Statehood and State Extinction Sea Level PDF

Statehood and State Extinction:
Sea Level Rise and the Legal Challenges Faced by Low-Lying Island-States
Henk Jan Scholten

S1538950
24-8-2011
Thesis
LLM International & European Law
Supervisor: Prof. M.M.T.A Brus
Table of contents
Introduction
1. Trouble in Paradise
2. Sinking Island-States and Statehood
12
I. Criteria of statehood
12
(A) A permanent population
14
(B) A defined territory
15
(i) Fully submerged territory
16
(ii) Uninhabited territory still above sea level
17
(C) Capacity to enter into relations with the other States
18
(D) Government
19
(i) Effective government
19
(ii) Government in relation to disappearing population and

territory
22
(E) Independence
25
(i) Formal independence
27
(ii) Actual independence
28
II. Concluding remarks
30
3. Continuing statehood
32
I. Mitigation, protection, adaptation
32
(A) Protecting existing territory
33
(B) Creating new territory: artificial islands and installations
35
II. Relocation: Cession and merger
37
(A) Cession
37
(B) Merger
39
III. Government-in-exile
40
IV. Deterritorialised States and the nation ex-situ
41
(A) The legal basis
43
(i) The Sovereign Order of Malta
45
(ii) Vatican City
46
(B) The need for novelty?
48
V. Concluding remarks
49
Conclusion
53
Bibliography
59
1
Introduction
One of the key characteristics of international law is its ability to adapt to changing
circumstances. Be it sudden or slow, and be it through treaties or customary law, modern
international law in itself offers a kind of flexibility to face ever-emerging legal questions,
issues and challenges. When Europe descended into mayhem during the religious wars of the
sixteenth and seventeenth century, the chaos of the Thirty Years War was answered with the
Treaty of Westphalia, which firmly established the system of territorial sovereignty and the
novel principle of nation-states. Likewise, when much of the world was engulfed by World
War II, the United Nations (UN) and the system of collective security were established as a
response.
In a time of rising sea levels, international law is faced with another new challenge:
the physical disappearance of the territory of island-States. Although possible answers may be
less sweeping than the San Francisco Conference or the introduction of the Westphalian
system, some fundamental elements of the latter are put into new perspective. Much is known
about secession, succession or merger of States. The fall of the Soviet Union, the dissolution
of Yugoslavia, the split of Czechoslovakia into Slovakia and the Czech Republic, they all
provide precedents and relevant information about statehood. However, much is unclear about
the end of statehood when there is no succeeding State, in what may be termed the cessation
of a State. More specifically this relates to those States which are threatened by their territory
becoming uninhabitable or by the complete disappearance of their territory due to rising sea
levels. By definition, therefore, there is no succeeding State, and this presents a novelty in
international law.
The issue of vanishing island-States raises a large variety of legal questions that touch
upon the boundaries of law. 1 What will happen to the islanders themselves for example?2
With their territory gone, they will have to find refuge in other countries, but how will they be
welcomed and what will their legal status be? Will they be refugees in the classical sense, or
will they form a new category of so-called environmental or climate refugees? 3 Will they
1
Jane McAdam, Disappearing States, Statelessness and the Boundaries of International Law, University of
New South Wales (UNSW) Research Series, Paper 2 (2010), available at <.http://ssrn.com/abstract=1539766>;
Christel Cournil, Francois Gemenne, Les populations insulaires face au changement climatique: des migration a
anticiper, VertigO, 10 (2010) 3, p. 14.
2
See e.g. Selma Oliver, A New Challenge to International Law: The Disappearance of the Entire Territory of a
State, International Journal on Minority and Group Rights, 16 (2009), pp. 209-243; McAdam, Ben Saul, An
Insecure Climate for Human Security? Climate-Induced Displacement and International Law, Sydney Centre
for International Law Working Paper No. 4, Sydney Law School Research Paper No. 08/131, October 2008,
available at <.http://ssrn.com/abstract=1292605>.
3
Oliver, A New Challenge to International Law, pp. 209-243.
then be entitled to receive nationality from the State they fled to, can they retain their
nationality somehow through the former existence of their island, or does statelessness await
them? International accountability for contributions to global warming is another area of
interest. Could threatened islands such as Tuvalu or the Maldives hold the United States of
America or any other major contributor for that matter accountable in a court of law for its
part in global warming and rising sea levels?4 Taking things a little step further into the sphere
of private law, what would the consequences for private contracts be? An illustrative example
is the DotTV (.tv) internet domain name extension. Tuvalu is the issuing country of this
highly popular and economically valuable top-level domain and derives an important part of
its national income from its lease to television stations. 5 What will happen with the domain
extension and the lease contracts? These are just some of the contours of the legal
implications of the possibility of an island-State ceasing to exist as a sovereign State; from the
fate and status of the islander refugees to the accountability of other States for rising sea
levels, from private law consequences to issues of statehood and sovereignty.
Despite this myriad of accompanying problems, 6 the discussion of disappearing
States seems to mainly revolve around the climate or environmental refugee status of the
islanders, and less around the consequences for the State as a legal entity, even though the
answer to that question could be important for the status of the refugees. While the fate of the
people is certainly the most pressing concern, many legal uncertainties depend on the more
fundamental questions relating to statehood and sovereignty. 7 This thesis will deal with these
latter topics, whereas the legal status of the refugees will largely fall outside the scope of this
research. Instead, focus will lie on questions as to whether the States will lose their statehood
and sovereignty due to the complete loss of territory; whether alternatives are at hand that
offer the possibility for the island-nations to retain some of their claims based on the former
existence of their territory; whether international law as it stands today will be able to cope
4
See e.g. Rebecca E. Jacobs, Treading Deep Waters: Substantive law issues in Tuvalus threat to sue the United
States in the International Court of Justice, Pacific Rim Law and Policy Journal, 14 (January 2005) 1, pp. 103128; Jessica R. Mainprize, The World is Sinking: Possible Strategies for United States International
Accountability to Pacific Island Nations for Global Warming Contributions, King Scholar Senior Seminar
Papers (2007), available at <.http://www.law.msu.edu/king/2007/Mainprize.pdf>.
5
Central Intelligence Agency (CIA), The World Factbook, Tuvalu,
<.https://www.cia.gov/library/publications/the-world-factbook/geos/tv.html>, visited on 26-8-2010; David
Amin, Increase in sea levels due to global warming could lead to ghost states, The Guardian, 29 September
2009, <.http://www.guardian.co.uk/environment/2009/sep/29/sea-levels-ghost-states>, visited on 8-9-2010.
6
Oliver, A New Challenge to International Law, p. 209.
7
Lilian Yamamoto, Miguel Esteban, Vanishing Island States and sovereignty, Ocean & Coastal Management,
53 (2010) 1, pp. 1-9, p. 1; Rosemary Rayfuse, International Law and Disappearing States: Utilising Maritime
Entitlements to Overcome the Statehood Dilemma, UNSW Research Series, Paper 52 (2010), p. 8, available at
<.http://ssrn.com/abstract=1704835>.
with this problem, or whether new ideas and principles must be explored, such as the
proposed principle of a deterritorialised State. 8 To cover these fundamental points of law the
central question of this thesis will be: What are the legal consequences under international law
for the statehood of island-States following the disappearance of their territory, and can they
retain claims of statehood based on the former existence of their territory?
The first chapter will deal with the physical threats and consequences for island-States
caused by the rising sea levels on the basis of the findings of the Intergovernmental Panel on
Climate Change (IPCC).9 It will attempt to provide a proper understanding of the threats and
acts as a factual basis. It also explores some of the consequences this has for the legal
analysis. The second chapter deals with the legal consequences for the criteria of statehood of
island-States when faced with loss territory due to rising sea-levels. It provides a general
conclusion following a strict or formal analysis of the legal consequences inside the existing
system of statehood. The third chapter researches possible means for threatened island-States
to retain their statehood and whether international law is able to cope with the problem of
disappearing island-States. It will explore several traditional methods of retaining statehood,
but also considers newly proposed alternatives such as the possibility of a government-inexile and the principle of a deterritorialised State. The final conclusion will attempt to
answer the central question posed in this thesis.
Rayfuse, W(h)ither Tuvalu? International Law and Disappearing States, UNSW Research Series, Paper 9
(2009), available at <.http://ssrn.com/abstract=1412028>.
9
In spite of recent criticism on the IPCC, it must be noted that this thesis is not the appropriate place to discuss
the merits of its research.
1. Trouble in Paradise
The paperwork should be challenging if nothing else, an official was quoted saying when
asked about an elaborate stunt of Maldivian President Mohammed Nasheed. 10 On October 17
2009, Nasheed and his crew of ministers held the worlds first underwater cabinet meeting. 11
In an attempt to draw attention to the threats faced by the Maldives, Nasheed and his
ministers, several meters below the ocean surface, signed an agreement calling upon the world
for carbon emission cuts. Of course their action sparked some hilarity, but their message is
nonetheless serious: the Maldives is threatened in its existence by the rising ocean waters;
there is Trouble in Paradise.12
The geographical characteristics of the archipelago State largely speak for themselves
when trying to understand the threats. The Maldives consists of 1,190 coral islands, with
about 200 inhabited islands and it has a considerable population of almost 400,000 people, of
which about 100,000 live in the capital city of Mal. 13 The country is situated in the Indian
Ocean and has an average elevation of less than two meters and boasts the lowest high point
of any country at a mere 2.4 meters. 14 Should sea levels rise sufficiently, the Maldives seems
destined to become the first island-State to completely disappear beneath the waves, acting
indeed as a canary in the coalmine for the consequences of sea level rise. 15 Already in 1987
high tides inundated Mal16 and when the December 2004 tsunami hit the Maldives, it simply
washed across the islands, leaving mayhem in its path. 17
The case of the Maldives is perhaps the most illustrious example of an endangered
island-nation, but there are other sovereign island-States also faced with the possible loss of
10
Robin McKee, Can Mohammed Nasheed save the Maldives and the rest of the world from the rising
seas?, The Observer, 11 October 2009, <.http://www.guardian.co.uk/world/2009/oct/11/mohamed-nasheedmaldives-rising-seas>, visited on 8-9-2010.
11
Randeep Ramesh, Maldives ministers prepare for underwater cabinet meeting, The Guardian, 7 October
2009, <.http://www.guardian.co.uk/world/2009/oct/07/maldives-underwater-cabinet-meeting>, visited on 8-92010; Olivia Lang, Maldives leader in climate change stunt, BBC News, 17 October 2009,
<.http://news.bbc.co.uk/2/hi/south_asia/8312320.stm>, visited on 8-9-2010.
12
Christine Toomey, The Maldives: Trouble in Paradise, The Sunday Times, 1 February 2009,
<.http://www.timesonline.co.uk/tol/news/environment/article5604464.ece>, visited on 13-9-2010.
13
CIA, The World Factbook, Maldives, <.https://www.cia.gov/library/publications/the-worldfactbook/geos/mv.html>,
visited
on
9-9-2010;
U.S.
Department
of
State,
Maldives,
<.http://www.state.gov/r/pa/ei/bgn/5476.htm>, visited on 10-9-2010.
14
Ibid., visited on 9-9-2010; Food and Agricultural Organization of the UN, Regional Office for Asia and the
Pacific, Asia and the Pacific National Forestry Programmes: Update 34, December 2000, p. 102., available at
<.ftp://ftp.fao.org/docrep/fao/003/x6900e/x6900e00.pdf>.
15
Address by President Mohammed Nasheed of the Maldives to the UN General Assembly (21 September
2009), <.http://www.unmultimedia.org/tv/unifeed/d/13548.html>, visited on 13-9-2010.
16
U.S. Department of State, Maldives, <.http://www.state.gov/r/pa/ei/bgn/5476.htm>, visited on 13-9-2010.
17
Nemat Sadat, Small Islands, Rising Seas, UN Chronicle, 46 (2009) 3/4, pp. 10-15, p. 13.
their territory. 18 Together with the Maldives, the islands seemingly most threatened in their
statehood are the low-lying atoll countries of Kiribati (112,000 inhabitants), the Marshall
Islands (64,000) and Tuvalu (12,000).19 Tuvalus highest point measures at a mere five meters
and the Marshall Islands sticks out ten meters at its peak. Kiribati has one island at 81 meters,
but the rest of the archipelago, like Tuvalu and the Marshall Islands, only has an average
elevation of about two meters above ocean level. 20
For any meaningful legal analysis it is important to have a proper understanding of the
dangers facing these islands. In its Fourth Assessment Report (AR4) the IPCC states that
warming of the climate system is unequivocal and that a rising sea level is consistent [and
inevitable] with this warming. 21 The IPCC projects a global average sea level rise between
0.18 and 0.59 meters at the end of the 21st century. 22 However, due to limited understanding
of some factors behind sea level rise, the report also says that the upper value is not to be
considered an upper bound for sea level rise. 23 Because certain greenhouse gasses (e.g. C02)
linger in the atmosphere for a long period of time and due to the time scales associated with
climate processes, sea level rise due to anthropogenic global warming could continue well
beyond the 21st century.24 Moreover, considering the outcome of the Copenhagen and Cancun
Climate Summits, a quick and dramatic drop or even stabilisation of C02-emissions is not to
be expected.
The IPCC goes on to say that partial loss of ice sheets on polar land and/or thermal
expansion of seawater over very long time scales could imply meters of sea level rise (e.g.
18
Jon Barnett, W. Neil Adger, Climate Dangers and Atoll Countries, Climatic Change, 61 (December 2003) 3,
pp. 321-337.
19
Nobuo Mimura, Leonard Nurse, e.a., Small islands, in: M.L. Parry, O.F. Canziani, J.P. Palutikof, P.J. van der
Linden, C.E. Hanson (eds.), Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of
Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change,
Cambridge University Press: Cambridge 2007, pp. 687-716, p. 703; Barnett, Adger, Climate Dangers, p. 322;
McAdam, Disappearing States, p. 2; Rayfuse, W(h)ither Tuvalu?, p. 2; Yamamoto, Esteban, Vanishing
Island States, p. 1; CIA, The World Factbook, Kiribati, <.https://www.cia.gov/library/publications/the-worldfactbook/geos/kr.html>,
Marshall
Islands,
<.https://www.cia.gov/library/publications/the-worldfactbook/geos/rm.html>, Tuvalu, <.https://www.cia.gov/library/publications/the-world-factbook/geos/tv.html>,
visited on 16-9-2010.
20
Fiu Mataese Elisara, Effects of Climate Change on Indigenous Peoples: A Pacific Presentation, UN
Permanent Forum on Indigenous Issues, International Expert Group Meeting on Indigenous Peoples and Climate
Change, 2-4 April 2008, available at
<.http://www.un.org/esa/socdev/unpfii/documents/EGM_cs08_Elisara.doc>; for a more detailed description of
the situation on the islands see e.g. McAdam, Swimming Against the Tide: Why a Climate Change
Displacement Treaty is Not The Answer, International Journal of Refugee Law, 23 (2011) 1, available at
<.http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1718868>.
21
IPCC, Climate Change 2007: Synthesis Report. Summary for Policymakers, 2007, p. 2, p. 20.
22
Ibid., p. 8.
23
Ibid.
24
Ibid., p. 12, p. 20. IPCC, Climate Change 2007: Synthesis Report, 2007, pp. 46-47.
the melting the Greenland ice sheet alone would lead to a contribution of seven meters) 25 and
that such changes are projected to occur over millennial time scales, but more rapid sea level
rise on century time scales cannot be excluded. 26
Now, an Atlantis-style descent to the bottom of the ocean is unlikely 27 and on the
surface these numbers and time scales might not seem very urgent; a fifty centimetre sea level
rise in a hundred years time would still leave Maldivian territory above water for example, 28
and which lawyer can logically say anything about the world in a thousand years?
Considering the timescale of complete inundation, does it then mean that the islands are not in
danger? Does it mean that this research will end here? Asking the question in this thesis is
answering it. The sovereign States are still in danger,29 by disappearance of their territory, but
more prominently by the threat of uninhabitability of their territory before the actual
disappearance. While the tide slowly creeps in, the atolls will increasingly be faced with
consequences other than complete inundation. This leads to the question what sea level rise
effectively means for the islands, besides the apparent distant threat of their territory
disappearing.
The IPCC indicates that small islands are especially vulnerable to future sea level rise,
and outlines some of these vulnerabilities. 30 Potential consequences include loss of land,
coastal erosion, coral bleaching and loss of coral reefs, increased salinisation of soil, shortages
of food and fresh water, adverse economic effects through loss of tourism, infrastructure and
foreign investment, and increased frequency and intensity of extreme weather events, such as
storms and tsunamis. 31
Taking a closer look at the geography of the islands, the nature and severity of these
consequences becomes more evident. The Maldives, Kiribati, Tuvalu and the Marshall Islands
25
IPCC, Working Group II, Summary for Policy Makers, in: Parry, e.a., Climate Change 2007: Impacts,
Adaptation and Vulnerability, pp. 7-22, p. 17.
26
IPCC, Synthesis Report, pp. 53-54; IPCC, Summary for Policymakers, p. 13
27
McAdam, Disappearing States, p. 4; Ironically, whereas McAdam argues against Atlantlis-style
predictions, her close colleague Rayfuse does hint towards such a comparison in W(h)ither Tuvalu? and in
International Law and Disappearing States.
28
Philip L. Woodworth, Have there been large recent sea level changes in the Maldive Islands?, Global
Planetary Change, 49 (November 2005) 1-2, pp. 1-18.
29
Clive Schofield, Shifting Limits? Sea Level Rise and Options to Secure Maritime Jurisdictional Claims,
Carbon & Climate Law Review, 3 (December 2009) 4, pp. 405-416, p. 414.
30
Mimura, Nurse, e.a., Small islands, p. 689.
31
Barnett, Adger, Climate Dangers, p. 325; IPCC, Synthesis Report, p. 12; Martin Parry, Osvaldo Canziani,
Jean Palutikof, e.a., Technical Summary, in: Climate Change 2007: Impacts, Adaptation and Vulnerability,
Parry, e.a., pp. 23-78, p. 63; Achim Maas, Alexander Carius, Territorial Integrity and Sovereignty. Climate
Change and Security in the Pacific and Beyond, paper presented at the conference Climate Change and
Security on 21-24 June 2010 in Trondheim, Norway, available at <.http://www.eccplatform.org/images/CCIS/Paper_Trondheim_PSIDS_CCIS_Maas_Carius_final_revised.pdf>.
exist entirely out of low-lying atolls. 32 An atoll basically consists of a ring of coral reefs on
the outside encircling a salty water lagoon on the inside. Its average elevation and highest
point are often only a few meters above sea level. 33 The stretches of land on which the
islanders live are then in between the outer sections coral reef and the inner sections
lagoon.34
A key vulnerability concerns fresh water, which is attained through rainfall and which
allows vegetation to grow on the island. The fresh water table is only slightly above the salty
seawater underneath the island, and through a rising saltwater table, the fresh water could
become contaminated, which could cause erosion and the destruction of food crops. 35 The
bigger danger, though, is the fact that coral reefs might not be able to keep up with the sea
level rise.36 Normally, coral reefs provide a protective barrier for the atoll islands shorelines.
However, increases in the sea-surface temperature cause the coral reefs surrounding the atolls
to suffer from coral bleaching.
While the reefs are naturally resilient and could normally grow apace with rising sealevels, 37 due to coral bleaching they are not expected to grow fast enough. 38 The sea level
will thus rise faster than the coral reefs can grow. Together with coastal erosion this could
cause an increase in floods, which would mean saline contamination of the fresh water and a
decrease in productivity from agriculture. 39 Under these circumstances, the islanders could
increasingly be faced with shortages of fresh water and food. Moreover, the islands will
become more vulnerable to extreme weather events which in turn are expected to occur
more frequently due to global warming. 40 At the same time, the atoll countries exhibit some
other features which make them so particularly vulnerable, such as a high ratio of coastline to
land area, relatively high population densities, and low level of available resources for
adaptive measures. 41
32
Barnett, Adger, Climate Dangers, p. 322.

