The 21st century Atlantis: the international law of statehood and climate change-induced loss of territory.

• Author: Jain, Abhimanyu George
• Position: I. Introduction through II. Critical Analysis of the International Law of Statehood B. What Purpose Does the Territory Requirement Serve?, p. 1-27

International law demands territory as a precondition for statehood. If the Maldives were to lose its territory as a result of climate change, would it cease to be a state? In light of the negligible contribution of the Maldives and similar states to climate change, if they were to lose their statehood and international legal personality on account of climate change, serious questions would arise as to the legitimacy and efficacy of international law. But these states will not lose their statehood, for three reasons. First, in light of the diminishing utility of territory for states, at least for the continuation of established statehood, territory need not be a necessary requirement. Second, the requirement of territory for the creation of states does not necessarily imply a territorial requirement for the continuation of statehood. International law is silent as to the extinction of statehood upon physical disappearance of territory and equity demands that statehood be preserved in such a situation. Third, the political realities of recognition will operate to ensure the continuing statehood of these small island nations. But this continuing statehood raises the question of how these states will exist without territory. There are two options: acquisition of new territory or de territorialised existence. Both are possible but present significant practical hurdles. In the short term, the de jure statehood of these states will be protected in international law, but in the longer term, it is likely that they will cease to exist as states de facto.

INTRODUCTION I. SETTING A CONTEXT A. Factual Context: What Is Happening to These States? B. Legal Context: Why Is the Loss of Statehood Worrisome? 1. Loss of Statehood Implies Loss of International Legal Personality 2. The Loss of Atlantis' International Legal Personality in These Circumstances Severely Impugns the Legitimacy of International Law C. Analytical Context: Literature Review II. CRITICAL ANALYSIS OF THE INTERNATIONAL LAW OF STATEHOOD A. The Territory Requirement for Statehood in International Law B. What Purpose Does the Territory Requirement Serve? 1. Marek's Argument 2. Critical Analysis of Marek's Argument 3. The Functions of Territory 4. Conclusion C. Is the Territory Requirement Applicable in this Case? 1. The Silence of International Law a. The Montevideo criteria, as envisaged, are not capable of permanent physical loss b. Involuntary extinction of statehood is almost impossible c. No state has ever lost its statehood in similar circumstances 2. The Silence of International Law as Indicative of a Gap in the Law 3. The Role of Equity in Addressing a Non-liquet 4. Conclusion D. Can Submerged Territory Serve as Territory? E. Are There any Other International Law Norms Which May Operate to Prevent Loss of Territory? 1. The Relationship Between Norms Within a Legal System 2. Practical Problems with Invoking Jus Cogens Norms 3. Practical Problems in Invoking Countervailing Legal Principles Generally F. Can Recognition Operate to Prevent Loss of Statehood? G. Conclusion III. CONFRONTING THE POSSIBILITY OF STATEHOOD SANS TERRITORY A. The Possibility of New Territory B. The Logistics and Practicality of De-territorialised Statehood C. Conclusion CONCLUSION INTRODUCTION

"... [I]n a single day and night of misfortune all your warlike men in a body sank into the earth, and the island of Atlantis (1) in like manner disappeared in the depths of the sea." (2)

It is not clear whether there ever was an actual kingdom of Atlantis that disappeared into the sea. (3) But a substantially similar fate seems likely to befall several low-lying, small island states in the Indian and Pacific Oceans. In the next fifty to one hundred years it is possible that the entire territory of low-lying, small island states like the Maldives, Tuvalu, and Nauru will be submerged as a result of increasing sea levels caused by climate change. While this is currently a mere possibility which will hopefully never become a reality, this possibility raises an interesting question. International law stipulates that territory is a necessary prerequisite for statehood. Given that requirement, will these states cease to be states when they lose their territory? This Article seeks to answer this specific question.

Part I establishes a context for the rest of the Article: it explains the physical changes facing a modern-day Atlantis, explains the legal significance of any state losing statehood, and undertakes a review of existing literature about the crisis these small island states face in order to provide an analytical context for the rest of the Article. Part II analyses and critiques the territory requirement in international law, arguing that the loss of territory does not imperil a modern-day Atlantis's statehood. Part III engages with the logistical challenges of statehood sans territory. The conclusion to the Article summarises the key contributions made herein and defines a future research agenda.

