TO BE OR NOT TO BE: STATE EXTINCTION THROUGH CLIMATE CHANGE.

• Author: Sharon, Ori

1. INTRODUCTION 1042 II. RISING SEAS AND SIDS 1048 A. The Unique Characteristics of SIDS 1048 B. The Impact of Climate Change on SIDS 1050 III. ON STATEHOOD AND TERRITORY 1051 A. Why is Territory Important for Statehood? 1052 B. Does the Principle of State Continuity Support 1052 Continuation of SIDS Statehood Post-Submergence? C. Relaxing the Territory Requirement 1053 D. Applying International Law Precedents in Aid of SIDS. 1054 IV. Is CONTINUED STATEHOOD POST-SUBMERGENCE TRULY IMPORTANT? 1057 A. What We Know About Sea Level Rise 1058 B. Maintaining Statehood in the Face of Territorial Erosion 1059 C. Why Maintain State Status? 1061 D. Maintenance of State Status Harms SIDS 1063 V. OTHER SOLUTIONS 1065 A. Purchase of Territory 1065 B. Federation 1066 C. Artificial Structures 1068 D. Resettlement as Climate Refugees 1069 VI. LESSER OF TWO EVILS 1070 A. Giving Up Statehood 1071 B. The Unique Position of the Pacific Territories 1072 C. The Free Association Model in the Service of SIDS 1075 D. Legal Hurdles to Free Association 1079 1. Free Association and Self-Determination 1079 2. Free Association and Sovereignty 1080 3. State Termination 1081 VII. CONCLUSION 1082 I. INTRODUCTION

   The impressive man stood in front of the crowd of state representatives. For the past two years, he has been campaigning around the world on behalf of his people. He took a deep breath and said:

   We don't want no sea level rise. There must be a way out. Neither the Maldives nor any small island nation wants to drown. That's for sure. Neither do we want our lands eroded, or our economies destroyed. Nor do we want to become environmental refugees either... All we ask is that the more affluent nations, and the international community in general, help us. (1) The impassioned plea moved the listeners, but the message did not have the hoped-for effect. In the 23 years since Maumoon Abdul Gayoom, President of the Maldives, urged the leaders of the world's richest countries to reduce emissions of greenhouse gasses ("GHG"), yearly emissions have almost doubled. (2) The rising concentrations of GHG in the atmosphere cause the sea level to rise. Between 1902 and 2010, the sea has risen sixteen centimeters. (3) As GHG emissions increase and global temperatures rise, sea level will continue to rise at an accelerating rate. (4) By the end of this century, according to some estimates, the sea level will rise an additional two meters. (5) At that level, one billion people will be exposed to environmental and climatic risks like floods, king tides, and superstorms. (6)

   Realizing the imminent danger posed by rising seas, many coastal states have developed and are implementing adaptation plans to mitigate the risks associated with sea level rise. However, not all coastal states face similar risks. For Small Islands Developing States ("SIDS"), like the Maldives, climate change poses an existential threat. (7) As low-lying island territories, SIDS are extremely vulnerable to changes in sea level. (8) If sea levels continue to rise, many SIDS will become uninhabitable or even submerged. (9) By the end of the twenty-first century, several SIDS in the South Pacific and Indian Oceans will disappear. (10) The dangers President Gayoom warned about are already materializing. In May 2016, a group of researchers reported that five of the Solomon Islands have disappeared, due to sea level rise. (11) The following year, another group of researchers found that several islands in Micronesia had suffered the same fate. (12)

   Rising sea levels introduce complex legal challenges, most prominent of which is the question whether the affected island communities-following complete submergence--cease to be states. Conventional legal thinking holds that a state cannot exist without a territory. (13) It is therefore widely accepted in legal and geopolitical circles that SIDS will lose their status as states, once their territory submerges. (14) Many scholars explain that loss of statehood is intertwined with challenges of communal and individual survival, as only states are considered full legal persons in international law. (15) With no territory or legal standing in the global geopolitical arena, the people of SIDS may become climate refugees, relying for their security on the goodwill of the same countries which, by their continuing and escalating GHG emissions, caused the plight of SIDS. (16)