Ibid.; Yamamoto and Esteban, Vanishing Island States, p. 2.
34
Yamamoto, Esteban, Vanishing Island States, p. 2.
35
Ibid.; Barnett, Adger, Climate Dangers, p. 322.
36
37
B. Brown, R. Dunne, M. Goodson, A. Douglas, Marine ecology: Bleaching patterns in coral reefs, Nature,
404 (9 March 2000) 6774, pp. 142-143, in: Barnett, Adger, Climate Dangers, p. 325.
38
Barnett and Adger, Climate Dangers, p. 325.
39
Ibid.
40
David Freestone, International Law and Sea Level Rise, in: Robin Churchill and David Freestone (eds.),
International Law and Global Climate Change, London: Graham & Trotman 1991, pp. 109-125, p. 115.
41
Ibid., p. 323.
33
Some of the consequences of these events can already be seen in the Carteret Islands, a
group of atoll islands part of Papua New Guinea. 42 Here the islanders are slowly being
evacuated from their homeland, because the island can no longer support human settlement.
Whereas the Maldives could act as a canary in the coalmine for the rest of the world, the
Carteret Islands could arguably play this role for the Maldives, Kiribati, Tuvalu and the
Marshall Islands, showing them what is to be expected from the rising sea.
The abovementioned processes would make it nearly impossible for a people to
continue living on the islands. They endanger the sustainability of societies on the atolls, and
Barnett and Adger argue that coupled with foreign loss of confidence in the future of atoll
countries, this could lead to the end of habitability of atolls: [The] combination of changes in
mean conditions and extreme events may mean that ultimately, atoll environments may be
unable to sustain human habitation.43 McAdam and Saul also emphasise this threat for the
societies of island-nations: Shoreline erosion, coastal flooding, increasing salinity and the
particular vulnerability of small islands to rising sea levels and increased severe weather
events compromise their continued habitability, impacting upon agricultural viability, vital
infrastructure and services, the stability of governance, and ultimately human settlement. 44
What is more, Gibbons and Nicholls say that looking to the future, () many small
low lying islands could be abandoned due to sea-level rise long before they become
physically uninhabitable. 45 Or in the words of the UN High Commissioner for Refugees
(UNHCR): Low-lying island States are () very likely to be entirely uninhabitable long
before their full submersion, causing entire populations and the governments to be externally
displaced.46 The end will thus not come as a single engulfing wave, 47 yet slowly but surely
the islanders will be forced to leave their homelands. This means that if and when 48 the
42
Dan Box, Human Tide. The inhabitants of the Cartaret Islands are the first people to be evacuated from their
homeland due to climate change, Geographical, 12 (2009), pp. 32-38; John Stewart, Rising seas force Carteret
Islanders out of home, Lateline, ABC Television (5 February 2007), transcript available at
<.http://www.abc.net.au/lateline/content/2006/s1840956.htm>; McAdam, Saul, An Insecure Climate for Human
Security?, p. 7.
43
Barnett, Adger, Climate Dangers, p. 326, pp. 329-330.
44
McAdam and Saul, An Insecure Climate for Human Security?, p. 1.
45
Sheila J.A. Gibbons, Robert J. Nicholls, Island abandonment and sea-level rise: An historical analog from the
Chesapeake Bay, USA, Global Environmental Change, 16 (February 2006) 1, pp. 40-47.
46
UNHCR, Climate Change and Statelessness: An Overview, 15 May 2009, available at
<.http://www.unhcr.org/refworld/docid/4a2d189d3.html>.
47
Daniel Williams, Sinking Feeling, Time International (South Pacific Edition), (2001) 33/34, pp. 26-29.
48
The author is aware of the sensitivities underlying the use of the words if and when, especially in the light
of the uncertainties of rising sea-level predictions and its consequences. Despite the arguably hypothetical nature
of the subject of this thesis, the academic relevance relating to the questions concerning statehood remains
present. Therefore, the terms if and when are used more interchangeably than would normally be acceptable.
territories of the Maldives, Kiribati, Tuvalu and the Marshall Islands will finally be swallowed
by the sea, they will most likely already be empty of inhabitants.
As mentioned earlier, it is important to understand the threats facing the islands; [t]he
way a phenomenon is understood necessarily determines the way it is regulated, writes
McAdam. 49 As she also rightly points out, the fact that an island is more likely to become
abandoned before actually physically disappearing could have important legal implications
for questions concerning the future of the States statehood.50 She explains: In legal terms,
the absence of population, rather than of territory, may provide the first signal that an entity
no longer displays the full indicia of statehood.51 Migration and island abandonment could
thus be an important element in the possible loss of statehood, arising earlier in the legal
analysis than the actual disappearance of territory itself.
To be able to grasp this important nuance even though it is still uncertain what
exactly will happen to the islands this thesis will assume two basic stages: (1) The territory
of the island-State has become uninhabitable due to a number of circumstances without full
disappearance of the territory and the population has abandoned the territory; (2) the territory
has completely disappeared beneath the ocean surface.
So the question will be which claims of statehood the sovereign entity of the State
could and will have once it only has an uninhabitable (and uninhabited) territory if it can
still be considered a State as such and what remains of once the territory is engulfed by the
ocean in its entirety. Conclusions about the consequences for statehood in the first stage will a
forteriori apply once the entire territory disappears, because the first stage allows more
ground for claims than the second one; without territory there can be no population living on
it, but without a population, the territory can still exist, on which the State could then try to
base some of its claims. The claim to statehood the island-State would possibly lose when it
still has a territory but no population living on it, would logically also be lost when both the
population and territory are gone. In other words, having territory but no population on it
prima facie appears to offer a more solid legal basis for the continued existence of an islandState than having neither a territory nor a population living on it. This approach will be the
basis for the analysis of the legal consequences for island-States and in this light the following
49
McAdam, Refusing Refuge in the Pacific: (De)Constructing Climate-Induced Displacement in International

Law, UNSW Law Research Paper No. 2010-27, July 2010, available at <.http://ssrn.com/abstract=1636187>.
50
McAdam, Disappearing States, p. 2; Oliver, A New Challenge to International Law, p. 212; Rayfuse,
International Law and Disappearing States, p. 7.
51
McAdam, Disappearing States, p. 2.
10
chapter will, as a legal point of departure, examine the relevant elements of international law
concerning islands-States and statehood.
11
2. Sinking Island-States and Statehood

Inside the current system of international law it is possible for the legal entity of the State to
cease to exist, but this contingency considers only the legal entity in itself, and not the
physical and literal end of a territory. 52 Currently, situations of absorption by another State,
merger with another State, and dissolution of a State followed by successor States, are
formally possible within international law, yet in all these cases, while the State ceases to
exist, the territory must be taken over by another State.53 The current system thus allows for a
State to end, but does so within the context of State succession. () There is never simply a
void.54 In the situation if sinking islands, however, due to its very nature, State succession of
the territory is not possible. This does present a void and accordingly a novel question of law
for the existing system of statehood.
As the previous chapter mentioned, this part of the thesis will function as a legal point
of departure. While politically laden, statehood is, as Crawford explicitly argues, a legal
concept. As such, statehood must be based on factual criteria. Even though this provides a set
legal theorem as the basis for statehood, recognition by other States continues to play an
important role. This is reflected by the tension between the constitutive and declaratory
theories of statehood. Coupled with the strong presumption of continuity of existing States,
this allows for some leeway with regard to the objective demonstration of adherence to the
criteria, if there is large-scale international recognition of the (continued) existence of a
State. 55 In order to deal with this tension in corresponding manner, it is of preliminary
importance for this chapter to focus on the objective characteristics of statehood by attempting
to analyse the legal criteria of statehood in the specific situation of sinking island-States. This
chapter will thus be a more formal or strict analysis of the legal consequences inside the
existing framework of statehood. The next chapters can subsequently explore possible
solutions, derogations and alternatives following the general conclusions made here, thereby
keeping a keen eye on the constitutive and declaratory theories.
I. The criteria of statehood

The concept of statehood is a very sensitive and politicised area of law and while international
law knows no formal definition of the term State, some objective criteria of statehood can
52
See e.g. Antonio Cassese, International Law, Oxford, New York: Oxford University Press 2005, p. 77, where
extinction is discussed in the cases of dismemberment, merger, incorporation and secession.
53
McAdam, Disappearing States, p. 2
54
Ibid.
55
Malcolm N. Shaw, International Law, Cambridge: Cambridge University Press 2008, p. 208.
12
nevertheless be identified. 56 Article 1 of the Montevideo Convention on the Rights and Duties
of States of 1933 presents the most classic and most widely accepted formulation of
statehood:57
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 the other States.58
The following subsections will elaborate on these criteria of statehood, and attempt to
draw attention to those elements of specific importance for the sinking island-States. The
criteria will first be dealt with on their own merits, and afterwards as constituents of other
criteria, such as government and independence. 59
(A) A permanent population

A State is in a sense a community made up out of people, 60 an organisation of human
beings, 61 and as such a permanent population is a necessity for statehood. 62 What is
important for the scenario of sinking islands is that there is no minimum required size of a
population. 63 The Vatican fulfils this criterion with around 829 inhabitants, the smallest
population of any State, and Tuvalu, of specific interest here, is the second smallest State in
terms of population, with about 12,000 inhabitants. 64
So theory requires no minimum population size, but in practice this could raise some
difficulties. It seems unclear whether it is actually required that the population should
(continue to) live on the territory of the State itself. McAdam accordingly raises the question
56
James R. Crawford, The Creation of States in International Law, Oxford: Clarendon Press 2006, pp. v-xi, pp.
44-46.
57
Shaw, International Law, p. 198.
58
Montevideo Convention on the Rights and Duties of States, 26 December 1933, available at
<.http://avalon.law.yale.edu/20th_century/intam03.asp>.
59
Crawford, Creation of States, p. 52.
60
Jorri C. Duursma, Self-Determination, Statehood and International Relations of Micro-States. The Cases of
Liechtenstein, San Marino, Monaco, Andorra and the Vatican City, Ph.D. dissertation, University of Leiden,
1994, p. 113.
61
David Rai, Statehood and the Law of Self-Determination, Ph.D. dissertation, University of Leiden, 2002, p.
21, pp. 58-59.
62
63
Matthew Craven, Statehood, Self-Determination, and Recognition, in: Malcolm D. Evans, International
Law, Oxford, New York: Oxford University Press 2010, pp. 203-251, p. 222.
64
CIA, The World Factbook, Country Comparison: Population <.https://www.cia.gov/library/publications/theworld-factbook/rankorder/2119rank.html>, visited on 10-11-2010; McAdam, Disappearing States, p. 8.
13
whether a State will still meet this criterion of statehood when a large proportion or all of
its population lives outside the States territory. 65 She then points out that the proportion of
population living on the territory does not seem to be determinative of the population criterion
for statehood.66 This does not, however, fully answer the question if and how the population
rule could continue to be fulfilled, once the entire population has left the territory.
It must be noted that the criteria in the Montevideo Convention are essentially
cumulative and interdependent.67 As such, logic would have us assume that at the least some
proportion of the population must live on the territory; there seems to exist an implied nexus
between a States population and its territory. 68 In an application for admission of Palestine to
become a member of UNESCO, the Executive Board wrote the following about the element
of population: The criterion does not stand on its own, but is tied to territory and, in a sense,
also to effective government and independence. 69 Moreover, Brownlie writes: This criterion
is intended to be used in association with that of territory, and connotes a stable community.
Evidentially it is important, since in the absence of the physical basis for an organised
community, it will be difficult to establish the existence of a state.70 According to Rai, an
uninhabited territory () cannot qualify as a State, because the State as a territory-based
form of political and social organisation must necessarily be an organisation of individual
human beings.71 McAdam then specifies this relationship between territory and population
for the case of island disappearance when she voices the assumption that there remains a
population on [the] territory to be governed. 72
Considered in this light, however, McAdam seems to touch upon matters too
summarily when she says that the notion of a permanent population simply means that it
cannot be transitory. 73 Arguably, the permanency element only serves as a distinction
between established or fixed populations and nomadic ones. 74 However, it receives renewed
relevance when applied to fleeing islanders. It could be argued that if the entire population
flees the territory in the specific case of sinking islands the case of territorial disappearance
65
McAdam, Disappearing States, p. 8, (emphasis added).

