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

How California, Bermuda, and Hogonas Are Undermining the International Legal Order

Via Legal Theory, a cool if short article on the implications of sub-state activity in the international realm, Sovereignty, Territory and Fluidity: Lessons from Hoganas.

The modern conception of statehood, with its neat division of sovereign territories along recognized and inviolable boundaries, seems sometimes to be the inevitable geopolitical structure of the world, but it is of course a relatively modern invention — sovereignty, as we recognize it today, only emerged in the past two or three centuries. There is no reason to assume it will be the perpetual condition. Probably the most frequently discussed threat to sovereignty is the emergence of supra-state entities such as a “world government,” or at least a “continental government” in the style of the European Union. A second, lesser, challenge to the state model is the uncertain status of non-governmental non-state entities, such as the Red Cross.

But often overlooked is the role of sub-state entities in undermining sovereignty. Not only are top-down systems changing the nature of international law, but so are new bottom-up patterns of behavior emerging from domestically-recognized internal sub-sovereign entities.

A high profile example of this occurred recently, with Bermuda’s resettlement of ex-Guantanamo detainees.

At the time of the Uighur transfer, the government of the United Kingdom launched public protests because neither the government of Bermuda nor the government of the United States discussed the potential transfer with it at any point prior to the actual transfer of the Uighurs. The diplomatic intricacies of the relationship between these states are beyond the scope of this paper. However, this example is important to the paper’s overall discussion of states and sub-states in that it involves an outside state – and a powerful ally of the United Kingdom at that – recognizing that a sub-state could enter into an agreement which was in direct violation of the explicit laws of the sub-state and the state of which it is a part. Further, it illustrates an instance in which a sub-state derogated from accepted law and practice in order to insert itself into an issue for which the larger state has an accepted stance and acted in contravention of the larger state’s policy in the realm of security and international relations

Under “pure” international law, the only recognizable entities are states. Sub-states — let alone individual people — are simply non-existent on the international plane. But in the U.S., individual states, not the federal government, form the bulk of the vanguard for international environmental law developments.

[M]any individual states – including powerful states such as California and New York – have thwarted these [U.S.] policies and grouped together to engage in carbon capping and trading on a regional level. Additionally, the State of California has entered into climate change related agreements with Canadian provinces and outside states, such as Brazil and China, although the United States government has not done so.

Finally, in Sweden, the town of Hogonas in bringing into sharp relief some of the complications to the sovereignty model caused by the European Union. Although by domestic law, Sweden’s Riskbank is the only entity that can declare what will be accepted as legal tender, the southern tourist town of Hogonas has simply announced and put into effect a plan for local merchants to accept Euros as well as krona. In fact, this is not merely a violation of domestic law — even under international instruments, it is unambiguously clear that such fiscal decisions are to be made at the national level.

[I]f the Swedish government had acted to stop Hoganas’ acceptance of the euro, this paper would have an entirely different discussion. However, Hoganas’ actions in defying the stance of the Swedish government regarding the euro, as well as the layers of statutory and constitutional laws which established the state as the ruling authority in matters of monetary policy, finance, and international and EU relations were not stopped or counteracted by the Swedish authorities. The mayor and merchants of Hoganas openly announced that they would be accepting the euro as of January 1, 2009, and no national efforts were made to stop them, although it was accepted that such actions were in contravention of Swedish governmental and popular policy regarding the use of the euro and the retention of the krona.

Taken together, these examples suggest that international law is becoming the site of fluidity in the relationship between sovereignty and territory. Certainly, the classic understanding of the fixed nature of sovereignty and territory continues to exist in international law, perhaps most obviously when a portion of a state’s sovereign territory is threatened or attacked by another state or group of actors. Yet outside of such extreme examples, fluidity does exist and international law is increasingly impacted by it.