   Writing in support of SIDS, several prominent legal scholars have proposed creative interpretations of international law norms, advancing the idea that SIDS may continue to exist as states post-submergence. (17) They introduce a new category of legal person in international law: the non-territorial state. (18) These new legal persons are sovereign states but are not attached to a specific territory. (19) The scholars who endorse this idea argue that "[i]t would protect the peoples forced from their original place of being by serving as a political entity that remains constant even as its citizens establish residence in other [s]tates." (20)

   Against the backdrop of legal initiatives considering international law innovations which will allow SIDS to maintain statehood post-submergence, this Article offers a different perspective. This Article recognizes the problem of sinking states as a major challenge for the countries of the world, the international legal system, and the people of SIDS. However, this Article argues that the question of continued statehood post-submergence has no pragmatic value for SIDS. The focus on post-submergence statehood is legal self-centeredness. Crafting legal fictions that allow SIDS to maintain statehood, without a territory in which to exercise sovereignty, is a remarkable scholarly achievement. Nonetheless, this feat has no impact outside law books. In the world of realpolitik, states without territory will disappear, notwithstanding legal fiction to the contrary.

   Focusing on statehood is legally superfluous and practically foolish. SIDS who follow the advice of these scholars, urging them to fight for continued statehood post-submergence, undermine prospects for a real solution to their problems. The sad truth is that the people of SIDS will inevitably become climate refugees. SIDS should therefore devote all their efforts to creating viable immigration and resettlement options for their people. Fighting for continued statehood does not aid these efforts. On the contrary, as this Article demonstrates, maintenance of the state as a legal fiction which only reduces the chances for communal relocation of SIDS. Post-submergence statehood creates a legal anomaly, what this Article calls "sovereignty clash." For the first time in legal history, nations that accept refugee communities may end up with another sovereign state within their borders. This will occur because, in the absence of an anchoring territory, the sovereignty of the non-territorial state follows its people wherever they are. The risk of a sovereignty clash between the host state and refugee communities from SIDS will reduce the willingness of states to accept migrants from SIDS, undermining real and much needed resettlement efforts.

   Focusing on pragmatism, this Article argues that for resettlement efforts to succeed, SIDS must engage in negotiations with potential host states. These negotiations will succeed only if host states secure meaningful and tangible benefits that make hosting SIDS worthwhile. Based on this realization, this Article demonstrates the futility of continued statehood and other solutions suggested by scholars. This Article analyzes the geopolitical and tangible assets of SIDS, looking for benefits that may be traded in negotiations. This analysis identifies the sovereignty of SIDS over natural resources and maritime territory as the most lucrative asset of SIDS. This Article therefore suggests that instead of maintaining sovereignty, SIDS should give up sovereignty, to save their people. In other words, the path for the survival of SIDS does not lie in continued statehood, but rather in trading sovereignty in return for resettlement rights. Building on case studies of the Pacific free-associated states, this Article suggests that SIDS enter free association treaties with regional or global powers, incorporating as free-associated non-state territories. This approach is the most plausible legal and political path for securing a safe future for the people of SIDS.

   The discussion in this Article is timely and important. In the very near future, leading international law authorities are expected to decide whether to support the idea of a non-territorial state. (21) In 2012, responding to the growing concern about the effect of sea level rise on global peace and stability, the International Law Association ("ILA") established a committee on International Law and Sea Level Rise. (22) The committee's 2018 report provided recommendations concerning law of the sea and forced migration challenges arising from sea level rise. (23) The committee had insufficient time to address the issue of potential loss of statehood, due to total submergence of the territory of an island state. (24) The committee therefore requested the International Law Association to extend its term beyond 2018 to allow it to examine the question, "would the impact of sea level rise require the creation of a new category of subjects of international law?" (25) In 2018, the mandate of the committee was extended until 2022. (26) Speaking at the 2019 Madrid Meeting of the ILA, the chair of the committee signaled his approach to the question, explaining that: "[i]n the face of profound changes in natural conditions ... [w]e may need to re-visit the concept of international legal personality under international law." (27)

   Similarly, in the summer of 2019, the International Law Commission ("ILC") included the topic "Sea-level rise in international law" in its program of work at its seventieth session. (28)...