Ibid.
67
UN Educational, Scientific and Cultural Organisation (UNESCO), Executive Board, Application for
admission of Palestine as a member State of UNESCO, 26 May 1989, 131 EX/INF .7, p. 3, available at
<.http://unesdoc.unesco.org/images/0008/000827/082713EO.pdf>.
68
Interestingly, though strictly legally speaking somewhat unrelated, Barnett and Adger in Climate Dangers,
on p. 327 and p. 332, seem to equate the population of atoll countries with the island itself.
69
UNESCO, Application for admission of Palestine, p. 4.
70
Ian Brownlie, Principles of Public International Law, New York: Oxford University Press 2008, pp. 70-71.
71
Rai, Statehood, p. 58.
72
73
Ibid., p. 8.
74
Duursma, Self-Determination, p. 113.
66
14
with very slight possibilities of being able to return home , it loses its permanence and
indeed does become transitory. In that case, the answer to whether the criterion of population
continues to be satisfied does not have to be sought exclusively in its link with the criterion of
effective government, but can be also found in the element of permanent population itself.
Rai indeed discerns two conditions concerning the notion of permanency: [The]
population must have the intention to inhabit the territory on a permanent basis. () [And
the] territory claimed has to be habitable. 75 Neither of these conditions is fulfilled if the
population has to leave because the territory is disappearing or becoming uninhabitable. The
conclusion would then be that when the entire population has emigrated and is situated in the
territory of one or more other States, 76 following an exodus of population (...) accompanied
by, or premised on the imminent or eventual [physical] loss of territory, 77 the condition of
population will no longer be met.
(B) A defined territory

The Westphalian paradigm not only requires us to conceive a nation-state in terms of its
population, but also forces us to understand it in relation to a certain territory. After all, the
Peace of Augsburg of 1555, the historic predecessor to the Westphalian Treaty, decided:
Cuius regio, eius religio. As Crawford puts it: Evidently, States are territorial entities.78
The relevant question here is when a stretch of land can no longer be considered a defined
territory for the purpose of this statehood criterion. To answer this question and to capture
the nuance of the gradual nature of island disappearance, the following subsection is divided
into two parts. The first part will try to focus on the statehood consequences for a fully
submerged territory, whereas the second part will concentrate on the situation where the
islands have become uninhabited, but have not yet completely disappeared.
(i)
Fully submerged territory

A State must at least possess some territory, because the existence of a territory [is] a
condition sine qua non for statehood.79 However, as with population, theory does not seem to
dictate a minimum area size of that territory in order to obtain statehood. 80 Prime example is
75
Rai, Statehood, pp. 58-59.

Alfred H.A. Soons, The Effects of a Rising Sea Level on Maritime Limits and Boundaries, Netherlands
International Law Review, 37 (1990) 2, pp. 207-232, pp. 229-230.
77
78
79
80
Crawford, Creation of States, p. 46, p. 72; Craven, Statehood, Self-Determination, and Recognition, p. 223.
76
15
again The Vatican, which holds less than one square kilometre in territory. Tuvalu only
counts a mere 26 square kilometres.81 The territory does not have to be contiguous, and small
parts of the territory can be enclaved within other States.82 Such small size and fragmentation
do not necessarily preclude independence, and subsequently statehood, but could make it
difficult to achieve and maintain.83
Uncertain (i.e. not completely and precisely defined, or disputed) borders in itself do
also not stand in the way of statehood. However, as Rai mentions in passing, a State may
become extinct and a people may lose its territory as a result of natural developments. 84 On
the other hand, according to McAdam, loss of some territory () should not affect the legal
status of the entity.85 An oft-cited exemplification is the ruling by the German-Polish Mixed
Arbitral Tribunal in Deutsche Continental Gesellschaft v. Polish State, which stated: In order
to say that a State exists () it is enough that this territory has a sufficient consistency, even
though its boundaries have not yet been accurately delimited and that the State actually
exercises independent public authority over that territory. 86 However, as Higgins is quoted
by Crawford: [W]hen the doubts as to the future frontiers [are] of a serious nature, statehood
[becomes] in doubt.87
It is of course very well possible that the Tribunal and Higgins did not envisage the
exact scenario of sinking islands, yet their ideas prove helpful. The difficulty for the sinking
islands is that the current borders may be settled and certain, some of its land may even be
inched away by the ocean without further consequence, but once a rising sea level starts to
threaten the territory with complete inundation, it runs the risk of no longer having that
sufficient consistency. This serious uncertainty concerning the future frontiers places the
continued statehood on thin ice. In other, more simple and seemingly self-evident words, with
the islands having sunk below the sea level even at low tide, the territory criterion can no
longer be met.88
81
CIA, The World Factbook, Country Comparison: Area, <.https://www.cia.gov/library/publications/theworld-factbook/rankorder/2147rank.html>, visited on 17-1-2010.
82
83
Ibid., p. 4; for a more in-depth research into statehood issues of micro-states see Duursma, Self-Determination,
or Duursma, Fragmentation and the International Relations of Micro-States. Self-determination and Statehood,
Cambridge: Cambridge University Press 1996.
84
Rai, Statehood, p. 60; a people may lose its territory and a State may become extinct would, for the purpose
of this thesis, perhaps be a more fitting formulation.
85
86
German-Polish Mixed Arbitral Tribunal, Deutsche Continental Gas-Gesellschaft v. Polish State (1929),
Annual Digest/International Law Reports, 5 (11), pp. 14-15, in: Crawford, Creation of States, pp. 48-49.
87
Rosalyn Higgins, The Development in International Law through the Political Organs of the UN, London:
Oxford University Press 1963, p. 20, in: Crawford, Creation of States, p. 49.
88
Soons, The Effects of a Rising Sea Level, p. 230.
16
(ii)
Uninhabited territory still above sea level

So far, this subsection has only assumed the scenario of complete submersion of the
territory. However, as emphasised earlier, such disappearance is more likely to happen

gradually than with complete suddenness. The question that arises next, is whether the islands
can still satisfy the territory criterion of statehood, when they have become deserted or
uninhabitable, but have not yet fully disappeared below the sea level. A more definite answer
to this question can be found in the central conditions of government and independence, but
some indications can be inferred from the territory criterion itself.
The first indication lies in the implicit link between territory and population, which has
been elaborated upon in the previous subsection. As McAdam explains, the formulation of a
certain territory effectively governed assumes that there remains a population on that
territory which is to be governed.89 Furthermore, if a population requires a territory as the
physical basis for an organised community, that territory must in turn be inhabited by this
population if it is to serve as its physical basis. As Rai was quoted earlier: [A]n uninhabited
territory like Antarctica () cannot qualify as a State.90 However, this seems to relate in
a larger degree to the conditions for the creation of a State, and possibly in a lesser degree to
the consequences of a State already in existence. Thus, while it does provide a strong
indication for the possible end of statehood, the strong presumption of State continuity and the
possibility of derogations from the general statehood criteria, which will be discussed later on,
necessitate further investigation.
A second indication can be found in the legal regime concerning islands and maritime
boundaries as set out by the UN Convention on the Law of the Seas (UNCLOS)91. Art. 121(1)
UNCLOS describes an island as a naturally formed area of land, surrounded by water, which
is above water at high tide. Normally an island can generate all maritime zones, being the
territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf.
However, when the population has to leave an island in the face of the rising sea, it could
revert back into a rock which cannot sustain human habitation or economic life of its own ex
Art. 121(3). An island in this sense loses the capacity to generate an exclusive economic zone
89

91
United Nations Convention on the Law of the Seas (UNCLOS), 10 December 1982, available at
<.http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm>.
90
17
and continental shelf and can only have a territorial sea and a contiguous zone. 92 A rock can
in turn become a low-tide elevation, which Art. 13(1) considers as a naturally formed area of
land, which is surrounded by and above water at low tide but submerged at high tide. They
are considered distinct from islands, because they are inundated at high tide. 93 Following Art.
7 a low-tide elevation can only generate a territorial sea, and even for this it must be situated
wholly or partly inside the territorial sea of the mainland or an island.
The applicability of the UNCLOS, as a treaty, naturally hinges upon the existence of a
State. This notwithstanding, to consider this legal regime as an analogy for the territory
criterion of statehood can shed new juridical light on the situation. In this light, even though
such a claim may be difficult to maintain in practice due to the aforementioned necessary link
between population and territory an island which has become a rock in the sense of Art.
121(3), cannot categorically be excluded as a possible territorial basis for continued
statehood, because under the UNCLOS a rock can still generate some (diminished)
territorial maritime claims.
However, the abovementioned UNCLOS-definitions suggest that territory over which
jurisdiction can be exercised depends upon features existing above water at high tide. 94
Therefore, once the territory becomes submerged at high tide, when the island becomes a lowtide elevation ex Art 13(1), the conclusion would be that it may no longer be relied upon for
the territory criterion of statehood, because it cannot be used autonomously for any
jurisdictional or territorial maritime claims. 95 The only exception which could possibly remain
open in this case, is when lighthouses or similar installations which are permanently above sea
level ex Art. 7 have been built on the low-tide elevation. This so-called idea of a sovereignty
marker as a possibility for continued statehood will be considered in the following chapter.
92
The exact meaning of the elements human habitation and economic life remains unclear. Considering the
more specific reasons why people have to leave an island, in the case of sinking islands, it would be a fair
argument to say that once they leave, an island no longer satisfies these elements. On the other hand, however, it
is also argued that an island can still meet these criteria if lighthouses or similar installations which are
permanently above sea level have been built on them. This, for example, leaves open the possibility of a
sovereignty marker. See also Barbara Kwiatkowska, Soons, Entitlement to Maritime Areas of Rocks Which
Cannot Sustain Human Habitation or Economic Life of their Own, Netherlands Yearbook of International Law,
21 (1990), pp. 139-181, pp. 167-168, and Schofield, The Trouble With Islands, University of British Columbia
(August 2009), pp. 92-124, available at <.https://circle.ubc.ca/handle/2429/12624>.
93
Roberto Lavalle, Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the
UN Law of the Sea Convention, International Journal of Marine and Coastal Law, 19 (2004) 1, pp. 43-69, pp.
56-64.
94
Jared Hestetune, The Invading Waters: Climate Change Dispossession, State Extinction, and International
Law, California Western School of Law (January 15 2010), p. 30, available at
<.http://works.bepress.com/jared_hestetune/1/>.
95
Lavelle, Not Quite a Sure Thing, pp. 56-69.
18
(C) Capacity to enter into relations with the other States

The Montevideo Convention mentions this capacity as one of the requirements for statehood,
but it is not a capacity exclusive to States. International organisations, non-independent States
and other bodies can also enter into international legal relations. 96 Instead, the more accepted
view is that it is a consequence of statehood, rather than a constitutive requirement. 97
Crawford accordingly argues that this capacity is dependent on the power of government, and
this leads him to say that it is a conflation of the requirements of government and
independence.
98
Shaw for example writes: The essence of such a capacity is
independence. 99 Brownlie, in similar fashion, states that the concept of independence is

represented by the requirement of capacity to enter into relations with other states. 100
Therefore, focus will instead be had on the two elements of government and independence
respectively.
(D) Government
This chapter has up until now tried to deal with the population and territory criteria on their
own merits. However, as mentioned earlier, these criteria are generally interpreted as
constituents of the criteria of government and independence, because they cannot be
separated from them. 101 In fact, Crawford argues that government is the most important
single criterion of statehood, since all the others depend on it.102 Additionally, it is considered
key, because it satisfies the other central criterion of independence, 103 which will be
considered hereafter. The legal foundation of the government criterion can be found in the
relation between the principle of effectiveness and the statehood criteria of population and
territory. It is therefore now question to explore how this remains to be interpreted when the
criteria of territory and population are no longer satisfied in the manner described earlier.
(i)
Effective government
For a political society to function reasonably effectively it needs some form of
government or central control, writes Shaw drawing from the Western Sahara case, but this
rather indicates some sort of coherent political structure and society, than the necessity for a
96
Shaw, International Law, p. 202

Crawford, Creation of States, p. 61; Rai, Statehood, p. 74.
98
99
Shaw, International Law, p. 202; Rai, Statehood, p. 74.
100
Brownlie, Principles, p. 71.
101
Crawford, Creation of States, p. 52; Rai, Statehood, p. 62.
102
103
Ibid., p. 55; McAdam, Disappearing States, p. 8.
97
19
sophisticated apparatus of executive and legislative organs.104 In similar fashion, Crawford

writes: [T]o be a State, an entity must possess a government or a system of government in
general control of its territory. (...) International law lays down no specific requirements as to
the nature and extent of this control, except that it include some degree of maintenance of law
and order and the establishment of basic institutions.105
Thus, while a wide array of definitions, interpretations and necessary elements is
conceivable, international law does not prescribe any exact form of government. In the end,
the requirement of government, whichever definition is chosen, is essentially found on the
principle of effectiveness. The essence of government or governmental control, is that it be
effective. It is firstly important to understand this principle in the light of the government
criterion for statehood itself, and next, if a government can still be considered effective once
population and territory are gone.
Rai says that to be effective, there must be an entity or an organ capable of
establishing and maintaining a legal order throughout the territory. 106 The Aaland Island
Question is often used as a clarification for these issues surrounding government,
effectiveness and statehood, because the International Commission of Jurists had to determine
if and when Finland came into being as a State under international law. It applied the
government criterion in the absence of an exclusive right or title to exercise territorial
jurisdiction strictly, and interpreted it as the actual exercise of authority. 107 The necessary
existence of an effective government under these circumstances thus requires the actual
exercise of state authority over the claimed territory and the people residing in that
territory.108
However, there are some important exceptions to the general rule that the government
criterion must be satisfied on the basis of effectiveness. 109 In 1960, the Republic of Congos
claim for statehood was recognised, even though anything less like effective government ()
would be hard to imagine, according to Crawford. 110 Admittedly, this took place to the
background of a formal grant of independence and the applicability of the right of selfdetermination, but regardless, it demonstrates that under certain circumstances, statehood can
104

