Sydney Law School
Legal Studies Research Paper
No. 11/59
September 2011
Climate Change, Sovereignty and Statehood
Rosemary Rayfuse and Emily Crawford
This paper can be downloaded without charge from the
Social Science Research Network Electronic Library
at: http://ssrn.com/abstract=1931466.
Electronic copy available at: http://ssrn.com/abstract=1931466
1
Chapter 10
Climate Change, Sovereignty and Statehood
Rosemary Rayfuse and Emily Crawford
10.1 Introduction 1
Climate change presents a unique threat to the territorial integrity of states,
indeed, to the very notion of statehood itself. As the Intergovernmental Panel on
Climate Change has noted, climate change will affect the physical territory of states in a
number of ways, such as the loss of viable eco-systems due to desertification, increased
soil salinity, flooding of coastal and low-lying regions or loss of reliable access to land
due to increased severe weather events such as hurricanes. 2 Coastal states, in particular
those with low-lying coastal areas, will also be affected by permanent loss of land
through shoreline erosion caused by extreme weather events and sea-level rise. 3
Moreover, it has been recognised that by rendering some inhabited land incapable of
sustaining human habitation, climate change will also result in the forced migration of
some or all of a population from their lands. 4
At the extreme end of the scale, climate change induced territorial degradation
coupled with climate change induced migration may threaten the very existence of some
states. 5
In particular, it has been suggested that by the end of this century a number of
1
This chapter emanated, in part, from work undertaken, in my capacity as research associate, for
Professor Jane McAdam, under her Australian Research Council Discovery Grant ‘Weathering
Uncertainty: Climate Change “Refugees” and International Law’.
2
IPCC, The Physical Science Basis: Contribution of Working Group I to the Fourth Assessment Report
of the Intergovernmental Panel on Climate Change (2007), 13. V.O. Kolmannskog, Future Floods of
Refugees: A Comment on Climate C hange, Conflict and F orced M igration (Oslo: Norwegian Refugee
Council 2008) 13-16.
3
A. Oliver-Smith, ‘Climate Change and Population Displacement: Disasters and Diasporas in the
Twenty-First Century’, in S. Crate and M. Nuttal (eds), Anthropology a nd C limate C hange (Walnut
Creek, California: Left Coast Press, Inc. 2009)
4
Intergovernmental Panel on Climate Change (IPCC), Climate Change: The IPCC Scientific Assessment:
Final Report of Working Group I, (NY: Cambridge University Press 1990).
5
See, N. Myers, ‘Environmental Refugees in a Globally Warmed World’, in Intergovernmental Panel on
Climate Change (eds), Third A ssessment R eport of t he I ntergovernmental P anel on Climate Change
(Cambridge: Cambridge University Press 2001). In 2005, Myers revised his estimate to up to 200 million:
N. Myers, ‘Environmental Refugees: An Emergent Security Issue’ (2005), paper given at the OSCE 13th
Economic
Forum,
Prague,
23-27
May
2005,
EF.NGO/4/05,
available
at:
Electronic copy available at: http://ssrn.com/abstract=1931466
2
low-lying small island states such as Tuvalu, Kiribati, the Marshall Islands and the
Maldives, may be rendered totally uninhabitable due to sea level rise. 6 This begs the
question as to the continued statehood of these entities. In light of these sometimes dire
predictions, this chapter examines the challenges posed by climate change to the
international law on statehood.
It does so in the context of analysis of the legal
construction of statehood, how the law regulates the dissolution of states, and whether
the law is adequately positioned to deal with the threat to statehood and sovereignty
posed by climate change.
10.2 Statehood and Sovereignty
Fundamental to the contemporary international legal system is the concept of the
state. States are both the subject and primary object of international law. States possess
ultimate rights of participation in both the creation of international law and in the
construction and operation of the international legal system. 7
The hallmark of the modern state is described by the terminology of sovereignty
which, among other things, means the right to exercise supreme, independent authority
or jurisdiction over a piece of territory. 8 There are limitations on this territorial
<http://www.osce.org/documents/eea/2005/05/14488_en.pdf>; revising the number again to 250 million
in 2007 - Interview with Christian Aid, Human Tide: The Real Migration Crisis (14 March 2007). Cf, R.
