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Evolution or Revolution? Evaluating the Territorial State-Based Regime of International Law in the Context of the Physical Disappearance of Territory Due to Climate Change and Sea-Level Rise

Published online by Cambridge University Press:  10 August 2016

Abstract

The threat of the permanent physical disappearance of the territory of states no longer belongs to the mythical realm, and the situation is particularly imminent for small island developing states. While most international legal scholarship has so far focused on issues stemming from territorial disappearance, this article goes one step further. It questions the appropriateness of the classical notion of the territorial state — a socio-cultural and politico-legal entity evolving on a defined territorial area — as the basis for an international legal system faced with new realities created by climate change, sea-level rise, and globalization. After examining the current rules on statehood within the context of the physical disappearance of states’ territories and looking into the solutions suggested in the legal literature to address territorial loss, this article assesses a new way of understanding statehood by exploring theoretical lenses through which a new model of statehood could be contemplated.

Résumé

La disparition permanente du territoire des États est désormais une menace bien réelle, tout particulièrement pour les petits États insulaires en développement. Jusqu’à présent, la doctrine a surtout porté sur des questions découlant de la disparition territoriale, mais le présent article pousse la réflexion encore plus loin. Il remet en question la pertinence de la notion classique de l’État territorial — une entité socio-culturelle et politico-juridique évoluant sur un territoire défini — comme fondement du système juridique international à l’heure des nouvelles réalités causées par les changements climatiques, la hausse du niveau de la mer et la mondialisation. Après avoir présenté la notion actuelle d’État dans le contexte de la disparition physique de territoires ainsi que les solutions préconisées dans la littérature juridique pour lutter contre les effets de la disparition territoriale, nous explorerons une nouvelle notion d’État grâce à des concepts théoriques qui permettraient d’envisager un nouveau modèle étatique.

Type
Articles
Copyright
Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 2016 

The ascription of full status and participation rights usually reserved for “traditional” States to genuinely nonterritorial entities would require the greatest structural transformation international law has seen since the establishment of the so-called Westphalian order.

— Jenny Grote Stoutenburg Footnote 1

All these challenges go deeper than simply questioning the appropriateness of certain existing rules of international law. The nature of the challenges is such that they call into question some basic axioms of international law.

— Davor Vidas Footnote 2

Introduction

How does international law react to the threat of the territorial disappearance of the state, which is the heart of the international legal regime? Footnote 3 In practice, the state-centred system and state-driven framework of international law are based on the existence of the nation-state — a socio-cultural entity coinciding with a politico-legal entity — that evolves on a defined territorial area. Footnote 4 In recent decades, however, these concepts have been thrown into question by the growing role of various actors and the rise of transboundary challenges necessitating the involvement of the global community. Footnote 5 The increasing prominence of non-state actors has caused states to interact with these entities and with one another in new and previously unforeseen ways. The rise of non-state actors also raises questions concerning the importance of the role of states within the international legal order. While these developments cannot be ignored and have been addressed extensively in the legal literature, state consent and state sovereignty still remain at the core of the international legal system. Footnote 6

However, what would happen if the basis of this system — the state itself — were to see its territory disappear? International law has in the past been faced with the extinction of statehood through dissolution (for example, Yugoslavia and Czechoslovakia) as well as through merger or absorption (for example, the People’s Democratic Republic of Yemen merged with the Yemen Arab Republic to form the Republic of Yemen; the German Democratic Republic was absorbed by the Federal Republic of Germany). Footnote 7 The permanent physical disappearance of the territory of states, however, is unprecedented. Footnote 8

Climate change and sea-level rise, leading to floods and to the submersion of territory, whether total or partial, appear to be the main causes of the potential territorial disappearance of states (although land and coastlines are also affected by other natural phenomena, such as storms and erosion). Footnote 9 The scientific evidence supporting the possibility of territorial disappearance is now well known. In its fifth assessment report in 2014, the International Panel on Climate Change (IPCC) underlined that “[t]he atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen.” Footnote 10 Greenhouse gases (GHGs) “are extremely likely to have been the dominant cause of the observed warming since the mid-20th century.” Footnote 11 As a consequence of these changes, the occurrence of sea-level rise cannot be denied, even if its measure remains uncertain. Footnote 12

All coastal states are at risk of eventually being affected by rising sea levels. Footnote 13 However, the consequences of climate change seem even more dramatic and imminent for small island developing states (SIDS). Footnote 14 Indeed, small states such as Tuvalu, Kiribati, the Marshall Islands, the Federated States of Micronesia and Palau in the South Pacific, or the Maldives in the Indian Ocean, have already started to experience the effects of sea-level rise because their entire territory is located only a few metres above sea level. Footnote 15

The impact of sea-level rise on certain aspects of international law, raised for the first time among legal scholars at the end of the 1980s, Footnote 16 has recently resurfaced in the academic literature. However, most of this scholarship has focused on issues stemming from the disappearance of the territory of states, such as the effects on maritime zone entitlements, forced migration and the new phenomenon of environmental/ecological refugees, as well as the regime of international responsibility for climate change. Footnote 17 And while broader issues of statehood and sovereignty have generated much scholarly activity, Footnote 18 few scholars have addressed the specific issue of the continuing statehood of states with territory that is physically disappearing. Footnote 19 Further, most scholars working in the area have focused on addressing how “[t]he continued existence of the state would be secured in accordance with traditional rules of international law.” Footnote 20

The concerns mentioned above — statehood, maritime zones and access to resources, migration, human rights, and so on — fall within a broader set of issues raised by territorial loss. Footnote 21 They are crucially affected by the disappearance of states’ territories and are therefore addressed in the present article. However, this article aims to go one step further in questioning the classical notion of statehood under international law within the new practical realities of the twenty-first century created by climate change, sea-level rise, and globalization. This article therefore focuses on the following question: Facing the physical disappearance of states’ territories, is the territorial state still an appropriate basis for the international legal system?

The first part of this article provides a portrait of the current rules on statehood within the context of the physical disappearance of states’ territories. Therefore, we look at the role of territorial states within the international legal order and the classical definition of statehood under current international law and at how these concepts are affected by territorial and population loss. The analysis finds its starting point in the classical approach to statehood as defined under Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States and customary international law, focusing mainly on the criteria of permanent population and defined territory. Footnote 22 We then explore scholarly debates regarding the manner in which rights and entitlements of states associated with statehood are affected by climate change, sea-level rise, and the physical disappearance of territory. While all states, especially coastal states, may eventually be affected by the impacts of climate change, SIDS are used as a case study for the purpose of this article. It is also important to note that even though rules and principles related to the creation of states may be used for comparison purposes, this article does not address the issue of the creation of states as such but, rather, focuses on their continuity as legal entities.

In the second part of the article, we turn to solutions suggested in the legal literature to address the loss of territory and, potentially, the loss of statehood by SIDS (although measures undertaken by other states are also referred to). This part first analyzes solutions rooted in traditional mechanisms and regimes, such as man-made preservation solutions and options for acquiring territory. We then look at the sui generis entity of the “de-territorialized” state. This part of the article concludes with a critique of the feasibility and relevance of these suggested solutions.

Relying on the discussion of sui generis entities, the article finally attempts an assessment of potential solutions outside the territorial state-centric regime. We assess whether a new way of understanding statehood, a way that would depart from the view that the state is necessarily a territorial entity, could be more appropriate in the practical context at hand. For this purpose, we look at the concepts of the legitimacy of international law and morality within the international legal order as ethical bases for positing the necessity of an alternative model to the territorial state. The article concludes with an exploration of theoretical lenses — the diasporic and cosmopolitan theories, global governance theory, and concepts of equity — through which such a new model may be contemplated.

This article raises issues at the crossroads of classical concepts of international law and contingencies stemming from globalization and transboundary concerns. Footnote 23 It also seeks to outline a new perspective for scholars and practitioners from which to envisage the further development of international law. Footnote 24 Most of the impacts — practical and legal — of territorial disappearance have yet to occur; analyzing them beforehand therefore requires a certain level of speculation. Footnote 25 As such, this article largely relies on the theoretical work of international legal scholars since relevant international cases, decisions, and instruments on the topic are limited. It is, however, hoped that this article will form the basis for further work concerning the future of the notion of statehood for states with physically disappearing territories.

What Is Happening? The Classical View of Statehood and the New Reality of Territorial Disappearance

Before being able to assess whether the classical definition of statehood still has its place in international law, it is important first to look at the status and role of the state as the basis of the state-driven regime. It is also relevant to look at practical consequences that stem from applying this understanding of the meaning of state and statehood to the current factual setting of sea-level rise.

states and statehood

The Role of Territorial States in International Law

The notion of “state” can be understood from two perspectives: the state as a territorial entity and the state as the way a particular political and social community organizes itself. The state as the primary subject of modern international law is the result of the intersection of these two approaches: a politically organized community on a defined territory. Footnote 26 What also characterizes modern international law is the place of states at the heart of the regime. Footnote 27 The starting point of this state-centred regime is often identified as the Peace of Westphalia of 1648, “where unity was established by nation states exercising sovereignty over certain territories.” Footnote 28 With the establishment of defined sovereign entities came a new political order around which societies organized themselves — the Westphalian system — where the interactions of these sovereign entities — nation-states — were regulated by a corpus of rules that formed the international legal regime.

Sovereignty over a defined geographical area epitomized the inextricable link between nation-states and their territory and led the “territorial state” to become the main actor in the Westphalian system. Footnote 29 The predominance of territoriality brought a new structure to the international order: Footnote 30 “[W]hen contrasted with the age of anarchy and insecurity which immediately preceded it, the age of territoriality appears as one of relative order and safety.” Footnote 31 Indeed, the classical purposes of the territorial state have been stability and security. Footnote 32 As stated by Derek Wong, “territory [is] the physical foundation of power and jurisdiction, as well as nationality and, thus, the basis upon which peace and security rest.” Footnote 33 However, territory is also the basis for a state’s population, the physical area where people “associate and organise themselves” Footnote 34 and where they exercise their right to self-determination. Footnote 35 It is, further, a source of economic, historical, and cultural resources for the maintenance of the population. Footnote 36 It has even been characterized as “reflect[ing] the identity (or goal values) of the society as a whole.” Footnote 37 For governing authorities, territory normally defines spatial limitations for the exercise of jurisdiction. Footnote 38 Territory is therefore both “a factual reality and a legal construction” creating a “functional framework.” Footnote 39

Territoriality is important not only as one of the characteristics of states themselves and as a basis upon which states achieve organization and stability but also for the role it plays in defining the scope of “various other principles and rules of international law.” Footnote 40 For example, the prohibition on the threat or use of force “against the territorial integrity … of any state” Footnote 41 is expressly linked to state territory. Footnote 42 Similarly, state jurisdiction, while applicable outside a state’s territory in some cases (for example, through the nationality or passive personality principles) is still strongly rooted in a state’s territory through the territoriality principle. Footnote 43

This portrait of the nature and role of the state — a nation-state intrinsically linked with its territory — is still the one that prevails under current international law. Footnote 44 Even if other actors — individuals, international organizations, corporations, even the market itself Footnote 45 — are now playing a competing role, “there is no evidence that the state has died.” Footnote 46 And in the absence of a better model, the state remains, from both a practical and ideological perspective, “the most viable form of social organization.” Footnote 47 However, the value of the state’s core component — that is to say, its territory — might change. For example, “technological developments have robbed the territory requirement of much of its functional utility” since the issues of security, resources, and jurisdiction can be seen as being more closely related to the globalized world than to a state’s territory. Footnote 48 These developments have reduced territory from an essential component of statehood to only a relevant one, especially when looking at the continuity of the state. Footnote 49 Consequently, as the practical value of the territorial state fades, so too may its ideological value, which might in turn lead to the necessity of adapting the current model. Footnote 50 It might even trigger the need for an alternative model of social organization that departs from territoriality as its foundation stone.

The Classical Definition of Statehood

No express conventional definition of statehood can be found in international law. Footnote 51 As a substitute, one can look to the criteria listed in Article 1 of the 1933 Montevideo Convention (Montevideo criteria), the only international conventional instrument to list such criteria. While the Montevideo Convention is a regional treaty, its Article 1 is now considered as having entered the sphere of customary international law. Footnote 52 It reads as follows:

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. Footnote 53

However, this definition is often criticized as being incomplete or unsatisfactory, and the normative value of its components remains uncertain. Footnote 54 Louis Henkin has argued that the Montevideo criteria are not a prerequisite for the creation of states but, rather, a mere description of what is commonly referred to as statehood. Footnote 55 Further, Thomas Grant has described the continuing use of the Montevideo Convention as “a source of puzzlement” because of its obsolete character:

The Convention includes elements that are not clearly prerequisite to statehood, and it excludes elements that writers now widely regard as indispensable to a definition of the state … It addresses a concept that had been in flux over the century leading up to its framing and that continued to change thereafter. It posits a definition of statehood highly contingent upon the history, politics, and legal thought of its moment. It is over-inclusive, under-inclusive, and outdated. Footnote 56

To be more in line with current, practical realities, it has been suggested that other elements should be considered when assessing statehood. Footnote 57 For example, the independence of a state from other entities (such as the establishment of Manchukuo in 1932, which was widely considered a puppet state under the control of Japanese authorities) and the legality of its creation (such as the creation of Rhodesia based on a racist ideology) should be taken into account. Footnote 58 Further, recognition by other states (for instance, Kosovo or Taiwan) Footnote 59 or the necessity of democratic institutions and respect for the rights of minorities — two criteria discussed since the end of the twentieth century — could also be considered. Footnote 60

However, it should be borne in mind that this list is not exhaustive, and even if all elements were fulfilled, the recognition of an entity as a state cannot be guaranteed or officially established. Footnote 61 Further, notwithstanding the suggested alternative or additional criteria, “no proposals codifying statehood have been accepted since the [Montevideo Convention]. [T]his problem [has been attributed] in part to a political reluctance by states to announce a clear definition of statehood.” Footnote 62 Whatever the elements used to define statehood and ascertain the existence of an entity as a state, what interests us in the present article is whether and how these criteria can be preserved and applied when faced with the progressive transformations stemming from climate change and sea-level rise. Before a complete loss of territory occurs, the effects of sea-level rise will first render a territory uninhabitable, leading to migration and population displacement. Footnote 63 It is therefore relevant to look more closely at the role played by the criteria of population and territory in the definition of statehood.