106
Rai, Statehood, pp. 62-63.
107
The Aaland Islands Question: Report of the Committee of Jurists, League of Nations Official Journal, Special
Supplement, 3 (1920), pp. 3-19, pp. 8-9; Crawford, Creation of States, pp. 58-59; Rai, Statehood, pp. 62-64,
72-73.
108
109
Ibid., p. 65, p. 72.
110
Ibid., pp. 64-67; Crawford, Creation of States, p. 57.
105
20
be acquired, despite a substantial lack or sometimes even a total absence of effective

government.111
Belligerent occupation and annexation of a State are other examples where the lack of
effective government does also not directly lead to the extinction of the State. The occupation
of large parts of Europe during World War II, and the Dutch government, for example, which
went in exile in London during the war, show this much. This is in fact underlined by the
entire concept of government-in-exile, which will be discussed in further detail as a possible
solution for the islands statehood problems in the next chapter.
Civil war or anarchy does also not directly affect the continuity of a States
international personality. Such a situation transpired in Albania from 1997 until 2001, for
example, and shows that even in a case of a temporary but completely ineffective
government () the presumption is against extinction and in favour of continuity of
statehood. 112 Key phrase is indeed temporary, because island disappearance is in all
likelihood and reality to be reckoned as permanent.
The situation in Somalia is perhaps the strongest argument in favour of the
presumption of state continuity. Somalia is generally considered a failed State, and has been
engulfed by civil war and arguably complete anarchy since 1991. There seems to be no form
of any governmental control whatsoever, society and economic life appear entirely
disintegrated, and no lasting solution is presented as readily available. Still, Somalia as a legal
entity does not appear to be genuinely challenged. Instead, the case of Somalia seems to
suggest that in the case of an established State, the presumption is in favour of the continuity
of statehood not only when there is a prolonged period of ineffective government but even if
there is a prolonged period of absence of government.113
Even though the precedence of the Somali case can be put into question, it does show
that not only a protracted period of ineffective government, but also a period of complete
absence of government does not by definition lead to the extinction of a State. 114 [T]he
collapse of governance within a state (sometimes referred to as a failed state) has no
necessary effect upon the status of that state as a state, says Shaw. 115 How long such a period
may take is unclear unfortunately, but it is inherently of provisional character. 116 This is
probably where the most fundamental problem for sinking islands lies, because for all
111

Ibid., pp. 68-72.
113
Ibid., p. 71.
114
Ibid., p. 65, p. 72.
115
116
112
21
practical and legal purposes, the disappearance of territory and population is likely to be of
such permanent nature, that even the strong presumption of State continuity can bring no
solace.
And so, despite these exceptions, in the end the subsistence of both new and
established States essentially depends on the (continued) existence of an effective
government.117 This means that if a situation of substantial lack of effective government
persists, the government criterion can no longer be considered to be fulfilled; or putting it
more directly: The persistent lack or absence of effective government will eventually lead to
the extinction of the State as an international person. 118 Indeed, Rai says that the
exceptions reflect the principle that international law is in favour of the continuity of a
States international personality in the absence of clear evidence to the contrary. 119 Such
evidence can arguably be found in the disappearance of population and territory.
(ii)
Government in relation to disappearing population and territory

What must be examined next, is how the principle of effectiveness is translated when a
government is faced with the disappearance of its population and territory. Crawford writes
that a State must consist of a certain coherent territory effectively governed.
120
Governmental power must then be exercised, or capable of being exercised, with respect to
some territory and population.121 McAdam, as quoted earlier, clarifies this: [T]he general
requirement that States have a certain coherent territory effectively governed assumes that
there remains a population on that territory to be governed. 122 It is in this way that the
population and territory criteria are considered constituents of the government criterion; if
they can no longer satisfied, consequently neither can the government criterion.
Following the gradual nature of island disappearance, the first problem for government
arises when the population criterion is no longer fulfilled. Crawford writes that governmental
power must be exercised with respect to some population: [G]overnment is treated as the
exercise of authority with respect to persons and property within the territory of the State.123
If governmental power is understood in this way, it would seem that without a population
there remains little effective authority to exercise in relation to them, because when the
117
Rai, Statehood, p. 67, emphasis added.

Ibid., p. 67, p. 73.
119
Ibid., p. 72.
120
121
Ibid., p. 46, 56.
122
123
118
22
population has left the States territory, most realistically they will eventually come to fall
under the jurisdiction of the State in which they then reside. 124 McAdam accordingly says that
a substantial loss of population would start to erode the effectiveness of the States
government.125 Along these lines, even though the territory might still physically exist, as
McAdam pointedly argues, the absence of population may provide the first indication of the
loss of statehood.126
This population issue links to the question which has been put forward earlier, whether
an uninhabited territory still above sea level at high tide could continue to fulfil the territory
criterion. The answer lies in the implicit link between population and territory, which has
been explicated earlier, and the assumption that there remains a population on the territory to
be governed. Governmental power must be exercised in relation to some population and
territory, but it does not seem that much relevant governmental power in the sense of
statehood can be exercised if the entire territory of the State has become completely
uninhabited. By itself then, a territory which has become fully uninhabited can no longer
reasonably act as the constituent of the government criterion.
This conclusion applies a forteriori if in addition to no population the territory has
entirely disappeared, as Soons indicates in very strong wordings. 127 If both criteria of
population and territory can no longer be met, there remains too little left to effectively
govern; the governmental powers are no longer capable of being exercised. In the words of
the UNHCR: Should, the entire territory of a State be permanently submerged, inevitably
there could be no permanent population attached to it or a government in control of it.128
Accordingly, the more decisive criterion of government could no longer be expected to be
met. In other words, a government cannot exist without a territory on which it bases its claim
to statehood, because without a population and territory, it cannot effectively exercise its
governmental authority. In fact, in the long run, lack of population and territory will likely
result in failure to maintain any State authority at all. 129
It would seem rather self-evident that the government criterion can no longer be
fulfilled if there is no population or territory to govern, but the previous subsection delineated
certain exceptions to the general rule of actual exercise of authority, which allow for a lack of
124

Ibid., p. 22.
126
Ibid., p. 2.
127
Soons, The Effects of a Rising Sea Level, p. 230. He seems to jump right to the conclusion when he writes:
If in addition there is no island territory left it can be concluded that the State no longer exists.
128
UNHCR, supra note 44.
129
125
23
effective government or indeed absence of government without the State directly becoming
extinct. These exceptions to effective government are based on the strong presumption of
State continuity and reflect the distinction between creation of a new State on the one hand
and the subsistence or extinction of an established State on the other.130 This means that in
the case of State continuity, the criterion of effective government may be applied less
strictly. 131 More practically, it is premised on the idea that government has two aspects, being
the actual or effective exercise of authority, and the right or title to exercise that authority. If
one of these aspects is present, the government criterion is to be considered satisfied. 132
Government may thus be understood as based on a legitimate title to exercise
authority over territory and people, which does not necessitate the exercise of full control
over the territory of the State and its inhabitants. 133 Full control may not be necessary, but,
some form of central or general control does seem implicitly required. As was argued earlier,
without population or territory, no government authority or control can be exercised in
relation to it. The first aspect of actual or effective government is thus not present. This need
not stand in the way of fulfilment of the government criterion, however, if the second aspect
of government, a right or title, is present.
Full control over the territory and its inhabitants is not a condition sine qua non in
those cases where there is an exclusive right to exercise authority or jurisdiction.134 The case
of sinking island-States involves State continuity and no (legitimate) competing claims over
the territory. The effective government criterion may accordingly be applied less stringently,
and does not have to interpreted as the actual exercise of authority. The existence of a right
or title to exercise that authority will satisfy the criterion of government. However, when the
population and territory no longer exist, the legal right or title of the second aspect would
become void, because there is nothing to exercise authority over.
The exceptions to the necessity of an effective government do hence not apply and
consequently the government criterion could no longer be considered fulfilled, because
neither of the two aspects which Crawford distinguishes is present. Rai indeed says that lack
of an effective government does not stand in the way of statehood when there is an exclusive
right to govern, provided that the other criteria for statehood are satisfied.135 However, as
has been argued earlier, the constituent criteria for government, a permanent population and a
130

Ibid.
132
Ibid.; Rai, Statehood, p. 408.
133
134
Ibid., p. 408, 413.
135
Ibid., p. 72, emphasis added.
131
24
defined territory, can at a certain point of sufficient sea level rise no longer be considered
satisfied.
On a more fundamental level, the government requirement no longer appears satisfied,
because the basic legal principles of statehood are premised on the continued existence of
population and territory. All other criteria may depend on the criterion of government, but a
government also depends on the continued existence of its population and territory. The
exceptions to the government criterion are essentially also based on this idea and are
ultimately of temporary and exceptional nature.136 For example, in the case of Somalia, as
Maas and Carius say, there is at least the prospect of return to a defined territory an option
which may be unavailable for island states until sea levels begin to fall again. 137
Both aspects of Crawfords distinction concerning government also require this
continued existence. This reflects the Westphalian understanding of a State in terms of
population and territory which are indeed inseparable from the government criterion. The
presumption may be strongly against extinction and in favour of continuity of statehood, but
the lack of population and territory provides arguably even firmer evidence to the contrary.
Despite the broad limits of State continuity, as constituents of the central criterion of
government, the presumptions of continued existence of population and territory seem to form
the outer limits within which government can be deemed to exist.
(E) Independence
So far only the explicit or formal criteria set out by the Montevideo Convention have been
subject of analysis, and albeit authoritative, Brownlie finds it no more than a basis for further
investigation. 138 This leads to examination of another criterion, independence, which
Crawford calls the central criterion for statehood. 139 It is essential, because [t]o become a
State a territorial and political entity must be independent. 140 Elaborating, Duursma notes
that [i]t is not so much the independence of States but of governments that is required. 141
The relevance of the requirement of an effective government, for instance, lies in the fact that
it is directly related to the idea that a State must be independent.142 Loss of independence as
a consequence means loss of statehood: La perte de lindpendence concide ncessairement
136

Maas and Carius, Territorial Integrity and Sovereignty, p. 9.
138
139
140
141
142
137
25
avec la disparition de lEtat.143 Therefore, the relevant central question is whether an islandState faced with the physical loss of population and territory can still be considered
independent for the purpose of statehood requirement. It is this decisive criterion which will
be discussed next.
Crawford notes the preliminary importance of distinguishing between independence as
an initial qualification for statehood and as a condition for continued existence. 144 In the
latter case, the strong presumption of State continuity may, even for a considerable time,
allow a State to continue to exist as a legal entity even though it lacks effectiveness. 145
Thereupon, Crawford says that [t]he context in which the claim to independence or to loss of
independence is made is thus highly significant.146 The context in the case of sinking islandStates, however, is that of permanent physical loss of population and territory following
which the formal criteria of statehood will no longer be satisfied. As argued earlier, the legal
presumption of State continuity could therefore lack a factual basis to support the continued
existence of a sinking island-State over a prolonged period of time.
The explanation given by Judge Anzilotti in the Austro-German Customs Union case
has become the most commonly accepted definition of independence. He stated:
[T]he independence of Austria () is nothing else but the existence of Austria, within the
frontiers laid down (), as a separate State and not subject to the authority of any other State
or group of States. Independence as thus understood is really no more than the normal
condition of States according to international law; it may also be described as sovereignty
(suprema potestas), or external sovereignty, by which it is meant that the State has over it no
other authority than that of international law.147
As long as a State is thus not placed under the legal authority of another State, it
maintains its status as an independent country. 148 Rai explains this as that a State as a
separate territorial and political entity must possess the legal capacity to act as it wishes,
within the limits given by international law.149 Crawford correspondingly discerns two main
elements of independence: [T]he separate existence of an entity within reasonably coherent
143
Charles E. Rousseau, Droit International Public, Vol. III (1997), p. 330, in : Duursma, Self-Determination, p.
116.
144
145
Ibid.
146
Ibid.
147
Permanent Court of International Justice, Customs Rgime between Germany and Austria, Series A/B 41
(1931), Individual Opinion by Judge Anzilotti, p. 57.
148
149
26
frontiers; and its not being subject to the authority of any other State of group of States,
which is to say that it has over it no other authority than that of international law. 150
The first element of a States separate existence is dependent upon the exercise of
substantial governmental authority with respect to some territory and people.151 As this thesis
argues, when sea level rise persists, most realistically these statehood criteria of population,
territory and government will eventually no longer be satisfied by the sinking island-States.
Accordingly, their separate existence as a political and territorial entity becomes in doubt. The
second element, the legal capacity to act as it wishes or the absence of subjection to the
authority of another State or States, leads to the distinction between formal and real or actual
independence.152
(i)
Formal independence
Independence is generally divided between formal and real or actual independence,
both of which an entity must possess in order to qualify as a State. 153 According to Crawford
[f]ormal independence exists where the powers of a government of a territory (in internal and
external affairs) are vested in the separate authorities of the putative State.154 Rai specifies it
slightly more when he says that these powers must be vested exclusively in one or more
separate authorities () as a result of its national law. 155 Considering that the island-States
discussed are already in existence, have functioning governmental apparatuses and that they
have been widely recognised as such, formal independence will not likely be the stumbling
block. As Brownlie says, if an entity has its own executive and other organs, conducts its
foreign relations through its own organs, has its own system of courts and legal system and,
particularly important, a nationality law of its own, then there is prima facie evidence of
statehood.
156
However, formal independence can act to mask the lack of actual
independence.157 A formally independent entity can effectively be controlled by another State

for example when foreign control is exercised in fact through the ostensibly independent
150

Ibid., p. 66.
152
Ibid., p. 66 ff; Rai, Statehood, p. 75 ff.
153
Duursma, Self-Determination, p. 117; Rai, Statehood, p. 77, 82.
154
155
156
157
151
27
machinery of state.158 Because a State needs to remain in charge of its own decision-making
process, actual independence is also required. 159
(ii)
Actual independence
Actual or real independence is defined by Crawford as the minimum degree of real
governmental power at the disposal of authorities of the putative State that is necessary for it
to qualify as independent.160 According to Rai it means that the decisions and actions of
the putative State must be its own, that is to say, it must be the putative State as such, and not
a third State, which can be held responsible under international law for the actions of the
putative State. 161 Still, it can be difficult to reach a conclusion on actual independence,
because it is a matter of degree [and] political fact which means that evaluation is very
casuistic; specific cases may raise serious problems of appreciation, in the words of
Crawford.162 Nevertheless, he identifies some factors relevant to the case of sinking islands.
One of these is diminutive size and resources, which do not in themselves stand in the way of
actual independence, yet due to the requirement of a defined territory, such cannot be said of a
territory fully disappeared.
A situation which does derogate from actual independence is substantial external
control of the State. As Duursma notes, a State must demonstrate sufficient control over its
external and internal affairs if it wants to qualify as actually independent. 163 According to
Crawford, [a]n entity, even one possessing formal marks of independence, which is subject
to foreign domination and control on a permanent or long-term basis is not independent for
the purposes of statehood in international law. 164 Following these considerations, even
though the degree of actual independence necessary () is slight, actual independence
cannot be proved when there is foreign control overbearing the decision-making of the entity
concerned on a wide range of matters of high policy and doing so systematically and on a
permanent basis. 165 While it is arguably difficult to determine exactly when foreign
influence becomes control or domination,
166
there are some important factual
consequences for sinking islands which cannot be overlooked.

