CASCADING CONSEQUENCES OF SINKING STATES.

• Author: Stewart, Melissa

1. INTRODUCTION 132 II. DEFINING THE SINKING STATE 135 III. THE CASCADING CONSEQUENCES OF SINKING STATES 140 A. Redefining Statehood 146 B. Undermining Sovereign Equality of States 154 C. Humanitarian Crisis 158 D. Collapse of the International Legal Order 167 IV. CRACKS IN THE FOUNDATION 170 A. The State-Centric Model 171 B. Retrenchment from Lawmaking 181 C. Addressing the Cracks 183 V. CONCLUSION 185 I. INTRODUCTION

   In November of 2021, the Foreign Minister of Tuvalu, Simon Kofe, addressed the United Nations COP26 climate conference in Glasgow via a pre-recorded video.' He stood in front of a blue screen at a lectern in a suit, flanked by the flags of the conference host, Great Britain, and the United Nations. The shot widened to reveal that he was standing in water with waves crashing around his legs. (2)

   Standing on the outskirts of the nation's capital where land had disappeared under the sea, (3) Foreign Minister Kofe described the threat that Tuvalu faces due to sea level rise. For Tuvalu and three other atoll states--Kiribati, the Maldives, and the Marshall Islands--the threat is nothing short of existential. (4) While many places around the world are only starting to feel the impact of climate change through rising temperatures, heat waves, and extreme weather, these four states are already experiencing devastating effects of a warming climate. These atoll states are most at risk of their territory becoming completely uninhabitable or sinking under the rising sea. (5)

   The existence of so-called "sinking states" raises complex and profound questions of international law--questions to which the law currently provides no sufficient answer. For states that are at risk of losing one or more of the traditional elements of statehood, such as a defined territory or permanent population, international law is silent on how or when a state becomes extinct and the consequences of extinction. (6) For citizens of states at risk of extinction, international law offers limited rights to acquire a new nationality and contains no binding obligations on states to accept them on a permanent basis or otherwise provide protection.

   In the absence of law, it is unlikely that a new treaty or other binding international legal instrument will emerge to fill the void. States have never been more reluctant to enter into binding agreements, (7) and there appears to be little to no appetite to clarify or strengthen the legal rights of individuals or provide pathways to redress for states or their populations. It is as if we have collectively decided that we have reached the end of history (8) in international law and that no new hard law can be created.

   It would be a tragic mistake to believe that due to their unique vulnerability, these four states are alone in facing a perilous future. Indeed, sinking states serve as a metaphor for international law and the whole of humanity. If we fail to meet the urgency of the moment with a radical new vision for our collective security, we risk our own potential demise. In the words of Tuvalu's Foreign Minister Kofe, "We are sinking, but so is everyone else." (9)

   This Article addresses the cascading consequences of sinking states. It examines some of the most pressing questions related to statehood and nationality raised by this phenomenon. It goes beyond current scholarship by analyzing future implications of the various proposals currently under consideration and what these implications reveal about some of the foundational paradigms of international law.

   Part II defines the sinking state. It provides an overview of the projections of global warming and sea level rise and outlines which states are at risk of extinction and why. It also describes the legal void surrounding sinking states and their populations.

   In Part III, I explore the cascading consequences of sinking states. I provide an overview of the main proposals currently under consideration followed by an analysis of their implications. By using the phrase "cascading consequences," I mean to evoke imagery of building momentum, wherein each outcome increases in severity due to the prior outcome. I examine four such cascading consequences in this Part, although there are certainly more.

   First, efforts to redefine statehood for sinking states will impact the options available to other states in the future should they lose habitable territory and, as a result, their permanent population. Additionally, if we allow for a new form of "deterritorialized statehood," we must also account for other populations that are similarly deterritorialized and unable to exercise the rights and duties of statehood due to their historic or current lack of territory over which they exercise exclusive sovereignty. The effort to redefine statehood for this discrete category of states alone misses an opportunity for a more searching inquiry of the colonial foundations of the principle of territorial sovereignty and risks entrenching neo-colonial power structures.

   Second, allowing for the extinction of sinking states, or, conversely, preserving their continuity through a lesser form of statehood or an international legal personality short of statehood would undermine the principle of sovereign equality of states. This would be a particularly egregious outcome, as the most vulnerable states are also those that have only recently exercised their right to self-determination. Thus, the phenomenon of sinking states exposes the falsity of the claimed sovereign equality of states.

   Third, sinking states whose very existence is imperiled may be unable to effectively protect the rights of their populations. This becomes even more urgent if in the future they are deprived of their statehood under law or lack the capacity to exercise their sovereign rights and responsibilities in a deterritorialized form. If the territory becomes uninhabitable or disappears, the population will be displaced without a right to reside anywhere else in the world. A failure to proactively protect the rights of these populations will likely cause other states to respond to the displaced populations by erecting further barriers to entry, thereby exacerbating future humanitarian crises.

   Fourth, underlying all is the threat of a catastrophic loss to world governance. Failures to address climate change as the underlying cause of the rising sea levels that are creating the sinking states, all in the name of preserving states' sovereignty, may result in the collapse of the international legal order.

   In Part IV, I examine what the phenomenon of sinking states and our failure to date to deal with these cascading humanitarian, political, and legal consequences reveal about the foundational framework and "currently accepted paradigms" of international law. (10)

   I argue that the state-centric model of international law fails to protect states' rights of sovereign equality and survival as well as the human rights of individuals. I make two claims. First, I argue that there is a fundamental imbalance between situations where a state's right to survival is threatened by the actions of a clearly identifiable state, such as an aggressor, and those where the locus of responsibility for a state's demise is not directly attributable to the actions of a clearly identifiable state. Second, I argue that human rights are situational rather than universal. I observe that states have the primary responsibility to protect their populations. However, the current international legal structure does not provide for a secondary responsibility to other states or international entities when a particular state is unwilling or unable to provide protection, or when a person is stateless. That is, under the current international legal structure, human rights depend on states being able to ensure their own survival and to provide their populations with territory and a nationality.

   Sinking states also reveal the danger of our retreat from the progressive development of a more just international legal framework. The international legal community is failing to fill a clear gap in the law that is resulting in the destruction of states without legal recourse and without rights for the resettlement of their populations. Rather than confronting the concerns of sinking states as a reflection of the peril we all find ourselves facing, powerful states are hesitant to bind themselves to any legal framework that would address the underlying cause of their destruction.

   Finally, I outline potential avenues of exploration to address the concerns identified in this Article. They include decolonizing the notion of statehood and preventing further entrenchment of neo-colonial norms in international law. We should pursue legal solutions with the aim of promoting environmental justice and racial justice. We should consider a more cosmopolitan approach that decentralizes the state and prioritizes the rights of individuals. Finally, we should renew our commitment to the purpose of international law--the creation of a more peaceful and just society.

   The phenomenon of sea level rise and its impacts on island states are some of the most pressing emerging issues in international law. They challenge us to examine the notions of statehood, the relationship of individuals to their state of nationality, and the protection of rights when the bond between citizen and state has been irrevocably broken. The solution to the problems posed by sinking states must be a renewed commitment to a more just international legal framework centered on the rights of individuals and reflecting a commitment to our collective peace and security.

2. DEFINING THE SINKING STATE

   Climate change has the potential to transform not only our natural world, but also the societal and legal structures that define humanity. Since the changes to our natural environment occur gradually over time, the differences can seem almost imperceptible. In order to emphasize the scale of...