Atlantis, Climate Change & States

For Callum's LLM dissertation he undertook an examination of whether "the consequence of territorial loss on the statehood [of a given State] is the loss of this statehood and its position as a State." In other words, Callum examined whether sinking island States such as Fiji, Tuvalu and Kiribati would cease to be States due to sea level rise. Below a summary of what was discussed and concluded in this dissertation has been provided. For the full copy please see the PDF link below.

There are some key legal background concepts to clarify briefly before delving into the findings. Statehood can be seen as the pinnacle of international legal personality: its presence is highly significant. Existence as a State permits the 'ultimate rights of participation in both the creation of international law and in the construction and operation of the international legal system.'(4) With statehood comes sovereignty and accordingly 'the right to exercise supreme, independent authority or jurisdiction over a piece of territory.'(5) Whilst there may indeed be rare circumstances in which statehood is undesirable,(6) it remains the pinnacle of polity and generally desirable.

It is important to also consider that there is no universally and unequivocally binding legal definition of what a State is.(8) However, the 'generally accepted'(7) legal definition of a State stems from Article 1 of the Montevideo Convention on the Rights and Duties of States:(9) 

‘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 other States.’

The Present Issue

Statehood & Its Significance

As part of her own widely celebrated masters thesis, Krystyna Marek proffered that it 'can be taken for granted' that 'a State would cease to exist... if its territory were to disappear (e.g. an island which would become submerged)'.(1) With Marek's statement in mind, Sinking Island States (SIS) such as Tuvalu, Kiribati, the Maldives and the Marshall Islands are currently facing an 'existential'(2) threat on account of sea level-rise that could render them 'uninhabitable, perhaps as early as 2050.'(3) The operative question is therefore whether Marek's assertion is correct. Can it be 'taken for granted' that these SIS will cease to be States once submerged?

The simple answer, and as this piece explores, is no. It cannot be taken for granted that submergence means destruction.

Introduction

The Debate

It is readily apparent that the submergence of a State will render it unable to satisfy 'black letter interpretations'(10) of the requirements for statehood as they appear in the Convention. There must be some people, some territory and some form of government. It matters not how large the population is: 'infinitesimal smallness has never been seen as a reason to deny self-determination to a population.'(11) Similarly, the size as well as the permanence of territory need not be of a prescribed quantity or longevity: 'questions of territorial size, geographical isolation and limited resources should in no way’ be used to ‘delay’ the transition of former colonies to independent States.(12) Furthermore, the requirement of a government does not necessarily require the presence of an effective government. Crawford highlights that, in the case of the Republic of the Congo, ‘it would be hard to imagine’ something ‘less like effective government’, since the State's creation in the 1960s.(13) Submergence of territory does not mean the loss of government per se, however it will categorically involve the loss of previous land territory and accordingly the loss of the population that previously resided on this land territory. Despite the flexibility of the Convention's criteria, it appears that a submerged State would struggle to satisfy its criteria.

Briefly placing the Convention and its criteria to one side, it is equally apparent that a submerged State challenges society's understanding of what a State quintessentially is. Crawford highlights that there is a ‘close relation between the concepts of government and statehood’,(14) and discusses the existence of the territory criterion as a ‘constituent of government and independence’ as opposed to ‘a distinct criterion of its own.’(15) Furthermore Lowe suggests that ‘the concept of the State is rooted in the concept of control of territory’,(16) and goes on to suggest that the ‘purpose and role’ of the State is ‘to ensure that activities within its borders are not regulated by any other State.’(17) Similarly, US Ambassador Jessup discusses the ‘insistence’ of an exclusive exercise of authority as the defining characteristic of the criterion of territory.(18) Apparent, therefore, is the use of territory as a means of ascertaining and perpetrating independence and exercising of exclusive authority. In this sense, territory, as well as population, are a tool to achieve the key concept of sovereignty and statehood - ‘governing power’.(19)

An exercise of exclusive authority must have something to exercise this authority over. Whilst it may appear that this exclusive exercise of authority could be over either territory or a population in theory, it is the combination of the two that provide the exclusive authority. In other words, a national of one State cannot freely conduct themselves in the exclusive manner prescribed by their own State when on the territory of another State. They must act in accordance with the rules of the State they find themselves within; their home State cannot exclusively exercise authority over them. Similarly and fundamentally, if there is no population there is no State. Quite apart from having no one to exercise authority over, there will be no one to exercise this authority. It is only when the population is present upon the territory of a State that an exercise of exclusive authority can take place. It is for this reason that the existence of a submerged State appears implausible and impractical.