158

Rai, Statehood, pp. 77-78
160
161
162
163
Duursma, Self-Determination, pp. 120-121.
164
165
Brownlie, Principles, p. 72; Crawford, Creation of States, pp. 85-86; Duursma, Self-Determination, p. 121.
166
159
28
First of all, once the entire population has had to abandon the island-States territory,
the people will essentially fall under the territorial jurisdiction of the State they then reside
in. 167 With respect to its population, the island-States government will thus be severely
restricted in its legal capacity to act as it wishes. A government should be able to take
decisions without having to abide by external rules, according to Duursma, 168 but with its
population under external jurisdiction this is doubtful at best. One can imagine the serious
impediment to some of the elementary functions of a State, such as the taxation of income, the
monopoly of power and judicial enforcement. Secondly, unless some territory will be ceded to
the vanishing State a possibility which will be discussed further on in this thesis , once the
territory fails to meet its statehood criterion, the States sovereignty will be frustrated even
more decidedly.
Because the government will have to function outside its own territory, McAdam
considers this situation within limits analogous to that of a government in exile. She says:
[P]rovided the government in exiles functions are not interfered with, or controlled by, the
host State (or any other), its independence is preserved. 169 When both population and
government are ultimately under foreign jurisdiction, the governments functions are
interfered with by definition almost, especially in the case of sinking islands. Still, the concept
of government in exile is often used in the case of belligerent occupation or illegal
annexation, and is as such seen as not derogating from actual independence. 170 However,
McAdam also says that it has [traditionally] operated on the assumption that it is a timebound mechanism, and at the same time she recognises that [o]ver time, the function of the
government in exile will wane exactly because both population and government reside in a
host State permanently. 171 This means that ultimately the island-States government-in-exile
falls and, most importantly, will continue to fall under foreign control systematically and on a
permanent basis, inevitably resulting in lack of actual independence.
Duursma says that a substantial limitation of sovereignty in favour of a third State,
leads to loss of independence.172 While a sinking island-State can arguably retain its formal
independence, eventually, due to the specific factual consequences of this case, the
government will come to fall under such substantial external control that it will lack sufficient
actual independence. Importantly, as Brownlie writes, there is no justification for ignoring
167

169
170
171
McAdam, Disappearing States, pp. 10-11.
172
168
29
evidence of foreign control. 173 Despite the fact that exceptions in the light of political
considerations remain possible, something Brownlie also recognises, 174 in the light of all the
foregoing and the particular circumstance of both population and government ultimately
falling under foreign control, the general conclusion must be that a sinking island-State will
eventually no longer be able to be considered independent for the purpose of statehood.
II. Concluding remarks

This chapter has attempted to approach statehood as a set legal system, thereby following an
arguably strict interpretation of the legal framework, while focusing on the formal legal
consequences for statehood in the light of complete physical loss of territory. It has evaluated
if and how the criteria of statehood permanent population, defined territory, effective
government and independence can continue to be satisfied for sinking island-States.
The first conclusion is that if and when sea level rises persistently, eventually a
population having had to abandon the island-States territory means that the population
criterion will no longer be fulfilled. This will probably be the first indication of the loss of
statehood, a strong argument introduced by McAdam. Secondly, with sufficient sea level rise,
at a certain point in time the territory criterion can also no longer be met. While it is difficult
to determine exactly when this will happen, at a minimum, a territory completely inundated at
high tide will not be able to satisfy the territory criterion. In any event, disappearance of
territory will certainly reinforce the indication of end of statehood due to loss of population.
While it is important to understand the facts and to see what consequence this has on
the criteria of population and territory, the legal crux for statehood lies in the effect physical
loss of these criteria in turn has on those of government and independence. A government will
no longer be able to exercise any authority, let alone effective authority, in relation to a
population and territory which no longer exist. International law provides certain exceptions
to the general requirement of effective government, but these exceptions are in the end
premised on the continued existence of population and territory, a proviso not present in the
case of sinking island-States.
Most centrally and decisively, due to the loss of the formal statehood criteria, a sinking
island-State will ultimately no longer be able to be considered as a separate or independent
legal entity for the purpose of statehood. This means that the general conclusion inside the
formal legal framework of statehood will be that eventually the Maldives, Kiribati, the
173
174

Ibid.
30
Marshall Islands and Tuvalu are faced with the imminent loss of their statehood with all due
consequences. Crawford writes that [a] State is not necessarily extinguished by substantial
changes in territory, population or government, or even, in some cases, by a combination of
all three, 175 but it appears that complete physical disappearance goes beyond substantial
change.
Still, as has been asserted, this is the general conclusion following a strict
interpretation of the formal legal framework of statehood. Because the field of tension
between the declaratory and constitutive theories allows for special exceptions and
derogations in the light of political considerations which could have a bearing on statehood,
this chapter has acted as a legal point of departure, and it is next necessary to investigate
which options could remain open for the sinking island-States.
175
31
3. Continuing statehood
Up to this chapter, this thesis has looked at the legal issues in a strict or formal manner, trying
to find a more general conclusion as to the fate of sinking island-States; as said, to find a legal
point of departure. The previous chapter then came to the preliminary or general conclusion
that the Maldives, Kiribati, the Marshall Islands and Tuvalu will be faced with the loss of
their statehood, should sea levels rise sufficiently to threaten the continued habitability of
their territories. It is said preliminary or general with reason, because several possibilities
arguably remain open through which statehood, or some alternative form or manner of
international legal personality, can be retained in the face of rising sea levels. On the one
hand, the existing legal framework of statehood possibly offers some traditional methods in
which the islands can deal with the physical and subsequent legal threats to their statehood.
On the other hand, it is possible to argue that international law is currently not sufficiently
equipped or developed to address the issue of sinking island-States adequately and that
alternatives or novel principles must be explored in order to deal with the islanders
predicament in a satisfactory manner. Either way, this chapter attempts to explore such
possibilities open to island-States; it attempts to explore the possibilities of if, how and why
threatened island-States could continue to exist as legal entities recognised by international
law.
I. Mitigation, protection, adaptation

The primary concern of endangered island-States would of course be to somehow mitigate the
effects of climate change and to halt sea level rise. For example, the Ambo Declaration of 10
November 2010 issued at the Tarawa Climate Change Conference calls for more and
immediate action to be undertaken to address the causes and adverse impacts of climate
change. 176 That mitigation is the primary concern was also continually stressed at the
Threatened Island Nations Conference held at Columbia University in May 2011 (hereinafter:
Columbia Conference).177 Nevertheless, it is a very real possibility that such endeavours to
prevent or mitigate sea level rise will ultimately be unsuccessful, because international
support and cooperation may prove to be an important stumbling block. The Kiribati
176
Ambo Declaration, 10 November 2010, available at

<.http://www.climate.gov.ki/pdf/Government%20Policies/political%20statements/AMBO_DECLARATION%2
010th%20November%202010.pdf>.
177
Columbia Law School, Center for Climate Change Law, Threatened Island Nations: Legal Implications of
Rising Seas and a Changing Climate, Columbia University, 23-25 May 2011,
<.http://www.law.columbia.edu/centers/climatechange/resources/threatened-island-nations>, see also the
Detailed Conference Notes.
32
government, for example, recognises this problem and states that while the climate talks on
Tarawa may have put the drowning atoll nation on the map, this will not promise its continued
existence.178
It is thus necessary to look beyond mitigation of sea level rise itself. The first serious
option open to island-States such as the Maldives, Tuvalu, Kiribati and the Marshall Islands
would then logically be to protect their territory through some form of physical adaptation,
such as elevation, reinforcement or the construction of sea walls. 179 The Office of the
President of Kiribati indeed states that Kiribati is much more focused on adapting to rather
than mitigating climate change. 180 Such protective measures may seem pretty factual, but
there are still some legal issues which arise in this context. The discussion basically becomes
how far an island-State can go to maintain the natural and inhabited status. The question has
been raised, for example, whether such protection activities should be considered as
reinforcement or at some point as the construction of an artificial island. 181 This means
exploring whether an artificially constructed island or installation could satisfy the defined
territory criterion.
(A) Protecting existing territory

It is generally recognised under international law that in order to maintain status as a natural
and inhabited island, threatened coastal States can act to physically protect the integrity of
their territory.182 The Japanese island of Okinotorishima is probably the most famous (and
most debated) example of the possible extent of such protection measures. If the island-State
wants to maintain a defined territory for the purposes of statehood, the adaptation plan would
have to make sure that at least some part of the territory remains habitable, and moreover that
the territory actually stays inhabited. 183 Yamamoto and Esteban describe human inhabitation
178
The climate change portal of the Office of the President of Kiribati, Climate change in Kiribati, Tarawa
Climate Change Conference issues the Ambo Declaration,
<.http://www.climate.gov.ki/news/20101112_Ambo_declaration.html>, visited on 15-7-2011.
179
Freestone, Maritime Jurisdiction Zones and Challenges Faced by Threatened Island Nations in Asserting
Climate Change, presentation held at the Columbia Conference, available at
<.http://www.law.columbia.edu/centers/climatechange/resources/threatened-island-nations/tin_video_archives>.
180
The climate change portal of the Office of the President of Kiribati, Climate Change in Kiribati, Strategies
for dealing with climate change in Kiribati: Mitigating climate change,
<.http://www.climate.gov.ki/Kiribati_climate_change_strategies.html#apm1_1>, visited on 15-7-2011.
181
Joeli Veitayaki, Pio Manoa, Alan Resture, Pacific Islands and the Problems of Sea Level Rise Due to
Climate Change, Ocean Policy Research Foundation, Proceedings of International Symposium on Islands and
Oceans, 22-23 January 2009, pp. 55-69 , p. 60, available at
<.http://www.sof.or.jp/en/report/pdf/200903_ISBN978-4-88404-217-2.pdf>.
182
Rayfuse, W(h)ither Tuvalu?, p. 4.
183
Jenny Grote Stoutenburg, When Do States Disappear? Thresholds of Effective Statehood and the Continued
Recognition of "Deterritorialized" Island States, presentation held at the Columbia Conference.
33
in this sense as the capacity of living in the island on the basis of the natural resources of the
island, in a stable community which is an institutionalized human group without external
assistance.184
One question thereupon relates to the size of the population that must remain on the
island for it to qualify as territory for the purposes of statehood. In the previous chapter it was
established that there is an implied nexus between territory and population. It is therefore
necessary that at least some part of the population will be able to remain on the reinforced and
protected island. According to Groute Stoutenburg, the first option would be to retain a
population nucleus, which would serve as the legal anchor for the population which has
relocated.185 At the Columbia Conference it has been proposed that this population nucleus
should number around fifty people and also Yamamoto and Esteban have said that five
people would be considered few, but if there were fifty people it would be enough for [the
island] to be classified as inhabited in the sense of the definition mentioned in the previous
paragraph.186 In theory, however, there is still no minimum population size and it may indeed
be very casuistic. Any exact number will on these grounds seem arbitrary. However, while
theory dictates no minimum size, the people that remain on the island, the population
nucleus, must in practice still be able to objectively qualify as a permanent population. In
other words, if the island wants to retain its inhabited status, the protected territory must be
able to house a population in the true sense of the term, meaning that the people must meet
certain minimum qualitative standards, such as having the will to live together and a basic
infrastructure that enables them to do so.187
When the territory becomes truly uninhabitable, the other option, she argues, would be
a caretaker population charged with some specific task, such as taking care of a
lighthouse.188 Grote Stoutenburg mentions Vatican City as an example, but Duursma argues
that because the inhabitants of the Vatican City do not have a permanent attachment to the
Vatican territory there is no permanent population in the meaning of the criteria for
statehood.189 This caretaker population would thus keep up a semblance of a population,
but would not objectively satisfy the statehood criterion of a permanent population. 190
However, Grote Stoutenburg argues that this semblance of a population kept up by the
184

Grote Stoutenburg, When Do States Disappear?.
186
187
188
See also Yamamoto, Esteban, Vanishing Island States, p. 5, who draw more heavily on the UNCLOS.
189
190
185
34
caretaker population would help other States in continuing to recognise the statehood. She
argues that the continuation of recognition would then be constitutive rather than declaratory
and that this would preserve statehood in the sense of a legal fiction. Under general
international law the island-State would thus lose its statehood, but its international legal
personality could be retained through and based on the continued recognition and the
continuation of diplomatic relations. In that case, however, it might be more useful to turn to
the novel principle of deterritorialised State or nation ex situ as introduced by Rayfuse and
Burkett respectively, which would achieve the same result as a caretaker population, without
the need of such a semblance of a permanent population. This option will be discussed in
further detail later in this chapter.
This first form of traditional sea defences seemingly offers the most straightforward
and least complicated legal solution, but there are many practical difficulties which are likely
to prove too difficult to be overcome. 191 Freestone provides a powerful example of Fanafuti,
the main island of Tuvalu on which a large part of the population lives: The land form of
Fanafuti is so narrow and attenuated that in order to protect its 2.5 square kilometres, 54
kilometres of sea defences would have to be constructed. 192 The vulnerabilities of small
island nations are furthermore not only due to their physical traits, but also due to their low
adaptability. Whereas a wealthier country such as The Netherlands, which is threatened by the
seas as well, has more means to protect itself, small atoll nations have limited adaptation
options due to their restricted resources.193 It is often claimed that such protective measures by
small islands-States are likely to prove prohibitively expensive and generally unrealistic in
light of the sheer scale of the challenge. 194 This leads Yamamoto and Esteban to claim that
[g]enerally the creation of (...) protection works could ultimately prove to be
unsustainable.195
(B) Creating new territory: artificial islands and installations

If protection of the existing territory proves impossible, even in keeping the tiniest bit
habitable for the statehood purposes of territory and population as defined in the previous
191
Maas, Carius, Territorial Integrity and Sovereignty, p. 7; Yamamoto, Esteban, Vanishing Island States, p.
3, p. 7.
192
James Lewis, Sea Level Rise: Some Implications for Tuvalu, Ambio, 18 (1989) 58, in: Freestone,
International Law and Sea Level Rise, pp. 115-116.
193
Mimura, Nurse, e.a., Small Islands, pp. 706-707; Veitayaki, Manoa, Resture, Pacific Islands and the
Problems of Sea Level Rise Due to Climate Change, p. 56.
194
Schofield, Against a Rising Tide: Ambulatory Baselines and Shifting Maritime Limits in the Face of Sea
Level Rise, Proceedings of International Symposium on Islands and Oceans, pp. 70-77 , p. 76.
195
35
subsection, another option, according to Grote Stoutenburg, would be to create new territory
by means of an artificial island or installation. 196 The following discussion concerns the
creation of entirely new territory, unconnected to existing territory. In theory this option exists
and is distinct from the protection or reclamation of existing territory, yet this proposition
knows several legal as well as practical difficulties.
Firstly, Grote Stoutenburg distinguishes between artificial islands and artificial
installations, the former of which, she argues, would still qualify as defined State territory on
the basis of fairness, despite the different status under the law of the seas than a natural island
and the incapacity of the artificial island to generate maritime zones. 197 In practice, however,
it might be impossible, if not meaningless, to distinguish between an artificial island and an
artificial installation. The UNCLOS arguably provides an example of the distinctions
inapplicability, because it differentiates between artificial and naturally formed islands, but
not between artificial islands and installations, which are both caught under article 61(8).
Secondly, if the challenge to protect the existing islands habitability already proves to
be too big, creating an entirely new artificial and habitable island will presumably be even
more gargantuan a task and thus not very realistic. In that light, it might in fact be more
efficient and realistic to construct an installation or structure on some existing stretch of land,
rather than to create land entirely anew. Still, the thought can be entertained that an islandState attempts to create some sort of artificial structure, in- or outside of its territory, on which
it could try to base its territorial statehood claim. In fact, it is not even without precedent.
In the case re Duchy of Sealand, a claim to statehood was made for the Principality or
Duchy of Sealand. 198 The Principality was vested on a former anti-aircraft platform, which
was outside the territorial waters of the United Kingdom and which served as the legal basis
for its statehood plea. First of all, the German administrative court described the installation
as an artificial island, which demonstrates the difficult and possibly irrelevant distinction
between both. Secondly, the court ruled that the Principality did not meet the criteria of
statehood, among others because it did not possess a State territory within the meaning of
international law. It came to the following conclusion: [O]nly those parts of the surface of
the earth which have come into existence in a natural way can be recognised as constituting
State territory. A man-made artificial platform, such as the so-called Duchy of Sealand,
cannot be called either a part of the earths surface or land territory because it does not
196

