Ibrahim Didi
Image taken from: Dailymail.co.uk

While the recently finished G20 summit in Hamburg could reach common ground on many important issues such as terrorism, national security and international trade, one subject was notoriously lacking unanimous support to the point where it was deemed necessary to publish two separate final declarations reflecting first the majority and hence the US position: The question of Climate Change and how to deal with it. The decision by Donald Trump (and thus of the United States as one of the most important producers of greenhouse gases) to reject joint efforts to fight climate change sets international environmental politics to a dangerous course as the rising sea level is already threatening low lying small island states such Kiribati, Palau and the Maldives, the letter being estimated to lose at least 77% of their total land area by 2100.[1] While in the West, climate change is predominantly viewed as a threat to the global populations secure livelihood, for these countries it already became a question of existential proportions, threatening their culture, heritage and national sovereignty. It is for that reason, that countries as the Maldives try to raise awareness of this threat, sometimes even by unconventional means such as underwater cabinet meetings (depicted above) or former president Mohammed Nasheed’s announcement to utilize the country’s revenue from tourism for buying foreign property to eventually relocate its population.[2] And indeed, international law has up until now failed to develop a sustainable plan dealing with states that have lost the entirety of their territory due to natural disasters. Will they cease to exist as sovereign nations and likewise as subject to rights and obligations under international law? This article will shed some light on the current state of the law and discusses several solution strategies.

Can a state survive without its own territory?

As the state as entity is the archetype of a subject under international law, it is first and foremost necessary to determine what legally defines a state. According to article 1 of the Montevideo Convention of 1928 (which is based on Georg Jellinek’s “Three Elements of statehood” doctrine), a state is an entity that disposes of a permanent population, a defined territory and a government exercising authority over both, population and territory, rendering it capable to enter into diplomatic relations with other states.[3]

While the population itself, although displaced, will certainly cultivate its genuine link to its home nation, it is the notion of “territory” which renders these islands’ statehood problematic as it is defined as part of the natural surface of the earth above sea level (deriving from “terra” = Earth). In the scenario that the sea would cover the entirety of a state’s territory, this vital precondition would cease to exist and the state would accordingly lose its capability to act as a sovereign subject. One might argue, that the international community has established the practice of considering an entity a state even though it is lacking one of the aforementioned three elements, e.g. in case of certain governments in exile. This principle of continuity is, however, simply an expression of the efficiency axiom of international law aimed at avoiding the loss of statehood in cases where its origin is temporary. As territorial loss due to climate change will most certainly not be revertible, referring to the continuity principle to justify the recognition of a quasi-permanent government in exile would thus inadmissibly overstretch its legal bases. Accordingly, the PCA outlined as early as 1928 in its Island of Palmas decision, that a state cannot exist separately from their country and denied insofar an abstract right of territorial sovereignty.[4]

Are artificial islands capable of preserving statehood?

While the original territory of a low-lying island state might not be able to withstand climate change, an obvious solution to outbalance its loss seems to be the construction of artificial islands inside its territorial waters, that rise high enough above sea level to be beyond the water’s reach. Though already being practiced (e.g. in form of the newly constructed island Hulhumalé in the Maldives), in cases where the entirety of a state’s territory is threatened, the idea of completely replacing natural territory with manmade structures faces strict legal limitations.

While a state has the uncontested right to construct artificial inhabitable islands inside its territorial waters (i.e. within 12 nautical miles from its coastal base line), these structures – although part of the state – cannot be considered by itself state territory.[5] That means consequently, that in the event of a loss of natural state territory, even if these artificial structures were able to harbor the entire state population of a country, they could not inherit the natural territory’s legal recognition. To put it simply, with the cessation of the original territory such structures would legally be “relocated” into international waters, where states are explicitly prohibited to assume any kind of sovereignty, thus including the assumption of public authority, territorial rights and statehood.[6]

Should the concept of artificial territory be reinvented for endangered island states?

