Freya Bliss

How can international law best accommodate climate change migration? Will it be required of "Sinking States" in the Pacific to relinquish their Statehood and legal personality in the international system? Once a State loses its territory as a result of climate change, is their Statehood also dissolved?

With the help of Crawford's understanding of declarative Statehood in international law from the Montevideo Convention on the Rights and Duties of States, as well as with reference to constitutive theory of Statehood, I aim to answer these questions in the hope that alternative understandings of Statehood can be developed and accepted as norms within international law.

What makes a State?

There are two theories of Statehood in international law, constitutive and declarative. Constitutive theory describes Statehood occurring after an act of recognition from another State in the international system; that "a State is and becomes an International Person through recognition [from other States] only and exclusively".

This theory argues that even though States can exist even when unrecognised, they simply do not enjoy international legal personality. Lauterpacht problematised this theory of constitutive recognition of Statehood because it was "not a matter governed by law, but a question of policy. Recognition is the result of a decision taken not in obedience to a legal duty, but in pursuance of the exigencies of national interest".

Conversely, the declarative theory of Statehood was developed in the 20th century after the 1933 Montevideo Convention on the Rights and Duties of States. This theory defines a State as being a person in international law if it meets a set of four criteria. These four criteria are the following: a permanent population, a defined territory, a government, and the capacity to enter into relations with other States.

After this international convention, seemingly clear and defined boundaries of Statehood in international law were stipulated for the international community. Although the element of recognition has largely been described as a potential political tool to articulate a State's national interest, there are elements of it that prove useful for the idea of continued Statehood. This is because, as the Montevideo Convention is customary international law, there is a deep normative element involved in the creation or dissolution of States in the international system. The international State practice of recognising other State's Statehood did not die or become subverted with the signing of the Montevideo Convention; it simply became an auxiliary element of defining Statehood in international law.

Once an entity in the international system fulfils all four criteria from the Montevideo Conventions for Statehood, other States begin to recognise it in a formal manner. What I explain next is how there is flexibility in the continued understanding of what a State is, and how Statehood is performed. In the following examples, I demonstrate that once the criteria for Statehood have been met (and sometimes not even all four), that there is considerable flexibility in the understanding of Statehood and acceptance of different degrees of Statehood allowed in the international system. Essentially, once an entity has been recognised as a 'State' in the international system, it is difficult to withdraw this title.

So, what would it take for a State to no longer be considered a State? The Montevideo Convention outlines three of the four criteria as follows:

The State as a person of international law should possess the following qualifications

A permanent population

The Convention does not offer any elaboration on this point of how permanent this population needs to be, or what proportion of the population needs to permanently be living there. This is problematised in cases like Samoa, which McAdam explains has 56.9 per cent of its population living outside of its territorial boundaries.

Presumably, it follows that if there were only one Samoan left in Samoa, then the State would still fulfil the criteria for the declarative theory of Statehood. Crawford points out there is some flexibility within the understanding of how this population is related to Statehood. He argues that "persons could very well be regarded as nationals of a particular State for international purposes before the State concerned has established rules for granting or determining its nationality".

States are not obliged to confer nationality to the people living within their territory, meaning it is possible for foreign aliens to permanently reside within another State, thus fulfilling one of the criteria for Statehood.

Government

Crawford acknowledges that this criterion of 'Government' could be the most important in the definition of Statehood, "since all the others depend on it". This is because the essential functions of a state in a formal manner are performed by the Government.

However, there are some key examples of States not having an effective government, yet still being considered States in the international system. Somalia is a State in the international system that has been considered a "failed" State for some time now. A failed State is understood in international relations scholarship as when "government – if one exists – is completely unable to maintain public services, institutions, or authority, and that central control over territory does not exist".

If a State no longer has an effective government, it may be described as a "failed" State in that it can no longer enact its duties to govern and protect its citizens. However, this State is almost always still recognised as a State. This suggests that there is a certain flexibility (or forgiveness) of the understanding of Statehood, once this status has been achieved, particularly in relation to the criteria of having a functioning government.

The idea of government, or 'effective' government, can be a subjective or nominal idea. This is demonstrated in the case of the Republic of Congo's independence and ascension into Statehood in 1960. Republic of Congo was granted a 'hurried' independence in 1960, before it had a chance to properly set up an effective government with legislative, executive or judicial organs. There was "division of the central government, shortly after independence, into two fractions, both claiming to be the lawful government". Although this entity in 1960 did not yet satisfy this criterion for 'effective government', the international community still recognised its claim for Statehood, and its application for membership into the United Nations "was approved without dissent".

Capacity to enter into relations with other States

This part of the definition of Statehood in declarative international law theory is a consequence, rather than a distinct criterion of Statehood. The aforementioned examples of lack of effective governments may lead to a State no longer having the capacity to enter into relations with other States. However, the legal personality of this community would still be described as a State, despite the governmental and administrative challenges faced. A State does not simply dissolve or lose its international legal personality if its government is in chaos, or if its leaders are incapable of entering into relations with other States.

What the above three cases do is demonstrate the flexibility in how Statehood is understood (once you have Statehood), but also in how it is performed in the international system. What appears to happen in international law is a combination of both the constitutive and declarative theories of Statehood. So, what would happen if a State could no longer exist in its territory because of rising of sea levels?