Ibid.
198
In re Duchy of Sealand Administrative Court of Cologne, 3 May 1978, International Law Reports, 80 (1989),
pp. 683-685.
197
36
constitute a segment of the earths sphere. Thirdly, the Principality could not satisfy the
permanent population criterion, because life of a community was lacking and because the
persons living on the platform did not form a cohesive vibrant community.
In the light of this ruling it appears that an artificial installation will certainly not
suffice to objectively qualify as a defined territory. A so-called sovereignty marker, whereby
some sort of tall lighthouse structure would be built on the submerged island, does, in the
light of these considerations, also not seem a viable legal solution, because in any case it must
be able to house a permanent population. 199 The ruling, however, does appear to leave room
for the creation of a new piece of the earths surface, but even if for all practical purposes this
can be distinguished from an artificial installation, the option surely does not appear realistic
if the protection of existing territory has already proven an insurmountable obstacle.
Furthermore, if it is treated as an analogy and thereby bypassing what Grote Stoutenburg
has said about the irrelevance of the different status and the incapacity of artificial islands to
generate maritime zones , the fact that the UNCLOS does not allow artificial islands or
installations to generate maritime zones arguably demonstrates that neither will be readily
accepted as State territory.
II. Relocation: cession and merger

If it proves impossible to protect the territory and sustain its habitability, it is possible for the
State and the population to find new (existing) territory in order to retain statehood. This can
be achieved through either cession of territory or merger with one or more other States.
(A) Cession
Relocation following cession of territory from another State is a more apparent and traditional
possibility to retain statehood.200 The Kiribati government, for example, states that relocation
will always be viewed as an option of last resort and that it wants to preserve Kiribati as a
sovereign and habitable entity, but at the same time acknowledges the reality that relocation
199
Yamamoto, Esteban, Vanishing Island States, p. 3, p. 5; Robert Jennings, Arthur Watts, (eds.), Oppenheims
International Law. Volume I. Peace: Parts 2 to 4, London: Longman Group 1992, p. 604.
200
Soons, The Effects of a Rising Sea Level, pp. 229-230; Brownlie, Principles, pp. 128-129; Moritaka
Hayashi, Sea Level Rise and the Law of the Sea: Legal and Policy Options, Proceedings of International
Symposium on Islands and Oceans, pp. 78-90, pp. 84-85; Susin Park, Climate Change and the Risk of
Statelessness: The Situation of Low-lying Island States, UNHCR, Division of International Protection, Legal
and Protection Policy Research Series, May 2011, PPLA/2011/04, p. 18; Shira Honig, Climate Change and
Statelessness: When does a state disappear?, Climatico, 15 June 2011, available at
<.http://www.climaticoanalysis.org/post/climate-change-and-statelessness-when-does-a-state-disappear/>.
37
of the I-Kiribati may be inevitable. 201 Some States have already begun to explore this option
and the Maldives has actually set up a fund for possible future land purchase. 202 If the islandState can obtain a habitable piece of land through cession, the constitutive criteria for
statehood can positively still be satisfied. 203
As Soons suggested at the Columbia Conference, cession may not be the most realistic
option, but at least in theory the option exists. Cession of state territory is the transfer of
sovereignty over state territory by the owner-state to another state and every state as a rule
can cede a part of its territory to another state. 204 There are accordingly many historic
examples and precedents of cession, such as the sale of Alaskan territory by Russia to the
United States in 1867. 205 Such transfer of territory is often arranged through a treaty of
cession. 206
Nevertheless, cession carries many practical problems, among which is the quality of
land. 207 While cession may not even seem probable in itself, any territory ceded will likely not
be very valuable to the ceding State and may in fact be largely uninhabitable. 208 Hayashi, for
example, writes: [Cession] would be a best solution for the island State. In practice,
however, it appears to be rather unrealistic today for any State to donate or sell part of its
territory fit for human settlement to another State. 209 Maas and Carius state: While this
option may be conceivable, it appears unlikely today that territory may be ceded unless it is
devoid of any other use or purpose, including being culturally insignificant to the selling
State.210
If ceding complete sovereignty over territory proves too much of an obstacle for the
ceding State, a somewhat of a middle-way, and arguably even more theoretical, solution could
be a condominium, following which both States would exercise sovereignty equally
201
The climate change portal of the Office of the President of Kiribati, Climate change in Kiribati, Strategies:
Relocating from climate change, available at
<..http://www.climate.gov.ki/Kiribati_climate_change_strategies.html#apm1_3>.
202
See e.g. Randeep Ramesh, Paradise almost lost: Maldives seek to buy a new homeland, The Guardian, 10
November 2008, <.http://www.guardian.co.uk/environment/2008/nov/10/maldives-climate-change>, visited on
4-8-2011, or Nicolas Schmidle, Wanted: A New Home for My Country, The New York Times, 8 May 2009,
<.http://www.nytimes.com/2009/05/10/magazine/10MALDIVES-t.html>, visited on 16-7-2011; Maas, Carius,
Territorial Integrity and Sovereignty, p. 9.
203
Soons, The Effects of a Rising Sea Level, p. 230; Rayfuse, W(h)ither Tuvalu?, p. 7.
204
Jennings, Watts, Oppenheims International Law. Part 2, pp. 679-680.
205
Ibid., p 682.
206
Cassese, International Law, p. 83; Shaw, International Law, pp. 499-500, pp. 973-974.
207
Oliver, A New Challenge to International Law, pp. 214-215.
208
209
Hayashi, Sea Level Rise and the Law of the Sea, p. 85.
210
Maas, Carius, Territorial Integrity and Sovereignty, p. 10.
38
conjointly over the territory and its inhabitants. 211 There are some examples of condominia in
international law, but it is unclear whether it will be enough to satisfy statehood when this is
the only territory a State has sovereignty over. It could furthermore be hindered by the fact
that it is not an exclusive claim or title to territory. Even if pursuing this option is seen as
having merit, again there will likely be many practical issues, such as the exploitation of the
land and possibly the different maritime zones. Such troubles could be resolved through some
sort of joint or shared exploitation agreement, but much like the problem with cession, the
question is whether any State can be found willing to relinquish or share even some of its
profitable land and sovereignty.
(B) Merger
Merger of the island-State with a non-threatened State is a second possibility of relocation
recognised by international law. 212 This could be achieved either by creating a new State or by
absorption into an existing State.213 This new State could take the form of a federation or
confederation, through which the possibly still existing maritime zones could be
administered. 214 Hayashi, for example, writes: [T]he best solution, is for the island State,
through a treaty, to establish a fusion with another State, or form some kind of federation with
another State, and the entire population migrates into the new territory. 215 According to
Soons, merger or fusion is a realistic and attractive solution, also because the remaining
uninhabitable islands may still generate maritime zones for the new State, and also the preexisting maritime delimitation treaties may remain effective. 216
Rayfuse is more critical of the consequences of an entire population having to be
relocated into what she believes will essentially be a host State. While the maritime zones can
be retained in this way, these rights would next belong to the host State. According to her,
[t]he disappeared State would basically have purchased its relocation with its maritime
211
Jennings, Watts, Oppenheims International Law. Part 1, pp. 565-567; Shaw, International Law, pp. 228230; Brownlie, Principles, pp. 114-115.
212
Rayfuse, W(h)ither Tuvalu?, pp. 8-9; Park, Climate Change and the Risk of Statelessness, pp. 18-19;
Jennings, Watts, Oppenheims International Law. Part 1, pp. 210-219.
213
Park, Climate Change and the Risk of Statelessness, p. 18.
214
Much is said about changing from the current system of ambulatory baselines to fixed, static or stable
baselines or outer limits, especially in the light of sinking island-States. If the maritime zones were to be fixed,
they could be used as a bargaining chip by the sinking islands. See e.g. David D. Caron, When Law Makes
Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level, Ecology Law
Quarterly, 17 (1990), pp. 621-653, p. 650; Grote Stoutenburg, Implementing a New Regime of Stable Maritime
Zones to Ensure the (Economic) Survival of Small Island States Threatened by Sea-Level Rise, The
International Journal of Marine and Coastal Law, 26 (2011), pp. 263-311 ;Schofield, Shifting Limits?; Soons,
The Effects of a Rising Sea Level.
215
Hayashi, Sea Level Rise and the Law of the Sea, p. 85.
216
Soons, The Effects of a Rising Sea Level, p. 230.
39
zones.217 Again, as with cession, there is the practical feasibility issue and Rayfuse points to
an earlier demonstrated unwillingness by Australia and New Zealand to take in the Tuvaluan
population should Tuvalu lose its territory. 218 At the Columbia Conference, Grote Stoutenburg
has called it legally viable, but not likely to be politically viable. She also raised concerns
about second-class citizenship, but in the end it may have to be weighed against arguably less
attractive alternatives, such as (climate-)refugee status or statelessness.
III. Government-in-exile
As an extension of a more traditional method, it has been proposed that the government of a
threatened island-State could be recognised as having gone into exile. 219 There are many
historic examples, most famously those governments that went into exile during the Second
World War, such as the Polish and Dutch governments. It is based on the strong presumption
of State continuity, and the legal position of governments-in-exile is dependent on the
distinction between government and State.220 The government-in-exile needs the consent of
the State in which it is located, the host State. According to McAdam this institution of
international law might suggest that States are willing to tolerate a hiatus between the loss of
indicia of statehood and acknowledgement that a State has ceased to exist and that the
existence of territory, while essential to the original constitution of that entity as a State, is not
integral to the exercise of certain governmental functions. 221
McAdam notes that traditionally, it has operated on the assumption that it is a timebound mechanism. 222 This means that, as Grote Stoutenburg argues, the rationale for the
recognition of the government-in-exile would be new, because the exile would be permanent
rather than temporary.223 Furthermore, McAdam states that normally the idea of governmentin-exile is premised on there still being an identifiable population over which the government
has jurisdiction and according to Cassese it is warranted by the hope of recovering control
over territory.224 In the case of sinking island-States, however, it would instead be premised
on the uninhabitability or disappearance of the island-States territory.225
217

Ibid.
219
220
Ibid.; Crawford, Creation of States, p. 34.
221
222
Ibid., p. 11.
223
224
McAdam, Disappearing States, p. 11; Cassese, International Law, p. 73.
225
218
40
McAdam claims that without its own territory, the island-States population will
eventually come to fall under foreign jurisdiction. 226 In the previous chapter it has already
been argued that the States independence will be seriously curtailed and that [o]ver time, the
function of the government in exile will wane, as McAdam argues, which would normally
result in the States extinction.227 The exile would thus still be temporary and provided a host
State can be found, recognition of this new rationale of government-in-exile can accordingly
be used as a temporary solution, indeed as a a hiatus between the loss of indicia of statehood
and acknowledgement that a State has ceased to exist. The sinking island-State could retain
its legal identity and subsequently the interests of the island-States population can be
defended and the population can be protected from statelessness. 228 What is more, according
to Yamamoto and Esteban, such a government-in-exile would have similar functions as the
newly proposed principle of a deterritorialised State and could arguably be complementary
to it.229 Attention will now turn to this newly proposed principle of international law.
IV. Deterritorialised States and the nation ex-situ

A State without a territorial basis, however tiny it may be, is inconceivable, writes Cassese.
According to him there () exists an absolute nexus between territory and sovereignty. 230
He accordingly says: Territory may be large or small, but it is indispensable if an organised
structure is to qualify as a State and an international subject.231 Still, Cassese also recognises
that [o]nly in exceptional circumstances does [international law] allow corporate entities that
have lost effective control over territory to survive as international entities for some time. 232
He provides several historical examples of governments in exile and notes that [i]n those
cases the survival of the international subjects rests on a legal fiction politically motivated
and is warranted by the hope of recovering control over territory.233 However, it has also
been said that [t]he core issue is that we have written our laws, regulations, subsidies on the
assumption that the environment is a constant, and it is not. 234 Therefore, owing to the
exceptional circumstances surrounding extinction of island statehood and considering some of
226

Ibid., p. 12.
228
Ibid., p. 11.
229
230
Cassese, International Law, pp. 81-83.
231
Ibid., p. 73.
232
Ibid.
233
Ibid.
234
Lisa Friedman, If a Country Sinks Beneath the Sea, Is It Still a Country?, The New York Times, 23 August
2010, <.http://www.nytimes.com/cwire/2010/08/23/23climatewire-if-a-country-sinks-beneath-the-sea-is-it-sti70169.htm>, visited on 6-8-2011.
227
41
the practical and sometimes legal difficulties in the scenarios explained above, an argument
can be made for a novel, politically motivated, legal fiction: the principle of a
deterritorialised State or the nation ex-situ.235 In the words of Rayfuse: Ultimately, a more
equitable solution may lie in recognition of a new category of deterritorialised state.236
Although determining the exact form and substance is necessarily subject to some
degree and manner of speculation and sensitivity, some extrapolations or projections of what
such a principle would entail in practice are nonetheless possible. According to Rayfuse, it
would have to consist of some form of government or authority, which would be elected by
the registered voters of the deterritorialised State.237 In essence [it] would act as a trustee of
the assets of state for the benefit of its citizens wherever they might now be located, she
says. 238 In this sense, Burkett has suggested that the trusteeship system could be used as a
model for the organisation of such a government or authority. 239 This could be accompanied
by the earlier explored extension of the principle of government-in-exile and thus provide
extra legal footing.
Even if government and State continue to be recognised, its powers, capacities, rights
and duties will naturally be more circumscribed than would normally be the case. 240 One
consequence is that the deterritorialised State will in all probability not be able to adhere to
many of its treaty obligations and certain treaties may therefore be terminated (or suspended)
for reasons such as impossibility of performance or a fundamental change of
circumstances.241 Also, the government will not be able to exercise full powers with regards
to its own population, because the population will effectively have come to fall under foreign
jurisdiction. In this light, McAdam states: [G]iven that the bulk of the population will be
residing in other sovereign States, they will be subject to the laws and jurisdiction of those
States. The role of the home State therefore becomes the same as jurisdiction that any State
can exercise with respect to its nationals abroad (predominantly diplomatic protection). 242 It
is, however, exactly this diplomatic protection which is important for the principle of a
deterritorialised State.
235
Rayfuse, W(h)ither Tuvalu?, p. 9; Maxine Burkett, The Nation Ex-Situ, presentation held at the Columbia
Conference.
236
237
Ibid., p. 11.
238
Ibid.
239
Burkett, The Nation Ex-Situ.
240
241
Ibid., p. 11.
242
Ibid., p. 12.
42
The limitations notwithstanding, certain privileges of sovereign entities could be

maintained and some important functions for the benefit of its citizens could therefore still be
exercised. An oft-cited example is the Sovereign Military Hospitaller Order of St. John of
Jerusalem of Rhodes and of Malta (hereinafter the Sovereign Order of Malta), which
maintains bilateral diplomatic relations with 104 countries, has permanent observer status at
the UN and several other important international organisations, and issues passports to its
members. 243 McAdam also points to several functions that governments-in-exile have
continued to perform, such as treaty-making, maintaining diplomatic relations and exercising
several forms of diplomatic protection. 244
If some of these privileges were upheld, such as the recognition of passports and the
continuation of diplomatic relations, the government could continue to represent the
deterritorialised State and defend the interests of its population in the international arena. 245 It
could, for instance, continue to administer the maritime zones especially if this is
accompanied by the fixing of baselines or outer boundaries for the benefit and support of its
resettling and resettled population. It could also continue to negotiate in the resettlement
issues of the population, but perhaps most importantly, it could prevent the citizens of the
threatened island-States from becoming stateless.246
Although it has been proposed by Burkett that the nation ex situ should be considered
to exist into perpetuity (something which will be discussed later), Rayfuse proposes it to be
transitory:
[I]n an international community still based on the Westphalian notion of states, it may
not be appropriate or realistic to envisage the permanent establishment and
continuing existence of deterritorialised states ad infinitum. Rather it may be useful to
view this status as transitional, lasting perhaps one generation (30 yrs) or one human
lifetime (100 yrs), by which time it is likely that much else in the international legal
regime, including the existing law of the sea regime, will have to be reconsidered and
reconfigured, in any event. In the meantime, however, freezing existing baselines and
accepting the notion of the sea level affected deterritorialised state would give
certainty and security to those states which fear inundation and allow them to
243
See also the Orders website, <.http://www.orderofmalta.org>; Maas, Carius, Territorial Integrity and
Sovereignty, pp. 9-10.
244
245
246
43
concentrate on the tasks of sustainable development and adaptation for as long as they
can.247
In this way and with regard to the gradual nature of island disappearance, the principle
of deterritorialised States could offer a transitional period during which the islanders, the host
countries and the international community as a whole can adapt to the novel situation. In
effect, this would allow the islanders a reasonable opportunity to resettle and find their place
in different societies, supported and protected by a recognised and representative government.
(A) The legal basis

