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Climate Change and Disappearing Island States: Statehood and Sovereignty at the
Boundaries of International Law
According to data published by the Intergovernmental Panel on Climate Change (IPCC), by
the end of this century a number of small low-lying island states located in the South Pacific
and Indian Oceans – most notably Tuvalu, Kiribati, the Marshall Islands and the Republic of
the Maldives – face total inundation as a result of climate change induced rising sea levels.
Because international law (specifically the 1933 Montevideo Convention on the Rights and
Duties of States) demands territory as a prerequisite of statehood, this could have
implications for their continuation as states and, in turn, the cultures, languages, histories
and identities of the inhabitants. To prevent this and preserve the status of the
disappearing island community, scholars in recent years have started to point to several
strategies seeking to maintain some sort of territorial dimension of the state.
First of all, it has been suggested that a disappearing state might consider constructing
artificial islands to replace the territory which has become submerged by sea level rise.
There is no doubt that this is technically a possibility, the Republic of the Maldives having
already built the artificial island Hulhumalé next to its capital Malé. The question is whether
other states would be able to afford the expenses involved. Even if they could, it is not clear
under the current law whether a state may continue to exist if its territory is solely made up
of artificial islands. This means that this cannot be relied upon for a definitive solution and
other available options must also be explored.
A second strategy to obtain replacement territory is the appropriation of terra nullius (‘land
belonging to no one’). The difficulty here is identifying an area that is not currently under
the jurisdiction of any other states. Today, this is not widely thought to exist in international
law. The only unclaimed areas remaining are those regarded as res communis but these –
encompassing outer space, the high seas and Antarctica – are intended to serve as a
common resource to be shared by all of humanity. They are not therefore generally capable
of being reduced to sovereign control. Moreover, the most viable area of res communis is
Antarctica and it seems somehow cruel to relocate a community currently located on or
near the equator to the coldest part of the world.
The most promising of the available strategies is the acquisition of territory through cession
from a third state. This would allow statehood to continue because sovereignty over the
ceded land would transfer in its entirety to the disappearing island nation which would then
relocate its population (or parts of it) to the new territorial location, continuing its existence
in line with the traditional rules of international law. The question is again whether this
strategy can be achieved. While states are in theory well within their rights to cede portions
of their territory, the likelihood of them actually doing so seems small. There are few, if any,
significant benefits to be gained from giving away land so the motivation to do this is very
weak. In an attempt to resolve this problem, my paper will examine whether endangered
states may somehow be entitled to a replacement territorial base. Attention will be
specifically focused on the as yet largely unexplored option of pursuing a remedial territory
claim. Applying the rules on state responsibility – as codified by the 2001 Draft Articles on
Responsibility of States for Internationally Wrongful Acts – it will be considered whether
(some) emitting third states may be obliged to provide a portion of their habitable territory
as compensation for a wrong done.
As things stand, state responsibility claims for climate change related harms continue to be
a rarity in international law. This is because claimants face numerous hurdles and
uncertainties in seeking to make out the elements of a case. For instance, for the fact that,
for the most part, emissions of carbon dioxide and other greenhouse gases which have
contributed to climate change are due to the activities of private individuals and
corporations, there may be difficulties in determining a wrongful act committed by a state.
There may also be difficulties in defining the primary obligation breached because treaty
provisions and principles of customary international law are often not clear cut and specific
and, at the stage of reparation, there is no clear international law rule on how to apportion
damage between multiple wrongdoers or causes of climate change. Even if these issues can
be dealt with, which it will be contended that they can, finding a forum with jurisdiction to
hear an international claim will depend on the consent of the wrongdoing state and this
may not be easy to obtain. This means an International Court of Justice (ICJ) advisory
opinion is likely to currently be the only procedural option available. While a clear
statement by a body such as the ICJ can play a useful role in clarifying and developing the
law and contributing to a change in attitudes and behaviour – it could, for instance,
encourage states to commit much more strongly to reducing their greenhouse gas
emissions and to contribute more generously to adaptation funds – no specific remedy will
be provided. Accordingly, statehood still ultimately stands to be lost.
In response to the above, it could potentially be suggested that, due to the existence of a
claim, island states will continue to exist even when their territory is inundated as the lack of
territory is not necessarily permanent. Alternatively, I will contend that we must now be
prepared to start thinking of statehood, or at least its continuation, beyond the boundaries
of the current law. The inability of the international legal order to prevent blameless victims
from suffering significantly negative consequences raises persistent questions about the
effectiveness and legitimacy of the current system. Only by accepting that a small island
nation threatened with the disappearance of its territory may continue to exist in a
deterritorialised form can and should its statehood be preserved in spite of a rising tide.