-Susan

How Much Noopolitik Do You Want For That Realpolitik?: Nauru’s Recognition of Abkhazia

The recognition of a State by another State is usually based upon a mixture of factual and political concerns — factually, does the state meet all the traditional criteria of statehood, and politically, what are the risks and rewards of recognizing or refusing to recognize another sovereign. The tiny island nation of Nauru, however, has shown the potential of a third important consideration: raw financial compensation.

For $50 million, Nauru has effectively sold its vote in the statehood electoral college to the fledgling international entity of Abkhazia. Hat tip International Law Prof.

Nauru, an eight-square-mile rock in the South Pacific with about 11,000 inhabitants, was no pushover, according to the influential Russian daily newspaper Kommersant. In talks with Russian officials, Nauru requested $50 million for “urgent social and economic projects,” the newspaper reported, citing unnamed Russian diplomats.

This is not the first time Nauru has put a price tag on recognition of statehood. Back in 2002, in a somewhat more contentious situation, Nauru switched its recognition from Taiwan to the PRC for $130 million. So in merely 7 years, the price has already fallen dramatically, by $80 million.

This could of course be a case of price discrimination — Nauru knows China can afford to pay a lot more than Abkhazia — or perhaps it could be argued that Nauru’s recognition was more valuable to China as it was not just a vote for them it was a vote against Taiwan. But I think it is more likely that the difference in price can be attributed to a decrease in the service’s value.

State recognition is more art than science, but the specific motivations behind a State’s decision to recognize another State do affect how much weight that choice to recognize is given when it is factored into the overall statehood calculation. Now that we know Nauru is willing to give a vote of statehood to any wannabe sovereign that can meet its price, the significance of recognition by Nauru as an indicia of statehood will be severely discounted. Therefore, the more often Nauru engages in recognition-for-cash sales, the more Nauru’s recognition will decrease in value. Just like the phosphate that once sustained Nauru’s economy, recognition is a non-renewable resource, and will not sustain Nauru forever.

Essentially, for a mere $50 million, Nauru has sold off a portion of its international law making power to Abkhazia.

On the other hand, Abkhazia may benefit from the trade in other ways. Although Nauru’s recognition is worth little in itself, the fact Abkhazia was able to demonstrate its ability to acquire $50 million, engage in international diplomacy with another recognize state, and donate a sum of money as “foreign aid” could signal to other nations that Abkhazia is a serious player after all.

Under Article 1 of the Montevideo Convention, the fourth and final qualification for statehood is a “capacity to enter into relations with the other states.” The deal may have been somewhat sordid and tacky, but nevertheless, by acquiring Nauru’s recognition, Abkhazia proved it had the capacity to engage in foreign relations.

-Susan

The Website Theory of Statehood

Although the definition of statehood under international law has not been definitively resolved, traditionally, per the Montevideo Convention, “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.” In addition, recognition of a state by other states arguably plays a more important role in the statehood process.

However, I would like to propose a new criteria by which the claims of would-be sovereigns can be evaluated. In today’s world, e-governance is rampant. Politicians stay in contact with their constituents via their homepages, agencies administer regulations online, and court filings can be done with the click of a mouse. So whether or not an autonomous region has a permanent, defined web presence that has the capacity to assist its governmental activities is a vital consideration when examining claims of statehood. So, using the Website Theory of Statehood, how do existing unrecognized states stack up?

Taiwan: Taiwan’s somewhat unique status in the “Is it or is it not a state?” debate makes it a good starting place to test the theory. Taiwan’s pseudo-official statehood is reflected in the fact that it has its own country code top-level domain, of .tw. However, ccTLD’s are poor indicia of statehood in themselves; they are distributed by ICANN, and substate regions can also be issued them, such as Jersey’s .je and the Virgin Island’s .vi.

Still, Taiwan starts off on a good note by displaying two strong hallmarks of internet statehood — numerous web domains for each different branch of government and the use of the .gov subdomain for its various state webpages. For instance, the president is located at http://www.president.gov.tw/en/, while the National Assembly is at http://www.na.gov.tw/en/index-en.jsp. (Bonus Trivia Fact from the president’s web page: What do the U.S. and Taiwan have in common? Both out presidents have law degrees from Harvard.)