To understand such a novel principle properly and more thoroughly, it is necessary to look for
some existing legal basis in international law and to consider to what extent the proposed idea
is indeed novel. How does it fit into the existing system of statehood and the theories
surrounding it, and to what extent does international law allow for such a principle?
According to Rayfuse, the concept (...) is neither new, nor is it rejected under current
international law. 248 Indeed she says: International law also recognises the notion of
functional, or non-territorial, sovereignty. Historically such claims have been recognised in
the context of governments-in-exile. 249 Burkett also argues that it is not entirely novel and
that there exist some rough, but relevant historical analogues and precedents, such as the
Sovereign Order of Malta and the Vatican City. 250 Much of this relates to the declarative and
constitutive schools of thought surrounding statehood and recognition, the latter of which
could allow for some leeway in exceptional cases. The words of Duursma shed some light on
this and the precedence these entities may have to offer: In principle, the declaratory view is
adopted, although recognition can have constitutive effect in certain cases. This is the
situation of entities which under the general criteria do not possess statehood.251
On a theoretical level, it is sometimes said that a deterritorialised State could be
qualified as an entity sui generis. Freestone and Pethick, for instance, state: It is clearly
possible for an inundated State to maintain its recognition by other States as an international
person sui generis. 252 Crawford, however, believes that [t]he denomination sui generis,
247

Ibid., p. 10.
249
Ibid.
250
251
252
Freestone, International Law and Sea Level Rise, p. 116; Freestone, John Pethick, Sea Level Rise and
Maritime Boundaries. International implications of impacts and responses, in: Gerald H. Blake (ed.), Maritime
Boundaries. World Boundaries volume 5, London: Routledge 1994, pp. 73-90 , p. 79.
248
44
often applied to entities that for some reason it is desired not to characterise as States, is of
little value. 253 Nevertheless, as Brownlie points out, attention must also be had for those
entities which are not adequately covered by legal norm: Whilst due regard must be had to
legal principle, the lawyer cannot afford to ignore entities which maintain some sort of
existence on the international legal plane in spite of their anomalous character.254 Cassese
further explains this deviation from the formal norms of statehood: There exist in the
international community some international subjects that exhibit two characteristics: they (1)
have come to acquire a legal status there on account of specific historic circumstances; (2) do
not posses any distinct territory or, if they do use a territory, this belongs to another entity; (3)
have a very limited international personality. 255 It is next necessary to explore what the legal
situation of these entities implies for the principle of deterritorialised States.
(i)
The Sovereign Order of Malta
The Sovereign Order of Malta is often referred to as a legal entity that exists on the
international plane and has some form of sovereignty, despite its lack of any territory. It is
therefore often put forth as a precedent for a deterritorialised State. However, while it is
certainly a legal identity possessing some form of international legal personality, it is doubtful
whether it is an actual State under general international law. According to Cassese [i]t has an
extremely limited, almost evanescent international personality. 256 Shaw is more explicit and
writes: It is not a State and it is questionable whether it has general international personality
beyond those States and organisations expressly recognising it. 257 Crawford explains the
underlying system:
A distinction is thus drawn between objective international personality and
personality recognised by particular States only. It would appear that the former
exists wherever the rights and obligations of an entity are conferred by general
international law, and the latter where an entity is established by particular States for
special purposes. States clearly are included in the former category: the Order of St.
John of Jerusalem, Rhodes and Malta is an example of the latter. (...) There is thus a
distinction between general (or objective) and special (or particular) legal
253

255
Cassese, International Law, p. 131.
256
Ibid., p. 132.
257
254
45
personality. General legal personality arises against the world (erga omnes):
particular legal personality binds only consenting States.258
Thus, rather than possessing objective statehood conferred by general international
law, The Order instead appears to be recognised as an entity possessing special or particular
international legal personality in relation to the recognising States, and it is accordingly
endowed with sovereign rights and duties for certain purposes.259 According to Shaw, its legal
personality is indeed predicated upon the functional needs of the entity as accepted by third
parties. 260 The precedent it then seems to offer is that while a legal entity might not
objectively qualify as a State under general international law, it is through recognition still
possible for that legal entity to be conferred some form of legal personality in relation to the
recognising parties, thereby possessing some of the same rights and duties as States. More
specifically, the Sovereign Order of Malta shows that such recognition is possible even
despite the lack of any territorial basis.
(ii)
Vatican City
The Vatican City is another precedent often referred to, because it is recognised as a
State despite not truly meeting the criteria of statehood under international law. It is said, for
example, that the constituent elements of statehood are, in the case of the Vatican City,
highly abnormal or reduced to a bare minimum. 261 This relates more specifically to the
population criterion. According to Duursma, there is no permanent population in the Vatican
City, not because of the functional nature of its inhabitants, but because the inhabitants do
not have a permanent attachment to the Vatican territory.
262
Due to the fact that the Vatican City does not meet the formal criteria, it does not
possess statehood under general international law. Instead, Duursma argues, the Vatican City
was recognised as a State by the international community for special purposes relating to the
presence of the Holy See in the Vatican territory. It can therefore neither be argued that the
Vatican City was recognised as a State because it fulfilled all the criteria for statehood, nor
that international law does not require a permanent population in order to be a State.263 She
concludes: The Vatican City is a State in international law, because it has been recognised as
258

Rai claims that Monaco is another State created for certain purposes, but Duursma does consider it to be a
State under general international law. See Rai, Statehood, p. 77 and Duursma, Self-Determination, pp. 277-342.
260
261
Jennings, Watts, Oppenheims International Law. Part 1, p. 327.
262
263
Ibid., pp. 462-463.
259
46
such due to the presence of the Holy See in its territory. This international recognition has a
constitutive effect, as the Vatican City possesses no permanent population. 264 As to this
constitutive effect, Shaw writes: It would appear that by virtue of recognition and
acquiescence in the context of its claims, it does exist as a State.265
This could indeed be a legal basis the principle of deterritorialised States seeks, though
there remain some difficulties. First of all, it is argued that the Vatican City only exists as a
relatively existing State and not as a State as such under general international law. 266 This
would mean that both the Vatican City and the Sovereign Order of Malta possess only, in the
words of Crawford, special or particular personality in relation to those other international
actors recognising it, rather than general or objective personality erga omnes. Brownlie
summarises it as follows: It would seem that the personality of political and religious
institutions of this type can only be relative to those States prepared to enter into relationships
with such institutions on the international plane. Even in the sphere of recognition and
bilateral relations, the legal capacities of institutions like the Sovereign Order of Jerusalem
and Malta must be limited simply because they lack the territorial and demographic
characteristics of States.267
Secondly, despite the apparent recognition of the Vatican City as a State, there
arguably remains a fundamental difference between the Vatican City and a deterritorialised
State: the Vatican City is recognised as a State despite not satisfying the permanent
population criterion, but does possess a defined territory, whereas a deterritorialised State
arguably satisfies neither criterion. This is underlined by the legal status of the Sovereign
Order of Malta, which does enjoy international legal personality, but does not appear to be a
State as such. Thus, despite the extraordinary legal form of the Orders sovereignty, existing
international law still seems to understand States as territorial entities. Territory is, in the
words of Shaw, a fundamental axiom of classical international law, which leads him to say:
Without territory a legal person cannot be a State.268 Indeed, Duursma also argues, after
having explored the statehood of the Vatican City, that [t]he existence of a territory remains a
condition sine qua non for statehood, though no minimum territorial size is required.269
Nevertheless, as Shaw says: International society is not an unchanging entity, but is
subject to the ebb and flow of political life. (...) Each state will have to decide whether or not
264
Duursma, Self-Determination, pp. 465-466.

266
267
Ibid.
268
269
265
47
to recognise the particular eventuality and the kind of legal entity it should be accepted as.270
The aforementioned difficulties do therefore not mean that a deterritorialised State cannot be
treated or regarded as a State for those purposes required. Indeed, it is said in Oppenheim that
[a]n entity which is not a state in the true sense may nevertheless be regarded as a state for a
particular purpose, or within the meaning of the term state as used in a treaty or other
document. This is less a matter of acknowledging statehood than of construction or
interpretation.271 Both the Vatican City and the Sovereign Order of Malta demonstrate this
much. Also Crawford writes that in some cases at least, an entity that for some reason may
not qualify as a State (...) may nonetheless be recognised as such. Therefore, in spite of the
predominance of the declaratory theory of statehood, it could be upheld that international law
at the least allows recognition to have relative constitutive effect in exceptional cases when
the merits of statehood are required for special purposes.
(B) The need for novelty?

While the interpretation set out above provides a possible legal basis for the recognised
existence of deterritorialised States as entities with an international legal personality and thus
allows for a measure of legal protection of its citizens, it has also been argued that there is a
need to go further and that it is necessary to change some of the rules of international law
concerning statehood, more specifically to drop the defined territory criterion. Burkett, for
example, wants to introduce an entirely new category of international actors, namely the
nation ex-situ, which she considers could exist into perpetuity.
272
In her words:
International law (...) should affirmatively consider abandoning territories for requirement of
statehood (...) in the light of the changing climate.273 According to her, the extraordinary
circumstances of threatened island nations justify such a unique departure from the norm. 274
However, the actual possibility, necessity and thus political likelihood must not be
overlooked.
From a legal point of view it is incomprehensible that a State may exist outside of
international law, says Rai.275 The declaratory theory is thus usually preferred and as a
consequence the deterritorialised State cannot acquire objective statehood under general
270