In the course of this Article, the fictional state of "Atlantis" has been used as a representative of the group of small, low-lying island states which stand to lose their territories and potentially their statehood due to the effects of climate change.

1. SETTING A CONTEXT

   This Part is divided into three Subparts: (A) lays out a factual context, describing the physical event (loss of territory) that the legal analysis presented in this Article seeks to address; (B) lays out a legal context, explaining the significance of statehood in international law and the implications of loss of statehood; and (C) provides an analytical context, surveying existing literature for answers to the question (effect of loss of territory on statehood) that this Article seeks to answer.

   1. Factual Context: What Is Happening to These States?

      Legal analysis is always contingent upon the exact facts at hand, and no two cases are ever the same. (4) Therefore, assessing the effect of the loss of territory on statehood requires, first, an understanding of the physical events that lead to loss of territory. (5)

      Small island developing states (SIDS) (6) are particularly vulnerable to the effects of climate change. (7) This vulnerability has three primary physical aspects. (8) First, climate change has increased the likelihood (9) of extreme weather events--heavy precipitation events are "very likely" and increased intense tropic cyclone activity is "likely," (10) as is the increased incidence of extreme, high sea levels. (11) As these are small states with large coastal regions, (12) they are particularly likely to face loss of life and property from tropical storms and other natural events. (13) These risks are exacerbated by the concentration of population and infrastructure in coastal areas as well as resource constraints which limit adaptation capacity. (14)

      Second, climate change is causing sea levels to rise: (15) by 2100, experts expect sea levels to rise between 0.18 metres and 0.59 metres; (16) by 2300 sea levels may rise by 0.3 metres to 0.8 metres. (17) Continuing contraction of the Greenland ice sheet may ultimately result in a seven metre sea level rise. (18) The magnitude of these increases in sea levels takes on greater significance in light of the average elevations above sea level of several small island states. For instance, the average elevation of the Maldives above sea level is 1.5 metres, (19) while that of the Marshall Islands is 2.0 metres. (20) Moreover, the IPCC's estimates of the rise in sea level have been criticized for "omitting the potential for the rapid loss of ice," (21) which indicates that the IPCC's estimates may be overly optimistic. (22)

      Third, climate change is causing sea surface temperatures to rise (23) and increasing the acidity of oceans. (24) This in turn has several undesirable effects for Atlantis and similar states, including: erosion of coastal territory; (25) degradation of already scarce groundwater resources; (26) bleaching and destruction of coral reefs, leading to further loss of territory; (27) declining productivity of agriculture (28) and fisheries; (29) and increased flooding. (30)

      Taken together, these effects suggest that loss of territory as a result of climate change will not take the form of rapid submergence as a result of rising sea levels. Instead, it will occur through gradual erosion of territory accompanied by degradation of the quality and inhabitability of the remaining territory. Eventually, these territories will either be completely submerged or will become completely uninhabitable.

      It bears emphasizing that the scope of this Article is restricted to questions raised by complete loss of territory, whether as the result of sudden and complete submergence or as the result of gradual erosion. As long as a state possesses some physical territory, irrespective of its quality and size, there can be no challenge to its statehood. (31) The challenge to statehood arises at the point when the state's entire territory is submerged. While the slow erosion and declining quality of the territory of these states raise a host of interesting issues, (32) none of these relate directly to the international law of statehood and are therefore outside the scope of this Article.

   2. Legal Context: Why Is the Loss of Statehood Worrisome?

      This Subpart argues that the loss of Atlantis' statehood is worrisome because: (1) loss of statehood implies substantial loss of international legal personality; and, (2) Atlantis' loss of statehood in these circumstances would implicate the legitimacy of international law.

      1. Loss of Statehood Implies Loss of International Legal Personality

         The loss of statehood is undesirable because international law accords primacy to states amongst the subjects of international law. Loss of statehood implies a loss of this preferential status and consequently a significant degradation of international legal personality for Atlantis.

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