Black (2001), ‘Environmental Refugees: Myth or Reality?’, New I ssues i n R efugee R esearch, Working
Paper 34, 1; S. Castles (2002), ‘Environmental Change and Forced Migration’, New Issues in Refugee
Research, Working Paper 70, 1. See J. Barnett (2001), ‘Security and Climate Change’, Tyndall Centre
Working Paper 7, 1-17, 8, available at
http://waterwiki.net/images/4/4e/Security_and_Climate_change.pdf.
6
IPCC, Climate Change: T he I PCC S cientific A ssessment: Final R eport of W orking G roup I,
(Cambridge:
Cambridge
University
Press
2007),
section
5.5,
available
at
<http://www.ipcc.ch/publications_and_data/ar4/wg1/en/ch5s5-5.html>. The IPCC’s Fourth Assessment
Report (AR4) predicted that by 2100, global warming will lead to a sea level rise of 180 to 590 mm,
depending on which of six possible world scenarios comes to pass, and barring rapid dynamical changes
in ice flow. See IPCC (2007), ‘Projected global average surface warming and sea level rise at the end of
the 21st century, Table SPM.3’, available at <http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4wg1-spm.pdf>. More recent research, which has observed rapid declines in ice mass balance from both
Greenland and Antarctica, finds that sea-level rise by 2100 may be considerably higher than that
estimated in IPCC AR4, with an upper limit of about two meters. See I. Allison et al., (2009), The
Copenhagen D iagnosis, 20 09: Updating t he W orld on t he L atest C limate Sc ience, available at
<http://www.copenhagendiagnosis.org/read/default.html>.
7
As stated by Ian Brownlie, “the fact remains that since 1945 the existence of States has provided the
basis of the [international] legal order”. I. Brownlie, ‘Rebirth of Statehood’ in M. Evans (ed), Aspects of
Statehood and Institutionalism in Contemporary Europe (1996) 5.
88
See the judgment of Huber in the Island of Palmas case, where he stated that “sovereignty in relation to
a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in
the territory of any particular state” [2 RIAA 829, 838 (1928)].
Electronic copy available at: http://ssrn.com/abstract=1931466
3
sovereignty9; however, for the most part, a sovereign state has considerable
discretionary latitude regarding the conduct of affairs within its territory. 10
Sovereignty and the ability to exercise jurisdiction over people and events also
extends, in varying degrees, to a states’ maritime zones. International law relating to
entitlement to maritime zones is set out in the 1982 Law of the Sea Convention
(LOSC). 11 All coastal states are entitled to certain maritime zones - internal waters, a
territorial sea, an exclusive economic zone, a continental shelf and, where the
geomorphological conditions exist, an extended continental shelf. Within each of these
zones states exercise varying degrees of sovereignty. Internal waters are wholly under
the jurisdiction and sovereignty of a state and may be equated, for present purposes, to a
piece of territory. 12 Within the territorial sea, a coastal state exercises complete
sovereignty, subject only to a right of innocent passage for foreign ships. 13 In the
exclusive economic zone a coastal state enjoys sovereign rights for the exploration and
exploitation of living and non-living natural resources of the water column, 14 while on
the continental shelf the state enjoys sovereign rights for the exploration and
exploitation of the natural resources of the seabed and subsoil. 15 Beyond the areas
under the national jurisdiction of states lie the ‘global commons’. Here, the high seas
water column is subject to an open access regime of equal right of user, while the deep
seabed, known as ‘the Area’, 16 is governed by the International Seabed Authority
9
The international law regarding human rights, the conduct of hostilities and diplomatic, consular and
head-of-state immunities, all serve as limits on the acts of states within their own territory: “[a] body of
substantive rules ranging from human rights issues to control over the use of military force… have
limited the freedom of law action by States in detail… sovereignty is no longer absolute.” C. Schreuer,
‘The Waning of the Sovereign State: Towards a New Paradigm for International Law?’, 4 EJIL (1993)
447-471.
10
See the Lotus Case: “the first and foremost restriction imposed by international law upon a State is that
– failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in
the territory of another State. In this sense, jurisdiction is certainly territorial; it cannot be exercise by a
State outside its territory except by virtue of a permissive rule derived from international custom or from
a convention” SS Lotus (France v Turkey) [1927] PCIJ Series A No. 10, 18-20.
11
United Nations Convention on the Law of the Sea, 10 December 1982, into force 16 November 1994.
