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

• Author: Jain, Abhimanyu George
• Position: II. Critical Analysis of the International Law of Statehood C. Is the Territory Requirement Applicable in this Case? through Conclusion, with footnotes, p. 27-52

3. Is the Territory Requirement Applicable in this Case?

   This Subpart presents the first of four challenges to the substantive content of the territory requirement--that the territory requirement is not applicable to these facts. In analysing this first challenge, I argue that: (1) the territory requirement is inapplicable to the facts in this case--permanent loss of territory of an established state; (2) there is a gap in the law (non-liquet) regarding the territory requirement for continuing statehood; and (3) the operation of equitable considerations to resolve this gap in the law demands the preservation of Atlantis' statehood.

   1. The Silence of International Law

      Discussions of the international law of statehood are hostage to a curious contradiction. Both Crawford and Marek emphasize the weight of the presumption in favour of the continued existence of established states and against the extinction of states. For instance, Crawford notes: "the presumption ... favours the continuity and disfavours the extinction of an established State" (165) and "in the Charter period there have been ... almost no cases of involuntary extinction." (166) He goes on to highlight the continued existence of statehood notwithstanding prolonged belligerent occupation during the Second World War. (167) Similarly, Marek argues that "extinction is neither easily presumed nor lightly accepted." (168) Both justify this presumption by drawing on state practice that demonstrates the revival of continued existence of statehood notwithstanding the long term loss of one or more of the Montevideo criteria. At the same time both Crawford and Marek seem to accept the loss of territory as necessarily implying a loss of statehood. Crawford declares that a "State must possess some territory." (169) Marek is unequivocal on the point and strikes eerily close to the heart of this Article, arguing: "that a State would cease to exist if for instance ... its territory were to disappear (e.g. an island which would become submerged) can be taken for granted." (170)

      In fact, it is far from clear that the territory requirement is applicable to the permanent loss of territory of an established state. First, as envisaged, the Montevideo criteria are not capable of permanent physical loss, and thus the territory requirement is inapplicable in the case of Atlantis. Second, even if the territory rule is applicable, involuntary extinction of statehood is almost impossible. Third, even if the territory rule is applicable, and if involuntary extinction is possible, no state has involuntarily ceased to exist on account of loss of territory in the post-Charter era.

      1. The Montevideo criteria, as envisaged, are not capable of permanent physical loss.

         It is far from clear that the Montevideo criteria were conceived as being capable of permanent extinction. It is far more likely that their existence in relation to a particular state--a particular sub-set of the international society--could cease. Thus, it is possible for the South African government to lose its capacity to engage in international relations, (171) or for the Somalian state to lack an effective government. (172) But all of these situations do not implicate the demise of these attributes so much as they implicate the demise of particular manifestations of these attributes. They are temporarily absent and can be revived. Similarly, France may lose its entire territory to Germany (173) or the Czechoslovak state may cease to exist because its territory and population are now divided between the Czech and Slovak states and its government now lacks effective authority or the capacity to conduct international relations. (174) But the Montevideo attributes of the former French and Czechoslovak state have not disappeared: They have been assimilated into other states; they have not vanished from existence. The academic discussion of the extinction of states discusses the demise of states and the loss of the Montevideo criteria in precisely this limited capacity: In terms of the temporary loss of the attributes of statehood or their re-allocation amongst other states leading to the demise of the state. (175) For instance, though Marek specifically refers to the possibility of an island becoming submerged, (176) this seems to be merely a theoretical aside, an illustration of the territory requirement of statehood; her actual discussion of the extinction of statehood is structured along the lines indicated above.

         Understanding the nature of the traditional international law discourse on the demise of states immediately reveals the difference between the traditionally conceived parameters of the demise of statehood and the situation currently under discussion. The current situation would involve the disappearance from physical existence of the territory of Atlantis, not just its assimilation into another state.

