Nor shapes of men nor beasts we ken – Can a submerged state meet the criteria for statehood?

For this blog, part of my series focusing on climatic statelessness, I return to the issue of small island states at risk of disappearing due to slow-onset climate change.

My first blog of the series, looked at how climate change and cross-border migration interrelate and what would happen in the event that entire communities and even states were displaced due to climate change.  In my most recent blog on the topic, I considered the law on statelessness. I focused on the challenges of protecting those who have, or might become, stateless as a result of climate change induced displacement or migration.

In this third instalment, I focus on the law on statehood and the criteria for statehood and how that law might apply to a small island state submerged by rising sea levels and climate events.

 

What is a state?

There is no definition of what constitutes a state.  We do however have criteria for statehood.  When a state meets those criteria, it is likely to be recognised as a state by other states.  Recognition of statehood is not always a given ¹.  However, once a state is recognised, the presumption of statehood can be hard to overturn, even if the criteria for statehood are no longer met ².  This is because there is a presumption in international law in favour of states continuing, especially if there is no legitimate sovereign to take over.

Whether a state exists is a ‘mixed question of law and fact’ ³.  For a state to be recognised as a state it needs to meet the conditions set out in Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933:

“The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) Government; and (d) capacity to enter into relations with other states.” ⁴.

 

Criteria for statehood: permanent population, territory and a government to govern

A permanent population is the first criterion of statehood under Article 1.  This permanent population does not need to be a very large.  In fact, there is no minimum size required.  However, slow-onset climate change will make it difficult for small communities on island states to continue living and to sustain livelihoods in the affected areas.  The loss of a permanent population from a land slowly becoming uninhabitable is likely to be the primary indicator of a loss of statehood.  And that’s before the loss of the territory itself ⁵.

A state needs a defined territory.  That does not mean that all the borders of that territory must be settled and undisputed.  Many states have border areas over which ownership is disputed.  Nor is there a requirement of a minimum size for that territory.  Regardless of the size, what is needed is exclusive jurisdiction over some of that territory to the exclusion of other states.  It is this exclusive jurisdiction which gives the state territorial sovereignty.  Looking to the future of small-island states affected by climate change, if the territory of the state is fully submerged, then there will be no territory, defined or otherwise.  Nor will there be exclusive jurisdiction and sovereignty over land which is uninhabitable and covered by water.

The exercise of sovereignty over even the tiniest population and the smallest piece of land, requires a government.  A government is the third criterion for statehood.  The government need not be functioning very well, nor must it have total control over the territory.  However, if all the territory disappears, the government will not be able to control any part of it.  Equally, a government may struggle to govern if the population of small island states disperses completely because of the effects of slow-onset climate change, including the full submersion of the state’s territory.

   

Can a state remain a state without meeting the criteria for statehood?

The law on statehood has not yet been tested in the context of the complete physical disappearance of a state. So, what protection could the law on statehood offer disappearing island states in this novel scenario?  There is nothing in the criteria for statehood themselves which can help disappearing states to remain in existence. Any solution will come from custom and the practice of states rather than from anything settled in writing.

It is likely that the international community will not immediately withdraw recognition of a state whose territory has disappeared and whose population (and government) has relocated elsewhere. This does not mean that a state whose territory is permanently submerged can hope to remain in the community of states indefinitely.  Rather, on ceasing to meet all the criteria for statehood, the delay to loss of recognition will buy its people and its government a bit of time to work out what to do next.

 

Useful precedent

There is precedent for continued recognition of a state where some of the criteria have not been met and which might be applied to the case of a submerged small island state.

For example, other states might tolerate a situation where the government of a submerged state continues to govern from another location.  The right to exercise authority has been recognised and applied to governments in exile.  During World War II, the governments of states occupied by the axis powers were still recognised as the official governments of those states.  This was the case even when those governments had relocated and no longer exercised effective control over the jurisdiction in question.  Several governments, including those of Poland, the Netherlands, Norway and France, operated as best as they could from London during the war, and were recognised as the official governments of those Nazi occupied states ⁶.  We need to consider, however, that when it comes to applying this precedent to submerged small island states, that government will not have the same strength of connection where a population has dispersed because the territory of the state no longer exists.

There is also precedent for states ceasing to exist and then coming back into existence without the loss of recognition.  In the case of Estonia, for example, continuity of the state was largely accepted even where all signs of statehood had ceased for an extended period ⁷.  Estonia considered itself as illegally incorporated into the Soviet Union in 1940.  At the end of annexation, in 1990, it restored the pre-1940 independent Republic ⁸.  One key difference in the case of Estonia is that the territory (of what is/was Estonia) itself remained in existence.  This precedent might be overstretched in instances where the territory of the island state is completely submerged.

 

Is statehood everything?

Should a state be submerged, it will not be expelled immediately from the community of states for not meeting any or all the criteria for statehood.   It is likely, however, that recognition of statehood will not be the only concern for small island states.  Beyond the technicality of the legal definition of statehood, maintaining sovereignty, self-determination, cultural identity, and socio-economic and territorial rights are the issues that concern Pacific islanders and other small island states most ⁹.

When I return to this topic, we will look at what options are available to small island states under the international laws and norms on state succession and whether those norms and the right to self-determination can go some way to preserving the islanders’ citizenship and their national identity.