deviation from an existing rule

or an infringement thereof, or the consequences of such are intended to be validated through

recognition by the vast majority of States, then, in general, there is a strong presumption in

favour of the modification or even the disappearance of the relevant rule.”279

Strictly speaking

it is thus possible to change the criteria of statehood through recognition and State practice.

V. Concluding remarks

A fundamental difficulty for threatened island-States is that many of the possibilities set out in

this chapter rely on the goodwill of or recognition by other States. As a consequence, while

some legally sound solutions may be more desirable for the islands than others, they can still

be subject to political considerations. The exact future of threatened low-lying island-States is

therefore still undecided, but international law nevertheless affords several opportunities to

meet the challenges posed to island statehood by the rising ocean and to either retain

statehood or to preserve ‘a status somewhat analogous to statehood’.280

In essence this means

that there is a number of responses aimed at keeping a territorial basis for the island-State or

alternatively the possibility to allow the legal entity of the State to continue to exist as a legal

fiction.

The first series of responses concerns the physical integrity and habitability of the

existing territory. Mitigation or even prevention of sea level rise is by all standards the most

favourable solution for the low-lying islands, but at the same time the islands cannot rely on

this scenario too extensively. It is consequently appropriate to contemplate additional options.

Naturally, the population’s foremost desire is to continue to live on their current islands,

which necessarily requires extensive protection measures. These measures would have to

make sure that at least some part of the territory remains habitable and moreover that in any

case it stays inhabited by a group of people which can objectively satisfy the permanent

276 Craven, ‘Statehood, Self-Determination, and Recognition’, p. 24; Crawford, Creation of States, p. 93; Article

3 of the Montevideo Convention. 277 Raič, Statehood, p. 77. 278 Crawford, Creation of States, p. 27, p. 93. 279 Raič, Statehood, p. 89. 280 Yamamoto, Esteban, ‘Vanishing Island States’, p. 6.

50

population criterion of statehood. While this is certainly one of the more preferable options

and clearly permitted under international law, in reality the required extent of such measures

may be well beyond the means and capacities of the island-States.

Because such protection attempts are viewed as generally unrealistic, it has been

suggested that in order to retain statehood island-States can turn to the construction of

artificial islands or installations. However, these options are faced with fundamental practical

and legal difficulties. Creation of land entirely anew will in all probability be even more

problematic and unrealistic than the protection of existing territory. Moreover, entertaining

the thought that it actually can be accomplished, a man-made stretch of land altogether

unconnected to earlier territory will still not be readily accepted as defined State territory. An

artificial construction or installation of sorts will in itself not be sufficient to qualify as

defined territory. These options are thus not practically feasible nor legally completely solid.

Sliding further down the scale of ways to retain statehood, cession and merger come to

the fore as legally sound, but politically troublesome solutions. Cession of territory may in the

light of circumstances even be quite acceptable to the island-State itself, but it is politically

almost impossible to conceive another State willing to cede any, let alone habitable, territory.

As a middle-way, a condominium could also establish a territorial base for the threatened

States, but it would still run into much the same obstacle of political willingness.

Additionally, it is uncertain whether the statehood criteria can actually be satisfied in this

way.

Merger, on the other hand, while heavily criticised by some, may in fact be an

accommodating solution for both the island-State and any State into which it merges. This

possibility is obviously recognised by international law, and even though the island-State

itself would no longer exist as a separate State, a (con)federational structure could preserve at

least some of its legal identity and independence. Most importantly, it avoids refugee and

statelessness issues, which are disconcerting for the islanders as well as any host State.

Moreover, coupled with the possible exploitation of the maritime zones it could even be

economically appealing. Of course, it still hinges on political will and many questions

necessarily arise concerning the actual implementation and subsequently the practical

feasibility, but as the world is faced with the relocation of an entire islander population,

merger appears as a legally and theoretically sound option, that can avoid many of the refugee

and statelessness issues that lie at the core of the disappearing island-State problem.

