Introduction

State extinction is a less explored topic in international law. Even, Crawford’s pioneering work on state extinction only envisages absorption, merger, and dissolution. As such, a total loss of territory by climate change is a new experience for international law. Therefore, it becomes essential to examine the impact of such a change on statehood in international law. This piece examines the consequences of the rise in sea level on statehood, and how these submerging island states can preserve their international legal personalities while focusing on their loss of territory. 

Rising Sea Level: A Pressing Concern

Sea levels have been rising since the 1970s, and are largely credited to be anthropogenic. A revised figure suggests that the sea level has risen by 98 cm since 1900. And per the latest reports, the level has continued to rise 3.7 mm per year. Such rising levels will pose a threat to the ‘territorial integrity’ and ‘viability of states’ of low-lying island states. This rise could pose a significant threat to our present international law system, as it will be accompanied with territorial disappearance and population migration for low-lying states. The threat of complete submergence is tangible and could be experienced by states like Maldives, Tuvalu and Marshall Islands, which are around 1-5 meters above the mean sea level.

International Test of Statehood

By following the Montevideo Convention and the Arbitration Commission on Yugoslavia, the international community has created a state practice, by which statehood is determined. This state practice can be seen in cases such as Duff Development v. Government of Kelantan [1924] A.C. 747 (H.L.) (UK) and Harris v. Minister of the Interior 1952 (2) SA 428 (A) (South Africa). This was elevated to a custom by its use in ICJ decisions, and is outlined in Judge Kréca’s separate opinon (¶26). As such, the four-fold criterion in this convention, i.e., permanent population, defined territory, government and the capacity to contract with other states, is the declaratory process by which countries can seek formal recognition of statehood. Currently, these submerging island states meet these requirements.

Due to rising sea levels, this traditional understanding will be challenged and their claim for statehood will fail for want of territory. However, since such disappearance would be gradual, the state’s population will migrate as the island becomes uninhabitable. The question that arises is that with submergence inevitable, how can their international legal personality be preserved? Preservation of statehood is critical for thesse islands since it retains access to the ICJ when they are in a vulnerbale position, here, legal protection for small states is ‘most necessary’. Additionally, it helps retain the connection that citizens of these islands have with their culture, land and state; this is why several citizens are reluctant to ‘relocate’ and be labelled ‘refugees’. 

Importance of Territory

International law assumes that territory is permanent, and as such has focused on creation and succession, and not extinction. Ziemele challenged this Westphalian emphasis of state-based territory. She challenged the assumption that extinction will be governed by the same rules of creation. This meant that the Montevideo rules of creation of states would not govern state’s extinction. Nevertheless, she concedes that the basic criteria of statehood separately or together, do not affect the existence of a state, but the disappearance of population and territory would.

If these islands lose statehood, they can lose their membership to the UN and access to the ICJ. This will restrict them from using cost-effective diplomatic apparatus, hinder international cooperation and aid, and make them more legally vulnerable. Here, the strong presumption of state continuity would be of support.

This presumption is exemplified by the international practice to continue recognising statehood in cases of an ineffective government of Somalia; ill-defined territories of Kuwait, and Israel; or uncontrolled territories, like Kosovo and Croatia. As such, this criterion of ‘defined territory’ has been subject to a lot of scholarly debate. This debate revolves around the precise contours of a state; there are no minimum dimensions per se; even disputed or ill-defined borders are permissible; and reefs and rocks are considered parts of territory; thus, what is ‘defined territory’ is subjective. The only core idea that can be understood from the Montevideo Convention is that the territory has to support habitation or economic life of its own. While, it is an accepted position that states require a terriotial base for operation and claiming jurisidcition, the aspect of possessing definite territory is thrown in flux with the submergence of isalnd-states.

This practice of continuity is carried out to maintain stability in the international community. This presumption remains a suitable option when these island-states lose statehood due to the Montevideo test, because it removes the strict links that the international community often draws between government and territory qua a state. It creates a period of hiatus from the indicia of statehood, which the states find acceptable. This period of acceptability will offer these submerging island-states the avenue to re-imagine or re-negotiate their position in international law. However, this defence is not absolute and cannot be stretched to save the statehood of these islands. This principle only ‘cures defects’ that are temporary, and the contours of such ‘defects’ are not well-defined; thus, it may not extend to disappearance. These defects are usually seen to be limited to the criterion of government, when it is unable to effectively control a population/territory. In that vein, several submerging states are resigned to lose statehood. 

Conclusion

While it is inevitable that these islands will lose their statehood, some workarounds can allow these islands to preserve a semblance of their statehood. Such states can operate as ‘government-in-exile’, can lease territories in perpetuity or buy them, and/or merge with other states to protect their interests. 

However, this paper seeks to examine if the state can function as a ‘deterritorialised state’. The most pertinent example is that of the Sovereign Military Order of Malta (SMOM). The SMOM is considered as a sovereign international subject, having international recognition, the right of active and passive legislation, and treaty making and membership to international organisations, despite a complete loss of territory in 1798. As such, the SMOM retains its international legal personality.

It is thus concluded that some international personality can be attributed to ‘states’ even when their territory does not exist, or is controlled by them. International law needs to urgently adopt a new framework to assess the status of this unprecedented predicament, since the existing ones have a limited understanding of extinction. While it is very likely that as a result of territory disappearance, their statehood will also not be recognised, since it is hard to divorce statehood from population or territory; these island states can have faith in the example of SMOM. They can, on the presumption of continuity, be allowed some international function. This could extend to international recognition, membership to organisations, ability to receive aid and represent its own people. 

This conclusion is workable since the status of these islands would be akin to a ‘deterritorialised state’. While it would not fit into the traditional test of statehood, it has been argued that those contours are ill-defined, archaic and paradigms of temporary loss of control. There is a need to revisit them, and till then, these states can work as a parallel to the SMOM, which is an international subject without statehood, but possesses almost all its functions.

---

Chaitanya Gupta is a 3rd Year Law Student at Jindal Global Law School.

---

Image: Ministry of Justice, Communication and Foreign Affairs Tuvalu Government/ REUTERS