Committee: International Development Committee

Name and Date of Call: UK Small Island Developing States Strategy (16 June 2023)

Subject of Evidence: SIDS, Legal Statehood, and Sea-level Rise

Primary Area of Focus: Climate change and natural disasters

Secondary Areas of Focus: Economic diversification and prosperity; Inclusive governance and shared values

Author: Dr Alex Green, University of York [*]

Table of Contents

Executive Summary

The Importance of Statehood:

The Nature of Statehood

The Law of State Continuity – Relevant Issues

Indicative Recommendations

Recommendation 1 – An Inclusive Recognition Policy

Recommendation 2 – Support ‘Fixed Baselines’

Recommendation 3 – Financial and Logistical Support

Endnotes

Executive Summary

Small Island Developing States (SIDS) face a discretely legal threat of ‘formal extinction’, due to the interaction between sea-level rise and prevailing interpretations of international law. As sea-levels continue to rise, many SIDS face the loss of inhabitable land.[1] Under orthodox understandings of legal statehood, states cannot exist without some land of this kind.[2] This means that if SIDS lose all of their inhabitable land they may lose their statehood as well.[3]

That loss would be catastrophic. Legally speaking, only states can issue nationality,[4] provide diplomatic protection to their citizens,[5] hold maritime territory,[6] and maintain sovereignty over essential natural resources.[7] Conversely, without their states, the current populations of SIDS face statelessness, with all the cultural, economic, and social deprivation that this implies.[8]

In this submission, I detail the nature and importance of legal statehood, summarise the law of state continuity, and explain the unique legal threat that sea-level rise creates. Finally, I make three indicative recommendations that the Foreign Commonwealth and Development Office (FDCO) might consider including within the UK Small Island Developing States Strategy. These recommendations are as follows:

The UK should make a formal commitment to observing the legal continuity of SIDS, notwithstanding any future losses of inhabitable land they may suffer. Three ways in which this could be accomplished are provided.
The UK should make a formal commitment to maritime baselines being ‘fixed’ rather than ‘ambulatory’ for the purposes of the 1982 United Nations (UN) Convention on the Law of the Sea (UNCLOS). An interpretive declaration on the text of UNCLOS should also be sought along these lines.
The UK should provide financial and logistical support for technological and other initiatives by SIDS designed to prevent and mitigate the loss of statehood.

References and further detail are provided in endnotes, with online links made available wherever possible (functional as of 16 June 2023).

The Importance of Statehood:

As the Independent State of Papua New Guinea recently stated within the Sixth Committee of the UN General Assembly, statehood is a ‘threshold issue’ for international law.[9] Although non-state territorial entities do exist, such as the Republic of China (Taiwan),[10] only states are presumed to hold full legal rights at the international level.[11] Crucially for SIDS, whose seas and oceans supply irreplaceable cultural, ecological, and economic resources,[12] only states are capable of generating maritime territory. This means that, should SIDS lose their statehood due to sea-level rise, they will lose their maritime territory as well, and with it their permanent sovereignty over all the natural resources therein.[13] Moreover, without a maritime territory of their own, under the law of the sea SIDS will no longer generate ‘exclusive economic zones’, which are financially indispensable to them.[14] All of the above also impacts the capacity SIDS would have to attract foreign investment: a people and government with neither statehood nor territory would have no legal standing to control access to their erstwhile resources.

Moreover, SIDS that lose statehood would be unable to issue or maintain a discrete nationality, meaning that their citizens would most likely become stateless.[15] Given the extremely poor track record of the international community when it comes to protecting stateless persons,[16] and the consequent cultural,[17] economic, political,[18] and social deprivation that such individuals suffer,[19] it is imperative that the 65 million people currently resident within SIDS do not suffer this fate.[20] Allowing this to occur would be a global humanitarian catastrophe. In immediate practical terms, political communities without statehood characteristically struggle to maintain embassies or offer their members diplomatic protection.[21] Neither can they issue passports with any real international value,[22] nor petition as states on their population’s behalf before organisations like the UN or the International Court of Justice.[23]

The Nature of Statehood

The presence or absence of statehood is not a straightforward matter of fact but rather one of legal status.[24] Whether or not a particular political community counts as a state for legal purposes turns on whether it meets the criteria for statehood established under international law.[25] These criteria are highly contested,[26] however their generally accepted core can be briefly stated as follows.

