By Erik Woodward

The low-lying atoll nations of the South Pacific Ocean are sinking. According to a 2013 report published by the Intergovernmental Panel on Climate Change (IPCC), a United Nations-sponsored scientific research organization, melting polar ice caps and rising marine water temperatures are expected to provoke an increase in sea levels by up to one meter by the end of the century. [1] More recent studies corroborate this finding, and furthermore suggest that sea level rise is occurring both more quickly and at a greater magnitude than previously anticipated. For low-lying atoll nations like Kiribati, which has an average elevation of just under two meters, this scenario implies disaster. Elevated sea levels and increasingly aggressive storm surges will erode coastlines, disrupt food systems, and salinate fresh water supplies. Eventually, the island will be rendered uninhabitable, and soon thereafter will become permanently submerged beneath the rising tide. The World Bank estimates that the 100,000 inhabitants of Kiribati will be forced to relocate by as soon as 2050.[2]

Already, policy makers have designed a series of legal instruments to address challenges of adaptation and mitigation posed by climate change. Mechanisms of the 2015 Paris Agreement, for example, are designed to assist vulnerable nations in promoting human security and sustainable development in the context of a warming climate. Yet unaddressed, however, is the threat to the sovereign status of low-lying island nations posed by inundation and eventual deterritorialization.

This paper examines how statehood can be preserved in the context of sea level rise. By adopting a policy platform which facilitates and incentivizes the sovereign recognition of states deterritorialized due to sea level rise from global warming, the island nations of the South Pacific can sidestep ambiguities in international law and ensure their continued statehood status. Deterritorialized sovereignty, therefore, becomes a question of policy design and not legal interpretation.

This argument is developed in four sections. Section I outlines the importance of maintaining sovereignty for South Pacific island states. The legal dilemma that is provoked by sea level rise is described in Section II, specifically regarding international law related to statehood and maritime jurisdiction. Section III then identifies an academic framework capable of reconciling these challenges through an innovative and legally available conception of deterritorialized statehood. Finally, Section IV explains why previous legal approaches to realizing deterritorialized sovereignty have failed and articulates a policy strategy available to South Pacific nations to permanently protect their statehood status.

Section I

Why Sovereignty Matters

Retaining international legal personality in the form of recognized sovereign status should be of critical importance to island nations threatened with deterritorialization. As the principle subject and object of international law, the state is conferred with unique rights and privileges. For example, only states are able to enter into formal diplomatic relationships with other states. This includes both bilateral diplomatic agreements and participation in the international organizations that design and implement global public policy. Therefore, for those populations most vulnerable to the impact of sea level rise, representation and voting rights at forums such as the United Nations Framework Convention on Climate Change (UNFCCC) depend upon the continued recognition of statehood.

Furthermore, the ability to exert exclusive jurisdiction over defined territory is reserved for states. Pursuant to the United Nations Convention on the Law of the Sea (UNCLOS), this right likewise pertains to jurisdiction over maritime claims, including the Exclusive Economic Zones (EEZs) which grant sole rights to maritime economic activity in a defined territorial claim. [3] For the South Pacific region, natural resource extraction within these zones represents 10.5% of total annual gross domestic product, or approximately $3.32 billion in economic activity. [4] The ability to retain internationally recognized jurisdiction over natural resource exploitation in these zones—and the economic activity they generate—is therefore contingent upon a continued claim to statehood.

Finally, maintaining sovereignty enables displaced South Pacific islanders to retain a connection to their ancestral homelands though the preservation of a national identity. The first settlers of this region arrived over five millennia ago, and since then maritime activity has become ingrained as a fundamental component of South Pacific culture. Retaining the ability to claim citizenship to a nation deterritorialized by rising sea levels will enable diaspora and refugee communities to preserve an important component of their identities and maintain their unique cultural and social practices.

Section II

Defining the Sovereignty Problem in the Context of International Law

The threat to the statehood status of South Pacific island nations posed by sea level rise is principally a legal dilemma, manifested in international law related to state recognition and maritime jurisdiction. However, despite being implicated in issues pertaining to sovereignty in the context of sea level rise, these bodies of law fail to offer an authoritative legal position regarding the continued sovereign status of inundated nations. As a result, pursuant to international law in its current form, the future sovereign status of deterritorialized nations remains legally ambiguous—neither explicitly endorsed nor forbidden.