The Criteria & Our Understanding of the State

The Destruction & Continuation of States

The existence of a submerged state is, however, not impossible due to a strong presumption of State continuity within international law. It is very difficult to destroy a State. Particularly following the introduction of the Charter of the United Nations,(20) there are few examples of when a genuine loss or destruction of statehood has occurred. However, loss of statehood is possible. Perhaps the simplest or least controversial method of destroying statehood is voluntary destruction. Statehood is not an irrevocable title or obligation and can be voluntarily extinguished. Whilst voluntary destruction is rare, the dissolution of Czechoslovakia illustrates that it is possible.(21) A more controversial form of State destruction is the involuntary destruction of statehood. Yet, as with voluntary destruction and thus destruction of States in general, such circumstances are rare. Jain describes the case of Yugoslavia as ‘[t]he one possible example of involuntary dissolution leading to extinction of the original [S]tate’.(22) Compared alongside the lack of precedent relating to the destruction of statehood through forceful occupation, particularly since the introduction of the UN-Charter, the difficulty in effectively achieving involuntary destruction of statehood becomes apparent, with little to no success in previous occurrences of forceful occupation.(23) As such, whilst the case of Yugoslavia demonstrates that involuntary destruction must be somewhat possible, the lack of alternative examples suggest that involuntary destruction is uncommon, and ‘almost impossible’.(24) Furthermore, the distinction between dissolution and loss of territory is significant. Dissolution, as Jain acknowledges, whilst classifiable as involuntary does hold an inherent implication of ‘some element of self-determination and conscious will of the peoples’.(25) The plight of SIS and their loss of territory, on the other hand, ‘is completely involuntary.’(26) Resultantly, and as Jain states, this ‘makes it very difficult’ to ascertain and form analogies between these States and their closest and only predecessor - the former Yugoslavia.(27) The conclusions that can be drawn from State practice, and the recent history of States more broadly, are that it is possible to voluntarily lose statehood. However, in the absence of voluntary loss, there is only one post-UN Charter example of involuntary loss that, whilst demonstrating that involuntary loss can occur, highlights how the situation of SIS presents a form of unprecedented involuntary loss.

A lack of State destruction and the prevalence of so-called "Failed States" purports that satisfying the requirements of Article 1 of the Convention is only significant at the point of State creation.(28) Where States, during their lifetime, fail to satisfy a criterion of Article 1, they do not automatically become destroyed and instead may be considered a Failed State. A Failed State is a State that ‘is no longer able or willing to perform the fundamental jobs of a nation-[S]tate in the modern world.’(29) The distinction between a failed and destroyed State is important and significant, as it illustrates that the loss of Article 1 criterion does not trigger the destruction of statehood per se.(30) Instead loss of convention criteria encapsulates this ‘phenomenon’(31) of a Failed State. Whilst historical - often colonial - circumstance of Failed States has a part to play in their failure,(32) these States are characterisable through: their propensity to ‘prey on their own constituents’;(33) the occurrence of ‘violence’ of an ‘enduring character’,(34) and; the preceding and presiding character of ‘unscrupulous rulers and their cronies’ operating to ‘[suck] dry’ any ‘[S]tate competencies’.(35) The most ‘extreme’ cases of Failed States, Rotberg suggests, could be classified as ‘collapsed’.(36) Yet, significantly these States remain States, even whilst in the midst of failure and collapse,(37) and neither lose their statehood naturally nor have it destroyed.(38) The loss of criterion or criteria of Article 1 does not therefore necessitate the destruction of the State.

Contrary to Marek's assertion, it cannot be 'taken for granted' that the loss of the territory criterion through the submergence of an island State results in the automatic de facto destruction of the State. This is primarily due to the separation of incidences between a State's creation and its continuity; there is one rule for States at the point of their conception and another for their continuation. However, whilst the submergence of territory does not necessitate the destruction of the State it does challenge society's historical and fundamental understanding of what a State is. Resultantly it is unclear exactly what will happen when SIS are submerged. However it is clear that the law surrounding Statehood will not require that these States cease to be. For more information on potential solutions to the issue and the evolution of our understanding of the State, see section 4 (particularly 4.1) of the full PDF.

To conclude, below is the direct quote of the dissertation's final paragraph:

'Overall, there is little to support Marek’s assertion that Atlantis’ loss of territory requires its destruction. As such, international law will have to adapt to an evolving understanding of statehood, that it appears to have neglected. In answer to this dissertation’s title: Atlantis(39) can be a State and, perhaps more significantly, should.'

The Issues & Conclusion

1. Krystyna Marek, ‘Identity and Continuity of States in Public International Law’ (2nd edn, Librairie Droz 1968) 7.

2. see Melissa Stewart, ‘Cascading Consequences of Sinking State’ (2023) 59 Stan J Int’l L (forthcoming) 3.

3. Alejandra Torres Camprubí, Statehood Under Water: Challenges of Sea-Level Rise to the Continuity of Pacific Island States (Brill 2016) 1 and 103.

4. Emily Crawford and Rosemary Rayfuse, ‘Climate Change and Statehood’ in Rosemary Rayfuse and Shirley V Scott (eds), International Law in the Era of Climate Change (Elgar 2012) 245.