First, to count as states, political communities must satisfy the ‘antecedents of statehood’,[27] which establish the basic conditions for state creation and continuity.[28] These are as follows: a permanent population; a more-or-less determinate territory; an effective government; and relative political independence.[29] Political communities without these antecedents typically cannot emerge as states, while states that lose one or more of them permanently risk losing their statehood. The antecedents of population and territory are particularly relevant to SIDS threatened by sea-level rise since any losses of inhabitable land directly affect whether these states might be said to possess either ‘population’ or ‘territory’ (see paragraphs 10 and 11 below).

Second, to count as states, a political communities must emerge in manner consistent with other important principles of international law, such as the prohibition on the use or threat of force contained in Article 2(4) of the UN Charter.[30] Certain remedial options available to SIDS are implicated by these principles. For example, states at risk of total submergence could merge with other political communities to create new states.[31] However, since such options effectively concede that many SIDS are doomed to legal extinction [32] – a point which should not be conceded – I say no more about them here.

Third, and finally, legal statehood is bolstered when the political communities in question are formally recognised by the governments of other established states.[33] Some debate persists as to whether such recognition is ‘constitutive’ of statehood or merely ‘declaratory’.[34] However, for most practical purposes this is immaterial: wherever a community is generally recognised to possess statehood, it will be treated as a state in every way that truly matters. As detailed in paragraphs 13 to 15 below, providing a clear and inclusive recognition policy is of supreme importance for the UK Small Island Developing States Strategy for this very reason.

The Law of State Continuity – Relevant Issues

There is a strong presumption at international law that once a state can be shown to exist it will continue to do so, notwithstanding significant disruption to its population, territory, government, or political independence.[35] This explains, for example, the phenomenon of ‘governments in exile’ and the principle that the belligerent occupation of territory will not disrupt extant statehood within the occupied territory.[36]

SIDS facing extinction due to sea-level rise are afforded considerable protection by this presumption,[37] however it has two significant limitations. First, the presumption of state continuity is rebuttable. States can (and have) become extinct where their losses of population, territory, government, or independence have been total or permanent.[38] Ultimately, it is these ‘antecedents of statehood’ (see paragraph 4 above) that currently determine whether statehood endures or whether a state becomes extinct.[39] Second, unlike all previous cases where legal statehood has endured notwithstanding significant disruption, sea-level rise constitutes a physical and potentially permanent undermining of that status.[40] Historically, almost every case in which states have endured ‘against the odds’ has transpired in relation to political and presumptively temporary causes, such as foreign invasion or civil war.[41] This makes sea-level rise an unprecedented threat to state continuity, and so one for which no legal precedents in favour of continuity exist.[42]

In paragraph 14(c), I suggest that the UK should commit to a more robust interpretation of state continuity, specifically in relation to ‘oceanic submergence’. However, if the FCDO were to adopt this approach, it would be fighting against a strong current of international legal opinion. This current, which I have described elsewhere as the ‘austere view’ of state continuity, holds that states without inhabitable land simply cannot exist.[43] Although the legal grounds for this view are suspect, it has attracted widespread support within academic commentary and international practice.[44] The dominance of the austere view can only be challenged by states such as the UK officially adopting a more liberal position on state continuity.

Within this context, it is particularly important to ask what it means for states to possess both a ‘permanent population’ and a ‘more-or-less determinate territory’, since these are the elements of legal statehood ostensibly under threat from sea-level rise. The austere view of state continuity holds that ‘territory’ necessarily implies at least some inhabitable land, such that, for example, the idea of maritime territory without a land-based ‘anchor’ is legally nonsensical.[45] Similarly, the austere view understands ‘permanent population’ to denote a people who are habitually resident upon the land in question.[46]

However, neither of these austere interpretations necessarily follow from the separate proposition that states must possess both territory and a population. First, it is entirely plausible that an area of exclusively maritime territory might be demarcated in relation to currently uninhabitable ‘submerged land’, whether or not the cause of that submergence is sea-level rise.[47] Second, there are historical precedents for entire political communities existing primarily in relation to stretches of sea or ocean, rather than inhabitable landmasses.[48] Third, it remains possible that ‘permanent populations’ might exist notwithstanding the fact that those populations occupy no discrete territories. The conceptual space for this last point is evident from the very existence of ‘governments in exile’, which proves that, under certain conditions, states can possess governments even though those governments lack any control over their nominal territories. If governments can be ‘landless’, in the sense that they cannot access their territory in an ‘ordinary’ manner, this may also hold for populations.[49] For instance, the population of submerged states could be defined in terms of formal citizenship,[50] while cultural and political cohesion could be maintained through initiatives such as Tuvalu’s Digital Nation project.[51] Several SIDS already have a significant percentage of nationals that live beyond their island territories – some more than half – indicating that large non-resident populations are already commonplace.[52]

