Climate Change and the Jurisprudence of Statehood: Is a State Without a Territory Still a State?

I went to the program ASIL had yesterday on “Rights-Based Responses to Climate Change Induced Displacement,” which discussed the role of international law in handling ‘environmental migrants’ and internally displaced persons who are forced out of their homes as a result of conditions brought on by climate change. One of the speakers brought up an interesting scenario I had not considered before.

Rising sea levels may pose a serious risk to the national security of many island nations. For states such as the Bahamas and Tonga, a higher sea level is a grave threat, as the low lying parts of their territories that are at the greatest risk of going under tend also tend to be the areas of greatest habitation. But for other island nations, such as Kiribati, the Marshall Islands, the Maldives, and Tuvalu, climate change may pose a more severe and existential threat: these states may actually be at risk of becoming entirely submerged by rising sea levels. If these island states were to become completely swamped so that no part of their islands were above sea level, effectively leaving them with no physical territory to call their own, would they continue to exist as an entity recognized by international law?

Prof. Kälin mentioned the possibility of citizens of these at-risk countries becoming “stateless” if their islands go under. But statelessness, as he put it, could mean being without a nationality, not being without a state.  Even if an island nation were swamped, it does not necessarily imply that its government would not continue to exist.

Under international law, the traditional criteria for statehood does include “territory.” However, would such a formalist interpretation prevail after a climate related disaster sunk a whole nation? Or, in practical terms, would any state really have the callousness to stand up and announce, “It is unfortunate that the Maldives was submerged by rising sea levels, but we now object to its continued claims of statehood and UN Membership”? Maybe I am being too generous, but I doubt it.

There is also the possibility that any sunken nation could build up a tiny sandbar over the remains of their country, if the technical requirement of territory is found to be mandatory. There is no requirement that a state’s government be located within its own territory, after all — merely that a state have some territory to speak of, even if the seat of government is not located there. For instance, the internationally recognized governmental body of Somalia has at times operated out of the neighboring territory of Kenya, due to the unstable situation inside of Somalia itself.

Additionally, although the concept of statehood as a corporate-esque abstraction — a social construct characterized by its citizens voluntary allegiance, with little or no regard for the geograpgical location — has been a somewhat common trope in science fiction, there is in fact some modest precedent for the idea under international law. The Order of Malta, for example, has no territory of its own, but it claims to be a non-state sovereign entity, and has permanent observer status with the UN. It has diplomatic relations with 103 states, and even issues its own currency and stamps. Although most international scholars reject the notion that the Order of Malta is an “actual” sovereign entity, it clearly does exhibit some sovereign-like traits in practice.

Perhaps a nation submerged by rising sea levels would face a future similar in some respects to the current status enjoyed by the Order of Malta, although it seems likely a formerly-territoried state would face far less objection to its continued claims of sovereignty. The theoretical underpinnings of statehood have always been forced to evolve and adapt to changing political structures, however; it is not too difficult to imagine a hypothetical future world in which the idea that statehood is dependent upon attachment to a patch of dirt is considered to be archaic.

-Susan

5 thoughts on “Climate Change and the Jurisprudence of Statehood: Is a State Without a Territory Still a State?

  1. Pingback: Two Very Scary Excerpts on the Condition of Haiti « The View From LL2

  2. Pingback: Sorry, Wirtland, You’re Not a Sovereign– Try Again In A Couple Centuries or So, Maybe Custom Will Have Changed Enough By Then « The View From LL2

  3. There might be global warming or cooling but the important issue is whether we, as a human race, can do anything about it.

    There are a host of porkies and not very much truth barraging us everyday so its difficult to know what to believe.

    I think I have simplified the issue in an entertaining way on my blog which includes some issues connected with climategate and “embarrassing” evidence.

    In the pipeline is an analysis of the economic effects of the proposed emission reductions. Watch this space or should I say Blog

    http://www.rogerfromnewzealand.wordpress.com

    Please feel welcome to visit and leave a comment.

    Cheers

    Roger


  4. So if an island nation is submerged beneath the ocean, does it maintain its membership in the United Nations? Who is responsible for the citizens? Do they travel on its passport? Who claims and enforces offshore mineral and fishing rights in waters around a submerged nation? International law currently has no answers to such questions.

    United Nations Ambassador Phillip Muller of the Marshall Islands said there is no sense of urgency to find not only those answers, but also to address the causes of climate change, which many believe to be responsible for rising ocean levels.

    “Even if we reach a legal agreement sometime soon, which I don’t think we will, the major players are not in the process,” Muller said.

    Those players, the participants said, include industrial nations such as the United States and China that emit the most carbon dioxide and other so-called greenhouse gases. Many climate scientists say those gases are responsible for global warming. Mary-Elena Carr of Columbia University’s Earth Institute said what is now an annual sea level rise of a few millimeters will increase dramatically by the year 2100. “The biggest challenge is to preserve their nationality without a territory,” said Bogumil Terminski from Geneva. International legal experts are discovering climate change law, and the Pacific island nation of Tuvalu is a case in point: The Polynesian archipelago is doomed to disappear beneath the ocean. Now lawyers are asking what sort of rights citizens have when their homeland no longer exists.
    t present, however, there appear to be at least three possibilities that could advance the international debate about ‘climate refugee’ protections and fill existing gaps in international law.

    The first option is to revise the 1951 Convention on the Status of Refugees to include climate (or environmental) refugees and to offer legal protections similar to those for refugees fleeing political persecution. A second, more ambitious option is to negotiate a completely new convention, one that would try to guarantee specific rights and protections to climate or environmental ‘refugees`.

  5. the change of climate has led to increase in sea level and thus has endangered the very existence of many states under international law. Now according to the definition of state as under Montevideo convention, territory is one of the essential characteristics of a state and must be possessed by individual states. Now with the rise in sea level the territory of island countries will be under water, then the fundamental question will be whether such state will be state under int. law and what will happen to the nationals of the state. this matter is of great importance and must be looked upon by united nations and further new definition of the state should be adopted.

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