There is, first, no apparent minimum quantitative requirement for population size. Footnote 64 What really matters is the qualitative requirement of a communal life; a mere “care-taking population” (such as for the maintenance of facilities) would not be sufficient. Footnote 65 Similarly, although “a territory must be adequately recognized and controlled regularly by an entity to qualify for statehood,” Footnote 66 there is also no minimum requirement for territory size. Footnote 67 Imprecise boundary delimitations or unfixed borders will not lead to a lack of a defined territory either. Footnote 68 However, a state has to exist on a natural piece of land; “a complete artificial construction does not fulfil the criteria.” Footnote 69 The use of artificial islands to preserve statehood can therefore be questioned. Footnote 70 There is also debate as to whether an uninhabitable island or a rock could fulfil the requirement of defined territory, but it is clear that a low-tide elevation does not. Footnote 71

Based on the now famous statement of Max Huber, arbitrator in the Island of Palmas case, the existence of a state in the complete absence of a territory does not seem to be a possible option: “International law, the structure of which is not based on any super-state organisation, cannot be presumed to reduce a right such as territorial sovereignty, with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations.” Footnote 72 Two trends exist in the literature as to the necessity of the territorial requirement. Footnote 73 On the one hand, in the same vein as Huber’s statement, Rosemary Rayfuse suggests that, following a complete submergence of a state’s territory, the requirement would no longer be met and statehood would consequently fail. Footnote 74 She is joined by Ineta Ziemele who states that, while mere changes to these elements would not have an impact on statehood, the disappearance of territory and/or population would. Footnote 75 Julien Jeanneney also suggests that if a state is understood as being a community organized on a territory, the complete submersion of that territory would consequently lead to the extinction of statehood. Footnote 76 On the other hand, Wong takes the view that this conclusion of automatic state extinction goes against the “strong presumption in favour of the continued existence of a state.” Footnote 77 The present article follows the latter approach and rejects the premise that territorial disappearance automatically entails the extinction of statehood.

What is certain is that international law aims at stability. And to preserve that stability, it operates on a key premise: once statehood has been acquired, it is very difficult to lose. Footnote 78 This is why, once an entity becomes a state, “the loss of one or more of these criteria will not necessarily deprive an entity of its statehood.” Footnote 79 One author has even suggested that, by stretching the reasoning that “[t]here is no lower limit on the size of this territory or of its ability to sustain a population,” we might consider a submerged territory as meeting the territorial requirement. Footnote 80 We could also rely on Article 6 of the Montevideo Convention, which supports this strong presumption of continuity by stating that once recognition has been given, it is irrevocable. Footnote 81 Based on this reasoning, SIDS, having been recognized by the international community, would still have the right to have their legal personality acknowledged whatever might happen to the components of their statehood.

In fact, the Montevideo criteria address the elements needed for an entity to become a state and not the circumstances under which it can continue as such or how statehood becomes extinguished. Footnote 82 The requirement of territory therefore seems essential for the creation of a state, but loses its importance when discussing the continuity of that state. Footnote 83 Indeed, in state creation settings, territory plays a double role: it is first seen as a source of functional utility and social organization (as discussed earlier in this article), but it also acts “as a desirable barrier to statehood” to prevent the “uncontrolled proliferation of states.” Footnote 84 However, when talking about the continuity of an existing state, only the functional purpose remains. We could therefore posit that, if a new model for functional utility could be found, the territorial requirement would not be necessary for state continuity.

Nonetheless, a loss of statehood entails a deprivation of entitlements. This is why it “is not an insignificant or insubstantial event; it represents a significant downgrading of status.” Footnote 85 For SIDS especially, statehood is important. First, statehood gives access to United Nations (UN) membership, Footnote 86 which “is crucial because it provides a cost-effective method of maintaining international contacts, thus avoiding the need for a worldwide diplomatic apparatus.” Footnote 87 Statehood is also a sign of links between state, culture, and identity, which are core values for the peoples inhabiting SIDS. Finally, the loss of statehood could lead to the loss of maritime rights and other resource-related rights, which could be fatal for states with economies that mostly rely on revenues from such activities. Footnote 88 These issues will be discussed in greater detail in the following sections.

What we are left with is a system that is not adapted to the permanent physical disappearance of territory Footnote 89 and that is not well suited to anticipating whether the loss of population and/or territory is fatal to statehood. Footnote 90 However, while rooted in factual elements, statehood is a legal status stemming from rules and practices. Footnote 91 We can therefore presume that a modification of the legal principles upon which statehood rests could lead to a new way of envisaging it. But one must also keep in mind that statehood is “ultimately a matter of acceptance by the international community.” Footnote 92 The coherence normally expected from the Westphalian system is now being confronted by new realities brought on by climate change and sea-level rise. Footnote 93

rights and obligations triggered by the physical disappearance of the territory of states

When an entity is recognized as a state, the international community acknowledges that it is entitled to rights associated with statehood. Modifying the constituent elements of statehood therefore affects not only the legal status of a state but also the entitlements owed either to the state itself or to its people. This section does not aim to address all of the legal consequences of sea-level rise as this would go beyond the scope of this article. Rather, it is directed at adding a practical component to the portrait of territoriality and statehood: it will present an overview of some of the main — or most often discussed — international legal consequences of territorial disappearance stemming from sea-level rise. This section will therefore first look at various rights, owed either to the state or to its people, that are affected by territorial disappearance. It will then address the issue of state responsibility and show how the climate change regime provides limited relevant channels of relief for SIDS. Footnote 94

Claims over Maritime Zones and Rights to Resources

A first concern that arises when talking about territorial loss is the potential loss of resources that would ensue. The entitlement to resources found in a state’s territory also extends to its maritime zones. Footnote 95 In the case of SIDS, resources are intrinsically linked to states’ maritime zones, Footnote 96 particularly through revenues coming from fishing licences and the fishing industry. Footnote 97 As shown by Ann Powers and Christophe Stucko in 2007, fishing licences alone accounted for 42 percent of all government revenues in Kiribati and 11 percent of all government revenues in Tuvalu. Footnote 98 In the Maldives, 10 percent of the gross domestic product is attributable to fisheries. Footnote 99 Achim Maas and Alexander Carius have also observed that “the combined exclusive economic zones [(EEZs)] of the Pacific island states are several times larger than the whole of the [European Union, and with] the potential of blue-sea fishing and deep-sea mining, the [EEZs] are important economic assets.” Footnote 100 From a human perspective, the identity and welfare of coastal communities are “closely intertwined with the resources, ecosystems, goods and services available in those particular regions,” putting maritime resources at the core of socio-economic and cultural conditions of the populations of SIDS. Footnote 101

In light of the law of the sea principle that “the land dominates the sea,” the disappearance of the entire territory to which these zones relate raises questions about the continuity of the zones themselves. Footnote 102 Even partial submersion of territories could create some concerns because formerly habitable territories that become “[r]ocks which cannot sustain human habitation or economic life of their own” may not support claims to an EEZ or a continental shelf. Footnote 103 Even the United Nations Convention on the Law of the Sea (UNCLOS) does not provide answers to these questions as the convention “was tailored to the geographical circumstances of its own time, not the ones yet to come.” Footnote 104 Yet there seems to be a consensus that “[t]hese marine resources will be lost with the shrinking or disappearance of an island state’s maritime zones caused by sea level rise, a consequence that could be prevented only by amending the law of the sea to provide for stable maritime zones.” Footnote 105

The basis for this consensus resides in the ambulatory nature of baselines. With the rise of the sea level, these baselines, from which the measurement of zones proceeds, Footnote 106 move inland, consequently creating ambulatory maritime zones. Footnote 107 The International Law Association’s Committee on Baselines concluded in favour of keeping ambulatory baselines, Footnote 108 but the possibility of fixing the outer limits of maritime boundaries is still being discussed. Footnote 109 Another concern arising from ambulatory baselines is the water/land ratio required under Article 47(1) of UNCLOS for the drawing of archipelagic baselines. Footnote 110 Sea-level rise might affect this ratio and deprive archipelagic states of rights to which they are entitled under the current regime, most particularly those associated with archipelagic waters. Footnote 111

Even if a stable regime of baselines or maritime zones were adopted, a problem would remain. While a stable regime is “an adequate solution if only a part of the territory was to be submerged … it is not clear at present whether this solution is acceptable for a completely submerged Island State.” Footnote 112 This is why scholars have suggested that, even faced with the complete disappearance of territory, the maritime zones could still be managed either by an authority for “the benefit of the displaced population, through resource rents that could fund relocation and livelihood in the new host state” Footnote 113 or by the displaced population itself. Footnote 114 These suggestions open the door to a model that goes beyond the “territory-resources” relationship and creates a direct link between the resources and the populations benefiting from them.

Forced Displacements

The phenomenon of “environmentally displaced persons” fits the two-step model of consequences of sea-level rise: a territory might become uninhabitable long before it completely disappears, triggering the issue of whether a state can survive the loss of its population. Footnote 115 This phenomenon is also likely to be multifaceted: climate change not only affects migration, but “it will do so in combination with a range of other economic, social and political drivers which themselves affect migration.” Footnote 116

Inhabitants of SIDS are among those who will be forced by climate change-related causes to relocate. They will do so either internally (for example, by moving to another island forming part of the state’s territory, although this resettlement might only be temporary, as all territory of low-lying island states is endangered by sea-level rise) or, potentially, by crossing international borders. Footnote 117 While forced displacements may affect the population criterion of statehood, these displacements indubitably also raise concerns related to the future of the populations themselves as well as to the protection that can be offered to them. The issue of internally displaced persons has, for example, been addressed in the 1998 Guiding Principles on Internal Displacement. Footnote 118 These principles aim to “address the specific needs of internally displaced persons worldwide by identifying rights and guarantees relevant to their protection” during the different phases of displacement. Footnote 119

Externally displaced persons, however, face a “legal protection gap.” To benefit from refugee protection, one must have a “well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, [be] outside the country of his nationality and [be] unable or, owing to such fear, [be] unwilling to avail himself of the protection of that country,” and the fear of persecution must be personalized. Footnote 120 It has been concluded by the New Zealand Immigration and Protection Tribunal — the first instance to have rendered decisions on this matter — that environmentally displaced persons do not fall under the protection of the Convention Relating to the Status of Refugees, above all, because the risk is faced by populations as a whole and is not personalized to a particular applicant. Footnote 121

Under the current regime of refugee protection, the status of environmentally displaced persons therefore remains uncertain. This is why those who advocate in favour of extending refugee protection do so on the basis that, because “both ‘normal’ and climate-change-related refugees represent involuntary migrants who are unable to return to their homeland, they are both equally entitled to protection under international refugee law.” Footnote 122 Indeed, because of the close relationship between environmental degradation and human vulnerability, “pathways [could] … be created into international protection regimes.” Footnote 123 For example, the International Law Commission has recently adopted draft articles on the protection of persons in the event of natural disasters, and its work could potentially be used as a framework for filling the current gap regarding persons who are externally displaced due to environmental-related causes. Footnote 124

Self-Determination

Potential loss of territory goes even further than affecting a state’s entitlements to its resources or causing the forced displacement of its people. As argued by Jenny Stoutenburg, “[c]limate-change-induced sea level rise will damage island state economies, tear up the social fabric, and uproot island cultures. By destroying the physical basis for the exercise of any kind of activity, the inundation of a small island state’s territory would impair the ability of the islanders to determine their political, economic, social, and cultural future.” Footnote 125 Indeed, changes triggered by territorial loss could even be seen as affecting a people’s right to self-determination.

The right to self-determination recognizes the right of peoples to “freely determine their political status and freely pursue their economic, social and cultural development.” Footnote 126 In light of this definition, and following the discussion in the previous sub-sections of this article, two observations can be made. First, a negative impact on peoples’ ability to “pursue their economic … development” due to impacts on entitlements over maritime zones and their resources would be a direct interference with their self-determination. Second and similarly, if a SIDS population cannot be relocated as a people to a new territory, that people’s potential dispersal caused by forced migration would create an obstacle to its social and cultural development. Footnote 127

This right to free manifestation of status and development is expressed from two perspectives: autonomy and independence, which can be intertwined. While autonomy normally refers to the ability of a people to govern itself, or what is also called internal self-determination, “independence is the requirement that a group possesses a domain of political control independent of higher or foreign political units,” which is also referred to as external self-determination. Footnote 128 A people or self-determination unit normally expresses autonomy and independence against another entity, most traditionally another state or colonial power. One could therefore question, under existing rules of self-determination, against whom a SIDS people, as a self-determination unit, would express this right.

It has also been argued that the right to self-determination, from the perspectives of both autonomy and independence, cannot be fully exercised without a connection to territory. Footnote 129 Jörgen Ödalen, summarizing Cara Nine’s argument, explains how the absence of such a connection would negatively impact on the exercise of the right of self-determination:

Territorial rights are justified because they protect and promote the self-determination of peoples and peoples’ capacities to establish justice for their members. If a people is to be self-determining, it must rule itself; and in order for it to rule itself it must have the moral and political authority to establish justice for its members. In order to be self-determining then, a group which is a legitimate holder of a right to self-determination must have sovereignty over the territory where its members (usually) live. Without territorial rights, a self-determining group may cease to exist qua self-determining group. Footnote 130

This explanation raises a major concern. According to this approach, the only way to ensure the full self-determination of the people of SIDS would be to change the way territorial entitlements are understood and applied since there are nowadays no new territories available. Footnote 131

State Responsibility and the Consequences of Territorial Disappearance Due to Sea-Level Rise: The Appropriateness of the Climate Change Regime

The above discussions of the right to resources, forced displacements, and self-determination show that the consequences of territorial disappearance stemming from sea-level rise must be assessed from a broad perspective. Indeed, as discussed above, the situation must not only be seen from the sole perspective of statehood but also from the perspective of rights and obligations associated with it. This broader perspective therefore leads us to address how the impacts of sea-level rise could affect certain obligations owed by states under other regimes and trigger consequences for potential breaches of these obligations.

In order for a state to raise the responsibility of another, it must show “[a]n internationally wrongful act[, which] requires two elements: first, the attribution of a certain conduct (which can be an act or an omission) to a state under international law, which must secondly constitute a breach of an international obligation of the state.” Footnote 132 In the present case, it is difficult to see how the impacts of sea-level rise on SIDS could trigger the application of the regime of state responsibility or satisfy both of its requirements.

Nevertheless, it would be logical to turn to the climate change regime to determine whether there is a way of raising responsibility and seeking reparation, as climate change has been identified as the most probable cause of sea-level rise. Footnote 133 The conventional climate change regime is based on two main instruments. First, the United Nations Framework Convention on Climate Change (UNFCCC) sets general commitments directed towards GHG reduction. Footnote 134 The second instrument, the Kyoto Protocol, establishes hard targets and timetables to achieve the reduction of emissions as well as the means to achieve these targets. Footnote 135 Additionally, once it enters into force, the recently adopted Paris Agreement will complete the framework for climate change mitigation by limiting the increase of global average temperatures to 2 degrees Celsius — and preferably 1.5 degrees Celsius — through nationally determined, progressive contributions that will be renewable every five years. Footnote 136

This conventional regime, however, has had limited impact as the obligations imposed on states are mainly restricted to obligations of means, and the few obligations of result do not bind major emitters. Footnote 137 Further, the nationally determined contributions under the Paris Agreement will be non-binding and solely dependent on the will of states, and while a pledge to mobilize US $100 billion for a “green fund” has been made, no specific mechanism has been established to achieve that target. The Paris Agreement nevertheless shows the strong desire of states to come together to revitalize the structure of the climate change regime, based on transparency and facilitation rather than on a punitive approach. Footnote 138

To these conventional instruments can be added the duty to prevent transboundary harm, which finds its root in the Trail Smelter Case (United States v Canada) and the Stockholm Declaration on the Human Environment. Footnote 139 The 2001 Articles on Prevention of Transboundary Harm from Hazardous Activities complete the general framework. Footnote 140 It is now well established that the prohibition on causing significant transboundary environmental damage has entered the realm of customary international law. Footnote 141

To establish responsibility, the first issue that arises would be to identify the breach of an international obligation. The emission of GHGs is not in itself an activity prohibited under international law. What triggers responsibility is “the failure of states to regulate” the emissions by not fulfilling their general commitments under the UNFCCC or reaching the specific reduction targets established under the Kyoto Protocol Footnote 142 and, eventually, the Paris Agreement. A state having taken appropriate means to ensure this regulation would therefore have fulfilled its duty on that level. Another breach, related to the first one, would be a failure to fulfil the general duty to prevent significant transboundary harm. Loss of territory could reasonably be considered a significant harm. Yet, as Abhimanyu Jain puts it, “there is a clear legal duty to not deprive a state of its territory, but there is no duty to protect a state from loss of territory.” Footnote 143

Stoutenburg raises another possibility. Under Article 41(2) of the Articles on Responsibility of States for Internationally Wrongful Acts, a state would be in breach of international law if it recognized as lawful a situation created through a serious breach of jus cogens norms. We could see this provision as expressing “a general principle of modern international law according to which there is a duty not to recognize the extinction of a state caused by a serious violation of jus cogens, and thus to continue recognizing the international legal personality of the affected state.” Footnote 144 The key issue, then, would be to determine “whether the extinction of low-lying island states due to anthropogenic climate change constitutes a serious violation of peremptory norms of general international law.” Footnote 145 Thus, this possibility brings the additional challenge of proving not only the breach of a general obligation but also the breach of a peremptory norm of international law.