5. ibid.

6. see Colin Warbrick, ‘The New British Policy on Recognition of Governments’ (1981) 30 ICLQ 568, 569.

7. Crawford and Rayfuse (n 4) 246.

8. for more on the history of defining the State as well as the flexibility demonstrated through precedent, see the full PDF.

9. (adopted 26 December 1933) 165 LNTS 19 (the Convention).

10. Freya Bliss, ‘Exploring the criteria for Statehood in international law in respect to climate change induced migration’ (2019) 137 Chain Reaction 17, 18.

11. Thomas M Franck and Paul Hoffman, 'The Right to Self-Determination in Very Small Places' (1976) 8 NYU J Int'l L & Pol 331, 383; see also Crawford's highlighting of The Vatican City's 'ecclesiastical character' rather than its diminutive size in James Crawford, The Creation of States in International Law (2nd edn, OUP 2006) 52.

12. United Nations General Assembly (UNGA), ‘Question of American Samoa, Antigua, Bahamas, Bermuda, British Virgin Islands, Brunei, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and Ellice Islands, Grenada, Guam, Montserrat, New Hebrides, Niue, Pitcairn, St Helena, St Kitts- Nevis-Anguilla, St Lucia, St Vincent, Seychelles, Solomon Islands, Tokelau Islands, Turks and Caicos Islands and the United States Virgin Islands’ UNGA Res 2709 (XXV) (14 December 1970) GAOR 25th session 1929th plenary meeting, Agenda Item 23, UN Doc A/RES/2709(XXV) para 4.

13. Crawford (n 11) 57; see also the examples of both Croatia and Bosnia and Herzegovina as discussed by Christoforos Ioannidis, ‘Are the Conditions of Statehood Sufficient? An Argument in Favour of Popular Sovereignty as an additional Condition of Statehood’ (2014) 21 Jurisprudencija 974, 976.

14. Crawford (n 11) 34.

15. ibid, 52.

16. Vaughan Lowe, International Law (OUP 2007) 138.

17. ibid.

18. UN Security Council Official Records (SCOR), 383rd meeting (2 December 1948) 11.

19. Crawford (n 11) 56.

20. (24 October 1945) 1 UNTS XVI (UN Charter); see Abhimanyu George Jain, 'The 21st Century Atlantis: The International Law of Statehood and Climate Change-Induced Loss of Territory' (2014) 50 Stan J Int'l L 1, 11; and see Crawford (n 11) 715.

21. However, it remains important to consider that, whilst the dissolution of Czechoslovakia resulted in the destruction of Czechoslovakia’s international legal personality and statehood, it created the international legal personality of Slovakia and the Czech Republic. In this regard destruction of the State did not serve to strip the protections of statehood from a polity, instead it enhanced the independence of two polities to the point at which they became States.

22. Jain (n 20) 30.

23. see discussion of Tibet and Hyderabad, ibid.

24. Jain (n 20) 31; see also Crawford and Rayfuse (n 4) 247-248.

25. Jain (n 20) 30.

26. ibid.

27. ibid.

28. note the International Law Commission's recognition of that it has been 'suggested' that the Convention is 'not relevant to the question of the continuation of statehood'. ILC, ‘Report of the International Law Commission on the work of its seventy-third session (2022)’ (24 April–2 June and 3 July–4 August 2023) UN Doc. A/CN.4/755, para 52.

29. Robert I Rotberg, Failed States, ‘Collapsed States, Weak States: Causes and Indicators’ in Robert I Rotberg (ed), State Failure and State Weakness in a Time of Terror (Brookings Institution Press 2003), 6; see Bliss’s use of a similar definition - a state that ‘can no longer enact its duties to protect its citizens.’ Bliss (n 10) 18; cf Crawford’s criticism and comparison of attempts to define failed states in Crawford (n 11) 719-723.

30. this shall become evident, forthwith, as examples are explored; for now see Grants comment that ‘the Montevideo Convention was concerned with whether an entity became a state, not with how an entity might cease to be a state.’ Thomas D Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’ (1998) 37 Colum J Transnat’l L 403, 435.

31. Rotberg (n 28) 2.

32. see Crawford (n 11) 721-723.

33. Rotberg (n 28) 6.

34. Rotberg highlights the cases of Angola, Burundi and Sudan to illustrates this point. See ibid (n 28) 5.

35. ibid, 9.

36. ibid.

37. see specifically Jane McAdam, ‘’Disappearing States’, Statelessness and the Boundaries of International Law’ in Jane McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Hart 2010) 111.

38. see Crawford and Rayfuse (n 4) 247; ibid, 111; Maxine Burkett, ‘The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood and the Post- Climate Era' (2011) 2 Climate Law 345, 357.

39. the submerged form of the current SIS.
    

Footnotes