         This is a critical distinction. Until the possibility of this particular case emerged, it is not clear that the possibility of permanent physical extinction of a Montevideo criterion was ever envisioned. If that is the case, then it is not logically possible to analogize from a context in which the loss of a Montevideo criterion is merely temporary or re-allocative, to a context in which such loss, and with it the loss of statehood, is permanent and irreparable. As a matter of logical reasoning, therefore, the territory requirement rule cannot operate to mandate loss of statehood of an established state in the event of permanent physical disappearance of territory.

         Another way of conceptualising the difference between extinction of statehood as traditionally conceived and extinction of statehood as is under discussion here is that traditional discourse implicitly assumes human action as the instigator of the demise of statehood; in this instance, however, the loss of statehood is independent of, and possibly contrary to, human action and intent. In either case, it is unlikely that traditional discourse is capable of accommodating the possibility of the demise of a state that is not fundamentally an exercise in reallocation, and on this basis it is suggested that international law is silent as to the demise of statehood in circumstances similar to those under discussion here.

         If the Montevideo criteria are incapable of permanent disappearance, then the territory requirement is inapplicable in the present case because Atlantis faces the possibility of permanent physical loss of its territory.

      2. Involuntary extinction of statehood is almost impossible.

         Arguendo the territory rule is applicable in Atlantis' case, involuntary extinction, as in this case, is almost impossible under international law. The circumstances in which involuntary loss of territory can precipitate loss of statehood are extremely limited: forceful occupation and involuntary dissolution.

         Forceful occupation is unlawful in the modern Charter age and theoretically impossible. Practically, there have been three instances since 1945 in which forceful occupation has been attempted. One is the case of Kuwait in 1991, which was prevented successfully. (177) Another is the case of Tibet, which was forcefully annexed by China in 1959. However, it is far from clear that Tibet was ever an independent state and that the Chinese action of 1959 was no more than a reassertion of control over previously held territory. (178) The last is the case of Hyderabad, which was annexed by India in 1948. It is clear that the Nizam (ruler) of the independent princely state of Hyderabad reported aggressive use of force by the Indian state to the United Nations Security Council (UNSC), (179) and that the matter was dropped from the UNSC's deliberations following Hyderabad's surrender, (180) but there are divergent views on whether this was an illegal use of force and therefore an unlawful annexation of territory. (181) In any case, this is clearly an early exception and of limited value in terms of legal or practical precedent.

         Involuntary dissolution, while not per se impossible or illegal in international law, is definitely very rare. (182) To begin with, it need not terminate the existence of a state. Thus, for instance, the dissolution of Pakistan in 1971 into Pakistan and Bangladesh, (183) while involuntary in that the former Pakistani state was opposed to such dissolution, (184) did not terminate the existence of the Pakistani state. (185) The one possible example of involuntary dissolution leading to extinction of the original state is the case of the former Yugoslavia. (186) It is difficult, however, to extrapolate support for the possibility of involuntary extinction from this one instance. Not only is this very limited practice, but there is also a significant difference between dissolution and loss of territory. The former implies some element of self-determination and conscious will of the peoples (especially in the case of the former Yugoslavia); the latter is completely involuntary. This difference makes it very difficult to analogize between the former Yugoslavia and Atlantis.

         Both the possible categories of involuntary extinction of statehood are extremely limited. They are clearly not implicated in the instant situation, but are useful in emphasizing the extraordinarily limited circumstances in which international law allows the involuntary extinction of states.

         Thus, even if the territory requirement is applicable, the impossibility of involuntary extinction of statehood protects Atlantis.

      3. No state has ever lost its statehood in similar circumstances.

         Arguendo the territory requirement is applicable in this case and involuntary extinction of statehood is possible, the fact remains that in the post-Charter era, no state has ever lost its statehood because of loss of territory.

         Crawford, after an exhaustive survey, finds seven instances of extinction of states in the Charter age: Hyderabad, Somaliland, Tanganyika, Republic of

         Vietnam...