What would that peremptory norm of international law be? Certainly, territorial loss or inundation of certain parts of territory may raise human rights issues. While a stand-alone human right to a healthy environment could hardly form the legal basis of a claim, as it has not yet been codified or generally recognized as customary international law, Footnote 146 the rights to life, security, and an adequate standard of living including food, water, and housing could however be relied upon. Footnote 147 Even the right to nationality could potentially be triggered as it is uncertain what nationality people forced to relocate would be able to claim. Footnote 148 However, while climate change and sea-level rise impact the enjoyment of human rights, there is doubt as to whether such impact flows from, or gives rise to, an actual human rights violation. Footnote 149 And it is impossible to assert that a jus cogens norm requiring the prevention of climate change exists. Footnote 150

As noted above, even if one succeeded in establishing a breach of an international obligation, a second requirement would have to be fulfilled: attribution of the breach to a state. While states cannot normally be held responsible for natural disasters, Footnote 151 there is nowadays conclusive scientific evidence that climate change does result from human activities. Footnote 152 However, even if we relied on “cumulative causation — the fact that not one state alone, but all states together (mainly of course the largest emitters) contribute to climate change,” Footnote 153 the causal link between the GHG emissions of a particular state (or group of states) and climate change, and, subsequently, between climate change and sea-level rise, would still have to be established. Footnote 154

While a claim against major emitters would not be a complete legal impossibility, as suggested by the foregoing arguable legal bases for such a claim, there would remain problems at the level of geopolitics and international relations: “[F]or example, does the complaining island nation have the financial and human resources and capacity to pursue these claims against large emitters? And, on a related note, if a vulnerable nation pursues legal recourse, will the very nation-state(s) from which it seeks remedy retaliate?” Footnote 155 For example, in 2011, Palau intended to propose that the UN General Assembly request an advisory opinion from the International Court of Justice on the legal responsibility of large emitters for climate change. Footnote 156 Palau, however, did not pursue its initiative, seemingly following a threat of reprisal from the United States. Footnote 157 Indeed, the states most responsible for GHG emissions are those that SIDS are most reliant upon, not only for general economic and commercial activity but also for assistance measures to counter the effects of sea-level rise. Footnote 158 One can therefore question the legitimacy and adequacy of the international system to protect vulnerable states suffering from a situation for which they are the least responsible. Footnote 159

Other avenues for relief have been envisaged. SIDS could raise the responsibility of emitters on which they are less dependent. Footnote 160 The same issues of proving breach of an obligation and attribution would however arise. Alternatively, SIDS could rely on dispute settlement mechanisms under other environmental law regimes, such as the Convention on Wetlands of International Importance Especially as Waterfowl Habitat, the Convention Concerning the Protection of the World Cultural and Natural Heritage, or the Convention on Biological Diversity. Footnote 161 UNCLOS “may [also] be a promising instrument … due to its expansive definition of pollution, the clear obligations on states parties to preserve the health of the environment, and the availability of voluntary and compulsory dispute resolution mechanisms to press claims related to environmental pollution.” Footnote 162 It must indeed be remembered that the legal impacts of sea-level rise extend far beyond concerns of baselines, migration, and human rights and must also be assessed from the perspective of affected ecosystems. Footnote 163

Apart from the major legal issues stemming from the physical disappearance of territory due to sea-level rise, the portrait drawn in the first part of this article shows that various regimes under international law are ill-equipped to face this new reality created by climate change. Further, the relevance of the core building block of the current international system, the territorial state, is being questioned as the physical disappearance of some of its components may affect the continuity of its legal status. To be able to address this changing state of affairs adequately, the international legal framework will have to adapt itself to “actual needs and purposes, and not primarily ... the ... assertion of sovereign rights over territory.” Footnote 164

What Can Be Done? Possible Solutions to Ensure the Continuity of States with Territories That Are Physically Disappearing

The stability sought by international law is protected by the presumption of continuity of statehood. This doctrine serves to preserve the legal order from events that would deprive a state of one or more of its components. However, the legal construct of continuity can only fill gaps in the constituent elements of statehood “and should not be allowed completely to override the factual matrix surrounding its creation.” Footnote 165 This is why solutions must be envisaged so that the legal reality can survive the factual one.

Following the IPCC’s fourth assessment report, it must be concluded that we have now reached the point where mitigation measures, central to the climate change regime, must be complemented by adaptation measures. Footnote 166 As discussed earlier in this article, the current law of the sea regime is based on the principle that the land dominates the sea. The importance of maritime zones for the economy of SIDS underscores the necessity of preserving land territory, which serves as a legal basis for such zones.

Various options have been discussed in the legal literature on climate change and sea-level rise to work towards continuity by physically protecting states with territories that are disappearing. The purpose of this part of the article is to examine those options most often raised by scholars. What is interesting to note, from the outset, is that most responses are traditional in the sense that they build on existing conceptions of the territorial state under current international law. Footnote 167 Indeed, they focus on the preservation of existing, or the acquisition of new, territory. Only the idea of a “deterritorialized” state takes us away from the legal model of a state anchored in its territory. Footnote 168 However, whatever option is envisaged, it must be remembered that a case-by-case approach should be preferred, as various scenarios are possible according to the unique situation of every SIDS. Footnote 169

traditional responses

Man-Made Preservation Solutions: Protecting Existing Land by Artificial Means and Building Artificial Islands or Installations

The first solution envisaged in the literature — the construction of artificial structures to preserve land territory — has already been applied in practice. The Netherlands, with its system of dykes and dams, is often cited as an example. Footnote 170 The Maldives have also used hard engineering mechanisms, building walls to protect the capital island of Malé and even constructing an entirely artificial island, Hulhumalé, to which people have been relocated to alleviate the overpopulation of Malé. Footnote 171 Similarly, in the 1980s, Japan undertook the construction of various structures (including walls, blocks of steel and concrete, and other sea defences) to preserve the existence of Okinotorishima, “two groups of very small rocks” used to claim an extensive EEZ and a continental shelf beyond 200 nautical miles. Footnote 172 These solutions have one main goal: maintaining the land territory of a state or its baselines and, consequently, the maritime claims associated with it.

Artificial preservation construction can be divided into two categories: structures that aim at protecting existing land territory and completely artificial islands or installations. Regarding the former, the mechanisms most commonly used are sea walls or other barrier-type structures that “are intended to stabilize the position of the coast and protect key infrastructure located in the coastal zones.” Footnote 173 However, hard engineering solutions have the potential of impacting the coastline by “interrupting natural sediments flows and causing unexpected erosion and/or deposition to other parts of the coast.” Footnote 174 This is why “soft” engineering approaches, such as the creation of dunes or the revegetation of coastlines, which “replicate naturally occurring features that may have been previously removed,” are also used. Footnote 175

The man-made protection of a natural feature, and even structures that extend a natural feature, do not transform that feature into an artificial island as understood in Article 60 of UNCLOS, “given that the island state would not try to generate maritime entitlements through artificial means, but only aim to preserve its already recognized rights.” Footnote 176 For example, preserving an island so that it retains its ability to sustain human habitation or economic life (that is, so that it does not become a rock as understood under Article 121(3) of UNCLOS) would be acceptable, but the improvement of a rock so that it becomes an island potentially capable of generating zones would not. Footnote 177 This distinction raises questions as to whether the structures around Okinotorishima constitute mere protection of an existing feature that can generate zones or an attempt to give rocks an upgraded status.

The second category of preservation construction includes wholly artificial islands or installations and can only be defined a contrario — that is, in contrast to the wording of Article 121(1) of UNCLOS — which describes an island as “a naturally formed area of land, surrounded by water, which is above water at high tide.” Footnote 178 The legal status of artificial structures is clear: “Artificial islands, installations and structures do not possess the status of islands” and cannot generate maritime zones of their own. Footnote 179

However, can artificial islands or installations be relied upon to preserve, physically, the territorial component of a state? Stoutenburg argues that if a state were to build an entire artificial island, as the Maldives did with the artificial island of Hulhumalé, the island would count as part of the state’s defined territory, although it could not generate maritime zones. Footnote 180 On the other hand, this would not be the case if a state were to replace its entire territory with artificial installations, which would not be characterized as territory. Footnote 181 This approach, however, is contested by Wong, who states that “current international law does not allow for wholly man-made structures to constitute territory,” therefore not distinguishing between artificial islands and artificial installations. Footnote 182 This conclusion is supported by the decision of the Administrative Court of Cologne in Re Duchy of Sealand, which held that territory must “consist in a natural segment of the earth’s surface” and must “come into existence in a natural way,” thus discarding the characterization of artificial islands or installations as territory. Footnote 183

In the end, the notion that artificial islands and installations cannot generate maritime zones remains a major concern for the preservation of the entitlements of SIDS. As a solution, Michael Gagain has suggested that “the regime of artificial islands should be expanded to encompass attribution of maritime zones.” Footnote 184 Amending the regime of baselines has also been suggested as a solution in order to thwart the potential manipulation of maritime zones through man-made constructs. Footnote 185 Ultimately, these man-made solutions raise questions of cost and development since SIDS are developing states. SIDS must therefore carefully balance the costs involved in the construction of such features “against the revenues which the sea [and land] area[s] that may be lost can generate.” Footnote 186

Acquisition of Territory

A second solution discussed by scholars is the possibility of acquiring new territory, either by way of cession of territory by another state or through merger or union with other entities. Footnote 187 While leading to different legal statuses for SIDS, these two possibilities both imply cooperation with other sovereign entities. Footnote 188 Under the first scenario, territory could be ceded either by donation or sale or even by lease. Footnote 189 SIDS could exercise sovereignty over this newly acquired territory. Footnote 190 Cession of territory has happened in the past, giving rise to precedents such as the purchase by the United States of Alaska from Russia in 1867 and of the Danish West Indies (now the US Virgin Islands) from Denmark in 1917. Footnote 191

Under the second scenario, a SIDS would merge with another state or would form a union or a federation with one or various other states. While both processes would lead to the disappearance of the SIDS as a sovereign entity, these two options involve different legal processes: a merger would entail absorption of the SIDS by the other state, whose legal personality would remain intact; while a union or federation would lead to the creation of a new legal entity and the extinction of the legal personalities of the formerly separate units (one of them being the former SIDS). As indicated, under both options, the SIDS would lose its statehood to the benefit of the state it was merging with or the newly formed entity by union or federation. Footnote 192 Similarly, the “territory and population would be governed by [either] the terms of the [union or federation]” Footnote 193 or the laws of the state with which the SIDS had merged. It has been suggested, however, that some kind of autonomy could be preserved for the population of the former SIDS. Footnote 194

These two territorial acquisition scenarios obviously raise the issue of the status and fate of the maritime zones of the SIDS. Under the cession scenario, the SIDS could theoretically retain its entitlements to the maritime zones appurtenant to its former territory. Under the merger/union scenario, however, “the zones would belong to [and be under the control and management of] the host state” or the newly fused state. Footnote 195 This outcome has been criticized by Rayfuse since, as she explains, the establishment of maritime boundaries in a manner to achieve equitable results is now recognized under customary international law, Footnote 196 and the retention of maritime zones should follow the same principle. Since the merger/union scenario would trigger the loss of a SIDS’ maritime entitlements, it “would [therefore] appear to be intrinsically inequitable and contrary to international law.” Footnote 197 However, under both scenarios, whether maritime zones could still be claimed in the face of complete submergence of the land territory to which they are related remains uncertain in any event. And while determining the best solution for the preservation of baselines and maritime zones goes beyond the scope of this article, it is significant that maritime zones and “the state’s rights over the valuable marine resources … could offer economic support to populations displaced as a result of sea level rise.” Footnote 198

While the acquisition of territory might be a perfectly acceptable legal solution, it seems very unlikely that any state would agree to give away or share, with or without financial compensation, part of its territory. Footnote 199 Not only would such a state be voluntarily alienating or modifying its sovereignty over the territory in question, an improbable situation considering the rights and entitlements attached to such status, but it would also be risking complex political, social, and economic outcomes. Footnote 200 If such a response to territorial loss were to materialize, however, such a territorial transformation “would arguably constitute a fundamental change to the culture of the islanders” as they would most probably interact with other peoples and modify their relationship to the land. Footnote 201

a sui generis entity: the “deterritorialized” state

The solutions suggested above follow traditional principles of international law and are intrinsically linked to the territorial conception of the state. However, as stated by Tony Puthucherril, “the challenges posed by [sea-level rise] and climate change are sui generis, and these test our fundamental legal assumptions [related to territoriality]. Consequently, there is a discernible demand for unique legal responses.” Footnote 202 One sui generis response, proposed for the first time in the literature by Rayfuse, is the concept of the “deterritorialized” state. This sui generis notion moves away from the idea that territory is a necessary requirement for the existence of states and is therefore of particular interest to the questions underlying this article. Footnote 203

The Deterritorialized State: What Is It?