Indicative Recommendations

The three recommendations below are indicative and not intended to exhaust the support that SIDS should receive in relation to sea-level rise and international law. I have omitted more radical suggestions, such as those calling for legal statehood itself to be reconstructed and applied in an altogether different and non-territorial manner,[53] with an eye to what is most immediately feasible for the UK to adopt.

Recommendation 1 – An Inclusive Recognition Policy

The UK Small Island Developing States Strategy should include a concrete commitment to the formal legal continuity of submerged SIDS as part of its ‘climate change and natural disasters’ area of focus. Moreover, given that legal statehood is prerequisite for the existence of discrete national governments and economies, this pressing issue implicates the ‘economic diversification and prosperity’ and ‘inclusive governance and shared values’ areas of focus as well.

A commitment to SIDS continuity might proceed along three different lines, each of which could be adopted either discretely or in combination:

First, via either unilateral declaration or treaty,[54] the UK could commit not to withdraw either recognition or formal diplomatic relations from existing SIDS, even if all of their inhabitable land is lost to ‘oceanic submergence’.[55] This has the virtue of being relatively self-contained: the category of affected states would be closed (they could even be listed), and although there may be costs involved in maintaining diplomatic relations with submerged states, just as there is with governments in exile, these are likely to be minor.

Second, the UK could issue a unilateral declaration that it will not recognise any losses of territorial title or statehood arising from oceanic submergence. This coheres with Recommendation 2 (paragraphs 16 to 18). It also takes a bolder stance on mitigating climate-related loss and damage, the inequity of which several SIDS emphasise.[56] However, it is an open-ended commitment and therefore makes more space for unforeseen legal consequences.

Third, the UK could make a unilateral declaration that it takes the principle of state continuity to be irrebuttable, at least in circumstances where oceanic submergence would be a major (or sole) cause of lost statehood. This mirrors paragraph 14(b) in substantive terms, however it has the added benefit of explicitly addressing the current content of customary international law.[57] By adopting this declaration, and reflecting it within its recognition practices, the UK could exert influence upon the development of international custom in excess of what it could accomplish through purely bilateral or multilateral commitments, such as those suggested in paragraphs 14(a) or 14(b).[58]

Should the FCDO wish to implement my recommendation in paragraph 14(c), it may also consider action within the UN General Assembly, for example calling for a resolution to the same effect.[59] Such a text would accelerate the alteration of customary international law in favour of SIDS existential resilience. Moreover, the UK should consider reflecting this position on state continuity within its written statement to International Court of Justice in relation to the forthcoming advisory opinion on the obligations of states in respect of climate change.[60]

Recommendation 2 – Support ‘Fixed Baselines’

As explained in paragraphs 10 and 11 above, key to the loss of statehood will be the prior loss of both land and maritime territory. Moreover, as referenced in paragraph 1, the loss of maritime territory itself will be debilitating for SIDS, given their reliance upon their seas and oceans for cultural, ecological, and economic resources. To this end, the UK should implement the International Relations and Defence Committee’s 2022 recommendation to formally adopt a ‘fixed baseline’ approach to the calculation of maritime zones,[61] reflecting the commitment already adopted by the Pacific Islands Forum in their 2021 Declaration.[62]

Moreover, the UK should call for an interpretative declaration to be adopted to the same effect under the auspices of the UNCLOS Meeting of States Parties.[63] That declaration should speak to at least Articles 5-7, 9, 10, 13, 14, 16, 47, 48, 76,[64] and 121 of UNCLOS,[65] emphasising that baselines are understood by all signatory States Parties to be fixed in their current positions. The UK should be diplomatically active in securing universal assent to such a declaration.