21 International Legal Materials 1245 (1982)
12
LOSC Art 8
13
LOSC Art 17
14
LOSC Art 56
15
LOSC Art 77
16
Defined as ‘the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”.
LOSC Art 1(1)
4
(ISBA). 17 Within the global commons states exercise exclusive jurisdiction over their
vessels and their nationals. 18
10.2.1 The Law on the Creation of States
The exercise of sovereignty and sovereign rights is contingent on statehood.
While there is on-going debate regarding the scope of the criteria for statehood, 19 the
generally accepted formulation of those criteria is contained in Article 1 of the
Montevideo Convention on the Rights and Duties of States which provides: 20
The State as a person of international law should possess the following
qualifications:
(a) A permanent population;
(b) A defined territory;
(c) Government; and
(d) Capacity to enter into relations with other states. 21
With regards to population, no minimum is set for numbers; a state is a state
even if its population numbers less than one thousand. 22 The law likewise does not
prescribe the physical scope of territory necessary; as Franck and Hoffman note
‘infinitesimal smallness has never been seen as a reason to deny self-determination to a
17
Established pursuant to LOSC Art 156. All states parties to the LOSC are members of the ISBA which
is headquartered in Kingston, Jamaica.
18
LOSC Art 87
19
See T. Grant, ‘The Montevideo Convention and its Discontents’(1999) 37 Columbia J ournal o f
Transnational Law 403, 434; comments in the ILC by Scelle in (1949) 62 ILC Yearbook, para 70; Special
Rapporteur Alfaro, SR on the draft Declaration on the Rights and Duties of States, (1949) 68 ILC
Yearbook, para 63; see also, J. Duursma, Fragmentation and the International Relations of Micro-States
(Cambridge: Cambridge University Press 1996) 112-115 for an overview of critiques of the Montevideo
criteria.
20
See D. Harris, Cases and M aterials on I nternational Law (6th ed, London: Sweet and Maxwell, 2004)
99.
21
Montevideo Convention on the Rights and Duties of States, 165 LNTS 19. See also the Arbitration
Commission of the European Conference on Yugoslavia in Opinion No. 1 where it was noted that “the
state is commonly defined as a community which consists of a territory and a population subject to an
organized political authority… [and that] such a state is characterized by sovereignty.’ (Commission
established pursuant to the Declaration of 27 August 1991 of the European Community, Bull EC 7/8
(1991); 92 ILR 162-165.
22
As is the case with Vatican City; see J. Crawford, The Creation of States in International Law (2nd ed,
Oxford: Oxford University Press 2006) 52.
5
population.’ 23 The requirement of ‘government’ is understood as the existence of an
effective government, independent from the influence or control of other states. Finally,
capacity to enter into relation with other states is an amalgam of government and
independence, namely the ability to operate as an independent entity on the global stage,
able to engage in legal relations with other entities under international law.
To be accepted as a sovereign state under international law, one must, at the very
least, display the above criteria. However, if, having acquired the Montevideo criteria, a
state ‘loses’ of or more of the criteria – say, an effective government – does this mean
that the state no longer exists? Indeed, climate change threatens to deprive some states
of some of the key Montevideo criteria – namely, territory. Does that mean these states
will, under international law, cease being states? Much as states can be created under
international law, so too can they cease to exist. Thus, an analysis of the law on the
dissolution of states is relevant to this chapter.
10.2.2 The Law on the Dissolution of States
The law on the dissolution of states provides that states may be dissolved as a
consequence of merger with another state, 24 absorption into an existing state, 25
annexation, 26 or dismemberment of an existing state. 27 However, in the history of the
UN, there have been almost no incidents of total extinction, either voluntary or
involuntary, of a state. 28 States have endured, in some form or another, but almost none
have ceased to exists in their entirety. Thus, the presumption under international law is
towards continuance of some kind – either as part of another, pre-existing state, or an
entirely new successor state. 29 A distinct body of law regarding the parameters of the
continuance of states exists. It consists of the customary law on state succession,
T. Franck and P. Hoffman, ‘The right of self-determination in very small places’, (1976) 8 New York
University Journal of Law and Politics 331-386, 383-384.
24
This was the case with the creation of the Republic of Yemen in May 1990, formed through the merger
of North and South Yemen; see Crawford, Creation of States, above n 21, 716.