Simply put, a deterritorialized state would consist of a government or other form of authority that would continue to represent and protect its people and to manage its resources, wherever they were. The state would continue to exist as a member of international organizations, entitled to rights and the bearer of international obligations, even if it lacked territory. Footnote 204 The main benefit of such a new form of organization would be that “[i]n whichever way the former citizens of a vanishing island state continue their lives after having left their homeland … they … could retain a measure of self-determination by exercising independent and autonomous control over their abandoned territory or territorial waters.” Footnote 205

International law is already familiar with the existence of entities that lack a territorial basis, which could facilitate the acceptance of the concept of the deterritorialized state. Footnote 206 Not only are non-territorial entities recognized under international instruments, but, in some cases, they also enjoy limited forms of functional or non-territorial sovereignty. Footnote 207 For example, entities such as the European Union possess some elements of functional sovereignty despite not fulfilling the criteria for statehood. Footnote 208 Another example, which is even more analogous to the situation of potential entities without territory, is the Order of Malta, recognized by various states and enjoying multiple benefits of international legal personality. Footnote 209 The order formerly occupied the territory of Malta but has existed extra-territorially since 1798. The existence of this entity shows that “sovereignty and nation can be separated from territory.” Footnote 210 The striking difference between the Order of Malta and the theoretical deterritorialized state, however, is that the former, while sovereign, is not a state. Footnote 211

Questions nevertheless remain as to the nature and functionality of the proposed deterritorialized state. First, sovereignty concerns must be addressed. For example, as Wong puts it, “would the ‘deterritoriali[z]ed state’ be equal to other states?” Footnote 212 Relegating a former state to the status of a lesser sovereign entity could trigger issues of legitimacy. Footnote 213 Second, if the population were dispersed throughout other states, there is a risk that they would become nationals of those other states, therefore limiting the role of the deterritorialized state to that of “advocate for its diaspora.” Footnote 214 Finally, the exercise of jurisdiction by the deterritorialized state might raise practical challenges. Footnote 215 While prescriptive jurisdiction could be exercised over nationals abroad, and adjudicative jurisdiction could be exercised through cooperation with host states and technical means (for example, video conferences for judicial proceedings), exercises of enforcement jurisdiction by the deterritorialized state in another state’s territory could be seen as interference. Such challenges require that we dedicate attention to some existing mechanisms under international law that could be relied upon to find possible answers.

How Would It Work? Government in Exile and Political Trusteeship Analyzed

How can authority be exercised over a population that might not be on the same territory as the governing body? While relying on the notion of government in exile seems like an appealing solution, “scholars have [also] suggested a resurrection of the political trusteeship system as a means of administering the duties of a ‘deterritorialized’ government.” Footnote 216 While not a solution for the preservation of statehood as such, these mechanisms may be seen as logistical means of administrating a deterritorialized state.

The former option — a government in exile — “accepts governments that are detached from the requirement of territory, or at least locality.” Footnote 217 This form of government, however, requires the continuing existence of the state the government represents. Footnote 218 Based on this premise, it may be possible to push the concept further, to the point of “states-in-exile.” Footnote 219 But when relying on this model, two distinctions must be drawn with the particular situation of states with disappearing territory. Footnote 220 First, in past cases of governments in exile, the population has normally been concentrated on one territory, while the governing authorities have been away in another territory. In the case of SIDS, while displacements could be organized (such as in the resettlement plans already envisaged by various nations), there is also the possibility of the population being dispersed. Footnote 221 Second, a government in exile normally acts temporarily because there should always be “the possibility of restoring its power over a determined territory.” Footnote 222 This would not be the case with SIDS since their territory would be unlikely to re-appear once it was submerged, although this possibility is not officially discarded. Footnote 223

The second option would involve a form of trusteeship system. While the trusteeship regime of the Charter of the United Nations, as it stands, could not be relied upon, its essential structure could still serve as a basis. Footnote 224 A trusteeship entity could be in charge of promoting “the political, economic, social and educational advancement” of the deterritorialized entity. Footnote 225 The nature of such a trusteeship regime, however, would differ from that of the UN Charter. The main purpose would still be the traditional one of “the administration of national assets for the benefit of [the nation’s] people.” Footnote 226 But, as explained by Maxine Burkett, “[a] critical difference in the contemporary application of the trusteeship system is that the purpose of the arrangement would be to maintain self-governance and self-determination, and elected citizens of the [deterritorialized state] would serve as trustees.” Footnote 227 The UN would leave the internal functioning to the new entity, contrary to the managing role of the Trusteeship Council, and would act mainly in support of the transition. Footnote 228

The preservation of the displaced people’s right to self-determination under such a system would be imperative considering that the notion of trusteeship may have negative connotations for SIDS, many of which “have histories as colonies, trust territories, or the like, and have only achieved statehood and sovereignty in recent decades.” Footnote 229 The Marshall Islands, for example, were administered as a trust territory under the supervision of the United States before becoming an independent state. Footnote 230 Trusteeship could therefore be seen as undermining sovereignty and “be interpreted as a lack of capacity of [SIDS] to deal with [the impacts of sea-level rise] by themselves.” Footnote 231 Nonetheless, oversight by an international body could have positive outcomes: “Symbolically, this recognises that an international solution is required for the international problems of climate change. Practically, it ensures that there is international oversight of the process.” Footnote 232

The legitimacy of all of the proposed solutions discussed in this article would be “subject to the acquiescence of the international community.” Footnote 233 While the man-made responses so far do not seem contested, schemes for the acquisition of territory and, above all, the concept of the deterritorialized state, because they have not yet been applied in practice, could benefit from some sort of institutionalized framework that could dissipate uncertainty as to their impact on statehood and sovereignty. Footnote 234

The options analyzed above are geared towards fulfilment of the goals sought by the Westphalian system: the promotion, achievement, and protection of security, stability, peace, certainty, fairness, and efficiency. Footnote 235 The preferred solution for the attainment of these objectives is the physical preservation of the territory of the state, the basis of the Westphalian system, so that its legal equivalent — statehood — can also be preserved. The idea of the deterritorialized state offers an option that detaches state and statehood from territory. However, it also triggers the question of whether the territorial state itself is the only form of social organization that can provide the stability and security so prized by the Westphalian system.

Beyond the Westphalian System: Statehood in the Twenty-First Century

In his inaugural lecture in a series in honour of Sir Elihu Lauterpacht given in 2012, Daniel Bethlehem concluded as follows:

Geographers have a good fortune that lawyers are denied. The law is not about eternal things. It is about the here and now. It is about how humankind organizes and manages its society. We hope that the law is of consequence, and it is our calling to work to this end. But the law can become old-fashioned. Mountains may only rarely change their position, and oceans only very rarely empty themselves of water. But the law is both more vulnerable and more adaptable. The place of geography in the international system is changing. It presents challenges to international law. These are challenges to which we must all rise. Footnote 236

In this statement, Bethlehem suggests that geography is now important for international law in a new way. Geography has always had an impact on the rules of international law and the way they are applied. But what if we are now entering an era where changes in geography influence the system of international law itself, Footnote 237 an era where the most appropriate response to territorial disappearance would be to find an alternative to the territorial state — the basis of the current system — in order to ensure the survival of the state as a form of social organization that is independent of its (former) territory?

In the twenty-first century, we have become well aware of the transboundary reality we now inhabit. From a state-driven system, or what Thomas Friedman calls “Globalization 1.0,” Footnote 238 we have moved towards a “Globalization 2.0,” where actors other than states have emerged as being influential and where situations are not limited to one state’s territory. Footnote 239 However, it would be wrong to limit our understanding of the phenomenon of globalization to the end of the twentieth century. Indeed, “Globalization 1.0” goes back to the end of the Middle Ages, to the era of European exploration and so-called discovery, when “the global” came into existence through channels of “trade between the Old World and the New World.” Footnote 240 Yet, what is new within “global capitalism” is “the shrinking significance of national borders.” Footnote 241 Similarly, non-state actors and civil society have always existed, formerly mostly organized around religious or cultural groups, but what is new is “their phenomenal growth[, …] their diversity of interests,” and the fact that “they have become a force for political change in areas long seen as domestic — outside of international concern.” Footnote 242

While globalization is most often seen from economic, commercial, or communications perspectives, it is also evident in other fields. Footnote 243 For example, Andrew Hurrell, relying on theories of international relations, has underlined the shift from a pluralist statism, in which states evolved as independent and equal entities whose boundaries should not be disturbed, to a solidarist statism, in which norm making not only comes from states but also from other actors and focuses on schemes of cooperation and common values. Footnote 244 This evolution can also be observed within international law: statehood is transformed by interconnectedness, new entities, and “the proliferation of regional and international organizations and legal norms,” showing that the international legal order is not left outside of the globalization equation. Footnote 245

However, it can also be argued that we have now moved to a further stage, “Globalization 3.0,” where the emphasis is put on “the … power for individuals to collaborate and compete globally.” Footnote 246 We have now moved to a realm not only where it is activities and interests that extend beyond the boundaries of a state but also where individuals, human communities, and societies have “gone global,” where they have adapted to become transnational, thus still further eroding the role of the territorial state. These transnational societies face a “more complex social process” Footnote 247 that can even reach a need for interdependence. Footnote 248 Judge Antônio Cançado Trindade argues in favour of the humanization of international law, suggesting that the international community and even humanity itself should become one of its subjects. Footnote 249 And for the international legal system to keep up with these changes and reach such transnationality, it must go “beyond the state, or at least … view the state within the context of a broader legal order,” Footnote 250 one that is in fact characterized by a “network of legal orders” and that will adapt its focus and develop according to the phenomena it wishes to govern. Footnote 251

In the first part of this article, we drew a portrait of the “1.0 reality” of international law, the territorial state-driven regime, and presented the situation of SIDS from that perspective. In the second part, we outlined existing and proposed solutions to ensure the continuity of states with physically disappearing territories, most of which mirror that reality. However, as Bethlehem puts it, “[f]rom a vantage point that is still largely rooted in a Westphalian system … is the system of international law with which we are so familiar, a system still so heavily rooted in notions of territoriality — sovereignty, jurisdiction, regulation, accountability — adequate to the challenges that will face us over the coming period?” Footnote 252 Based on the erosion of the state-driven framing of international law within the “2.0 reality” and on unprecedented geophysical changes, can we conceive a model that builds not only on the interactions between states and non-state actors and transboundary realities but also on an alternative to the territorial state itself? What we suggest here is that a solution to preserve SIDS as social organizations could be built on a modification of existing norms linked to territoriality and even on the complete dissociation of a state as a social community from its territory. Footnote 253

The third part of this article will therefore start with a discussion of legitimacy within international law in an attempt to understand why alternative models are necessary. It will then move to analyze concepts and theories that could be relied upon to build an alternative model to the territorial state and ensure the continuity of SIDS as well as the identity of their populations. It is important to note that this article does not suggest a return to the state of relative anarchy that preceded the establishment of the Westphalian regime, nor does it pretend to offer a turnkey solution for the concerns faced by SIDS. Its objective is modest: it merely desires to identify alternative doctrines that could trigger a debate on the most appropriate and relevant forms of social organization available to those states facing territorial disappearance and to situate these proposed solutions within the evolution of international law. As written by Hurrell, “[u]nless law reconciled itself with the realities of the power-political order, it would … ‘have a moth-like existence, fluttering inevitably and precariously year by year into the destructive flame of power.’” Footnote 254

preserving the legitimacy of international law

Following Hurrell, we gather that the law diminishes in effectiveness when it does not track the concrete realities of politics and, in our case, of territorial disappearance. It is necessary to look into alternative bases for the international legal order because, in its current state, international law provides incomplete solutions to the problems faced by SIDS. One key objective of the law is to act “as a vehicle, or a container, or an instrument for the realization of particular ethical goals or commitments” Footnote 255 and to establish a framework for new circumstances, not only for present generations but also for future ones. Footnote 256 The difficulty international law faces in fulfilling this purpose, therefore, affects its legitimacy and the justification for its application.

Three factors can be identified when discussing what determines whether a system of law is legitimate. Footnote 257 First, legitimacy can be source orientated, referring to the justification for exercising a certain form of authority; under the current state-driven framing of international law, this would be the authority of states. Under this approach, a decision made by an entity would be legitimate if that entity were authorized to act. Footnote 258 Second, legitimacy can be found when the processes employed and the norms applied are “adequate or fair” — this is a procedure-oriented approach to legitimacy. Finally, legitimacy can be result orientated, derived from the outcome of a particular situation. Under this last approach, a system will be considered legitimate if the result reached is considered adequate or fair. Footnote 259 These approaches are not exclusive of one another and can be combined.

In the case of SIDS, it is primarily the third approach to legitimacy that interests us. The outcome — the submergence of states’ territories — is patently unjustifiable when considering that SIDS, while suffering from some of the worst consequences of climate change, have barely contributed to it. Footnote 260 However, the two other approaches described above are also relevant to our analysis: how can the exercise of authority and the processes used — basically the territorial state-centred regime and the current notion of statehood — be considered suitable when they are unable to respond fully to the practical problems currently faced by SIDS and the potential uncertainty of their status stemming from the physical disappearance of their territory?

The inadequacy of the territorial state as the basis of the system affects not only the system’s legitimacy in achieving its purpose of maintaining order, security, and stability but also its practical ability and efficacy in doing so. Footnote 261 Further, to be legitimate, international law must create a setting in which entities that are in line with reality (for example, deterritorialized states) are viable and recognized. Footnote 262 The physical disappearance of states’ territories and the consequences that ensue from such disappearance show that current international law fulfils these elements of legitimacy only with great difficulty. The uncertainties that territorial disappearance creates, mostly within the regimes of the law of the sea and migration, show that order and stability are already threatened, and other entities (for instance, governments in exile) are only recognized in limited and specific circumstances, often linked to political considerations. Footnote 263 The legitimacy of the system is therefore affected.

In parallel, as argued by Allen Buchanan in his moral theory of international law, a standard of minimal justice is a necessary condition for the realization of the legitimacy of international law. This standard manifests itself not through “peace among states, but [through] justice embedded in the effective protection of fundamental human rights.” Footnote 264 Following this theory, morality in international law would translate into the protection and promotion of human dignity and human rights as shared values. Footnote 265 However, one must be careful when characterizing such values as “common” as they find their roots in Western-oriented philosophies. This is why it has been suggested that an inter-civilizational approach should be preferred, focusing on the integration of plural values rather than on the universalization of Western-based values. The morality and legitimacy of the system, as well as a standard of minimal justice, would therefore be achieved by relying on common conditions and practices but within the particular context of a specific society and specific circumstances. Footnote 266

Both approaches, however, have a similar focus: a legitimate and moral international system is one that defines states in terms of human communities, without necessarily linking them to territorial entities. Footnote 267 This reflects the interests advanced by “Globalization 3.0,” namely the reliance on individuals, communities, and societies and their interaction. Similarly, and complementarily, a legitimate and moral international system is one that builds on a normative framework adapted to current realities.

In the case that interests us, the use of international law to address the issue of disappearing territory would be legitimized by looking at SIDS as social entities and considering this as the key aspect of their continuity. It is within this theoretical framework that this article suggests looking at some concepts that could help reconcile the practical reality of territorial disappearance with legitimacy and morality within the international legal order.

when realities transcend borders: possible bases for a new model

As shown above, current realities have a “geography-defying quality.” Footnote 268 The submersion of territory represents the ultimate example of such defiance: it drives us away from the premise of the perpetuity of the geophysical territories of states. Footnote 269 The ideas of the deterritorialized state and other entities without territory discussed earlier in this article demonstrate that international law has already been confronted with alternative models to the idea that a state as a form of social organization is necessarily linked to territory. Footnote 270

This section will look at three theoretical lenses through which we might understand how to expand international law to accommodate the difficult and sui generis situation of SIDS in terms of their future statehood and self-determination after they lose their territory — namely the growing importance of individuals and communities as part of a cosmopolitan approach to social organization; global governance; and the role of equity and moral duty. We will look additionally at the limitations of these theories. It is also worth noting that while the ideas suggested rest mostly on ethical and policy-based concepts rather than on purely legal ones, we believe that international law, without losing its legal focus, can benefit from looking at related disciplines, especially when facing challenges it is not quite prepared to tackle as it currently stands.