Hence it has been argued, that a strict separation between natural and artificial territory is overcome and that in the specific case where small island states are threatened by climate change, artificial structures should enjoy the same territorial rights as their natural counterparts.[7] While this concept would be able to solve the problem of impending territorial loss while keeping a state’s population in their hereditary lands, the concept itself raises several serious issues.

First of all, such a concept would be hardly feasible from a pragmatic point of view. Not only would the construction of artificial structures capable of sustaining the entire population pose an enormous financial burden on the mainly tourism based small economies of southern island states which would thus be reliant on international funding, but more relevantly, such a concept would not be able to prevent the destruction of its cultural heritage embedded in a state’s natural territory.

Even more importantly, from a legal point of view, watering down the strict separation between natural and artificial land mass could be a dangerous precedent regarding impending territorial conflicts, especially in the disputed South China Sea, where the PRC constructed a series of artificial islands to underline its claim to hegemony over the region.[8] Giving artificial islands territorial quality would thus hand Beijing the judicial legitimation to its dangerous policy, especially given the fact, that a legally certain delimitation of this right seems challenging, if not impossible to achieve. Although the adherents of the proposal may argue, that it would only be applied in cases where the entire land mass of an island state is threatened to vanish due to rising sea levels, this would soon turn out to be a slippery slope, opening the door to expanding the law’s scope to all kinds of analogue claims such as overpopulation, natural catastrophes or even internal conflicts. This however, especially applied to bigger states in densely populated regions, would certainly lead to their destabilization as it would necessarily include the redrawing of sea borders, endangering the neutrality of trade routes and impacting the exploitation of natural resources by expanding states’ Exclusive Economic Zones (EEZ, 200 nautical miles from its coastal base line). As maintaining peace and international security has been the historic and teleologic reason for the strict limitation to natural territory (cf. art. 60, 89 UNCLOS), it would be immensely irresponsible to break down this conception for the sake of artificially upholding small islands’ statehood. As a consequence, the concept of expanding territorial rights to artificial islands has not only little chances to be accepted by the international community, but should also for the sake of legal certainty and international stability be rejected.

Is it time to develop new forms of statehood for landless state populations?

As the construction of artificial islands should be ruled out for the aforementioned reasons, endangered island states have very limited options to establish their dominion over potential state territory. Highly improbable events such as original acquisition of land and prohibited measures such as annexation set aside, the only (relevant) traditional way left would be Cession of foreign territory by means of donation or purchase. Given the political implications of such an act, it does however seem to be unlikely that one country would offer or sell its own territory permanently and thus the question arises what happens, if the island state is not able to acquire land by means of accession, but instead as long-term lease or in similar fashion.

A conceivable solution could be the development of new forms of mixed territorial control, that is to say, a special condominium for relocated island states. In international law, a condominium describes the shared sovereignty of two or more states over a defined territory, historically particularly relevant to settle disputes between colonial states. To which extent the sovereignty over this territory will be shared and what exact roles both states will take, is still up for dispute. It is, however, hardly imaginable that the accommodating state will agree on ceasing or equally sharing most of its sovereign rights over its original territory. Thus, a realistic option for such a condominium would rather resemble the status of a special zone of shared responsibilities that gives the island state in some defined fields a relatively independent scope, on the inside to organize its community life according to its cultural and religious heritage and on the outside to enter into diplomatic relations with other states on economic or cultural matters, while the accommodating state keeps control of certain parts of foreign policy relevant e.g. to their national security or immigration policies.

Even though strict limitations to the autonomy of island states as leaser may apply, it will pose a challenging task to find a nation state voluntarily offering sustainable land if that means at the same time to share sovereignty over it with a foreign country. From the viewpoint of justice, it may seem appealing to coerce those states predominantly responsible for modern climate change to share certain parts of their territory with populations displaced as a consequence of their policies. However, aside from the question which panel even had the proper authority and legitimation to decide the liability of a sovereign nation to a flooded island state, it should be remembered, that the countries which emit the most greenhouse gases are predominantly UNSC Veto powers, namely the United States and China. Both, attempting to coerce them into complying with such a court decision (and inevitably failing) and excluding them from the circle of targeted nations would render the whole procedure moot. As the development of such territories of shared responsibilities will therefore have to rely on the good will of other nations, it is highly necessary to develop concepts that go beyond the traditional understanding of statehood.