What has been delineated thus far are the physical or practical responses to a looming

loss of statehood, which attempt to preserve a territorial basis for the island-State. While they

51

are certainly the more desirable outcomes for the island-States – admittedly, the one more

preferable to the island-States and their inhabitants than the other –, they are also fraught with

practical and political obstacles. In the end, it is a very real scenario that a low-lying island-

State will be left with no defined territory of its own and will thus no longer objectively

possess statehood. In that case, the principle of government-in-exile together with the

continued recognition of the island-State’s legal personality – what has been proposed as the

principle of a deterritorialised State – could offer an opportunity for the State to be kept alive

legally for at least some period of time. Importantly, the population could thus be protected

from the unfavourable consequences of statelessness, but rather than viewing it as an end in

itself which allows the deterritorialised island-State to exist into perpetuity as a legal fiction, it

should be seen as a means which can afford a transitional period in which both the host

communities as well as the relocating islander population can learn to adapt to the new

situation where a State has physically lost its territory; to prepare them for ‘life after land’.281

Such is the harsh and seemingly inescapable reality of the Westphalian system and paradigm.

However, in the light of this harshness for the victims of climate change it has been

asserted that the criteria of statehood need to be altered in order to provide the sinking island-

States a satisfactory solution for their statehood predicament. Whether this is actually

necessary or likely remains to be seen. Earlier it has been established that there is already a

legal basis in existing international law for the principle of a deterritorialised State. On the

other hand, as Raič says, ‘it may sometimes be desirable to adjust the law to specific effective

actual situations where a great tension between fact and law exists, and where there is no

willingness to bring the facts into line with the existing law.’282

However, considering that

international law already provides a legal basis for the continued recognition of

deterritorialised island-States, there does not appear to be a large enough ‘tension between

fact and law’.

Moreover, according to McAdam, ‘State practice suggests that the international

community would be willing to continue to accept maintenance of the status quo (recognition

of on-going statehood) even when the facts no longer seem to support the State’s

existence.’283

McAdam and Saul also argue that developing new norms in response to a novel

281 Rayfuse, ‘Life After Land’, The New York Times, 18 July 2011,

<.http://www.nytimes.com/2011/07/19/opinion/19rayfuse.html?_r=1>, visited on 22-8-2011. 282 Raič, Statehood, p. 90. 283 McAdam, ‘“Disappearing States”’, p. 12.

52

challenge is ‘normally more difficult for lack of political will.’284

Instead, it is, in the words of

the same authors, also possible that ‘existing legal principles might be elongated, adapted, or

particularised to respond to new circumstances, whether through creative interpretation or

extrapolation by analogy.’285

It therefore appears neither necessary nor likely that the criteria

for statehood are to be changed, or, in the words of Maas and Carius: “More likely than not,

the fate of islands may become a special case in international law and have no practical effect

on the (non-)recognition of other States.”286

284 McAdam, Saul, ‘An Insecure Climate for Human-Security?’, p. 1. Admittedly, the paper is about refugee

protection, but the legal abstractions are still relevant. 285 Ibid. 286 Maas, Carius, ‘Territorial Integrity and Sovereignty’, p. 11.

53

Conclusion

‘International society is not an unchanging entity, but is subject to the ebb and flow of

political life’, Shaw was quoted earlier. Remarkably, these words have taken on almost literal

meaning in the wake of rising sea levels. The possible effect this force of nature could have

on the existence of a State due to the complete physical disappearance of its territory raises

many novel questions of law, which place the foundations of international society itself into

new perspective. For the first time in modern history, the possibility has arisen that a State

ceases to exist without there being a successor to its territory.