Diasporas and Cosmopolitanism

As discussed above, to be legitimate within current realities, the international order should develop by focusing on human communities. Burkett has looked at the possibility of relying on the population of SIDS as the sole element of social organization and the continuity of these states (that is, without territory) through the use of two concepts: the role played by diasporas and the cosmopolitan theory. Footnote 271 Before discussing how these concepts have evolved, a word must be said on that to which they are opposed: boundaries. Indeed, a boundary was originally seen as drawing a line between “[w]ho is and who is not a member of a particular community … between members and strangers, insiders and outsiders.” Footnote 272 Buchanan similarly refers to the congruence assumption — that is, the assumption that the membership boundary coincides with the geographical boundary. Footnote 273 Citizenship brought this idea of belonging within the legal realm: citizens are part of the group, while non-citizens are not.

Diasporas, and migrant groups in general, provide evidence that belonging to a specific group goes beyond boundaries. Footnote 274 It shows that the “deterritorialization” of communities “is another process of imaginary nation-building born of displacement, [sharing] many characteristics of … long-distance nationalism.” Footnote 275 The existence of these groups also stimulates further migration, acting as an attracting pole for other members of the same community who will rely on their peers for connections and networks to facilitate their establishment. Footnote 276 Under a diasporic theory of belonging, the rights and duties between members of a group are held independently of where the members of that group are physically located. The diasporic theory therefore moves the focus away from the nation-state and reorients it towards the nation, understood as a community or society that shares similar historic and cultural characteristics.

Cosmopolitanism has pushed the concept of belonging even further and brings us to another meaning behind the word “nation,” one that builds on the notion of “togetherness.” Based on a shared morality, persons belong to a global community, independently of their origin, cultural or religious background, and affiliation. Footnote 277 Cosmopolitanism has been defined as “a global politics that … projects a sociality of common political engagement among all human beings across the globe.” Footnote 278

Prima facie, cosmopolitanism seems contradictory to the diasporic theory. It seems that cosmopolitanism would threaten or destroy the sense of community that members of formerly territorially based groups have with one another in favour of a homogeneous global community. However, cosmopolitanism does not entail the dilution of cultural identities — it builds on “differential equality (together, but different),” Footnote 279 on the inclusion of these communities within “transcendent solidarities,” based on a moral duty to preserve common values. Footnote 280 As explained by Burkett, refugees — and environmentally displaced people — would benefit from belonging to a global community that could provide them with such transcendent support. Footnote 281

In short, social entities that are not necessarily related to a territorial area are concepts that the territorial state-driven system is ill-equipped to capture since that system builds on the premise that belonging to a group is grounded in the exercise of rights and duties that are themselves dependent on shared territorial location. Footnote 282 Therefore, the diasporic and cosmopolitan theories both rely on a concept of social belonging that would exist independently of territory and that could be used to ensure the continuity of SIDS as social entities.

These theories, however, present some limitations. First, they appropriately put the emphasis on human communities, which should be the main focus, given the current reality, but, for now, still lack pragmatic elements that would be required to be considered as a complete basis for social organization. How would the rights and obligations of the dispersed people be instantiated? How could the members of the diasporically scattered group make claims against one another and satisfy their mutual obligations? Would the rights and obligations between members of the group become correspondingly weaker as they move further apart physically? This raises the question of whether it is really conceivable, on a long-term basis, to ensure the survival of a community and its “feeling of belonging” without any link to territory. Footnote 283

Furthermore, applied to the particular situation of the populations of SIDS, it is necessary to take into consideration the actual will of these populations. Is falling under the label of “global citizens” really what they are hoping for, especially in a context where “the distinction between ‘us’ and ‘them’ … remains a pervasive syndrome of humankind,” even if the world has “become a ‘global neighbourhood’ in some respects”? Footnote 284 These populations want to be helped in order to survive as they now are, and the diasporic and cosmopolitan theories fail to address such a desire clearly.

Global Governance

The main thrust of the critique is that international law is ineffective in solving global problems as those problems become more salient. To an unprecedented extent, national polities have become — or have begun to understand that they are — dependent on, and vulnerable to, forces and dynamics outside their own boundaries. Although the problems cannot typically be solved through national action alone, the requisite transboundary measures often face severe collective-action problems, which international law is generally unable to overcome. Footnote 285

The situation of SIDS illustrates the global problems to which Nico Krisch refers in this passage. Not only does uncertainty relating to maritime zones affect SIDS themselves, but it also affects the international community because of the potential impacts of territorial disappearance on areas beyond national jurisdiction and the resources found in these areas. Similarly, concerns related to migration and climate change are inherently transboundary in nature. We suggest that alternative solutions that address the global character of the consequences faced by SIDS can be found within the doctrine of global governance. This theory could therefore be used to reach both a procedure-oriented (through global processes) and a result-oriented (through global solutions) legitimacy of the international system’s response to the situation of SIDS.

The shaping of international law is connected to the development of public policy. Footnote 286 By importing the concept of governance into the legal realm, international law became willing to abide by the principle of “close cooperation by states and other actors to achieve desired objectives.” Footnote 287 Indeed, governance can be seen as a way to complement the role of international law because “in contrast to traditional forms of international law, [governance is] characterized by a focus on the dynamic of processes, as opposed to stable structures … by the permeability of state ‘borders’ in both the literal, and the symbolic, sense.” Footnote 288

The related doctrine of global governance suggests an organizational structure for the international regime that goes “beyond the state,” Footnote 289 that envisages the “prospect of a new world order in a future ‘world state’.” Footnote 290 The doctrine was also suggested as the way to establish an organizational and institutional cosmopolitanism. Footnote 291 Global governance therefore brings the issues faced by SIDS within a sphere that transforms these issues from being “their concern” to being “our concern” and, in fact, “everyone’s concern.” This, we believe, triggers more global interest and accountability towards these issues and leads to solutions characterized and applied beyond the limits of one’s state territory.

Global governance also posits that the creation of norms must be based on a mechanism of rule making and decision making besides state consent. Footnote 292 Indeed, the number of states and of other actors, as well as the complexity of the international legal regime, “makes consent an increasingly fictitious means of justifying norms.” Footnote 293 Broader and more pluralistic mechanisms of norm making should therefore be envisaged Footnote 294 — for example, opting for soft law instruments and informal regulations; Footnote 295 favouring “club negotiations” (that is, only including states and other actors that have a major impact in a particular field); Footnote 296 looking for solutions in various regimes and legal orders; and so on. Footnote 297 Global governance therefore makes doctrinal space for permeable boundaries, transnationalism, and a broader perspective on norm making and decision making. This creates an appropriate framework for addressing the situation of SIDS, which, as can be seen, presents unprecedented practical and legal dilemmas.

Yet, while global governance theory proposes taking into account global interests and mechanisms that could help address the consequences stemming from the disappearance of SIDS’ territories, the doctrine does not necessarily question the status of the state as a main actor under international law. Footnote 298 The theory might be sufficiently well developed to shed light on the changes brought by globalization to international society and the international legal order, but it is weaker at providing a critical analysis of the state-centred regime and at suggesting an alternative form of social organization dissociated from territory. Footnote 299

Equity and Moral Duty: Exceptional Solutions for Exceptional Circumstances

The third path for grounding the legitimacy of international law in accommodating the realities of territorial disappearance is two-pronged: first, it implies a possible extension, or broad interpretation, of existing rules, and, second, it suggests that the international community is bound by a moral duty to recognize the continuing existence of SIDS independently of their territory. Footnote 300 These two approaches are based on the notion of equity as a principle of fairness and reasonableness. Footnote 301 “Equity” may refer to a power of complementarity, allowing decision makers to exercise their discretionary power within what is prescribed by law in ways that are proportional to the power exercised by other decision makers. Footnote 302 It may also refer to the possibility of a more autonomous power of norm creation, outside the law or even in contravention of it, Footnote 303 which makes equity, as Francisco Francioni puts it, “a catalyst for change and modernization of the law.” Footnote 304

Under the first of the understandings stated above, equity as a way of achieving fairness would justify “significant departures from precedent or the legal status quo,” Footnote 305 manifesting itself through a broader interpretation and application of existing rules and, eventually, as discussed under the doctrine of global governance, a broader and more pluralistic variety of norm making mechanisms. Footnote 306 And not only could rules be interpreted and applied more flexibly; moral considerations might also inform what these rules should address, suggesting a focus not on “entitlement to, but on responsibility for” the object or interest they address (for example, resources, protection of human rights, and so on). Footnote 307

A concrete example of the extension of rules following an equity-based analysis of territorial disappearance and state continuity can be found within the law of self-determination. A self-determination unit (for instance, a community or people) normally expresses its right to self-determination against another entity, traditionally a state or a colonial power. Footnote 308 Populations of SIDS, as members of sovereign states recognized by the international community, are undoubtedly bearers of this right. The preservation of the right to self-determination of these populations without reference to a defined territory will involve extending the meaning and application of the right since the right will not be raised against another entity but, rather, sought to be preserved in the abstract. Footnote 309 Alternatively, if, as suggested by Nine, we consider that this right can only be fully expressed in relation to physical territory, and in light of the fact that there is little or no more unoccupied territory available, territorial rights and entitlements of other states will have to be modified to fulfil the moral duty of providing these populations with access to territory. Footnote 310 The existing rule of self-determination is therefore extended to achieve equity.

Under the second understanding of equity, if continuity of statehood cannot be accommodated under an expansion or creation of positive law, we could rely on equitable reasoning to continue recognizing states with physically disappearing territory. Footnote 311 Equity would, in itself, become the end to be achieved. This would be translated as a moral duty for the international community to ensure such recognition, based on “international justice and solidarity.” Footnote 312 In other words, “if the international community does not act quickly enough to prevent small island states from losing their effective statehood, the acknowledgment of their entitlement to survive as a legal community is the least that is owed to them.” Footnote 313 As the example of self-determination once again illustrates, the international community would have the moral duty to recognize the continuing expression of the right of self-determination by the populations of SIDS.

What equity and morality suggest is that exceptional circumstances — the circumstances of climate change and sea-level rise faced by SIDS, created by geophysical phenomena and enhanced by the conduct of other states and leading to unprecedented uncertainty as to their survival Footnote 314 — in themselves justify a departure from the norm — that is, a departure from the classical requirements for statehood and from the territorial state regime. Footnote 315 What we are defending here is that the exceptional nature of the situation calls for exceptional solutions. As Jain points out, “[i]f the historically exceptional nature of the submergence of an entire state … cannot justify exceptionalism, then nothing can.” Footnote 316

Equity and morality, as with the other theoretical lenses explored above, present some limitations. First, these concepts suggest a path towards the expanded applicability of existing rules and rule-making mechanisms of international law, but they fail to explain how this would be translated into legal mechanisms. Second, equity as an end in itself that triggers a moral duty for the international community is also dependent on political will and geopolitical realities. In the end, “[d]espite the rhetoric of a ‘borderless world’ and the ‘end of geography’, globalization has not reduced the political significance of borders and boundaries,” suggesting that the state-centred regime and the model of the territorial state are not so easily eroded. Footnote 317

In any event, the three theoretical lenses outlined above contemplate the expansion of international law through the adoption of new values. Footnote 318 They are “slogans” at the crossroads between norms, rules, and values. They can be interpreted either as having normative force or as being mere labels from which no rule can be deduced but which can serve as a basis for the development of something new. The power to determine what interpretation is to be given to which concept lies in the hands of what remain, for now, the main actors of the current regime —states. Footnote 319

In spite of these observations, we believe the concepts of diasporas and cosmopolitanism, global governance, and equity and morality remain relevant to the issues addressed in this article. It is true that none of them, taken individually, suggest a clear alternative to the model of the territorial state. However, they may, particularly if considered in the context of one another, shape the mindset that one should adopt when aiming for a change in how we conceive the international legal system, by pointing the way towards a broader norm-making arena.

Conclusion

The reality of territorial disappearance faced by SIDS is unprecedented and triggers a new interaction between geography and law: “[T]ransformations do not happen on a territory but are undergone by a territory.” Footnote 320 The consequences of such transformations are also twofold: not only are they practical and factual, but they are also legal, shedding light on the gaps in various existing regimes that may be used to address such consequences. Submersion of territory has therefore brought us to question “whether such a new phenomenon, having such broad repercussions, could alter fundamental representations of international law,” most particularly the main model of organization, security, and stability at the core of the international legal order — the territorial state. Footnote 321

States as subjects of international law are the result of the interconnectedness between the two meanings of the notion of “state”: the way a social community organizes itself and the territory occupied by that community. The entitlements associated with statehood, held by either the state itself or its population, are rooted in a notion of territory that intrinsically links the current international legal regime to territoriality or connection to a particular geographic area. The threat of the physical disappearance of a state’s territory due to sea-level rise and other climate change-induced consequences therefore not only raises questions related to the continuity of the state as a legal entity but also triggers far broader impacts. For example, uncertainty ensues as to the preservation of the entitlements of states over their maritime resources, issues of migration and protection of human rights arise, and questions related to the right of self-determination of peoples are triggered. Furthermore, concerns relating to obligations owed to affected states and populations, including the relevance of the regime of state responsibility in general and in the context of climate change, result.