25
As was the case with the German Democratic Republic (East Germany) which voluntarily became part
of the Federal Republic of Germany (West Germany): see Crawford, Creation of States, above n 20, 705.
26
Of historical note only, annexation of territory by another state is illegal under international law, under
Article 2(4) of the UN Charter; this was reaffirmed by the UN Security Council following the Iraqi
invasion of Kuwait in 1990, SC Res 662, UN Doc S/RES/662 (1990). See also Crawford, Creation of
States, above n 21, 702-703.
27
For instance, as with the break-up of Czechoslovakia in 1993, into Slovakia and the Czech Republic.
28
Crawford, Creation of States, above n 21, 701.
29
K .Marek, Identity and Continuity of States in Public International Law, 2nd ed (1968), pp 199-36;
Crawford, Creation of States, above n 21, 667-668.
23
6
universally held as complex and frequently unsettled; 30 and the treaty rules on state
succession, which include the Vienna Convention on Succession of States in Respect of
Treaties 31, and the Vienna Convention on Succession of States in Respect of State
Property, Archives and Debts. 32
While a significant proportion of the law is not directly pertinent to the current
analysis of climate change and the challenge to statehood, we can, nonetheless, draw
some general principles and rules regarding state dissolution and succession from these
instruments, and from state practice. Keeping in mind the presumption of continuity,
and mindful of the “principles of free consent, good faith and pacta sunt servanda”, 33
any State or States involved in the process of succession or dissolution must conclude
so-called ‘devolution agreements’, 34 in order to determine which of the treaty
obligations of the predecessor state will devolve the successor state. A dissolving state
should arrange, in advance if possible, the exact contours of its obligations under treaty
law, and with regards to its debts and property and so on, to ensure that the dissolving
state fulfils its obligations under law, and that the successor state is aware of its new,
and continuing, obligations. Thus, the law operates with a strong presumption towards
the state enduring as a legal entity in some form, continuing its obligations under treaty.
However, in the context of the possible dissolution of a state due to climate
change, the law on state succession can only provide guidance up to a point. The most
pressing issue for states facing extinction due to climate change is not, arguably,
questions of treaty obligations and debts, but rather, the very existence of the state
altogether. The law on state dissolution and succession, as it stands, is designed to deal
with a state voluntarily changing its borders, changing its government, the extent of its
territorial control, and reconstituting itself in an altered but still recognisable form.
Central to this paradigm is that such reconstitution is always essentially within, or at
See the comment made by the German Federal Supreme Court in the Espionage Prosecution Case: “the
problem of State succession is one of the most disputed areas of international law.” Case No. 2 BG 38/91,
94 International L aw R eports, p. 68 et seq., at pp. 77-8. See generally M. Shaw, ‘State Succession
Revisited’, 5 Finnish Y.B. Int'l L. 34-98 (1994) and M Craven, ‘The Problem of State Succession and the
Identity of States under International Law’, 9 EJIL 142-162 (1998).
31
17 ILM (1978) 1488.
32
22 ILM (1983) 306.
33
Preamble, Vienna Convention on Succession of States in Respect of Treaties.
34
Article 8, Vienna Convention on Succession of States in Respect of Treaties.
30
7
least contiguous with, the territory in which the predecessor state originally existed. 35
That is to say, none of the states that have dealt with the process of dissolution were
also confronted with the prospect of losing their territory altogether, of the territory
ceasing to exist. Thus, when the Former Yugoslavia began to break up, Slovenia and
Croatia reconstituted themselves within the boundaries of what had been ‘Yugoslavia’.
They were not forced to arbitrarily choose some other part of Europe, or some other
continent, to establish the new state.
This total loss of territory is the prospect facing small island nations. Should
climate change result in total population displacement from a small island, either
because of rising sea levels or extreme weather events making habitation unsustainable,
the nation in question will be forced to abandon that territory entirely. They have not
chosen to dissolve their state, but they nonetheless have lost fundamental Montevideo
criteria – a permanent population living in a defined territory under effective control.
Can the state, in this instance, still be considered a state? If an entire nation was
submerged, and the population relocated, would the nation still exist in its ‘new’ form?
Would a semi-autonomous region within another sovereign state, or an artificial island,
still be Tuvalu or the Maldives? It is this question that lies at the heart of the challenge
to international law and statehood presented by climate change.