Jennings, Watts, Oppenheims International Law. Part 1, p. 121.
272
273
Ibid.
274
Ibid.
275
271
48
international law. 276 However, this could be possible if the rules of statehood were to be
changed and in the words of Rai, it is generally accepted that recognition can also have the
function or capacity of law-making.277 Also Crawford states that recognition can resolve
uncertainties as to statehood and allow for new situations to be regularised and that it may
tend to consolidate a general legal status at that time precarious or in the process of being
constituted.278 Along these lines Rai writes: When either a deviation from an existing rule
or an infringement thereof, or the consequences of such are intended to be validated through
recognition by the vast majority of States, then, in general, there is a strong presumption in
favour of the modification or even the disappearance of the relevant rule. 279 Strictly speaking
it is thus possible to change the criteria of statehood through recognition and State practice.
V. Concluding remarks
A fundamental difficulty for threatened island-States is that many of the possibilities set out in
this chapter rely on the goodwill of or recognition by other States. As a consequence, while
some legally sound solutions may be more desirable for the islands than others, they can still
be subject to political considerations. The exact future of threatened low-lying island-States is
therefore still undecided, but international law nevertheless affords several opportunities to
meet the challenges posed to island statehood by the rising ocean and to either retain
statehood or to preserve a status somewhat analogous to statehood.280 In essence this means
that there is a number of responses aimed at keeping a territorial basis for the island-State or
alternatively the possibility to allow the legal entity of the State to continue to exist as a legal
fiction.
The first series of responses concerns the physical integrity and habitability of the
existing territory. Mitigation or even prevention of sea level rise is by all standards the most
favourable solution for the low-lying islands, but at the same time the islands cannot rely on
this scenario too extensively. It is consequently appropriate to contemplate additional options.
Naturally, the populations foremost desire is to continue to live on their current islands,
which necessarily requires extensive protection measures. These measures would have to
make sure that at least some part of the territory remains habitable and moreover that in any
case it stays inhabited by a group of people which can objectively satisfy the permanent
276
Craven, Statehood, Self-Determination, and Recognition, p. 24; Crawford, Creation of States, p. 93; Article
3 of the Montevideo Convention.
277
278
Crawford, Creation of States, p. 27, p. 93.
279
280
49
population criterion of statehood. While this is certainly one of the more preferable options
and clearly permitted under international law, in reality the required extent of such measures
may be well beyond the means and capacities of the island-States.
Because such protection attempts are viewed as generally unrealistic, it has been
suggested that in order to retain statehood island-States can turn to the construction of
artificial islands or installations. However, these options are faced with fundamental practical
and legal difficulties. Creation of land entirely anew will in all probability be even more
problematic and unrealistic than the protection of existing territory. Moreover, entertaining
the thought that it actually can be accomplished, a man-made stretch of land altogether
unconnected to earlier territory will still not be readily accepted as defined State territory. An
artificial construction or installation of sorts will in itself not be sufficient to qualify as
defined territory. These options are thus not practically feasible nor legally completely solid.
Sliding further down the scale of ways to retain statehood, cession and merger come to
the fore as legally sound, but politically troublesome solutions. Cession of territory may in the
light of circumstances even be quite acceptable to the island-State itself, but it is politically
almost impossible to conceive another State willing to cede any, let alone habitable, territory.
As a middle-way, a condominium could also establish a territorial base for the threatened
States, but it would still run into much the same obstacle of political willingness.
Additionally, it is uncertain whether the statehood criteria can actually be satisfied in this
way.
Merger, on the other hand, while heavily criticised by some, may in fact be an
accommodating solution for both the island-State and any State into which it merges. This
possibility is obviously recognised by international law, and even though the island-State
itself would no longer exist as a separate State, a (con)federational structure could preserve at
least some of its legal identity and independence. Most importantly, it avoids refugee and
statelessness issues, which are disconcerting for the islanders as well as any host State.
Moreover, coupled with the possible exploitation of the maritime zones it could even be
economically appealing. Of course, it still hinges on political will and many questions
necessarily arise concerning the actual implementation and subsequently the practical
feasibility, but as the world is faced with the relocation of an entire islander population,
merger appears as a legally and theoretically sound option, that can avoid many of the refugee
and statelessness issues that lie at the core of the disappearing island-State problem.
What has been delineated thus far are the physical or practical responses to a looming
loss of statehood, which attempt to preserve a territorial basis for the island-State. While they
50
are certainly the more desirable outcomes for the island-States admittedly, the one more
preferable to the island-States and their inhabitants than the other , they are also fraught with
practical and political obstacles. In the end, it is a very real scenario that a low-lying islandState will be left with no defined territory of its own and will thus no longer objectively
possess statehood. In that case, the principle of government-in-exile together with the
continued recognition of the island-States legal personality what has been proposed as the
principle of a deterritorialised State could offer an opportunity for the State to be kept alive
legally for at least some period of time. Importantly, the population could thus be protected
from the unfavourable consequences of statelessness, but rather than viewing it as an end in
itself which allows the deterritorialised island-State to exist into perpetuity as a legal fiction, it
should be seen as a means which can afford a transitional period in which both the host
communities as well as the relocating islander population can learn to adapt to the new
situation where a State has physically lost its territory; to prepare them for life after land. 281
Such is the harsh and seemingly inescapable reality of the Westphalian system and paradigm.
However, in the light of this harshness for the victims of climate change it has been
asserted that the criteria of statehood need to be altered in order to provide the sinking islandStates a satisfactory solution for their statehood predicament. Whether this is actually
necessary or likely remains to be seen. Earlier it has been established that there is already a
legal basis in existing international law for the principle of a deterritorialised State. On the
other hand, as Rai says, it may sometimes be desirable to adjust the law to specific effective
actual situations where a great tension between fact and law exists, and where there is no
willingness to bring the facts into line with the existing law. 282 However, considering that
international law already provides a legal basis for the continued recognition of
deterritorialised island-States, there does not appear to be a large enough tension between
fact and law.
Moreover, according to McAdam, State practice suggests that the international
community would be willing to continue to accept maintenance of the status quo (recognition
of on-going statehood) even when the facts no longer seem to support the States
existence.283 McAdam and Saul also argue that developing new norms in response to a novel
281
Rayfuse, Life After Land, The New York Times, 18 July 2011,
<.http://www.nytimes.com/2011/07/19/opinion/19rayfuse.html?_r=1>, visited on 22-8-2011.
282
283
51
challenge is normally more difficult for lack of political will. 284 Instead, it is, in the words of
the same authors, also possible that existing legal principles might be elongated, adapted, or
particularised to respond to new circumstances, whether through creative interpretation or
extrapolation by analogy.285 It therefore appears neither necessary nor likely that the criteria
for statehood are to be changed, or, in the words of Maas and Carius: More likely than not,
the fate of islands may become a special case in international law and have no practical effect
on the (non-)recognition of other States.286
284
McAdam, Saul, An Insecure Climate for Human-Security?, p. 1. Admittedly, the paper is about refugee
protection, but the legal abstractions are still relevant.
285
Ibid.
286
Maas, Carius, Territorial Integrity and Sovereignty, p. 11.
52
Conclusion
International society is not an unchanging entity, but is subject to the ebb and flow of
political life, Shaw was quoted earlier. Remarkably, these words have taken on almost literal
meaning in the wake of rising sea levels. The possible effect this force of nature could have
on the existence of a State due to the complete physical disappearance of its territory raises
many novel questions of law, which place the foundations of international society itself into
new perspective. For the first time in modern history, the possibility has arisen that a State
ceases to exist without there being a successor to its territory.
While there are certainly many other accompanying issues, such as the often discussed
and essentially important refugee problem, this thesis has chosen to focus on the fundamental
questions of statehood surrounding the possible cessation of a State. It has chosen to explore
the legal consequences of a physically threatened territory and how international law can
respond to this problem. To understand this void in international law between State extinction
and State succession, the central question has been: What are the legal consequences under
international law for the statehood of island-States following the disappearance of their
territory, and can they retain claims of statehood based on the former existence of their
territory?
First of all, it is important to understand the threats sea level rise poses and the
possible legal implications that stem from this. Presently, the sovereign island-States
seemingly most threatened by rising sea levels are the low-lying atoll nations of the Maldives,
Kiribati, the Marshall Islands and Tuvalu. Contrary to the popular comparison, these nations
will not suddenly sink to the bottom of the ocean like the mythical island of Atlantis. Instead,
the disappearance will in reality be gradual, which in effect means that the islands will most
likely first become uninhabitable and that the population will have had to leave before the
territory actually becomes submerged. The exact effects on small islands and the timescale
associated with island disappearance are of course subject to uncertainty and speculation, but
it is nevertheless important to understand this gradual nature. As a common misconception
often only the complete loss of territory is pointed out as decisive for island-State cessation,
but instead, the loss of a permanent population is already a crucial and preceding step.
If statehood is accepted as a legal concept, which is based on factual criteria, it is
necessary to investigate the effects on the constitutive criteria of a State in order to determine
the legal consequences this in turn has on the statehood of a disappearing island-State. The
relevant criteria discussed are a permanent population, a defined territory, an effective
53
government and independence. The former two are generally seen as constituents of the latter
two, but they have to be considered on their own merits as well.
Because a State is essentially a community of people, it must possess a permanent
population. Even though theory prescribes no minimum limit, nor a certain proportion of a
States population that must actually live on that States territory, the statehood criteria are
cumulative and interdependent. Accordingly, there exists an implied nexus between a States
population and its territory. It is therefore necessary that at least some part of the population
continues to live on the States territory. What is more, though, if the islanders have to leave
the States territory and are unable to return due to the islands inhabitability, they will no
longer constitute a permanent population, because they no longer meet the permanency
element. The conclusion is that if the population has had to leave because the territory is
disappearing or becoming uninhabitable, the condition of a permanent population will no
longer be satisfied. This is important in itself, as the first indication of loss of statehood, but
even more so as a constituent of the government and independence criteria.
States, as understood in the Westphalian paradigm, are territorial entities as much as
they are a community of people. Under normal circumstances a State must therefore possess
an inhabited territory, but that is of course exactly the problem here. It seems rather selfevident that a territory fully submerged even at low tide cannot satisfy the defined territory
criterion. The status of a territory which has become deserted or uninhabitable, but is still
above sea level at low tide, is also problematic If the UNCLOS is treated as an analogy, it
suggests that once an island is below sea level at high tide, it may no longer be relied upon for
the territory criterion of statehood. At the same time, the implied link between territory and
population also applies here. Hence, an uninhabitable territory alone is also not satisfactory
for the statehood criterion.
It is of course necessary to consider the population and territory criteria on their own
merits, but in essence they are constituents of the central criteria of government and
independence and the legal crux lies in the effect they in turn have on these criteria.
International law does not demand any exact form of government, but it does require it
to be effective. This requires the actual exercise of state authority over the claimed territory
and the people in it. The question is, of course, how effective government holds up in practice
once the constituent criteria of population and territory can no longer be satisfied. First of all,
governmental power must be exercised with respect to some population, but when the
population has had to part to another State, most realistically it will have come to fall under
that States jurisdiction too. The island-States governmental power will thereupon be so
54
severely curtailed that it can hardly exercise any relative effective authority at all in relation to
its population. Secondly, government authority can also not be effectively exercised over a
territory which has become fully uninhabited or has even disappeared entirely. In other words,
a government cannot exercise any effective authority in relation to a population and territory
that no longer exist.
Exceptions exist to the principle of effectiveness, though. Following the strong
presumption of State continuity, a protracted period of ineffective government and even a
period of complete absence of government do not by definition lead to the extinction of a
State. Even though they can last a for long or sometimes even unknown period of time, these
exceptions are in essence still temporary and premised on the continued existence of
population and territory. By contrast, the disappearance of territory and population dealt with
here, is most likely to be permanent. Under those circumstances, even the strong presumption
of State continuity cannot afford such an exception to the principle of effectiveness. The
conclusion is that following the default on the population and territory criteria, the
government criterion can also no longer be satisfied, because no governmental control can be
effectively exercised and because the presumption of State continuity lacks the factual basis to
exceptionally support the continued existence of a sinking island-State indefinitely.
Ultimately decisive is the effect these aforementioned legal building blocks have on
the central criterion of statehood, independence. As a consequence of the default on these
criteria, the island-State will eventually no longer be considered a separate or independent
legal entity for the purposes of statehood, because it will lose its separate existence as a
political and territorial entity as well as the legal capacity to act as it wishes. Unfortunately,
loss of independence means loss of statehood.
In sum, once the entire population has had to leave the uninhabitable territory of the
island-States, the constitutive criteria of statehood can each in turn no longer be satisfied. The
most important legal nuance is that the territory does not have to be completely below sea
level for the loss of statehood to transpire, because loss of a permanent population is a
already decisive step. Such a conclusion will certainly be reinforced or underlined once the
territory becomes fully submerged. Hence, it can be concluded that if sea levels rise
persistently, the legal consequence for the island-States under general international law is that
the legal entity of the State will cease to exist and become extinct; statehood will be lost.
This the general conclusion concerning the fate of an island-State that has literally lost
its territory, but the complete story does not end there. International law still affords several
opportunities through which the island-States can attempt to retain statehood. Admittedly,
55
most of these are traditional methods aimed at maintaining some sort of territorial basis for
the State, but there is also a possibility in which an island-State can continue to exist, for at
least some period of time, as a legal entity possessing international legal personality under
international law.
Firstly, the island-States can attempt to mitigate the effects of sea level rise on their
territories. Prevention of sea level rise is probably not very realistic, but international law
clearly permits coastal States to artificially protect their territory. The adaptation plan would
have to make sure at least some part of the territory stays habitable and moreover that it
actually stays inhabited by a group of people that can objectively qualify as a permanent
population for the purposes of statehood. Although legally and politically a preferable option,
the extent of such protection works will most likely be beyond the capacities of the small
island-States, so this scenario unfortunately appears as not realistically feasible.
It is often suggested that the island-States should then build a new territory of its own
and construct an artificial island or installation, which could serve as its territorial basis. Such
plans, however, are neither practically feasible nor legally sound. An artificial island will not
be readily accepted as defined territory for the purposes of statehood and an artificial
installation or construction by itself does certainly not qualify.
The second traditional methods of cession and merger rely extensively on the goodwill
of other States and hence face large political difficulties. Cession is an instrument of
international law which would ensure the continued existence of the island-States and it
would probably be a desirable outcome. Though to find a State willing to cede any, let alone
habitable, territory appears to be an insurmountable political obstacle. As a more
accommodating solution a condominium could be used. The third State would not have to
cede complete sovereignty over the territory, but both States would exercise sovereignty
equally and conjointly. However, a State would still have to be found willing to grant a piece
of its viable territory to another population, so also this option is necessarily subject to
political reality. Moreover, it is uncertain whether a territory controlled in this way could
objectively qualify as a defined territory if it is the only territory a State has sovereignty
over.
Of the traditional methods afforded by international law, merger of the disappearing
island-State with another State or several other island-States, is probably the most realistic
and therefore preferable solution. It is legally sound and both the political as well as the
practical obstacles appear to be the least insurmountable of all other traditional options.
Merger would not continue the island-State as such, but a (con)federational structure could
56
preserve much of its legal identity. Although there are concerns about the practical
implementation, it would avoid many of most pressing problems surrounding the refugee and
statelessness issues that would otherwise loom over the islander population.
The threatened island-States are thus afforded several options that allow them to
objectively qualify as a State under general international law in a traditional manner. It is,
however, at least equally possible that a disappearing island-State is not successful in its
endeavours to maintain a territorial basis for its claim to statehood and that it will
subsequently lose its objective statehood. In that case, what has been described as the novel
principle of deterritorialised State, supported by an extension of the principle of governmentin-exile, could allow the legal entity of the threatened island-State to be kept alive as a legal
fiction for at least some period of time.
The principle of a deterritorialised State is in practice brought about by the continued
recognition of the State alongside the continuation of diplomatic relations. It is based on the
idea that other States may be willing to allow some time to pass between the loss of objective
statehood and the actual acknowledgment of that situation. Rather than being an objective
State under general international law, though, the deterritorialised island-State is rather a
relatively existing legal entity afforded special or particular international legal personality and
recognised and treated as a State for certain purposes. This would uphold the island-States
legal identity, and even though it will not be able exercise all its functions and powers in
relation to its population, it could allow it to protect and defend the interests of its citizens by
means of a certain degree of diplomatic protection. Most importantly, it would prevent the
population from becoming stateless, but it could also maintain the possibly still existing
maritime zones.
This principle as proposed in this thesis is understood as a transitional period. How
long this period may last is debatable, but over time, as the people will ultimately and
eventually come to fall under complete foreign jurisdiction, the functions of the
deterritorialised State will falter. This principle should accordingly not be seen as an end in
itself, which would allow the deterritorialised island-State to exist as a legal fiction
indefinitely. Rather it is a means, sanctioned by international law, which affords the islanders,
the host communities and the international society as a whole, a reasonable opportunity to
adjust to the void in international law, caused by the cessation of a State when there is no
successor State to its territory.
Is it then imperative to change the law and abandon the territory criterion from the
concept of statehood? Certainly State practice and recognition can have such a law-making
57
capacity. Yet to move away from the requirement of a defined territory does not appear
necessary nor likely. International law as it stands already affords a possible legal basis for the
island-State to continue to exist as a legal entity, at least until the world has learned to adjust
to the new situation. It has indeed been asserted that States would be willing to accord the
legal entity such relative international legal personality. Moreover, to let a State that will
eventually lack all the characteristics of a State exist into perpetuity is not in line with the
apparently harsh reality that eventually there will be no more need to keep the disappeared
State alive. The political will to reinterpret the law in order to deal with the legal challenges
will therefore likely be larger than the will to fundamentally change the criteria or indeed the
entire conception of statehood. The case of sinking island-States will force the foundations of
international society to be considered in another perspective, but it will not require the law to
be changed as such. Despite the exceptions in international law that allow for the recognition
of a deterritorialised State, territory still remains fundamental to the existence of a State.
The final conclusion could thereupon seem rather harsh or confronting, but it is
nevertheless necessary to properly understand the predicament of small low-lying atollnations, such as the Maldives, Kiribati, the Marshall Islands and Tuvalu. Following a
complete exodus of its population, a threatened island-State will no longer be able to
objectively satisfy the constitutive criteria of statehood and it will thus no longer be
considered a State under general international law. Retention of a territorial basis could
certainly ensure the continuation of its statehood, but such attempts may be seriously
frustrated by practical and political considerations. When this transpires and the objective
criteria of statehood are eventually no longer satisfied, the underlying mechanisms of the
principles of deterritorialised State and government-in-exile can afford a transitional period,
in which the legal entity of the State continues to exist as a legal fiction. Yet despite this
possibility afforded by international law, unless the island-States succeed in securing a
territorial basis, their statehood will over time inevitably be lost.
58
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Statehood and State Extinction:

Henk Jan Scholten

2. Sinking Island-States and Statehood

(A) A permanent population

(B) A defined territory

(i) Fully submerged territory

(ii) Uninhabited territory still above sea level

(C) Capacity to enter into relations with the other States

(i) Effective government

(ii) Government in relation to disappearing population and

(i) Formal independence

(ii) Actual independence

II. Concluding remarks

I. Mitigation, protection, adaptation

(A) Protecting existing territory

(B) Creating new territory: artificial islands and installations

II. Relocation: Cession and merger

IV. Deterritorialised States and the nation ex-situ

(A) The legal basis

(i) The Sovereign Order of Malta

(ii) Vatican City

(B) The need for novelty?

Barnett, Adger, Climate Dangers, p. 322.

McAdam, Refusing Refuge in the Pacific: (De)Constructing Climate-Induced Displacement in International

2. Sinking Island-States and Statehood

I. The criteria of statehood

(A) A permanent population

McAdam, Disappearing States, p. 8, (emphasis added).

(B) A defined territory

Fully submerged territory

Rai, Statehood, pp. 58-59.

Uninhabited territory still above sea level

territory. However, as emphasised earlier, such disappearance is more likely to happen

McAdam, Disappearing States, p. 7.

(C) Capacity to enter into relations with the other States

Shaw for example writes: The essence of such a capacity is

independence. 99 Brownlie, in similar fashion, states that the concept of independence is

Shaw, International Law, p. 202

sophisticated apparatus of executive and legislative organs.104 In similar fashion, Crawford

Shaw, International Law, p. 200.

be acquired, despite a substantial lack or sometimes even a total absence of effective

Rai, Statehood, p. 67.

Government in relation to disappearing population and territory

Rai, Statehood, p. 67, emphasis added.

McAdam, Disappearing States, p. 12.

Crawford, Creation of States, p. 59.

McAdam, Disappearing States, p. 7.

However, formal independence can act to mask the lack of actual

independence.157 A formally independent entity can effectively be controlled by another State

Crawford, Creation of States, p. 66.

there are some important factual

consequences for sinking islands which cannot be overlooked.

Brownlie, Principles, p. 72.

McAdam, Disappearing States, p. 11.

II. Concluding remarks

Brownlie, Principles, p. 72.

Crawford, Creation of States, p. 700.

I. Mitigation, protection, adaptation

Ambo Declaration, 10 November 2010, available at

(A) Protecting existing territory

Yamamoto, Esteban, Vanishing Island States, p. 5.

(B) Creating new territory: artificial islands and installations

Grote Stoutenburg, When Do States Disappear?.