Most responses to these issues to date are also rooted in the traditional importance of territory as a component of statehood. Indeed, they focus on the preservation or acquisition of territory. The concept of the deterritorialized state, however, departs from a purely territorial notion of the state, focusing instead on its community-oriented meaning. It is exactly this possibility — a meaning of “state” detached from its territorial component — that this article has assessed. We have examined concepts that can be relied upon to suggest an alternative model to the territorial state that would be better adapted to the reality of territorial disappearance. In a globalized context, where a variety of actors interact with each other in situations that transcend borders, the legitimacy of a territorial state-driven regime is questionable. Legitimacy, assessed from a moral perspective, will be reached by focusing on a standard of minimal justice, linked to the protection of human rights held by individuals and communities and on an inter-civilizational integration of values. A legitimate and moral international system is one that defines the state in terms of human communities and that suggests a normative framework adapted to current realities. And to be legitimate, international law must “vacillate ... between meeting the needs of present justice, on the one hand, and future justice, on the other.” Footnote 322

The theoretical lenses looked at, without clearly suggesting an alternative model to the territorial state, propose new ways of approaching the international legal regime. Indeed, despite the limitations they present, the diasporic and cosmopolitan theories, the concept of global governance, and the equitable and moral doctrines, particularly if considered together, suggest ways of developing a form of social organization, a model aiming at stability and security that is not anchored in territory. Nevertheless, a complete solution to the issues discussed will have to move from the theoretical realm to the realm of behaviour and state practice for international law to really come into play. Footnote 323

It would be naive — and even wrong — to claim that the state should be relegated to the background of the international legal regime. States remain the primary subjects of international law. As suggested by Judge Cançado Trindade, claiming that other subjects of international law should be taken into consideration or that new subjects should be envisaged does not mean that the state should be replaced. It merely means that states coexist with other actors and share with them the sphere that is international law. Footnote 324 What we are suggesting is to think outside the box that is the regime’s intrinsic connection to territoriality. The importance of the current model is seen through the desire of non-state actors and new entities to be recognized by international law instead of challenging its actual structure. Footnote 325 However, following such reasoning and relying on current structures offers limited solutions to the practical realities of SIDS. And the need for solutions is pressing. While the transboundary regimes of migration, climate change, and the law of the sea have been discussed in this article, territorial disappearance has a reach that is much broader, “also [opening] the possibility for conflict and disputes” Footnote 326 and bringing to the fore issues of international peace and security. Footnote 327

Will the territorial state-based international regime survive through mere evolution or will it face a complete revolution? While Serge Sur is of the opinion that “transformation does not mean metamorphosis,” we dare to say that the most appropriate solution will not only be one that transcends territorial borders but also one that steers away from them; one that takes into consideration not only a transboundary reality but also a “beyond border” reality. Footnote 328

References

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6 Kwiecién, supra note 5 at 288, 310–11; Crawford, Emily & Rayfuse, Rosemary, “Climate Change and Statehood” in Rayfuse, Rosemary & Scott, Shirley, eds, International Law in the Era of Climate Change (Cheltenham, UK: Edward Elgar, 2012) 243 at 245Google Scholar; Buchanan, Allen, “The Legitimacy of International Law” in Besson, Samantha & Tasioulas, John, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010) 79 at 91Google Scholar, 93 [Buchanan, “The Legitimacy”]; John Herz, “Rise and Demise of the Territorial State” (1957) 9:4 World Politics 473 at 480; Inger Österdahl, “Relatively Failed: Troubled Statehood and International Law” (2003) 14 Finnish YB Int’l L 49 at 49; Ian Brownlie, “Rebirth of Statehood” in Malcolm Evans, ed, Aspects of Statehood and Institutionalism in Contemporary Europe (Dartmouth, UK: Aldershot, 1996) 5 at 6; Abhimanyu George Jain, “The 21st Century Atlantis: The International Law of Statehood and Climate Change-Induced Loss of Territory” (2014) 50 Stan J Int’l L 1 at 7–9.

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11 Ibid at 4.

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14 Schofield & Arsana, supra note 13 at 2.

15 Ibid; Puthucherril, supra note 9 at 232.

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17 Jain, supra note 6 at 12, referring to, eg, Michele Klein Solomon & Koko Warner, “Protection of Persons Displaced as a Result of Climate Change: Existing Tools and Emerging Frameworks” in Gerrard & Wannier, supra note 1, 243; Alice Edwards, “Climate Change and International Refugee Law” in Rayfuse & Scott, supra note 6, 58; Catherine Redgewell, “Climate Change and International Environmental Law” in Rayfuse & Scott, supra note 6, 118; Schofield & Freestone, supra note 13; Maketo Robert et al, “Transboundary Climate Challenge to Coal: One Small Step against Dirty Energy, One Giant Leap for Climate Justice” in Gerrard Wannier, supra note 1, 589; Jacob David Werksman, “Could a Small Island Successfully Sue a Big Emitter?: Pursuing a Legal Theory and a Venue for Climate Justice” in Gerrard & Wannier, supra note 1, 409. See also Jenny Grote Stoutenburg, “Implementing a New Regime of Stable Maritime Zones to Ensure the (Economic) Survival of Small Island States Threatened by Sea-Level Rise” (2011) 26 Int’l J Mar & Coast L 263 [Stoutenburg, “Implementing”]; Schofield & Arsana, supra note 13.

18 Crawford, James, The Creation of States in International Law, 2nd edition (Oxford: Oxford University Press, 2006);Google Scholar Thomas Grant, “Defining Statehood: The Montevideo Convention and Its Discontents” (1998–99) 37 Colum J Transnat’l L 403; Jure Vidmar, “Territorial Integrity and the Law of Statehood” (2012) 44 Geo Wash Int’l L Rev 697; Österdahl, supra note 6.

19 Jain, supra note 6 at 13, referring to Burkett, “Nation Ex-Situ,” supra note 8; Stoutenburg, “When Do,” supra note 1; Crawford & Rayfuse, supra note 6; Maxine Burkett, “The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood and the Post-Climate Era” (2011) 2 Climate Law 345; Vidas, supra note 2; Wong, supra note 3.

20 Crawford & Rayfuse, supra note 6 at 249–50.

21 ILA, Committee on Baselines under the International Law of the Sea (CB), Final Report (Sofia, 2012) at 1, online: ILA <http://www.ila-hq.org/en/committees/index.cfm/cid/1028> [ILA CB], cited in Vidas, Freestone & McAdam, supra note 12 at 401.

22 Montevideo Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19 [Montevideo Convention]. While the other criteria (government and capacity to enter into relations with other states) are touched upon, they are not at the core of the analysis.

23 Österdahl, supra note 6 at 87.

24 Vidas, Freestone & McAdam, supra note 12 at 400–01.

25 Jeanneney, supra note 8 at 97.

26 See, eg, Shaw, supra note 7 at 143.

27 See, eg, Jain, supra note 6 at 7.

28 Leo Gross, “The Peace of Westphalia, 1648–1948” (1948) 42 AJIL 20 at 20, cited in Wong, supra note 3 at 352. See also Daniel Bethlehem, “The End of Geography: The Changing Nature of the International System and the Challenge to International Law” (2014) 25:1 EJIL 9 at 13; Sterio, supra note 5 at 211.

29 Wong, supra note 3 at 353.

30 Throughout this article, “territoriality” is used in its general sense — that is, a link or connection to a particular territory. It is not limited to the territoriality principle of jurisdiction under international law.

31 Herz, supra note 6 at 475, 477.

32 Jain, supra note 6 at 23; Burkett, “Nation Ex-Situ,” supra note 8 at 106; Österdahl, supra note 6 at 76.

33 Wong, supra note 3 at 365. See also Andrew Hurrell, “International Law and the Making and Unmaking of Boundaries” in Buchanan & Moore, supra note 7, 275 at 279–80.

34 Wong, supra note 3 at 365–66. See also “Yugoslavia Peace Conference Opinion No 1” (1991) 92 ILR 162 at 165 (Arbitration Commission of the Conference on Yugoslavia), cited in Wong, supra note 3 at 354–55; Vidas, supra note 2 at 81–82.

35 Nine, supra note 4 at 362. The issue of self-determination will be discussed in further detail below.

36 Jain, supra note 6 at 23. See also Nine, supra note 4 at 362; Allen Buchanan, “The Making and Unmaking of Boundaries: What Liberalism Has to Say” in Buchanan & Moore, supra note 7, 231 at 232 [Buchanan, “The Making”]; Buchanan & Moore, supra note 7 at 6; Hurrell, supra note 33 at 279.

37 Surya Sharma, Territorial Acquisition, Disputes and International Law (The Hague: Martinus Nijhoff, 1997) at 4, cited in Wong, supra note 3 at 365–66. See also Burkett, “Nation Ex-Situ,” supra note 8 at 103.

38 Jain, supra note 6 at 22–23.

39 Jeanneney, supra note 8 at 105: “comme réalité factuelle et comme construction juridique … un cadre fonctionnel.”

40 Vidas, supra note 2 at 78.

41 Charter of the United Nations, 24 October 1945, 1 UNTS XVI, art 2(4) [UN Charter].

42 Bethlehem, supra note 28 at 13; Vidmar, supra note 18 at 707.

43 Shaw, supra note 7 at 479–84; Bethlehem, supra note 28 at 13–14.

44 Vidmar, supra note 18 at 699–700.

45 Schachter, supra note 5 at 9. See also Yves Petit, “Les risques environnementaux globaux et les transformations de la souveraineté” in Mouton & Cot, supra note 4, 177 at 179.

46 Brownlie, supra note 6 at 5.

47 Österdahl, supra note 6 at 68.

48 Jain, supra note 6 at 51, 24–25.

49 Ibid at 51. See also Jeanneney, supra note 8 at 116. The issues of the creation and continuity of states are discussed in greater detail in the next sub-section.

50 Österdahl, supra note 6 at 68–69.

51 See, eg, Wong, supra note 3 at 352; Grant, supra note 18 at 413.

52 See, eg, Grant, supra note 18 at 455–56; David Harris, Cases and Materials on International Law, 7th edition (London: Sweet & Maxwell, 2010) at 92, cited in Wong, supra note 3 at 353; Jeanneney, supra note 8 at 101.

53 Montevideo Convention, supra note 22, art 1.

54 Grant, supra note 18 at 413–14; Wong, supra note 3 at 354; Jeanneney, supra note 8 at 101.

55 Louis Henkin, International Law: Politics and Values (Dordrecht: Martinus Nijhoff, 1995) at 13, cited in Jain, supra note 6 at 16.

56 Grant, supra note 18 at 453. See also Österdahl, supra note 6 at 87.

57 Grant, supra note 18 at 437–47, 450–51.

58 See further Stoutenburg, “When Do,” supra note 1 at 73–74.

59 The necessity of recognition by other states forms the basis of the constitutive theory, one of the two theories of statehood under international law, the other being the declaratory theory, which is based solely on satisfaction of the Montevideo criteria. For more on this topic, see, eg, Shaw, supra note 7 at 150–51.

60 While there might be no express definition of state or statehood under international law, these “newly considered” elements, taken together with the classical criteria described above, as well as state practice, still form a set of tools that could be relied upon as a functional definition of statehood by a decision maker required to determine whether an entity should be considered a state.

61 Crawford & Rayfuse, supra note 6 at 246.

62 Grant, supra note 18 at 447.

63 Wong, supra note 3 at 351; Stoutenburg, “When Do,” supra note 1 at 57; Jain, supra note 6 at 6, 52.

64 Crawford, supra note 18 at 52; Western Sahara, Advisory Opinion, [1975] ICJ Rep 12 at para 81.

65 Stoutenburg, “When Do,” supra note 1 at 61, 64–65; In Re Duchy of Sealand, [1978] 80 ILR 683 at 687 (Administrative Court of Cologne), cited and discussed in Michael Gagain, “Climate Change, Sea Level Rise, and Artificial Islands: Saving the Maldives’ Statehood and Maritime Claims through the ‘Constitution of the Oceans’” (2012) 23 Colo J Int’l Envt’l L & Pol’y 7 at 116–17.

66 Stoutenburg, “When Do,” supra note 1 at 90.

67 Crawford & Rayfuse, supra note 6 at 246; Jain, supra note 6 at 18, 21.

68 Wong, supra note 3 at 355; North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands), [1969] ICJ Rep 3 at 32–33, cited in Gagain, supra note 65 at 90.

69 Wong, supra note 3 at 355. See also In Re Duchy of Sealand, supra note 65 at 685.

70 The issue of artificial structures will be discussed further in the second part of this article.

71 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Merits, Judgment, [2001] ICJ Rep 40 at para 100, cited in Stoutenburg, “When Do,” supra note 1 at 60.

72 Island of Palmas case (or Miangas) (United States v The Netherlands), [1928] II RIAA 829 at 839, cited in Crawford & Rayfuse, supra note 6 at 250.

73 See Vidas, supra note 2 at 78–79.

74 Rosemary Rayfuse, “International Law and Disappearing States: Maritime Zones and the Criteria for Statehood” (2011) 41:6 Envtl Pol’y & L 281. See also Lilian Yamamoto & Miguel Esteban, “Vanishing Island States and Sovereignty” (2010) 53 Ocean & Coastal Management 1 at 6 [Yamamoto & Esteban, “Vanishing Island”].

75 Ineta Ziemele, “States, Extinction of,” Max Planck Encyclopedia of Public International Law (May 2007) at para 3, online: <http://opil.ouplaw.com/home/EPIL>.

76 Jeanneney, supra note 8 at 98–99.

77 Wong, supra note 3 at 362.

78 Crawford, supra note 18 at 701; Jain, supra note 6 at 27.

79 Crawford & Rayfuse, supra note 6 at 246–47. See also Grant, supra note 18 at 435; Sterio, supra note 5 at 216.

80 Jain, supra note 6 at 35.

81 Montevideo Convention, supra note 22, art 6: “The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.” Cited in Lilian Yamamoto & Miguel Esteban, Atoll Island States and International Law (Berlin: Springer, 2014) at 186 [Yamamoto & Esteban, Atoll Island].

82 Grant, supra note 18 at 435; Gagain, supra note 65 at 91; Jeanneney, supra note 8 at 102–03; Colin Warbrick, “Recognition of States: Recent European Practice” in Evans, supra note 6, 9 at 13.

83 See, generally, eg, Jain, supra note 6; Yamamoto & Esteban, Atoll Island, supra note 81 at 202.

84 Jain, supra note 6 at 27.

85 Ibid at 9. See also Sterio, supra note 5 at 217–19, on the reasons for which statehood is important.

86 Yamamoto & Esteban have argued that since they are recognized as UN members, SIDS could not lose that membership only by losing recognition of their statehood by other states. Indeed, according to art 6 of the UN Charter, supra note 41, UN membership can only be lost if the principles of the Charter have been violated, which would not generally be the case with SIDS. See Yamamoto & Esteban, Atoll Island, supra note 81 at 202.

87 Wong, supra note 3 at 349.

88 Ibid at 349–50.

89 Jain, supra note 6 at 28, 33.

90 Crawford & Rayfuse, supra note 6 at 248.

91 Crawford, supra note 18 at 5, cited in Wong, supra note 3 at 352; Vidmar, supra note 18 at 702, 747; Warbrick, supra note 82 at 12; Sterio, supra note 5 at 215–16.

92 Rosemary Rayfuse, “Sea Level Rise and Maritime Zones: Preserving the Maritime Entitlements of ‘Disappearing’ States” in Gerrard & Wannier, supra note 1, 167 at 177 [Rayfuse, “Sea Level Rise”].

93 Burkett, “Nation Ex-Situ,” supra note 8 at 92.

94 David Freestone, “Can the UN Climate Regime Respond to the Challenges of Sea Level Rise?” (2013) 35 U Haw L Rev 671 at 672 [Freestone, “Can the UN”].

95 Gagain, supra note 65 at 93

96 See, eg, Gregory Wannier & Michael Gerrard, “Overview” in Gerrard & Wannier, supra note 1, 3 at 8; Freestone, “Can the UN,” supra note 94 at 674, quoting Schofield & Freestone, supra note 13 at 141.

97 Ann Powers & Christophe Stucko, “Introducing the Law of the Sea and the Legal Implications of Rising Sea Levels” in Gerrard & Wannier, supra note 1, 123 at 131; Gagain, supra note 65 at 94.

98 Powers & Stucko, supra note 97 at 132.

99 Gagain, supra note 65 at 94.

100 Maas & Carius, supra note 12 at 656.

101 Puthucherril, supra note 9 at 258.

102 See, e.g. Jeanneney, supra note 8 at 109.

103 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, art 121(3) [UNCLOS]. See also Yamamoto & Esteban, “Vanishing Island,” supra note 74 at 6.

104 Vidas, supra note 2 at 75.

105 Stoutenburg, “When Do,” supra note 1 at 78. See also Gagain, supra note 65 at 94–95; ILA SLR 2014 Closed, supra note 8 at 2.