The full rationale for this position is provided within paragraphs 114 to 126 of the International Relations and Defence Committee report.[66] In sum, maritime zones (including exclusive economic zones, territorial seas, and internal waters) are currently calculated in relation to ‘baselines’, which are most commonly defined by the low-water line along the coast of the relevant state.[67] Opinion is currently divided as to whether these baselines move as the low-water line itself alters (‘ambulatory’) or whether they remain ‘fixed’ at their current coordinates, as deposited with the UN Secretary-General.[68] The UK currently adopts an ambulatory approach.[69] The salience of fixed baselines is twofold. First, they secure extant maritime zones, and the resources they provide, against the threat of sea-level rise. Second, they provide stable and determinate coordinates for the delineation of territory,[70] whether land or maritime, whether submerged or inhabitable, in relation to which statehood claims can continue to be made by SIDS facing oceanic submergence.

Recommendation 3 – Financial and Logistical Support

If the FCDO is not prepared to endorse Recommendations 1 or 2 – and even if they take the ‘austere’ view that a complete loss of inhabitable land must result in state extinction – there are various strategies that might be adopted to combat the physical fact of oceanic submergence.[71] These include, for example, the use of artificial islands to ‘anchor’ legal claims, not only to extant maritime territories, but also to statehood itself,[72] or the creation of artificial coastlines or coastal defences to prevent sea-level rise from resulting in the submergence of currently inhabitable land. Such measures, it must be emphasised, are typically extremely costly both in financial and ecological terms,[73] and are characteristically beyond the economic capacity of SIDS to adopt unaided.[74] As such, the UK should consider enhanced provision for such measures within its foreign aid budget.

Financial and logistical support should also be given to initiatives aimed at mitigating any losses of statehood, such as Tuvalu’s Digital Nation project, mentioned in paragraph 11. As referenced in paragraphs 1 and 2, statehood is instrumental for cultural, political, and social flourishing. Proper support for virtual alternatives, alongside international efforts to relocate climate refugees and provide them with sufficient guarantees of continuing national, cultural, and, where appropriate, Indigenous identity,[75] will be crucial to the extent that sea-level rise results in statehood becoming lost.

Endnotes

[*] Lecturer, York Law School; Fellow, University of York Interdisciplinary Global Development Centre; Academic Associate, 23ES Chambers (London and Manchester).

[13] Kamal Hossain, for example, writes that ‘At the core of the concept of permanent sovereignty is the inherent and overriding right of a state to control and dispose of the natural wealth and resources in its territory for the benefit of its own people.’ [my emphasis] (‘Introduction’ in Kamal Hossain and Subrata Roy Chowdhury (eds.), Permanent Sovereignty over Natural Resources in International Law: Principle and Practice (Pinter 1984) xiii.)

[14] Robin Churchill, Vaughan Lowe, and Amy Sander, The Law of the Sea, 4th ed (Manchester University Press 2022) 253-299; United Nations (n 12).

[18] On the political value of statehood, see: Alex Green, ‘A Political Theory of State Equality’ (2023) 14(2) Transnational Legal Theory (Forthcoming); Alex Green, Statehood as Political Community: International Law and the Emergence of New States (forthcoming, Cambridge University Press 2023), Part I.

[20] Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States, ‘About Small Island Developing States’.

[21] The Republic of Somaliland, for example, which remains unrecognised by the international community despite satisfying all the antecedents of statehood, maintains only 19 ‘Representative Offices’ in other states, none of which has full consular or diplomatic status under the 1961 Vienna Convention on Diplomatic Relations.

[22] Special domestic legislation and bilateral agreements beyond formal recognition are usually required for passports from non-states to be accepted, see: Andrew Grossman, ‘Nationality and the Unrecognised State’ (2001) 50(4) International and Comparative Law Quarterly 849: 861. To continue the example in the previous endnote, passports from Somaliland are recognised by only 15 states.

[41] Even in cases of the extreme change, such as between Poland pre-1939 and post-1945, no substantial changes in territory, population, or government have ever involved anything like the total uninhabitability of the relevant land. During that period of transition, Alfred Jarry’s famous reference to that same nation (in 1896) as ‘Poland—that is to say, nowhere’ may have seemed apt: Alfred Jarry, Ubu Roi, tr Gershon Legman (Dover Publications 2003) vi. However, there was still very much a sense in which Poland, for all its territorial and governmental ephemerality, was ‘still there’ throughout the 20th century. The same cannot necessarily be said in circumstances, akin to Plato’s fictional Atlantis, where the oceans rise up to claim an island that was. The plausibility of this intuition perhaps follows from our attachment, as a species, to notions of ‘place’ and of ‘home’: Avery Kolers, Land, Conflict, and Justice: A Political Theory of Territory (Cambridge University Press 2009) 66–70; Margret Moore, A Political Theory of Territory (Oxford University Press 2015) 35–6.