A chance to maintain Statehood after your territory is Gone? A few case studies.

Option 1 ‒ End of Statehood

The first hypothetical scenario is the complete abandonment of a State's legal personality, its territory, all claims to sovereignty, and exercise of power over a defined population. What may need to happen in this situation is the citizens of these States may have their citizenship of their original country absorbed into the destination State's.

A similar idea to this has been suggested by former Australian Prime Minister Kevin Rudd, who proposed as a solution to rising sea levels that "inhabitants of low-lying atoll nations such as Nauru, Kiribati, and Tuvalu be granted Australian citizenship in exchange for [control over] their exclusive economic zone resources".

This proposal is in line with black letter interpretations of declarative theory of Statehood; if you no longer have a territory, you no longer have a State. However, this initial proposal was met with considerable negative accusations of neo-colonialist resource grabs from Pacific leaders, whose priority right now is encouraging more drastic climate action from larger emitters.

Option 2 – Self-governance in free association with another State

The second scenario that could occur could be an arrangement of self-governance in free association with another State. The continuity of Statehood would look less like Statehood in this situation in the conventional understanding of the term, and more like elements of self-determination of peoples within a State.

Association, or free association, is "a form of self-government developed in United Nations practice under which the associated entity has a special status short of independence". Pacific States would need to cede their sovereignty to the host State, but would retain and respect the "individuality and the cultural characteristics of the territory and its peoples". In this scenario, the Pacific States could still constitute fully independent States, but would delegate "foreign affairs, defence or other powers to another State".

This might work for Pacific Island States as an opportunity to maintain self-governed communities after their State no longer has a defined territory, thus no longer fulfilling the declarative criteria for Statehood. This scenario would require significant negotiation with the destination State of what their sovereignty and State practice would entail when they no longer have control over their initial territory.

Similar constitutional arrangements already exist between New Zealand and Niue, where the constitution of Niue stipulates that New Zealand is to provide it with "necessary economic and administrative assistance" if needed, but that Niueans are not bound by the laws of New Zealand.

However, what is fundamentally different about this case study is that Niue's territory still exists outside of where New Zealand is, and if Niueans moved to New Zealand they would be obliged to observe New Zealand laws. If they were allowed to continue their self-governance in another territory, it follows that this scenario would work best if the peoples involved all resided in a specific part of the destination State.

This model has certain deficiencies in that it operates on the assumption that the incoming State are a homogenous people and that they would all agree to living in the same location within the destination State.

Option 3 – The Nation Ex-Situ

The third and final scenario of Statehood without territory that I propose is what Burkett calls "the nation ex-situ". This is the concept of a 'deterritorialised State' as an alternative form of Statehood. In this example, Statehood would comprise of a "status that allows for the continued existence of a sovereign State, which would be afforded all the rights and benefits of sovereignty among the family of nation-States.

It would protect the people forced from their original place of being by serving as a political entity that remains constant even as its citizens establish residence in other States. The fundamental difference here is that this model would allow for a diffused population (as it may be difficult to keep an entire population in one sub-territory). This element would avoid negotiation over land ownership between the arrivals and the existing residents of the territory.

Most importantly, this model, also acknowledges the flexibility in the declarative theory of Statehood, and applies this flexibility to the element of 'defined territory', where the people can be within the populations of a State, but not need to be contained within a specific territorial boundary.

Another important element of this model of continued Statehood, is the idea of continued use of resources within the State's existing exclusive economic zone with respect to their maritime boundaries.

Conclusion

Alternative forms of the State, while evidently normative in the international system, will still require a considerable amount of creative legal thinking and negotiation in order to become the mainstream. What is challenging about this arena of international law is that we normally face issues in transitional justice of State dissolution after conflict, cession, merger or succession.

While Pacific Islanders are indeed fighting the effects of climate change, they are not fighting a belligerent State actor. There is an urgent need to find viable last resort solutions to sinking States. We are facing an unprecedented change in our climate conditions, and it is the moral imperative of States to work together to explore international law developments that could help vulnerable States to maintain as much of their Statehood or sovereignty as possible.

Freya Bliss is Course Coordinator and Teaching Assistant, School of Political Science and International Studies, the University of Queensland.

References:

Burkett, Maxine A., 'The Nation Ex-Situ' in Michael B. Gerrard; Gregory E. Wannier (ed), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, 2013)

Crawford, James, The Creation of States in International Law (Oxford University Press, 2006)

Lauterpacht, Hersch, 'Recognition of States in International Law' (1944) 53(3) The Yale Law Journal

McAdam, Jane, ''Disappearing States', Statelessness and the Boundaries of International Law' in Jane McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Hart Publishing, 2010)

Montevideo Convention on the Rights and Duties of States, signed 26 December 1933, 165 LNTS 19 (entered into force 26 December 1934) Art 1

Oppenheim, Lassa, International Law. A Treatise (Project Gutenberg, 2012) vol I (first published 1905)

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Published in Chain Reaction #137, December 2019. National magazine of Friends of the Earth Australia. www.foe.org.au/chain_reaction