106 UNCLOS, supra note 103, arts 5, 57, 76(1). See also, eg, Gagain, supra note 65 at 95–96.

107 See, eg, Caron, “When Law,” supra note 16 at 632.

108 ILA CB, supra note 21 at 31.

109 See, eg, Soons, supra note 16; Stoutenburg, “Implementing,” supra note 17 at 275; Moritaka Hayasi, “Sea Level Rise and the Law of the Sea: Legal and Policy Options” (International Symposium on Islands and Oceans, Tokyo, 22–23 January 2009) 79 at 82; Moritaka Hayasi, “Sea-level Rise and the Law of the Sea: How Can the Affected States be Better Protected” in Clive Schofield, Seokwoo Lee & Moon-Sang Kwoon, eds, The Limits of Maritime Jurisdiction (Leiden: Brill, 2013) 609 at 616–17 [Hayasi, “Affected States”]; ILA, SLR, Draft Conference Report (Johannesburg, 2016) at 12–4, online: ILA <http://www.ila-hq.org/en/committees/index.cfm/cid/1043> [ILA SLR 2016].

110 See, eg, Stoutenburg, “Implementing,” supra note 17 at 275.

111 UNCLOS, supra note 103, arts 49, 52–53.

112 Yamamoto & Esteban, “Vanishing Island,” supra note 74 at 7.

113 Burkett, “Nation Ex-Situ,” supra note 8 at 107, citing Rosemary Rayfuse, “W(h)ither Tuvalu? Oceans Governance and Disappearing States” (International Symposium on Islands and Oceans, Tokyo, 22–23 January 2009) at 101 [Rayfuse, “W(h)ither Tuvalu”].

114 ILA, SLR, Minutes of the Open Session (Washington, 2014) at 5, online: ILA <http://www.ila-hq.org/en/committees/index.cfm/cid/1043> [ILA SLR 2014 Open].

115 Puthucherril, supra note 9 at 234–35. The term “environmentally displaced persons” is preferable to expressions such as environmental, ecological or climate refugees because there is legal uncertainty as to whether people forced to move for environmental reasons, including climate change, can benefit from refugee protection. Further, the expression “environmentally displaced persons” covers both people who are suddenly displaced because of natural disasters, and people who have to move gradually or in a planned manner: see Yamamoto & Esteban, Atoll Island, supra note 81 at 288.

116 Vidas, Freestone & McAdam, supra note 12 at 405–06 (emphasis in original).

117 Ibid.

118 Commission on Human Rights, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, Submitted Pursuant to Commission Resolution 1997/39: Addendum: Guiding Principles on Internal Displacement, UNESC, Doc E/CN.4/1998/53/Add.2 (1998).

119 Ibid at 3, para 9. See also Puthucherril, supra note 9 at 246.

120 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150, art 1A(2) [Refugee Convention].

121 See, eg, BG (Fiji), [2012] NZIPT 800091; AF (Kiribati), [2013] NZIPT 800413; AD (Tuvalu), [2014] NZIT 800517–520.

122 Puthucherril, supra note 9 at 252. See also Yamamoto & Esteban, Atoll Island, supra note 81 at 234; Jeanneney, supra note 8 at 107–09.

123 AF (Kiribati), supra note 121 at para 57.

124 International Law Commission (ILC), Protection of Persons in the Event of Disasters: Texts and Titles of the Draft Articles Adopted by the Drafting Committee on First Reading, Doc A/CN.4/L.831 (2014).

125 Stoutenburg, “When Do,” supra note 1 at 76–77 (emphasis added). On the issue of cultural identity, see also ILA SLR 2016, supra note 109 at 17.

126 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, art 1(1) [ICCPR]; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art 1(1) [ICESCR]. The same wording is used in the Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514 (XV), UNGAOR, Doc A/RES/1514(XV) (14 December 1960) at para 2. See also Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV), UNGAOR, Doc A/RES/25/2625 (24 October 1970) at principle 5. Mostly used in the context of decolonization, the concept of self-determination, however, has been applied outside this traditional context. See, eg, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, [2010] ICJ Rep 403 at para 79; Daniel Thürer & Thomas Burri, “Self-Determination,” Max Planck Encyclopedia of Public International Law (December 2008) at para 34.

127 See, generally, Yamamoto & Esteban, Atoll Island, supra note 81 at 176.

128 Jörgen Ödalen, “Underwater Self-determination: Sea-level Rise and Deterritorialised Small Island States” (2014) 17:2 Ethics, Policy & Environment 225 at 233. See also Nine, supra note 4 at 362.

129 Ödalen, supra note 128 at 226, 232.

130 Ibid at 229–30.

131 Nine, supra note 4 at 366.

132 Stoutenburg, “When Do,” supra note 1 at 80. See also ILC, Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/83 (3 August 2001), art 2; Jain, supra note 6 at 41–42.

133 IPCC, supra note 10 at 2, 4.

134 United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107, art 4 [UNFCCC].

135 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, 2303 UNTS 162, arts 3–4, 6, 12, 17 [Kyoto Protocol]. The targets were subsequently amended at the Doha Conference in 2012 for the second commitment period (2013–20), but the amendments are not yet into force (as of May 2016).

136 Adoption of the Paris Agreement, UNFCCC, UN Doc FCCC/CP/2015/L.9 (12 December 2015), arts 2–3, 4(9) [Paris Agreement]. The Paris Agreement will enter into force when fifty-five states representing 55 percent of global emissions will have ratified or acceded to the Agreement. It will be open for signature from 22 April 2016 to 21 April 2017. See Daniel Bodansky, “Reflections on the Paris Conference” (15 December 2015), online: Opinio Juris <http://opiniojuris.org/2015/12/15/reflections-on-the-paris-conference/>.

137 Eg, the United States is not a party to the Kyoto Protocol; China, while a party to the protocol, is not bound by the reduction targets; and Canada withdrew from the protocol in 2011, before the start of the second commitment period.

138 See, eg, Corinne Lepage & Christian Huglo, “Commentaire iconoclaste (?) de ‘l’Accord de Paris’” (2016) 41:1 Revue juridique de l’environnement 9; Benoît Mayer, “Enjeux et résultats de la COP21” (2016) 41:1 Revue juridique de l’environnement 13; Sophie Lavallée, “L’Accord de Paris: trois questions passées sous silence” (23 December 2015), online: Policy Options Politiques <http://policyoptions.irpp.org/fr/magazines/december-2015/laccord-de-paris-troisquestions-passees-sous-silence/>.

139 Trail Smelter Case (United States v Canada), [1938/1941] III RIAA 1905 at 1963: “A state owes at all times a duty to protect against injurious acts by individuals from within its jurisdiction” and “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another … when the case is of serious consequence” (at 1965); Stockholm Declaration on the Human Environment, UN Doc A/Conf.48/14/Rev. 1 (1973), Principle 21 (Stockholm Declaration): “States have … the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” See also Rio Declaration on Environmental and Development, UN Doc A/CONF.151/26 (vol I) (1992), Principle 2 (Rio Declaration).

140 ILC, Articles on Prevention of Transboundary Harm from Hazardous Activities, UN Doc A/56/10 (2001), art 3: “The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.” See also ILA, Committee on the Legal Principles Relating to Climate Change, ILA Legal Principles Relating to Climate Change (Washington, 2014), online: ILA <http://www.ila-hq.org/en/committees/index.cfm/cid/1029/member/1>. Draft art 7A(1) deals with the obligation of prevention, putting the emphasis on climate change. These drafts articles have been raised as relevant for the work of the ILA Committee on Sea Level Rise. See ILA SLR 2014 Open, supra note 114 at 5.

141 Sands, Philippe & Peel, Jacqueline, Principles of International Environmental Law, 3rd edition (Cambridge: Cambridge University Press, 2012) at 242–43.CrossRefGoogle Scholar

142 Stoutenburg, “When Do,” supra note 1 at 80–81; Yamamoto & Esteban, Atoll Island, supra note 81 at 276.

143 Jain, supra note 6 at 41–42.

144 Stoutenburg, “When Do,” supra note 1 at 75.

145 Ibid.

146 Ibid at 78.

147 Universal Declaration of Human Rights, GA Res 217 (III), UNGAOR, 3d Sess Supp No 13, UN Doc A/810 (1948), arts 3, 25(1) [UDHR]; ICCPR, supra note 126, arts 6(1), 9(1); ICESCR, supra note 126, art 11(1). See, eg, Maxine Burkett, “A Justice Paradox: On Climate Change, Small Island Developing States, and the Quest for Effective Legal Remedy” (2013) 35 U Haw L Rev 633 at 646–47 [Burkett, “Justice Paradox”]; Human Rights and Climate Change, UNHCR, UN Doc A/HRC/RES/26/27 (2014) at para 1 and preamble; Human Rights and Climate Change, UNHCR, UN Doc A/HRC/RES/18/22 (2011) at para 1; ILA SLR 2016, supra note 109 at 16–17.

148 UDHR, supra note 147, art 15(1). Lisa Friedman, “If a Country Sinks beneath the Sea, Is It Still a Country?” New York Times (23 August 2010), online: New York Times <http://www.nytimes.com/cwire/2010/08/23/23climatewire-if-a-country-sinks-beneath-the-sea-is-it-sti-70169.html?pagewanted=all>.

149 Stoutenburg, “When Do,” supra note 1 at 79 (emphasis added).

150 Jain, supra note 6 at 41–42.

151 Puthucherril, supra note 9 at 238.

152 IPCC, supra note 10 at 2. It must however be underlined that climate change and sea-level rise are not only triggered by human activities but also come from natural causes.

153 Stoutenburg, “When Do,” supra note 1 at 84–85.

154 Jain, supra note 6 at 42.

155 Burkett, “Justice Paradox,” supra note 147 at 643. See also Stoutenburg, “When Do,” supra note 1 at 59.

156 See, eg, Lawrence Hurley, “Island Nation Girds for Legal Battle against Industrial Emissions,” New York Times (28 September 2011), online: New York Times <http://www.nytimes.com/gwire/2011/09/28/28greenwire-island-nation-girds-for-legal-battle-against-i-60949.html>.

157 Burkett, “Justice Paradox,” supra note 147 at 635.

158 Wong, supra note 3 at 389.

159 Burkett, “Justice Paradox,” supra note 147 at 634; Hayasi, “Affected States,” supra note 109 at 620; Powers & Stucko, supra note 97 at 139–40; Rayfuse, “Sea Level Rise,” supra note 92 at 178. The issue of legitimacy will be discussed further in the third part of this article.

160 Burkett, “Justice Paradox,” supra note 147 at 661.

161 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 2 February 1971, 996 UNTS 245; Convention Concerning the Protection of the World Cultural and Natural Heritage, 23 November 1972, 1037 UNTS 151; Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79. See Burkett, “Justice Paradox,” supra note 147 at 642; Wannier & Gerrard, supra note 96 at 12; ILA SLR 2014 Closed, supra note 8 at 4–5.

162 Burkett, “Justice Paradox,” supra note 147 at 652–53.

163 ILA SLR 2016, supra note 109 at 8.

164 Vidas, supra note 2 at 83.

165 Gross, supra note 28 at 378, cited in Wong, supra note 3 at 352.

166 The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Conference of the Parties of the United Nations Framework Convention on Climate Change, Doc FCCC/CP/2010/7/Add.1 (2011) at paras 11–20.

167 Crawford & Rayfuse, supra note 6 at 249–50; Jeanneney, supra note 8 at 117–19.

168 The expression “ex-situ nation” has also been used in the literature. See, eg, Burkett, “Nation Ex-Situ,” supra note 8.

169 ILA SLR 2014 Closed, supra note 8 at 5; ILA SLR 2016, supra note 109 at 20; Yamamoto & Esteban, “Vanishing Island,” supra note 74 at 3.

170 See, eg, Gagain, supra note 65 at 113–14.

171 Schofield & Freestone, supra note 13 at 155; Rayfuse, “Sea Level Rise,” supra note 92 at 176.

172 Schofield & Freestone, supra note 13 at 155–56; Yamamoto & Esteban, “Vanishing Island,” supra note 74 at 4–6; “Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Japan on 12 November 2008” at paras 6, 15–20, <http://www.un.org/depts/los/clcs_new/submissions_files/jpn08/com_sumrec_jpn_fin.pdf>.

173 Schofield & Freestone, supra note 13 at 151.

174 Ibid at 152.

175 Schofield & Arsana, supra note 13 at 10.

176 Stoutenburg, “When Do,” supra note 1 at 62 (emphasis in original). See also Schofield & Freestone, supra note 13 at 157; Jain, supra note 6 at 48.

177 Soons, supra note 16 at 222–23; Schofield & Freestone, supra note 13 at 160; Rayfuse, “Sea Level Rise,” supra note 92 at 175–76.

178 Gagain, supra note 65 at 101.

179 UNCLOS, supra note 103, art 60(8). See also Wong, supra note 3 at 384.

180 Stoutenburg, “When Do,” supra note 1 at 62.

181 Ibid at 63.

182 Wong, supra note 3 at 384.

183 In Re Duchy of Sealand, supra note 65 at 685. Indeed, the Court held that a British Second World War platform attached to the seabed off the coast of Great Britain did not fulfil the requirement of territory. However, it must be underlined that this case dealt with an artificial installation.

184 Gagain, supra note 65 at 107.

185 Ibid at 111.

186 Soons, supra note 16 at 231. See also Jain, supra note 6 at 48.

187 Hayasi, “Affected States,” supra note 109 at 615; Jeanneney, supra note 8 at 121–23.

188 Yamamoto & Esteban, Atoll Island, supra note 81 at 187.

189 Jain, supra note 6 at 48.

190 Yamamoto & Esteban, Atoll Island, supra note 81 at 197–98, 200; Stoutenburg, “When Do,” supra note 1 at 61.

191 Maas & Carius, supra note 12 at 659; Yamamoto & Esteban, Atoll Island, supra note 81 at 188; Convention between the United States and Denmark. Cession of the West Indies, 25 January 1917, 39 US Stat 1706: online: <http://www.doi.gov/oia/about/upload/vitreaty.pdf>.

192 Stoutenburg, “When Do,” supra note 1 at 61.

193 Crawford & Rayfuse, supra note 6 at 249–50.

194 Yamamoto & Esteban, Atoll Island, supra note 81 at 198, 200.

195 Rosemary Rayfuse “International Law and Disappearing States: Utilizing Maritime Entitlements to Overcome the Statehood Dilemma” (2010) University of New South Wales Faculty of Law Research Paper no 2010-52 at 9. See also Hayasi, “Affected States,” supra note 109 at 615; Soons, supra note 16 at 230; Rayfuse, “Sea Level Rise,” supra note 92 at 178.

196 Maritime Boundary in the Area between Greenland and Jan Mayen (Denmark v Norway), Advisory Opinion, [1993] ICJ Rep 38 at paras 46, 48, 50.

197 Rayfuse, “Sea Level Rise,” supra note 92 at 179.

198 Schofield & Freestone, supra note 13 at 162.

199 See, eg, Wong, supra note 3 at 383.

200 Crawford & Rayfuse, supra note 6 at 249–50; Rayfuse, “Sea-Level Rise,” supra note 92 at 178; Jain, supra note 6 at 48.