[44] The austere view is expressed, for example, by Lassa Oppenheim in the phrase ‘a State without a territory is not possible’ (International Law, Vol. 1, 8th ed. (D. McKay 1955) 451) and by Philip Jessup as ‘one cannot contemplate a State as a kind of disembodied spirit’ (UN Security Council Official Record, 383rd mtg, UN Doc S/PV.383 (2 December 1948) 11). As Malcolm Shaw notes, some version of this view is at least as old as Plato, although it was not always predominant (‘Territory in International Law’ (2009) 13 Netherlands Journal of International Law 61: 61-63).

[45] This is sometimes captured by the idea that ‘the land dominates the sea’ (n 6). Despite some doubts as to the status of this principle being raised within: International Law Commission (n 12) paras 148-155; in other respects, it appears to be accepted as orthodox: International Law Commission (n 31) para 68).

[47] Green (n 43b) 20-22. Support might also be found in: International Law Commission (n 31) para 196, which states ‘a territory that became fully submerged because of sea-level rise should not be considered a non-existent territory’. However, that paragraph also contests that ‘the existence of land territory had been a deeply rooted aspect of statehood’, which makes its overall thrust somewhat unclear.

[55] By focusing on ‘oceanic submergence’ rather than the more commonplace ‘sea-level rise’ fine questions about the relative roles played by rising sea levels on the one hand, and landmass subsidence on the other, could be avoided. (For example: Cheryl Tay, Eric Lindsey, Shi Tong Chin, Jamie McCaughey, David Bekaert, Michele Nguyen, Hook Hua, Gerald Manipon, Mohammed Karim, Benjamin Horton, Tanghua Li, and Emma Hill, ‘Sea-level rise from land subsidence in major coastal cities’ (2022) 5 Nature Sustainability 1049.) The recommendations in paragraph 14(a) to 14(c) could all be maintained without this terminology, should the FCDO prefer the more traditional ‘sea-level rise’.

[59] The ordinary route for developing such a resolution would be via the Sixth Committee of the General Assembly, which deals with legal questions such as this. Since the International Law Commission has yet to deliver its final recommendations on sea-level rise in relation to international law, which shall address the issue of statehood explicitly, the FCDO may wish to wait until it has the opportunity to review those recommendations, before pursuing this possibility.

[62] Pacific Islands Forum (n 54). The signatory states and territories were: Australia, the Cook Islands, the Federated States of Micronesia, the Republic of Fiji, French Polynesia, the Republic of Kiribati, the Republic of Nauru, New Caledonia, New Zealand, Niue, the Republic of Palau, the Independent State of Papua New Guinea, the Republic of the Marshall Islands, the Independent State of Samoa, Solomon Islands, the Kingdom of Tonga, Tuvalu, and Vanuatu.

[63] For detail on how this might be adopted, see: Churchill, Lowe, and Sandor (n 14) 30-32, 38-40.

[64] The primary argument under UNCLOS for considering baselines to be ‘ambulatory’ is based on an interpretation of Articles 7(2) and 76(9. Given that these two articles are the only provisions of UNCLOS that stipulate conditions under which baselines might be treated as ‘fixed’, the implications sometimes drawn is that ordinarily they must be ambulatory. A powerful rejection of this claim is provided in Chapter 2 of Purcell (n 3) – her rationale could, in my view, also be formally adopted by the UK.

[65] Article 121(3) is particularly relevant, given its explicit invocation of (un)inhabitable land to distinguish between islands, which generate exclusive economic zones and a continental shelf, and rocks, which do not.

[70] International Law Commission (n 12) paras 16-96; Alina Miron, ‘Les conséquences de l’élévation du niveau des mers sur le tracé des lignes de base’ in V. Boré Eveno (ed), Elévation du niveau de la mer et droit international. De l’adaptation à l’action (Pedone 2022) 106-108.

[72] Possible uses for such structures were considered by: International Law Commission (n 9) 43-44, paras 166-174; but see the doubts raised in International Law Commission (n 31) para 205.

[75] International Law Commission (n 9) 425-434; Kolers (n 41); Margret Moore (n 41).