International Law on State Recognition

International law recognizes two competing theories regulating statehood: the declaratory and constitutive theories of state recognition. According to the declaratory theory, international law dictates the conditions upon which a state is recognized as such. Statehood is primarily a legal consideration, which is immediately obtained upon the fulfillment of an objective set of criteria. Demonstrating statehood is therefore an exclusively domestic exercise, and the international community’s recognition of statehood is merely an acknowledgment of an already existing status.5 The criteria typically applied to a declaratory consideration of statehood are outlined in Article 1 of the Montevideo Convention on the Rights and Duties of States, and include: (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other states.6

According to the constitutive theory, state recognition is primarily a political consideration. This theory posits that statehood is not automatically granted; rather, it is conferred upon an entity only once its claim to statehood has been officially recognized by the international community.7 The criteria for legitimizing claims to statehood are determined by the international community in accordance with the unique circumstances pertaining to each individual claim. Although constitutive recognition may include compliance with the Montevideo criteria, such compliance is not necessarily required.

In the context of sea level rise, both theories of state recognition pose ambiguity before unfamiliar legal contexts. Because a declaratory approach fails to define if territory is a requirement for statehood, it therefore leaves unaddressed the possibility of a deterritorialized state. Perhaps more fundamentally, legal scholars question the applicability of the Montevideo Convention to determining the continued recognition of statehood, arguing that a strict textual interpretation of this doctrine only outlines conditions necessary for the establishment of statehood. Likewise, a constitutive interpretation fails to provide an authoritative opinion regarding the sovereign condition of a deterritorialized state, as requirements for statehood are determined on a case-by-case basis. Neither theory of state recognition therefore provides an authoritative stance on the sovereign status of a deterritorialized state.

International Law on Maritime Entitlements

The rights of coastal states to maritime entitlements are outlined in the United Nations Convention on the Law of the Sea. The Convention establishes four maritime zones in which states possess varying degrees of sovereignty. These zones include: (1) the territorial sea, which measures twelve nautical miles from a basepoint measurement; (2) the contiguous zone, extending 12 nautical miles beyond the end of the territorial sea; (3) the exclusive economic zone (EEZ), which extends for 200 nautical miles from the end of the territorial sea; and (4) the continental shelf, which extends up to 350 nautical miles beyond the end of the territorial sea. Apart from demarcating the maritime sovereignty of coastal states, these entitlements assign exclusive jurisdiction for the exploitation of natural resources within the water column of an EEZ, as well as for the exploitation of subsoil resources below the continental shelf.

Unfortunately for low-lying island states, a legitimate claim to jurisdiction over these maritime zones may be contingent upon the possession of national territory. Although not explicitly stated in the text of UNCLOS, scholars contend that an interpretation of Article 76 (9) supports the notion of “ambulatory baselines.”8 According to this interpretation, as sea levels rise and push shorelines inland, zones of maritime jurisdiction simultaneously and correspondingly shift inland by the same distance. As a result, and pursuant to UNCLOS Article 13, upon the complete inundation of national territory, jurisdiction over maritime entitlements may be entirely lost. Although maritime entitlements under other circumstances are understood to be both exclusive and permanent, the legal uncertainty regarding the accuracy of the ambulatory baselines interpretation exposes South Pacific nations to the risk of losing jurisdiction over their current maritime claims upon deterritorialization.

Section III

A Theoretical Pathway to Maintaining Sovereignty: The Nation Ex-Situ

The unprecedented threat of deterritorialization due to global warming-induced sea level rise poses novel questions of international law and relations. Indeed, the absence of an authoritative legal judgment on the future sovereign status of low-lying island nations has provoked academic intrigue and inquiry. In an effort to reconcile the ambiguous legal nature of future claims to statehood with the demonstrated need of threatened island nations to maintain their sovereignty, legal scholars have conceived innovative interpretations of international law that re-conceptualize our very understanding of statehood.

The entity of the state has been thoroughly examined in legal scholarship. Since the articulation of the legal requirements for statehood in the Montevideo Convention, scholars have investigated the extent to which sovereign entities can deviate from the recognized characteristics of statehood yet continue to exhibit international legal personality. Rayfuse specifically cites both the Sovereign Military Order of Malta and the Holy See as examples of sovereign subjects which have traditionally enjoyed the full legal personality of international law despite lacking the key Montevideo characteristics of a defined territory and a permanent population.9 Jain builds upon this analysis in concluding that territory is neither sufficient nor necessary for the maintenance of statehood.10 Together, these interpretations suggest that a deterritorialized state could be a legally permissible international entity.

