In the Makoko neighbourhood of Lagos, Nigeria – dubbed the ‘Venice of Africa’ – churches, schools, and houses alike are perched on top of stilts, floating above the rising waterline below. As the most populous city in Africa, home to more than 24 million inhabitants, the coastal city of Lagos is also one of the most vulnerable to sea-level rise and may be wiped off the map by as early as 2050. Unfortunately, as we know, Lagos is not alone. States sinking in the face of climate crisis seems almost painfully inevitable; in fact, Abaiang in Kiribati and two small islands are already entirely submerged. What’s more, according to the Intergovernmental Panel on Climate Change’s Fourth Assessment Report, low-lying island states are likely to be uninhabitable long before their full submersion and, with limited adaptation possibilities, citizens of such states may have to migrate. This will affect an estimated 2.4 billion people who live in coastal regions and will be impacted by rising sea levels. What happens to the statehood of an island when it sinks?

This article looks at the legal implications of sinking states: What happens when a state permanently loses its entire territory or its entire population has no choice but to go into exile? Is the island state still a statehood, or does it lose this status when it sinks? What about the population – do they become stateless, and where will they move to? These are all questions worth considering as climate change and extreme weather put our coasts under siege.

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Territory as a Criteria for Statehood in International Law

Statehood is important for many reasons – states can enter into agreements with other states, gain membership in international organisations like the UN, and exercise sovereignty and self-determination. States also take on certain obligations, such as not violating jus cogens (principles which cannot be set aside) norms like genocide or slavery. Given its importance, statehood has a clear and concise legal criteria, provided in Article 1 of the Montevideo Convention on Rights and Duties of States. In order to qualify as a state, a state must have: ‘(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States’. As the United Nations High Commissioner for Refugees notes, although there is no legal precedent for the loss of a state’s entire territory or exile of its entire population, where such a situation is permanent, we can immediately see that, without a defined territory, statehood becomes uncertain; if statehood ceases, the population is de facto stateless. Seen in this light, a defined territory is especially integral, as without state territory, there is no physical basis for an organised community or effective government. 

Presumption of Continuity of Statehood When an Island State Sinks

However, this does not necessarily mean that a state without a defined territory is no longer a state. In his influential book, The Creation of States in International Law, James Crawford posits that there is a presumption of continuity of statehood. He argues, quite convincingly, that even if territory is lost or gained which is substantially greater in area than the former state territory, this does not have to affect continuity. Indeed, when we look back at rump states – recall how Pakistan, a rump state, lost half of its territory by the secession of Bangladesh in 1971 – or governments in temporary exile like the Belgian government in London between 1940 and 1944 during World War II, it is apparent that the criteria in the Montevideo Convention relating to territory are not absolute and are applied less strictly once a state is established. This aligns with Gerard Kreijen’s suggestion in State Failure, Sovereignty and Effectiveness, that states “may have a complicated birth, but they do not die easily.” What’s also worth noting is the low threshold required for a defined territory; the Vatican City – 0.44 square kilometres with a population of 825 – passes the threshold for statehood. In terms of climate change, Crawford’s presumption of continuity of states along with a more flexible definitional account of statehood seems to suggest that sinking states can preserve their statehood, even after their territory becomes uninhabitable or entirely submerged due to climate change. 

But What About the People?

With the possible continuity of statehood, there comes the real question of where the people of sinking states will go. While New Zealand and Australia have hosted up to 8,000 people for seasonal unskilled employment, there are currently no legally binding agreements that protect climate migrants. This is despite the 2018 Global Compact for Safe, Orderly, and Regular Migration – a non-binding but influential statement – which includes a specific section emphasising the need to develop coherent approaches to address the challenges of migration movements caused by natural disasters. 

Proposed Solutions to Maintain Statehood When an Island State Sinks 

Until a precedent is established in law, our discussion on statehood and climate change inundation can only be speculative. At the same time, it does highlight the necessity for legal, political, geographical and migratory frameworks to be built before states are entirely submerged, as well as demonstrating the lack of such frameworks in our current legal regime. Legal scholars, architects and scientists alike have started to propose and engineer solutions for states to maintain statehood. 

Maxine Burkett, a Law Professor at the University of Hawai’i, demands the recognition of a ‘nation ex-situ’, or a deterritorialized state with ongoing international recognition as a state and with its citizens spread across the globe. Emphasising our freedom of contemporary global movement, the multiple and diverse diasporas in our societies, and cosmopolitanism – the belief that all human beings belong to a single global community – Burkett suggests that deterritorialized statehood is not far-fetched. While Burkett acknowledges that her analogy is not entirely complete, since members of diaspora have the option to remain in a tangible home-territory, she states that the trend of dispersed residence already disrupts the condition of territory in international law. This is an interesting suggestion and with the necessary coordination between the deterritorialized state, the host state or states, and the international community of states, might perhaps work. Indeed, Kiribati’s long-term strategy is merits-based, planned migration with dignity to Australia and New Zealand, which falls squarely within Burkett’s proposal.  

Another solution may be for states to try and stay afloat. The Makoko neighbourhood of Lagos, while lacking access to electricity, is home to innovations like the first iteration of the Makoko Floating School – a ‘sustainable, ecological, alternative’ floating structure built to withstand climate change. While the School tragically collapsed in 2016, due to deterioration from heavy wind and rainfall, it has inspired further iterations of floating architecture, including a floating music hub in São Vicente, Cape Verde due for completion in 2021. Oceanix, founded by the minister of tourism of French Polynesia Marc Collins Chen, is another company that is proposing to build floating sustainable cities in the ocean. Coastal fortification and land reclamation may also enhance resilience against rising tides.

Migration management is a final solution. Regular migration pathways are important to ensure that those among the 2.4 billion people at risk of moving have their rights protected and able to maintain their livelihoods. Dina Ionesco, Head of the Migration, Environment, and Climate Change Division at the UN Migration Agency suggests the implementation of humanitarian visas, temporary protection, and regional and bilateral free movements’ agreements to facilitate migration in response to environmental factors. 

Time is running out. Islands have already started to submerge, and the risk of cities sinking will only increase as sea-levels continue to rise. The population of Hong Kong will be displaced as our city slips underwater if global temperatures rise 4 degrees Celsius. Now is the time to start looking for and implementing creative legal, humanitarian and architectural solutions to ensure that states preserve their continuity and protect their populations from harm. 

Featured image by: Flickr