None of the websites of the various Taiwanese government branches get particularly high marks for style, but they aren’t offensively ugly at least, and they amply satisfy all requirements for accessibility and content.

Verdict: Although Taiwan may not be a recognized sovereign under international law, it is a thriving Internet State.

Somaliland: Although Somaliland’s website is not nearly as sophisticated as the Transitional Federal Government of Somalia’s, Somaliland gets credit for the fact it actually operates from within its own territory. The prominently placed waving Somaliland flag image is annoying, but by itself, not particularly offensive. All in all, in terms of web design, it’s about on the level of a page created by a marginally talented middle school student.

Of course, the webmaster’s yahoo email address is a significant mark against a finding of web sovereignty. And although the fact it maintains a separate website for its Upper Parliament might have won it back some points, as the website does not appear to have been updated at any point in the past three years, it’s really more of a net loss.

Interestingly, the neighboring autonomous state of Puntland has a much more sophisticated web presence, although it is not seeking sovereignty but rather continues to maintain it is a part of Somalia. Aside from the annoying page intro, Puntland’s website is respectable and decent looking. It actually reminds me of the websites of several county governments from my home state of Georgia: clearly governmental in nature and reasonably active, but still small-time government.

Verdict: Not a state, but I’ll give them a solid E for Effort. Somaliland ought to seek advice from Puntland on how to manage its e-statehood.

Kosovo: The websites for the various government branches of Kosovo are all clean, sharp, and authoritative, with a faint air of bureaucratic staleness. In other words, they look exactly like what you would expect for a sovereign state government’s website.

Meanwhile, the website for the Serbian Government of Kosovo is, while passable, somewhat clunkier. More importantly, the dismal imagery and content of the site is all extremely negative in tone, focusing on pictures of bombed out buildings and emphasizing the fear, instability, and chaos of the region.

The contrast between the two certainly weighs in Kosovo’s favor. Kosovo’s website is professional and businesslike, and gives the impression that it is the model of responsive and diligent governance. In direct opposition to this is the Serbian website, which stresses its inability to control the region and is primarily concerned with advancing a political agenda rather than engaging in ah actual governmental capacity.

Verdict: Although the facts on the ground may be drastically different, in terms of its website, Kosovo qualifies for Virtual Statehood.

Cabinda: The wannabe sovereign territory of Cabinda, located in Angola, is a classic example of the self-deluded unrecognized state. Cabinda’s inability to exercise sovereign governmental control over the region is rivaled only by its complete incompetence at web design. Tiled backgrounds, flying bird gifs, scrolling text, spinning “email” icon, images unapologetically created by MS Paint? My god. I’d call this a sad excuse for a geocities webpage, but that would be a gross insult to Geocities webpages everywhere — Cabinda hasn’t even yet progressed past the Angelfire-level of web design.

Verdict: Does not meet even the most minimal of qualifications for Internet Statehood.

Western Sahara: The proclaimed government of Western Sahara has no access to a ccTLD, but .eh has been specifically reserved for the nation once it manages to obtain a unified voice. In 2007, the Sahrawi Arab Democratic Republic, the government that claims to speak for the sovereign territory of Western Sahara, tried to lay claim to the domain, but Morocco objected. As a result, ICANN refused to release .eh, stating that because of competing claims,

ICANN does not see a way to approve the .EH ccTLD delegation to one of the applicants without violating its long-standing policy unless the contesting parties are able to reach an agreement.

The Sahrawi Arab Democratic Republic still has a website, however: http://www.rasd-state.ws/

Note the .ws in the domain name. Now that’s actually a rather clever bit of statehood marketing right there. The .ws ccTLD is in fact registered to Samoa, although the Sahrawi Arab Democratic Republic is cleverly passing off the “ws” as standing for Western Sahara. Who needs .eh, the intended ccTLD for the nation you claim control over, when your Samoan buddies will lend you a domain name that sounds like it was actually meant for you?