Furthermore, legal scholars note that international law has long recognized the ability of governments to exert legitimate sovereignty from a territory outside of that sovereign jurisdiction. According to McAdam, history is “replete with examples” of governments in exile, which are able to rule over a territory from the safe haven of a foreign state.11 This suggests that a state need not be present within the territory over which it governs to be recognized as a sovereign international entity.

In her articulation of the Nation Ex-Situ, Maxine Burkett combines the notion of a deterritorialized state with that of exiled governance, effectively reconceptualizing the entity of the state within the international system. In this way, the prospect of a deterritorialized nation becomes invested with legitimate legal possibility.12 According to Burkett, Ex-Situ nationhood allows for a deterritorialized nation to exist as a sovereign state through the “creation of a government framework that could exercise authority over a diffuse people.”13 The governance structure of a deterritorialized nation could be implemented and administered from a centralized, foreign location, and serve the interests of a population in diaspora across the globe. Burkett argues that despite the state’s lack of a defined national territory, it would still the be legally entitled to “all of the rights and benefits of sovereignty amongst the family of states, in perpetuity.”14

Burkett’s re-imagination of statehood within the conception of the Nation Ex-Situ is both cogent and practical. The Ex-Situ nation is based off the historical and legal precedent established by the United Nations Trusteeship System, and therefore operates within the confines of existing codified international law. The UN Trusteeship System was established and utilized in the mid-20th century to provide governance and administration to colonial territories, and according to Burkett therefore serves as “a precedent to demonstrate the viability of this kind of removed governance and provides a structure that the international community can most easily replicate given earlier experience.”15

Beyond operating in accordance with existing legal frameworks, the Ex-Situ model addresses the ambiguities in international law provoked by rising sea levels and deterritorialization. Because it operates under recognized legal precedent, an Ex-Situ nation could credibly claim the right to sovereignty under a constitutive interpretation of state recognition theory, in which the only prerequisite for statehood is diplomatic consent. Furthermore, once legally recognized as a deterritorialized state, an Ex-Situ nation would be invested with the legal authority to retain maritime rights and the ability to lobby within the UNCLOS structure against the legal interpretation of ambulatory baselines.

Although Ex-Situ nationhood expands traditional notions of statehood, its origin in the constitutive theory of state recognition strictly cabins its applicability. Because this novel conception of sovereignty requires diplomatic recognition of the aspiring nation, the international community is vested with the implicit authority to restrict Ex-Situ application to contexts that are collectively deemed to be legitimate. Furthermore, the inaugural application of the Ex-Situ model to the context of inundated islands would establish a limiting principle in customary international law which restricts Ex-Situ nationhood to humanitarian contexts where formerly recognized states have become entirely uninhabitable as a result of sea level rise.

Section IV

Implementing Deterritorialized Sovereignty: A Question of Policy, not Law

Despite the availability of a legal framework capable of ensuring the continued sovereignty of deterritorialized island states, to date diplomats have been unable to prolong statehood in practice. This section describes failed legal approaches to implementing Ex-Situ nationhood and suggests that implementing the Ex-Situ model can be more efficiently achieved through policy processes. Through the design and implementation of an international policy platform which by default recognizes the status of deterritorialized sovereignty, South Pacific states can facilitate the recognition of their sovereign status long after their populations are displaced and territories inundated by sea level rise. Despite the legal nature of the statehood dilemma, the most effective solution is manifested in policy, not law.

The Shortcomings of International Law

The design and implementation of effective global policy related to climate change requires coordinated action and cooperation amongst states. In part because of this, to date, international policy has focused predominantly on the mainstream and politically palatable challenges. Defined in terms of adaptation and mitigation, issues of carbon reduction, sustainable economic development, and technology transfer garner widespread support for policy design and implementation. However, more controversial topics, including compensation for loss and damage and the attribution of state responsibility, if at all discussed, are relegated to less significant sub-committees and forums within the United Nations Framework Convention on Climate Change process.

Because addressing the sovereignty crisis for low-lying island nations would implicate a reconceptualization of the notion of statehood, thereby prompting the amendment of international law, little political will exists outside of the South Pacific region to initiate the necessary policy discussions. A challenging political context therefore confronts threatened island nations. Unable to promote earnest diplomatic negotiations to advocate for a continuing claim to statehood, South Pacific nations have turned to the institutions which arbitrate international law for clarification regarding the legal ambiguity surrounding their future statehood status.