While there are certainly many other accompanying issues, such as the often discussed

and essentially important refugee problem, this thesis has chosen to focus on the fundamental

questions of statehood surrounding the possible cessation of a State. It has chosen to explore

the legal consequences of a physically threatened territory and how international law can

respond to this problem. To understand this void in international law between State extinction

and State succession, the central question has been: What are the legal consequences under

international law for the statehood of island-States following the disappearance of their

territory, and can they retain claims of statehood based on the former existence of their

territory?

First of all, it is important to understand the threats sea level rise poses and the

possible legal implications that stem from this. Presently, the sovereign island-States

seemingly most threatened by rising sea levels are the low-lying atoll nations of the Maldives,

Kiribati, the Marshall Islands and Tuvalu. Contrary to the popular comparison, these nations

will not suddenly sink to the bottom of the ocean like the mythical island of Atlantis. Instead,

the disappearance will in reality be gradual, which in effect means that the islands will most

likely first become uninhabitable and that the population will have had to leave before the

territory actually becomes submerged. The exact effects on small islands and the timescale

associated with island disappearance are of course subject to uncertainty and speculation, but

it is nevertheless important to understand this gradual nature. As a common misconception

often only the complete loss of territory is pointed out as decisive for island-State cessation,

but instead, the loss of a permanent population is already a crucial and preceding step.

If statehood is accepted as a legal concept, which is based on factual criteria, it is

necessary to investigate the effects on the constitutive criteria of a State in order to determine

the legal consequences this in turn has on the statehood of a disappearing island-State. The

relevant criteria discussed are a permanent population, a defined territory, an effective

54

government and independence. The former two are generally seen as constituents of the latter

two, but they have to be considered on their own merits as well.

Because a State is essentially a community of people, it must possess a permanent

population. Even though theory prescribes no minimum limit, nor a certain proportion of a

State’s population that must actually live on that State’s territory, the statehood criteria are

cumulative and interdependent. Accordingly, there exists an implied nexus between a State’s

population and its territory. It is therefore necessary that at least some part of the population

continues to live on the State’s territory. What is more, though, if the islanders have to leave

the State’s territory and are unable to return due to the islands’ inhabitability, they will no

longer constitute a ‘permanent population’, because they no longer meet the permanency

element. The conclusion is that if the population has had to leave because the territory is

disappearing or becoming uninhabitable, the condition of a permanent population will no

longer be satisfied. This is important in itself, as the first indication of loss of statehood, but

even more so as a constituent of the government and independence criteria.

States, as understood in the Westphalian paradigm, are territorial entities as much as

they are a community of people. Under normal circumstances a State must therefore possess

an inhabited territory, but that is of course exactly the problem here. It seems rather self-

evident that a territory fully submerged even at low tide cannot satisfy the ‘defined territory’

criterion. The status of a territory which has become deserted or uninhabitable, but is still

above sea level at low tide, is also problematic If the UNCLOS is treated as an analogy, it

suggests that once an island is below sea level at high tide, it may no longer be relied upon for

the territory criterion of statehood. At the same time, the implied link between territory and

population also applies here. Hence, an uninhabitable territory alone is also not satisfactory

for the statehood criterion.

It is of course necessary to consider the population and territory criteria on their own

merits, but in essence they are constituents of the central criteria of government and

independence and the legal crux lies in the effect they in turn have on these criteria.

International law does not demand any exact form of government, but it does require it

to be effective. This requires the actual exercise of state authority over the claimed territory

and the people in it. The question is, of course, how effective government holds up in practice

once the constituent criteria of population and territory can no longer be satisfied. First of all,

governmental power must be exercised with respect to some population, but when the

population has had to part to another State, most realistically it will have come to fall under

that State’s jurisdiction too. The island-State’s governmental power will thereupon be so

55

severely curtailed that it can hardly exercise any relative effective authority at all in relation to

its population. Secondly, government authority can also not be effectively exercised over a

territory which has become fully uninhabited or has even disappeared entirely. In other words,

a government cannot exercise any effective authority in relation to a population and territory

that no longer exist.