201 Yamamoto & Esteban, “Vanishing Island,” supra note 74 at 189.

202 Puthucherril, supra note 9 at 255.

203 Rayfuse, “W(h)ither Tuvalu,” supra note 113.

204 Burkett, “Nation Ex-Situ” supra note 8 at 90; Wong, supra note 3 at 385; Stoutenburg, “When Do,” supra note 1 at 85–86; Jain, supra note 6 at 49.

205 Ödalen, supra note 128 at 230.

206 Reference could be made, eg, to the separate opinion of Judge Ago in the Advisory Opinion on the Agreement between the World Health Organization and Egypt, underlining that international organizations, even if they have a different international legal capacity than states, are subjects of international law even if they lack a territorial basis. See Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, [1980] ICJ Rep 73 at 155. See also Crawford & Rayfuse, supra note 6 at 252.

207 See, eg 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 December 1995, 2167 UNTS 3, art 2(2)(b); UNCLOS, supra note 103, art 291, art 20(2) of Annex VI, art 13 of Annex XIII. See also Crawford & Rayfuse, supra note 6 at 253.

208 Crawford & Rayfuse, supra note 6 at 252–53; Yamamoto & Esteban, Atoll Island, supra note 81 at 203.

209 See, eg, Yamamoto & Esteban, Atoll Island, supra note 81 at 203; Wong, supra note 3 at 385; Maas & Carius, supra note 12 at 659.

210 Crawford & Rayfuse, supra note 6 at 251.

211 Stoutenburg, “When Do,” supra note 1 at 85; Maas & Carius, supra note 12 at 659.

212 Wong, supra note 3 at 385. See also Jeanneney, supra note 8 at 128.

213 Yamamoto & Esteban, Atoll Island, supra note 81 at 211.

214 Wong, supra note 3 at 385–86.

215 Jain, supra note 6 at 49–51.

216 Burkett, “Nation Ex-Situ,” supra note 8 at 90.

217 Stoutenburg, “When Do,” supra note 1 at 68. See also Jeanneney, supra note 8 at 126.

218 Yamamoto & Esteban, “Vanishing Island,” supra note 74 at 7.

219 Crawford & Rayfuse, supra note 6 at 253.

220 Stoutenburg, “When Do,” supra note 1 at 69.

221 See, eg, Columbia Law School, Consolidated Notes from Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate, (New York: Center for Climate Change Law, Columbia Law School, 2011) at 10, 14, online: Columbia Law School <http://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/Past- Conferences-and-Events/Threatened%20Island%20Nations%20-%20Compiled%20Notes.pdf>; Wong, supra note 3 at 368; Maas & Carius, supra note 12 at 658.

222 Yamamoto & Esteban, “Vanishing Island,” supra note 74 at 7.

223 Ibid.

224 The UN Charter trusteeship regime (UN Charter, supra note 41, ch XIII), poses two main obstacles. First, a UN member state cannot be put under the supervision of the Council. Second, the state responsible for the supervision should be the state in charge of the administration of the territory. The majority of SIDS, being UN member states under the supervision of no other state, would first have to withdraw from the UN for the UN trusteeship regime to apply. However, such withdrawal would undermine the benefits SIDS obtain from being part of multilateral organizations such as the UN, the main one being the preservation of their statehood, which is strengthened by the recognition of other states. See Wong, supra note 3 at 386–87; Burkett, “Nation Ex-Situ,” supra note 8 at 109.

225 UN Charter, supra note 41, art 88; Wong, supra note 3 at 386.

226 Wannier & Gerrard, supra note 96 at 7. See also Yamamoto & Esteban, Atoll Island, supra note 81 at 206–08.

227 Burkett, “Nation Ex-Situ,” supra note 8 at 108. See also Wannier & Gerrard, supra note 96 at 7.

228 Burkett, “Nation Ex-Situ,” supra note 8 at 109–14.

229 Wannier & Gerrard, supra note 96 at 6.

230 Burkett, “Nation Ex-Situ,” supra note 8 at 118.

231 Yamamoto & Esteban, Atoll Island, supra note 81 at 207.

232 Wong, supra note 3 at 386.

233 Burkett, “Nation Ex-Situ,” supra note 8 at 113.

234 Ibid at 114.

235 Ibid at 106; Rayfuse, “Sea Level Rise,” supra note 92 at 180.

236 Bethlehem, supra note 28 at 24.

237 Jeanneney, supra note 8 at 113, 115–16.

238 Thomas Friedman, The World Is Flat: A Brief History of the Globalized World in the Twenty-First Century (London: Allen Lane, 2005) at 9, 11, 19.

239 Ibid at 10.

240 Ibid at 9.

241 Schachter, supra note 5 at 8. See also Pierré-Caps, supra note 4 at 39.

242 Schachter, supra note 5 at 12–13.

243 Bethlehem, supra note 28 at 15.

244 Hurrell, supra note 33 at 278, 281. See also Benedict Kingsbury, “People and Boundaries: An ‘Internationalized Public Law’ Approach” in Buchanan & Moore, supra note 7, 298 at 299–302.

245 Sterio, supra note 5 at 219. See, generally, Tullio Treves, “General Course: The Expansion of International Law” (Lecture delivered at The Hague Academy of International Law, 6–24 July 2015).

246 Friedman, supra note 238 at 10 (emphasis in original).

247 Hurrell, supra note 33 at 285. See also Schachter, supra note 5 at 11.

248 Petit, supra note 45 at 184.

249 See, generally, Antônio Cançado Trindade, “Quelques réflexions sur l’humanité comme sujet du droit international” in Denis Alland et al, eds, Unité et diversité du droit international: Écrits en l’honneur du Professeur Pierre-Marie Dupuy (Leiden: Martinus Nijhoff, 2014) 157.

250 Hurrell, supra note 33 at 285. See also Schachter, supra note 5 at 11.

251 See generally Boaventura De Sousa Santos, “Law: A Map of Misreadings: Towards a Post-Modern Conception of Law” (1987) 14:3 J L & Soc’y 279.

252 Bethlehem, supra note 28 at 17. See also Kwiecién, supra note 5 at 287; Vidas, supra note 2 at 73; Petit, supra note 45 at 178, 190; Buchanan, “The Making,” supra note 36 at 236; Schachter, supra note 5 at 7.

253 Jeanneney, supra note 8 at 121.

254 Hurrell, supra note 33 at 276, 280. See also Buchanan, “The Making,” supra note 36 at 236.

255 Hurrell, supra note 33 at 275.

256 Buchanan, “The Making,” supra note 36 at 244; Cançado Trindade, supra note 249 at 172.

257 Buchanan, Allen & Keohane, Robert, “The Legitimacy of Global Governance Institutions” in Wolfrum, Rüdiger & Röben, Volker, eds, Legitimacy in International Law (Berlin: Springer 2008) 25 CrossRefGoogle Scholar, cited in Rüdiger Wolfrum, “Legitimacy in International Law,” Max Planck Encyclopedia of Public International Law (November 2006) at paras 6–8.

258 Buchanan, “The Legitimacy,” supra note 6 at 82.

259 This last approach is controversial. For example, and briefly, the intervention of the North Atlantic Treaty Organization in Kosovo, while not legitimate from the source-oriented and procedure-oriented perspective because it was not authorized by the UN Security Council, has been argued to be legitimate from a result-oriented perspective, as it aimed at protecting human rights.

260 See, eg, Jain, supra note 6 at 10; Burkett, “Justice Paradox,” supra note 147 at 659; Petit, supra note 45 at 177, 180.

261 Jain, supra note 6 at 11.

262 Burkett, “Nation Ex-Situ,” supra note 8 at 106–07.

263 See, eg, Buchanan, “The Legitimacy,” supra note 6 at 87.

264 Kwiecién, supra note 5 at 286.

265 Jochen von Bernstorff & Ingo Venzke, “Ethos, Ethics, and Morality in International Relations,” Max Planck Encyclopedia of Public International Law (August 2011) at paras 13, 28; Cançado Trindade, supra note 249 at 161, 164.

266 See generally Onuma Yasuaki, “The Need for an Intercivilizational Approach to Evaluating Human Rights” (1997) 1:10 Human Rights Dialogue, online: Carnegie Council, <http://www.carnegiecouncil.org/publications/archive/dialogue/1_10/articles/574.html>.

267 Pierré-Caps, supra note 4 at 41; Cançado Trindade, supra note 249 at 166.

268 Bethlehem, supra note 28 at 18.

269 Vidas, supra note 2 at 73; Jeanneney, supra note 8 at 95–96, 100.

270 Burkett, “Nation Ex-Situ,” supra note 8 at 91.

271 This subsection is mostly based on the argumentation in Burkett, supra note 8.

272 Buchanan & Moore, supra note 7 at 7.

273 Buchanan, “The Making,” supra note 36 at 231 (emphasis in original).

274 Burkett, “Nation Ex-Situ,” supra note 8 at 102. The term “diaspora” is, throughout this article, understood as the physical dispersion of the people of a same nation or sharing the same culture. We acknowledge the existence of other meanings of the term, in particular, the one referring to a diaspora as a “way of living,” not linked to any ethnic and/or cultural belonging. However, this alternative meaning goes beyond the scope of this article, which focuses on a meaning of diaspora that is linked to “deterritorialized” nationalism or “deterritorialized” communal belonging.

275 Michelle McKinley, “Conviviality, Cosmopolitan Citizenship, and Hospitality” (2009) 5 Unbound 55 at 81, cited in Burkett, “Nation Ex-Situ,” supra note 8 at 101.

276 Burkett, “Nation Ex-Situ,” supra note 8 at 104.

277 See generally the writings of Emmanuel Kant, Jacques Derrida, and, most recently, Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (London: Penguin, 2007).

278 James, Paul, “Political Philosophies of the Global: A Critical Overview” in James, Paul, ed, Globalization and Politics, Volume IV: Political Philosophies of the Global (London: Sage, 2014) vii at x.CrossRefGoogle Scholar

279 Pierré-Caps, supra note 4 at 50. See also Yasuaki, supra note 266.

280 McKinley, supra note 275 at 68, cited in Burkett, “Nation Ex-Situ,” supra note 8 at 101. It is worth noting that, while we believe both the differential equality principle and the notion of solidarity as a moral obligation can be used to describe cosmopolitanism, they represent two approaches to legitimacy and morality. Indeed, as discussed earlier in this article, the former can be linked to inter-civilizationalism while the latter is based on a more Western-oriented system of shared common values.

281 Burkett, “Nation Ex-Situ,” supra note 8 at 100.

282 Ibid at 99.

283 Jeanneney, supra note 8 at 127–28.

284 Schachter, supra note 5 at 19.

285 Krisch, supra note 5 at 3.

286 Karl-Heinz Ladeur, “Governance, Theory of,” Max Planck Encyclopedia of Public International Law (September 2010) at para 13.

287 Donald Rothwell & Tim Stephens, The International Law of the Sea (Oxford: Hart Publishing, 2010) at 462. See also Ladeur, supra note 286 at para 5.

288 Ladeur, supra note 286 at para 14.

289 Kwiecién, supra note 5 at 281, 303–04.

290 Two other meanings of global governance have also been underlined: “[I]t may also imply that the role of private self-organization, as opposed to traditional public organization of decision-making, has become a fundamental challenge of public international law, while the other terminology (‘international governance’) seems to try to reduce the new hybrid forms of governance to a supplementary role in order to preserve the traditional centrality of the concept of State and government in international relations and international law.” Ladeur, supra note 286 at para 18.

291 James, supra note 278 at xi.

292 Ladeur, supra note 286 at para 5.

293 JHH Weiler, “The Geology of International Law: Governance, Democracy and Legitimacy” (2004) 64 Heidelberg J Int’l L 547 at 547, 556, cited in Kwiecién, supra note 5 at 285. See also Krisch, supra note 5 at 28.

294 Krisch, supra note 5 at 36; Kwiecién, supra note 5 at 303; Petit, supra note 45 at 193.

295 Non-binding, soft law mechanisms can be more appropriate when addressing new legal issues to which traditional mechanisms are not yet ready to be applied. See Treves, supra note 245; Yamamoto & Esteban, Atoll Island, supra note 81 at 223; Petit, supra note 45 at 192.

296 Krisch, supra note 5 at 16.

297 Ibid at 5.

298 Kwiecién, supra note 5 at 309.

299 Ibid at 303.

300 Burkett, “Nation Ex-Situ,” supra note 8 at 91.

301 Francisco Francioni, “Equity in International Law,” Max Planck Encyclopedia of Public International Law (June 2013) at paras 1, 3, 10. The second refers to the possibility for the International Court of Justice to decide cases on an ex æquo et bono basis. See Statute of the International Court of Justice, 24 October 1945, 1 UNTS XV1, art 38(2).

302 Francioni, supra note 301 at para 10.

303 Ibid at paras 7, 9.

304 Ibid at para 29.

305 Burkett, “Nation Ex-Situ,” supra note 8 at 95.

306 Ibid at 105–06.

307 Davor Vidas & Peter Johan Schei, “The World Ocean in Globalization: Challenges and Responses for the Anthropocen Epoch” in Davor Vidas & Peter Johan Schei, eds, The World Ocean in Globalization. Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (Leiden: Brill and Martinus Nijhoff, 2011) 3 at 6–7 (emphasis in original).

308 See, eg, Thürer & Burri, supra note 126 at para 15; Schachter, supra note 5 at 15.

309 See, eg, Pierré-Caps, supra note 4 at 44.

310 Nine, supra note 4 at 359, 362, 366.

311 Wannier & Gerrard, supra note 96 at 7.

312 Stoutenburg, “When Do,” supra note 1 at 58–59, 66, 85; Jeanneney, supra note 8 at 123.

313 Stoutenburg, “When Do,” supra note 1 at 87.

314 Jain, supra note 6 at 46.

315 Burkett, “Nation Ex-Situ,” supra note 8 at 91.

316 Jain, supra note 6 at 44.

317 Hurrell, supra note 33 at 287; Buchanan, “The Making,” supra note 36 at 236.

318 Treves, supra note 245.

319 See, eg, Petit, supra note 45 at 191.

320 Jeanneney, supra note 8 at 115: “des mutations juridiques sur un territoire plutôt que des mutations subies par le territoire” (emphasis in original).

321 Ibid at 113.

322 See, generally, Robert Scott, “Chaos Theory and the Justice Paradox” (1993) 35:1 Wm & Mary L Rev 329, cited in Burkett, “Justice Paradox,” supra note 147 at 636.

323 Kingsbury, supra note 244 at 298; Jeanneney, supra note 8 at 109.

324 Cançado Trindade, supra note 249 at 157; Schachter, supra note 5 at 22–23; Petit, supra note 45 at 185.

325 Buchanan & Moore, supra note 7 at 8; Pierré-Caps, supra note 4 at 39: “il [l’État-nation] est la structure juridique de prédilection des nouveaux États, alors même que les États les plus anciens s’efforcent de l’adapter … sans rien concéder, pour autant, de ses principes.”

326 Maas & Carius, supra note 12 at 660.

327 ILA CB, supra note 21 at 2, cited in Vidas, Freestone & McAdam, supra note 12 at 401.

328 Serge Sur, “Cours général: La créativité du droit international” (lecture delivered at The Hague Academy of International Law, 9–27 July 2012), reprinted in (2012) 363 Rec des Cours 9 at 98: “Transformation n’est pas métamorphose.”