In 2013, Palau petitioned the International Court of Justice for an advisory opinion on issues of state responsibility for climate change. The objective of this initiative was to obtain a legal interpretation that would find excessive carbon emission as a jus cogens violation of international law, or a violation of a fundamental principle of law from which no derogation is permitted. Such an opinion could then be used to argue for a continued claim to statehood for deterritorialized island nations, as international law prohibits the extinction of statehood via jus cogens violations.16 Likewise, in 2018, the Federated States of Micronesia petitioned the International Law Commission to clarify the legal impact of sea level rise on statehood, sovereignty, and jurisdiction over maritime claims. A progressive interpretation would provide an authoritative affirmation of the legal availability of deterritorialized sovereignty. Each of these legal strategies ultimately aims to establish a precedent in international law which compels the community of nations to continually recognize the sovereign status of deterritorialized island states.

However, neither petition has received a response. The best-case scenario for people on at-risk islands is that these requests are simply being ignored despite rapidly rising sea levels. At worst, the petitions may agitate the larger, more diplomatically influential nations that provide important financing for international adaptation and mitigation measures. Notably, Palau’s 2013 initiative received diplomatic rebuke from the United States and other members of the United Nations.17Furthermore, nations adopting this strategy run the risk of receiving an authoritative and binding renunciation of the legal availability of deterritorialized sovereignty, thus indefinitely precluding the possibility of the Ex-Situ nation.

A Sovereign Declaration: A Policy Approach to Implementing Deterritorialized Statehood

Instead of appealing to the authority of international institutions to justify the legality of the Ex-Situ nation, the island states of the South Pacific should work through domestic and regional policy processes to build support for their continued recognition. This can best be accomplished by releasing a declaration that justifies the legality of Ex-Situ nationhood for island states deterritorialized due to rising sea levels, and then using strategic policy initiatives to facilitate the recognition of deterritorialized sovereignty in practice.

A Sovereign Declaration

A diplomatic statement that interprets international law as definitively supporting the continued sovereign status of islands inundated by climate change-induced sea level rise provides the legal rationale for deterritorialized sovereignty. In order to maximize political leverage and legitimacy, this opinion should be released as a joint statement of the Pacific Islands Forum (the regional intergovernmental organization for South Pacific states). This sovereign declaration would mandate that the full rights and privileges of states be granted to nations whose national territory has been inundated by climate change-induced sea level rise and recognize in them the highest degree of international legal personality.

Facilitating Recognition through Strategic Policy Platforms

Given the limited diplomatic leverage of South Pacific states, a declaration of sovereignty based on a progressive interpretation of international law is unlikely to gain immediate and universal recognition. However, by integrating the principles of this declaration into the framework of broader international policy initiatives, a supportive policy infrastructure can be constructed to facilitate the recognition of deterritorialized sovereignty in practice.

In his articulation of the Transnational Legal Process, Harold Koh describes how this process can be manifested.18 According to Koh, by provoking strategic reinterpretations of international law in both public and private fora, states can establish norms of behavior that promote compliance with specific policy objectives. Koh argues that the newly created norms have a predictive capacity in that they encourage specific patterns of state behavior.

South Pacific island nations threatened by rising sea levels should therefore adopt foreign policy platforms promoting a norm of recognizing deterritorialized sovereignty. References to the recognition of a deterritorialized state can be included in an array of policy initiatives, including, among others, trade agreements, environmental accords, or bilateral investment treaties. Thus, by engaging in diplomatic relations with South Pacific nations, the international community would by default grant its recognition of future deterritorialized statehood status. Eventually, over the course of dozens of norm-creating interactions, a policy infrastructure will be created that facilitates and supports the recognition of deterritorialized sovereignty in a wide range of manifestations of state practice.

For example, Pacific Island nations can grant long-term licenses for natural resource exploitation within their Exclusive Economic Zones that recognize the original jurisdiction of the licensing state, including in a deterritorialized capacity. Additionally, Pacific states can sign maritime boundary delimitation agreements which demark the boundary between the adjacent maritime entitlements of two states. Pursuant to Article 62 (2) of the Vienna Convention on the Law of Treaties, these agreements would be permanently binding for all nations under international law. In this way, the ambiguity of international law regarding deterritorialized statehood is sidestepped, and a norm of recognition is instead instituted through policy practices.