Exceptions exist to the principle of effectiveness, though. Following the strong

presumption of State continuity, a protracted period of ineffective government and even a

period of complete absence of government do not by definition lead to the extinction of a

State. Even though they can last a for long or sometimes even unknown period of time, these

exceptions are in essence still temporary and premised on the continued existence of

population and territory. By contrast, the disappearance of territory and population dealt with

here, is most likely to be permanent. Under those circumstances, even the strong presumption

of State continuity cannot afford such an exception to the principle of effectiveness. The

conclusion is that following the default on the population and territory criteria, the

government criterion can also no longer be satisfied, because no governmental control can be

effectively exercised and because the presumption of State continuity lacks the factual basis to

exceptionally support the continued existence of a sinking island-State indefinitely.

Ultimately decisive is the effect these aforementioned legal building blocks have on

the central criterion of statehood, independence. As a consequence of the default on these

criteria, the island-State will eventually no longer be considered a separate or independent

legal entity for the purposes of statehood, because it will lose its separate existence as a

political and territorial entity as well as the legal capacity to act as it wishes. Unfortunately,

loss of independence means loss of statehood.

In sum, once the entire population has had to leave the uninhabitable territory of the

island-States, the constitutive criteria of statehood can each in turn no longer be satisfied. The

most important legal nuance is that the territory does not have to be completely below sea

level for the loss of statehood to transpire, because loss of a ‘permanent population’ is a

already decisive step. Such a conclusion will certainly be reinforced or underlined once the

territory becomes fully submerged. Hence, it can be concluded that if sea levels rise

persistently, the legal consequence for the island-States under general international law is that

the legal entity of the State will cease to exist and become extinct; statehood will be lost.

This the general conclusion concerning the fate of an island-State that has literally lost

its territory, but the complete story does not end there. International law still affords several

opportunities through which the island-States can attempt to retain statehood. Admittedly,

56

most of these are traditional methods aimed at maintaining some sort of territorial basis for

the State, but there is also a possibility in which an island-State can continue to exist, for at

least some period of time, as a legal entity possessing international legal personality under

international law.

Firstly, the island-States can attempt to mitigate the effects of sea level rise on their

territories. Prevention of sea level rise is probably not very realistic, but international law

clearly permits coastal States to artificially protect their territory. The adaptation plan would

have to make sure at least some part of the territory stays habitable and moreover that it

actually stays inhabited by a group of people that can objectively qualify as a ‘permanent

population’ for the purposes of statehood. Although legally and politically a preferable option,

the extent of such protection works will most likely be beyond the capacities of the small

island-States, so this scenario unfortunately appears as not realistically feasible.

It is often suggested that the island-States should then build a new territory of its own

and construct an artificial island or installation, which could serve as its territorial basis. Such

plans, however, are neither practically feasible nor legally sound. An artificial island will not

be readily accepted as ‘defined territory’ for the purposes of statehood and an artificial

installation or construction by itself does certainly not qualify.

The second traditional methods of cession and merger rely extensively on the goodwill

of other States and hence face large political difficulties. Cession is an instrument of

international law which would ensure the continued existence of the island-States and it

would probably be a desirable outcome. Though to find a State willing to cede any, let alone

habitable, territory appears to be an insurmountable political obstacle. As a more

accommodating solution a condominium could be used. The third State would not have to

cede complete sovereignty over the territory, but both States would exercise sovereignty

equally and conjointly. However, a State would still have to be found willing to grant a piece

of its viable territory to another population, so also this option is necessarily subject to

political reality. Moreover, it is uncertain whether a territory controlled in this way could

objectively qualify as a ‘defined territory’ if it is the only territory a State has sovereignty

over.

Of the traditional methods afforded by international law, merger of the disappearing

island-State with another State or several other island-States, is probably the most realistic

and therefore preferable solution. It is legally sound and both the political as well as the

practical obstacles appear to be the least insurmountable of all other traditional options.