Derivation of legal subjectivity from other sources than statehood

Although being its standard carrier, international law recognizes other forms of legal subjectivity than those deriving from statehood, which could arguably be applicable to flooded island states. Traditionally, these are international organizations which, however, do neither from their creation nor composition seem fit to be applied in this context. Besides, the International Committee of the Red Cross (ICRC), the Holy See and the Order of the Knights of St John possess individual legal subjectivity under international law. While the ICRC can be ruled out for neither having its own territory nor population and the same goes for the Holy See (not to be confused with the Vatican State) whose legal subjectivity derives from the historical position of the Pope as sovereign ruler and head of Catholic Christendom, the Order of the Knights of St John could offer a more suitable comparison. Even though the order lost its former territory of Malta when Napoleon invaded the island state in 1798, they nevertheless managed to keep a form of legal subjectivity up to this day. In contrast to flooded island states, however, the order of St. John’s legal subjectivity is based on its historical position as caritative organization, whose status was manifested long before the modern idea of sovereign nation states was introduced by legal theory and political practice.

A promising new approach is taking the state population’s right to self-determination as connecting point for legal subjectivity.[9] According to the principle of self-determination, all people are entitled to freely determine their political status as well as their economic, social and cultural development. While it is in detail still disputed, what exactly defines “people”, the entirety of an island state’s population certainly qualifies as such. Moreover, their current government will regularly exercise sufficient political organization and representation. By contrast, it remains contested if the right to self-determination requires a territorial base, although the decolonization process as well as the case of Palestine’s recognition would suggest so. However, it has been rightly argued, that the treaties from which the right to self-determination is derived do not imply that a population must have any territorial claim and should thus be granted at least partial legal subjectivity as has been the case with the PLO.[10] This way, although not being a state in the traditional understanding, such an entity could effectively participate in international law where its – non-territorial – interests are concerned and thus reconcile the interests of the island’s population with that of the accommodating state.

Conclusion

In summary, while constructing artificial islands and facilitating them with territorial rights raises more problems than it is capable of solving and creating new forms of condominium might seem to be an interesting approach though questionable in practice, it is the right to self-determination that offers the most promising solution to the problem of legal subjectivity for endangered island states.

Although it is not yet set in stone that climate change will really make small island states vanish from the map as independent entities, the turn of events in US politics after the election of president Donald Trump makes this scenario all the more realistic. While the international community would certainly be able to halt the impending rise of the sea level if it would join forces and focus its efforts on it, the odds seem worse than ever to achieve that objective with one of the major greenhouse producers undermining all joint efforts. Accordingly, it is about time to develop sustainable solutions to protect the people most targeted by the impending development to avoid future humanitarian crises we are not yet prepared for.

Tim Hagemann for ApricotLawyer.com

[1] http://www.climatehotmap.org/global-warming-locations/republic-of-maldives.html

[2] https://www.geopoliticalmonitor.com/vanishing-island-nations-the-case-for-the-maldives/

[3] Cf. https://www.ilsa.org/jessup/jessup15/Montevideo%20Convention.pdf

[4] The Island of Palmas Arbitration (Netherlands v United States) (1928), 2 RIAA 829, [839].

[5] Art. 60 (8) UNCLOS.

[6] Art. 89 UNCLOS.

[7] https://www.ilsa.org/jessup/jessup13/Climate%20Change,%20Sovereignty%20and%20Statehood.pdf

[8] https://www.theguardian.com/world/2017/feb/22/china-close-to-finishing-buildings-on-south-china-sea-islands-that-could-house-missiles-us-says

[9] http://www.klima-warnsignale.uni-hamburg.de/wp-content/uploads/2013/02/Schwarz.pdf

[10] http://www.klima-warnsignale.uni-hamburg.de/wp-content/uploads/2013/02/Schwarz.pdf

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