10.3 Climate Change as a Threat to Sovereignty and Statehood – Resolving the
Statehood Dilemma
Can states still ‘exist’ separate from their territory? The decision in the Island of
Palmas arbitration, would seem to answer in the negative:
Although municipal law, thanks to its complete judicial system, is able to
recognize abstract rights of property as existing apart from any material display of
them, it has none the less limited their effect by the principles of prescription and
the protection of possession. International law, the structure of which is not based
on any super-State organisation, cannot be presumed to reduce a right such as
35
Indeed, a number of definitions and explanations regarding state succession specifically frame the
concept in terms of territory – see, for instance D. O’Connell, who defines succession as a ‘transfer of
territory from one national community to another’ (State Succession in Municipal Law and International
Law, 2 Vols. (1967), vol 1, 3) – this draws on the terminology of the 1978 Vienna Convention, in Article
2(1)(a).
8
territorial sovereignty, with which almost all international relations are bound up,
to the category of an abstract right, without concrete manifestations. 36
However, despite such a seemingly definitive position, state practice would
suggest otherwise. There is precedent for the endurance of the state in a somewhat
abstract form in the guise of the ‘government in exile’. If the government of a state has
been forcibly displaced from its territory through belligerent occupation, the
government in question is considered to remain the legitimate government and state,
and thus retains its international personality, even though it does not have possession or
jurisdictional control over either its population or its territory. Under international law,
such exile must be accepted by the international community; that is, there should be no
general acknowledgement of a change of circumstances. The government in exile must
retain its accreditation with other governments and continue its representations in
international organisations. 37
Historically, governments in exile have legitimately adopted treaties, entered
into contracts and maintained diplomatic relations during their exile. 38 While some of
the literature suggests that a government in exile must receive the unequivocal support
of the international community, 39 practice has demonstrated that this need not be the
case. For example, the UN Secretary-General, in his capacity as depository, allowed the
Cambodian governments-in-exile 40 to sign a number of multi-lateral treaties, including
the International Covenant on Civil and Political Rights 41 and on Economic, Social and
Cultural Rights, 42 despite protests from states who chose instead to recognise the
Government of the People’s Republic of Kampuchea as the only entity to be considered
as the government of Cambodia. 43
The Island of Palmas Arbitration (Netherlands v United States) (1928), 2 RIAA 829, [839].
Crawford, Creation of States, above n 21, 691-692.
38
See for example the conduct of the European governments-in-exile during the Second World War, such
as France, Belgium, and Czechoslovakia; as enumerated in F.E. Oppenheimer, ‘Governments and
Authorities in Exile’(1942) 36 American Journal of International Law 568-593.
39
See Crawford, Creation of States, above n. 21, 691-692.
40
The Government of Democratic Kampuchea (GDK) and the Coalition Government of Democratic
Kampuchea (CGDK).
41
International Covenant on Civil and Political Rights, 999 UNTS 171, hereinafter ICCPR.
42
International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, hereinafter ICESCR.
43
Including Poland, Laos, Hungary and Bulgaria. See further S. Talmon, Recognition of Governments in
International Law: With Particular Reference to Governments in Exile (Oxford: Oxford University Press
1998) 117-206.
36
37
9
In this respect, it is possible to see that the Montevideo criteria are not merely a
stringent set of rules that must be fulfilled, but rather that there is some fluidity and
leeway in how such rules are to be applied. Interconnected as the Montevideo criteria
are, 44 they are nonetheless mutable elements; differing weights and values attach to
these indicia depending on context. Thus, a state may exist even if it lacks exactly
defined territory45 or an effective government. 46 Even so-called ‘failed states’, where
all form of government and civil order seem to have disappeared, remains a state, even
if only ‘on paper’. 47 Indeed, the terminology of ‘failed’ states is an essentially political,
rather than legal, term; a state thus described has not ceased to exist from a legal
standpoint. 48 Thus, if it is possible to conceive of governments in exile, or states that
remains states, even in the absence of key criteria, it may therefore be possible to
conceive of ‘States in exile’ – theoretical constructs without dominion over their
original territory, because such territory has been lost. Indeed, as Grant has noted:
Territory is not necessary to statehood, at least after statehood has been
established… [it] appears to be the case that once an entity has established itself in
international society as a state, it does not lose statehood by losing its territory or
effective control over that territory. 49
However, the above examples stem from instances where the territory has been
temporarily ‘lost’ – either due to disputes over the boundaries, foreign occupation, or a
temporary breakdown of governmental organisation. None of these situations deal
44
See H Lauterpacht, who stated that without territory “there can be no stable and effective government”,
in Recognition in International Law (1947) 30. For similar reflections on the interconnections between
territory, government and populations, see N Hill, Claims to Territory in International Law and Relations
(1945) 4; J Duursma, Fragmentation and the International Relations of Micro-States (1996) 117.