Merger would not continue the island-State as such, but a (con)federational structure could

57

preserve much of its legal identity. Although there are concerns about the practical

implementation, it would avoid many of most pressing problems surrounding the refugee and

statelessness issues that would otherwise loom over the islander population.

The threatened island-States are thus afforded several options that allow them to

objectively qualify as a State under general international law in a traditional manner. It is,

however, at least equally possible that a disappearing island-State is not successful in its

endeavours to maintain a territorial basis for its claim to statehood and that it will

subsequently lose its objective statehood. In that case, what has been described as the novel

principle of deterritorialised State, supported by an extension of the principle of government-

in-exile, could allow the legal entity of the threatened island-State to be kept alive as a legal

fiction for at least some period of time.

The principle of a deterritorialised State is in practice brought about by the continued

recognition of the State alongside the continuation of diplomatic relations. It is based on the

idea that other States may be willing to allow some time to pass between the loss of objective

statehood and the actual acknowledgment of that situation. Rather than being an objective

State under general international law, though, the deterritorialised island-State is rather a

relatively existing legal entity afforded special or particular international legal personality and

recognised and treated as a State for certain purposes. This would uphold the island-State’s

legal identity, and even though it will not be able exercise all its functions and powers in

relation to its population, it could allow it to protect and defend the interests of its citizens by

means of a certain degree of diplomatic protection. Most importantly, it would prevent the

population from becoming stateless, but it could also maintain the possibly still existing

maritime zones.

This principle as proposed in this thesis is understood as a transitional period. How

long this period may last is debatable, but over time, as the people will ultimately and

eventually come to fall under complete foreign jurisdiction, the functions of the

deterritorialised State will falter. This principle should accordingly not be seen as an end in

itself, which would allow the deterritorialised island-State to exist as a legal fiction

indefinitely. Rather it is a means, sanctioned by international law, which affords the islanders,

the host communities and the international society as a whole, a reasonable opportunity to

adjust to the void in international law, caused by the cessation of a State when there is no

successor State to its territory.

Is it then imperative to change the law and abandon the territory criterion from the

concept of statehood? Certainly State practice and recognition can have such a law-making

58

capacity. Yet to move away from the requirement of a defined territory does not appear

necessary nor likely. International law as it stands already affords a possible legal basis for the

island-State to continue to exist as a legal entity, at least until the world has learned to adjust

to the new situation. It has indeed been asserted that States would be willing to accord the

legal entity such relative international legal personality. Moreover, to let a State that will

eventually lack all the characteristics of a State exist into perpetuity is not in line with the

apparently harsh reality that eventually there will be no more need to keep the disappeared

State alive. The political will to reinterpret the law in order to deal with the legal challenges

will therefore likely be larger than the will to fundamentally change the criteria or indeed the

entire conception of statehood. The case of sinking island-States will force the foundations of

international society to be considered in another perspective, but it will not require the law to

be changed as such. Despite the exceptions in international law that allow for the recognition

of a deterritorialised State, territory still remains fundamental to the existence of a State.

The final conclusion could thereupon seem rather harsh or confronting, but it is

nevertheless necessary to properly understand the predicament of small low-lying atoll-

nations, such as the Maldives, Kiribati, the Marshall Islands and Tuvalu. Following a

complete exodus of its population, a threatened island-State will no longer be able to

objectively satisfy the constitutive criteria of statehood and it will thus no longer be

considered a State under general international law. Retention of a territorial basis could

certainly ensure the continuation of its statehood, but such attempts may be seriously

frustrated by practical and political considerations. When this transpires and the objective

criteria of statehood are eventually no longer satisfied, the underlying mechanisms of the

principles of deterritorialised State and government-in-exile can afford a transitional period,

in which the legal entity of the State continues to exist as a legal fiction. Yet despite this

possibility afforded by international law, unless the island-States succeed in securing a

territorial basis, their statehood will over time inevitably be lost.

59

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