Sovereignty sunk? The position of 'sinking states' at international law

Abstract

Contents I Introduction II Definitions of the ' State' A The Requirement of Territory in State Formation 1 No Settled Definition of a State 2 Territory and Early Definitions 3 The Montevideo Convention 4 Territory and Later Definitions B Application of the Territory Requirement III Abandonment? IV Extinction A A Lacuna in the Law B Will Extinction Automatically Follow from a Total Loss of Territory? 1 The Presumption of Continuity 2 Membership of the UN: A Special Case? 3 The Territorial Nature of Statehood--The Case for Extinction 4 Sovereign Territory? 5 Necessary Legal Constructs 6 The Importance of Recognition V Potential Solutions VI Conclusion I Introduction [T]he argument is so obvious as to be unnecessary. That a State would cease to exist if for instance the whole of its population were to perish or to emigrate, or if its territory were to disappear (eg an island which would become submerged) can be taken for granted ... --Krystyna Marek (1) The state has long been accepted as international law's central actor: (2) its position as the primary concern of international law is an 'axiomatic feature[] of international legal thought'. (3) Although this position is sometimes challenged, (4) the state remains the primary actor in international law. It remains the 'principal maker and subject of international law: its law-abiding subject and its violator' (5) and 'it still makes a great difference whether an entity is or is not a State'. (6) Indeed, despite the increased potential for disasters and trade and commerce to transcend borders, the world remains divided on a territorial basis. (7) International law has assumed territory will always exist (8) and focused on state creation and succession, rather than continuity or extinction. Extinction and succession are related but distinct concepts. (9) Succession concerns a 'definitive replacement of one state by another in respect of sovereignty over a given territory'. (10) It assumes the continued existence of one (or several) state(s) and asks which successor holds the rights and obligations of the original state. (11) Tests for extinction, however, remain unclear and are considered below. Until now, state extinction has been treated as only of theoretical interest. In (1905), Oppenheim wrote: 'Theoretically such extinction of International Persons is possible through emigration or the perishing of the whole population of a State'. (12) It was beyond contemplation that a state's territory or people would disappear. (13) This sentence was removed from later editions of Oppenheim's International Law: A Treatise. What, then, of a state that becomes inundated with water such that its nationals leave its territory? What are the consequences if a state becomes completely inundated and has no territory above sea level? Does this automatically result in extinction? These scenarios, once considered merely of theoretical interest, are becoming reality. There are a number of low-lying island states at risk of becoming inundated due to rising sea levels. The highest point of the Maldives is 2.4 metres, (14) 5 metres in Tuvalu (15) and 81 metres in Kiribati. (16) Their average height, however, is far lower at approximately 1.5 metres (Maldives (17)) and 3-4 metres (Tuvalu and Kiribati). (18) Consequently, a slight sea level rise will threaten their physical existence. (19) Statehood is important for island states for three reasons. First, United Nations membership (20) and standing before the International Court of Justice ('ICJ') is limited to states. (21) UN membership is crucial because it provides a cost-effective method of maintaining international contacts, thus avoiding the need for a worldwide diplomatic apparatus. (22) Uncontroversial access to the ICJ is critical when a state is vulnerable: protection of the law is 'most necessary' for small states. …