Conclusion

The low-lying island nations of the South Pacific can best retain their sovereignty in the context of rising sea levels by pursuing a strategic foreign policy platform that facilitates their continued recognition as states. By addressing the inherently legal dilemma of deterritorialized statehood through policy initiatives, and not legal institutions, South Pacific nations retain agency over the definition of their sovereign status and the mechanisms through which it is manifested. This paper has identified both a legal rationale for continued sovereignty in the Ex-Situ framework and proposed a policy mechanism for its implementation.

Furthermore, the strategy advanced in this paper helps to bring innovative academic theory on sovereignty into the practice of policy implementation. While previous scholarship has established the legal availability of the Ex-Situ framework, bureaucratic and slow-moving legal institutions have been unable to enact its central concepts. The policy approach advocated in this paper provides a platform for the manifestation of this framework, bridging the gap between academia and the policy world and demonstrating how South Pacific nations can in practice use policy to retain sovereignty as deterritorialized states.

 About the Author

Erik Woodward is a graduate of the Yale Jackson Institute, where he earned a master’s degree in global affairs. He is currently pursuing his Juris Doctor at New York University. Erik studies the intersection of international law and policy and how it relates to issues of climate change governance.

Endnotes

1. Intergovernmental Panel on Climate Change, “Summary for Policymakers,” in Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (2013), 23.

2. World Bank, “Chapter 4: Impact of Climate Change on Low Islands The Tarawa Atoll, Kiribati,” in Cities, Seas, and Storms: Managing Change in Pacific Island Economies (2000), 19–26, http://siteresources.worldbank.org/INTPACIFICISLANDS/Resources/4-Chapter+4.pdf.

3. Rosemary Rayfuse, “International Law and Disappearing States: Utilising Maritime Entitlements to Overcome the Statehood Dilemma,” University of New South Wales Faculty of Law Research Series 52, (November 7, 2010): 7.

4. Henrike Seidel and PN Lal, “Economic Value of the Pacific Ocean to the Pacific Island Countries and Territories,” IUCN Oceania (2010), 8, https://cmsdata.iucn.org/downloads/economic_value_of_the_pacific_ocean_to_the_pacific_island_countries_and_territories_p.pdf.

5. William Worster, “Law, Politics, and the Conception of the State in State Recognition Theory,” Boston University International Law Journal 27, no. 115 (August 12, 2009): 115.

6. “Montevideo Convention on the Rights and Duties of States”, opened for signature December 22, 1936. Organization of American States Law and Treaty Series no. 37, http://www.oas.org/juridico/english/treaties/a-40.html.

7. Lilian Yamamoto and Miguel Esteban, Atoll Island States and International Law (Heidelberg: Springer-Verlag Berlin Heidelberg, 2014), 182.

8. Jenny Stoutenburg, Disappearing Island States in International Law (Leiden: Brill, 2015).

9. Rosemary Rayfuse, “W(h)ither Tuvalu? International Law and Disappearing States”. UNSW Law Research Paper No. 2009-9 (2009): https://ssrn.com/abstract=1412028.

10. Abhimanyu George Jain, “The 21st Century Atlantis: The International Law of Statehood and Climate Change-Induced Loss of Territory,” Stanford Journal of International Law 50 (2014): 1–52.

11. Jane McAdam, “‘Disappearing States’, Statelessness and the Boundaries of International Law”. UNSW Law Research Paper No. 2010-2 (2010): https://ssrn.com/abstract=1539766.

12. Maxine Burkett, “The Nation Ex-Situ: On climate change, deterritorialized nationhood and the post-climate era,” Climate Law 2, no. 3 (2011): 345–374, https://content.iospress.com/articles/climate-law/cl040.

13. Burkett, “The Nation Ex-Situ,” 346.

14. Burkett, “The Nation Ex-Situ,” 346.

15. Burkett, “The Nation Ex-Situ,” 364.

16. Jenny Stoutenburg, “When Do States Disappear?” in Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate, ed. Michael B. Gerrard and Gregory E. Wannier (Cambridge: Cambridge University Press, 2013).

17. ReliefWeb. “Island nation takes on the world’s polluters.” Accessed July 6, 2017. https://reliefweb.int/report/palau/island-nation-takes-world-s-polluters.

18. Harold Hongju Koh, “Transnational Legal Process,” Nebraska Law Review 75 (1996): 181–207.