45
This is the case with Israel, for instance, whose borders have been indeterminate since founding in
1948. See further Crawford, Creation of States, above n 21, 421-446.
46
The classic case on effective government and statehood is the Åaland Islands case, where the
International Committee of Jurists, tasked with determining the status of the Islands, found that it was not
possible to pinpoint the date of Finnish sovereignty “until a stable political organisation had been created,
and until the public authorities had become strong enough to assert themselves throughout the territories
of the state without the assistance of the foreign troops.” LNOJ SP Supp No $ (1920) 8-9.
47
Such as Somalia, considered a ‘failed’ state since the collapse of central government in 1991. See
further N.L. Wallace-Bruce, ‘Of Collapsed, Dysfunctional and Disoriented States: Challenges to
International Law’, (2000) 47 Netherlands International Law Review 53-73, 61.
48
For a critique of the prevalence of the term ‘failed’ state, see G. Acquaviva, ‘Subjects of International
Law: A Power-Based Analysis’ (2005) 38 Vanderbilt J ournal of T ransnational L aw 345-396; and
Crawford, Creation of States, 720-723.
49
Grant, ‘Defining Statehood’, 435.
10
adequately with the involuntary permanent removal of the population from its territory.
There is some international law dealing with partial intra-state population displacement
– the law relating to internally displaced persons. The UN High Commissioner for
Refugees includes, in its mandate, the issue of internally displaced persons. 50 However,
there is little precedent regarding total population displacement. One must also be
mindful that the states facing displacement also face losing all the rights that come with
territory – access to the marine and land resources within the territorial control of the
state.
Two alternatives suggest themselves. One is that the population is relocated to
the territory of another sovereign state, and either integrated into the community as
citizens of that new state, or else given a portion of territory within that second state,
and given some degree of jurisdictional control over the territory. There is some
precedent in international law. The Sovereign Military Order of St John of Jerusalem, of
Rhodes and of Malta is a religious order dedicated to the provision of medical care.
Since its formation as an order in around 1050, the Order had been sovereign for a time
over the islands of Rhodes and Malta, but ceded sovereignty over Malta to Napoleon in
a treaty in 1798. Since losing its territory to Napoleon, the Order endured, and is
currently headquartered in Rome. The Order’s landholdings, comprising its
headquarters and embassy buildings, have all been granted extraterritoriality. 51 While
the Order is not a state, it nonetheless has international personality. It has observer
status at the UN General Assembly, and has exchanged envoys with, or is recognised
by, over eighty States. The Order also enjoys sovereign immunity to the extent
necessary for the execution of its founding purpose – the provision of medical care. 52
However, it must be noted that those states facing relocation – such as the Maldives –
derive the bulk of their national income from their location, indeed, their very existence,
<http://www.unhcr.org/pages/49c3646c146.html>. See further C. Phuong, The International Protection
of Internally Displaced Persons (Cambridge: Cambridge University Press 2004).
51
The Palazzo Malta in Via dei Condotti 68, where the Grand Master resides and Government Bodies
meet; the Villa Malta on the Aventine, which hosts the Grand Priory of Rome; Fort Saint Angel on the
island of Malta; the Embassy of the Order to Holy See; and the Embassy of the Order to Italy. See further
<http://www.orderofmalta.org>.
52
<http://www.orderofmalta.org>. See under ‘medical and humanitarian activities.
50
11
as an island. 53 It would seem inequitable to relocate a island population of persons
skilled in island-based hospitality and industry to, say, a landlocked country.