Sadly, the website is in Arabic, which I don’t actually speak. The page gets medium marks: although it is simple, it manages to avoid being hideous, and I am reasonably confident that if I could read Arabic the site would be easily navigable. However, judging by the page URL’s (in Spanish, which I can pretend to read), the website does not provide anything in the way of government services, which is a mark against it. However, there do appear to be “official government documents” in PDF form, which gives it a little cred.

Verdict: Although Western Sahara’s separatist government displays some promising signs of Virtual Statehood, they are still a fair distance away from achieving internet sovereignty.

Abkhazia and South Ossetia: Aesthetically speaking, South Ossetia’s webpage is my favorite of all the unrecognized states’. It is official looking and professional in appearance, and yet still manages to be friendly and pleasantly warm and inviting. You’d totally want to vacation in a country with a website like that — they seem like such nice people. Also, it’s got snow leopards.

Abkhazia’s website is slightly more severe in appearance, comes across as a no-nonsense kind of nation, and may or may not have been a law firm before it decided to declare itself state. The blue-grey color scheme? The overlapping boxes lay out? That is seriously every D.C. small-to-medium sized law firm homepage ever.

Tellingly, however, both Abkhazia and South Ossetia lack their own ccTLD, do not have separate web pages for different branches of government, and do not employ the use of.gov subdomains.

But this doesn’t rule them out entirely. One major point in the break-away regions’ favor is that their websites far outclass Georgia’s websites for the region. Just take a look at Georgia’s Abkhazia homepage: http://www.abkhazia.gov.ge/. It is ugly, slow to load, and contains graphics that appear to have been created by the same MS Paint artist that provided the images for Cabinda. Most of the English language pages are labeled “under construction,” and I’m honestly surprised they didn’t also include those little animated gifs of smileys wearing hard hats to show that. South Ossetia doesn’t even appear to have a .ge website that I could find, perhaps because Georgia revoked South Ossetia’s autonomy? At any rate, not having a web presence for it at all is a dismal way of showing your Internet Sovereignty over a region, Georgia.

Verdict for Abkhazia and South Ossetia: Have not yet achieved Internet Statehood, but are clearly serious contenders for the title. Recommend that Georgia take immediate steps to overhaul its own websites for the regions in order to firmly establish its claims of sovereignty.

Nagorono-Karabkh Republic: The website for the Nagorno-Karabkh Republic contains flashing banners and animated .gif files. This is an instant disqualification for statehood.

Verdict: Not a state. True sovereigns avoid anything that might induce epilepsy in their web visitors.

North Korea: Under International Law, North Korea is a recognized nation. However, under the new Website Theory of Statehood, North Korea should be considered a failed state. This may sound harsh, but given that the Admin of the website acknowledges that there is no internet access in North Korea and that no one in North Korea can actually see their own website, and that therefore the only people who use it are foreign North Korea enthusiasts, http://www.korea-dpr.com actually has more in common with a Beanie Babies fansite than it does a government webpage.

Although the website does at least exist and is moderately functional, it appears that a 13 year old goth boy was hired to design it. Sadly, the forum that was once featured on the site has since been removed. Apparently a web forum was too democratic for North Korea, as the old forum was replaced by a blog, which announced the change by stating: “Today we launch the new KFA Forum, which will mainly be driven by a few select moderators. Of course, everyone can still contribute with their thoughts, ideas, articles, etc, but we’ll be sure to have much more quality content for you.” In other words, the proletarians were not generating enough ‘quality content,’ so a more restrictive approach was adopted for their own good.

Notable features of the site include a FAQ, with helpful answers to questions such as, “Is North Korea a Dictatorship?”, “Is it true everyone in North Korea is starving?”, and “How can I join the North Korean army?”

Verdict: Not a state. I don’t care if the United Nations recognizes North Korea; when Transnistria, Puntland, and Nagorno-Karabkh have better web presences than you do, your statehood is officially revoked.

-Susan