A threat to statehood

Climate change, and the resulting global sea level rise, not only threatens catastrophic damage to the planet but also challenges the very fabric that governs international law, writes law student Billie Haddleton.

The ocean

For the low-lying island nations of the world, such as Kiribati, Tuvalu and the Maldives, a mere few metres of sea level rise threaten their very existence, as their territory becomes inundated and their populations required to relocate. The loss of territory to the sea not only involves the loss of culture, ancestry, livelihoods and connection; it also threatens the core concept of statehood.

‘Statehood’, according to our customary international law understanding, requires a defined territory, a permanent population, government and the capacity to enter into international relations. Sea level rise threatens each of these requirements, and, as such, an affected nation’s statehood.

Rising sea levels will result in the inundation of island nations and the loss of their defined territory. Before the island completely disappears, the permanent population will be forced to move to other lands still capable of accommodating them.

Since the concepts of state consent and sovereignty lie at the very heart of our Westphalian international framework, it is difficult to see how populations will continue to participate if their territorial state were to disappear and they were forced to relocate.

Several solutions have been posed, but with varying levels of success.

One proposal is to use artificial structures to maintain land entitlements; however, this ignores the damaging effects on natural sediment flows and ecosystems and, legally, the legitimacy of using artificial installations to maintain a land area must be questioned, as such installations cannot give maritime entitlements.

Another suggestion is the acquisition of a new territory to relocate an island’s population. Again, it is difficult to imagine that any state would willingly cede part of its own territory for this purpose. This would require merging the cultural, social and legal systems of two distinct populations, potentially threatening the national identity of one, or the other, or both.

Some scholars propose the establishment of the ‘de-territorialised state’, which would consist of a government or other authority to represent and govern a population and utilise its resources, even in the absence of a defined territory. While its former territory would be inundated, and the population elsewhere, the government could nevertheless continue to participate in the international legal system.

Such a concept would require a reformulation of our fundamental conception of statehood. However, the notion of a de-territorialised legal entity already exists in international law, seen in bodies such as the European Union. With the political will and commitment of other states, the international system could decouple the requirement of territory from the legal notion of statehood, thus recognising such an entity on the international stage.

Alternatively, we can address the threats to island sovereignty by reconceptualising our understanding of territory.

Acclaimed Tongan writer and teacher Epeli Hau’ofa recognises the cultural and historical connections Pacific people have to the ocean as sustaining not merely land but life and populations as well. He encourages conceptualising the Pacific islands as not small islands in a vast ocean, but rather as a sea of islands. We can incorporate Pacific perspectives to consider that the solution is not necessarily a de-territorialised state, but rather a more inclusive notion of territory.

Climate change is threatening our very notion of statehood. It is no longer enough for us to attempt to address the issue simply by reducing our carbon emissions. Reframing the fundamental concepts underpinning the international legal system is required to address this unprecedented threat and, in turn, create effective solutions.

The is an edited version of an article that first appeared in the latest, climate change-focused issue of  The Hive, a bimonthly publication where student volunteers of the Victoria University of Wellington-based Wellington Community Justice Project explore current social and cultural issues.

This article originally appeared on Newsroom.