The other option could be to relocate the population to an artificially created
island, much like an oil rig. Technology has developed to the point where artificial land
masses have been successfully created and are capable of supporting human life. For
instance, in Dubai, there is ‘The World’, an artificial archipelago of 300 islands, located
four kilometres from the coast of Dubai UAE; it was made by dredging sand from
Dubai’s shallow coastal waters. 54 A number of Asian airports are also constructed on
artificial islands – including Kansai International, Chūbu Centrair International and
Kobe Airports – and have been built to withstand extreme weather events such as
earthquakes and typhoons. 55 However, it must be noted that current international law,
under UNCLOS, does not provide for artificial islands to have their own territorial
waters or exclusive economic zones. If such constructions are within 200 nautical miles
of a coastal state, that state exercises jurisdiction 56 and the coastal state is the only entity
entitled to authorize their construction. 57 However, these ‘solutions’ are essentially
practically, rather than legally, based. The creation of an artificial ‘Maldives’ on a giant
platform on the ocean would deal with the practical issue of rehousing a nation, but it
would need to be accompanied with a legal response as well – one which ensured the
continuance of the rights of the state thus reconstituted.
Given the preponderance of practice and theory that suggests that states are
essentially robust entities once properly constituted, questions of state ‘extinction’ due
to climate change seem somewhat premature. Kuwait remained Kuwait despite its
temporary domination by Iraq. Somalia remains Somalia, even though it has for years
lacked an effective government able to engage on the international plane. Whatever
practical solutions are settled on for saving The Maldives, Tuvalu, and Kiribati, these
states will still be states, just in slightly altered physical form.
53
Some 500,000 people visit the Maldives annually. Tourism accounts for 28% of GDP; over 90% of
government tax revenue comes from import duties and tourism-related taxes.
See
<http://www.tourism.gov.mv/pubs/tourism_yearbook_2010.pdf>.
54
See further <http://www.theworld.ae> for more information on the design and construction of the
project.
55
Kansai International Airport is nearly eleven square kilometers, with future plans for expansion up to
thirteen square kilometres. Since its completion in 1995, the airport has weathered earthquakes, typhoons,
and storm surges up to three metres. See further www.kiac.co.jp for additional details and statistics.
56
LOSC Article 56.
57
LOSC Article 60. See further N. Papadakis, The I nternational L egal R egime o f A rtificial I slands
(Leyden: Sitjhoff 1977).
12
What is thus required is for international law to reconceptualise the law of
statehood, to accept such ‘new’ forms of statehood. As noted by Österdahl:
We talk about states and non-state actors, we do not talk about full-states, halfstates, quarter states, and “entities formally known as states”… [t]he question is
for how long this conceptual system can remain in international law. For how long
will international law be able to continue using the fiction of the uniform concept
of the state? 58
It will be incumbent on the international community to react to the altered
circumstances of states forced to ‘recreate’ themselves in response to climate change.
This may take the form of a series of sui generis treaties with the ‘new’ states recreated
due to climate change, in which the international community recognises their enduring
statehood, despite their altered circumstances. Indeed, much like the UN Trusteeship
system, a centralised mechanism might be created for partial or total stewardship of
these new/old states – to administer and protect maritime rights, to provide social,
cultural, political, and economic support and guidance for a people forced to abandon
their lands, without hope of return. Regardless of how such a response develops, the
law must adapt to address the reality of the situations it seeks to regulate. Indeed,
despite the seemingly entrenched position of the state, international law has, throughout
the twentieth century, adapted to embrace new actors – through human rights and
refugee law, international business law, international organisations law and the laws
relating to armed conflicts. No longer is State supremacy absolute. Thus, given the
dynamism and flexibility demonstrated by the international community and
international law, it is reasonable to hypothesise a system whereby states that ‘lose’ key
indicia of statehood, through no fault of their own, continue to retain the benefits and
privileges of statehood.
10.4 Conclusions
I. Österdahl ‘Relatively Failed: Troubled Statehood and International Law’ (2003) 14 Finnish Yearbook
of International Law 49.
58
13
Law, to some extent, depends on certainties. A given situation is regulated by
given rules. However, a recurrent element in nearly all debate about climate change is
uncertainty. Predictions about possible effects and events vary; debate continues over
whether climate change is anthropogenic or part of the natural cycle of the earth’s
existence. What is clear is that those who will be impacted by climate change, however
it has come about, are feeling the effects already. It is incumbent on the international
community to ensure that the law of nations adequately reflects the living conditions for
all nations and peoples.