When the Levee Breaks: Climate Change, Rising Seas, and the Loss of Island Nation Statehood.

• Author: Juvelier, Ben

Climate change is causing and will continue to cause unprecedented changes for humanity. These changes will disproportionately impact small island and atoll states like Kiribati and the Maldives. Both states are vulnerable to climate change due to a combination of low average elevation, lack of sustainable groundwater, and economic dependence on existing coastlines. By using the United Nations (UN) Trusteeship system as a framework for enabling the continued international relevance, the two deterritorialized nations can continue to provide for their peoples. The traditional elements of statehood, first codified in the Montevideo Convention of 1933, define "states" as entities with territory, a permanent population, a government in control, and capacity for international relations. After climate causes irreversible harm to these island states, neither will maintain their status as a state under international law. UN Trusteeship is a mechanism which directly addresses transitional entities that the international system does not define as states. By using the existing mechanisms of international law contained in the UN Charter, the international community can mitigate the effects of a climate change crisis for its most vulnerable members.

1. INTRODUCTION

   The tide washes over what was once home to tens of thousands of people in the island country of Kiribati; remnants of the former capital Tarawa are visible at low tide as the ruins emerge from beneath the sea. It may sound like science fiction, but the facts of climate change are undeniable; the seas are rising, and bringing with them untold difficulties for residents of small island states (1) dependent on oceans for their survival. (2) Ultimately, the prognosis for the denizens of these island nations--such as the Maldives and Kiribati--is grim, but with enough preparation a crushing humanitarian catastrophe may be avoided. (3) However, even in the best-case scenario for the citizens of the Maldives and Kiribati, their governments will still face an existential crisis. (4) The question of existence for these states strikes at the core of the international community's understanding of statehood. (5)

   There is a presumption of continuity for states in the international system. (6) Even when states are referred to as being "failed states," they are still unequivocally referred to as members of the existing order of the international system. (7) However, these failed states are often examples of a government simply losing control of a portion of its territory. (8) What happens when a government is disaggregated from its territory--losing its territory completely--or the people controlled by a government no longer reside on the state's physical territory? (9) Kiribati and the Maldives are facing this question as sea levels rise and climate change will render their territory uninhabitable over the next century. (10)

   This Note argues that both Kiribati and the Maldives will lose the legal status of statehood because they will no longer fulfill the criteria of the Montevideo Convention defining elements of a state, specifically due to their lack of a permanent population able to reside on some defined territory. Part II of this Note begins by summarizing some of the science on sea level rise, and the prognosis for Kiribati and the Maldives. (11) Part II then provides an overview and context of the understanding of "statehood" in international law, specifically referencing the Montevideo Convention, United Nations (UN) Convention on the Law of the Sea, and UN Charter. (12) Finally, Part II applies the understanding of statehood to the current situation facing island nations, and discusses both the UN Trusteeship system and precedent for non-state sovereign actors. (13) Part III then analyzes the continuing international relevance of the displaced people of the Maldives and Kiribati, and predicts that the states will become a new form of post-climate "nation" as sub-state, sui generis international entities. (14) Next, Part III analyzes the UN Charter and applies UN Trusteeship principles to Kiribati and the Maldives. (15) Part IV discusses what can be done mitigate the effects of climate change in order to save atoll island states and their people. (16) Finally, Part V of this Note concludes that the likely humanitarian catastrophe caused by rising sea levels will ultimately result in the loss of statehood for Kiribati and the Maldives. (17)

2. BACKGROUND: THEORIES OF STATEHOOD FOR ATOLL ISLAND NATIONS

   1. The Physical Effects of Climate Change

      The earth's climate is changing and higher temperatures bring an increase in sea level. (18) It is difficult to accurately project the margin of total sea level rise due to scientific margin of error, political uncertainty, and the sheer complexity of climate science. (19) Despite this uncertainty, experts have identified two primary causes for sea level rise: thermal expansion and melting glaciers. (20) Different projections range from as little as an 18-centimeter rise in sea level up to an almost 200-centimeter rise in average sea level. (21) Altogether, an average projection of a 100-centimeter rise in sea level "seems unavoidable," while a rise of 200 centimeters or higher is possible. (22)

      There are few states more vulnerable to rising seas than Kiribati and the Maldives. (23) Both have low average elevations (24), a majority of their populace in low-lying Areas (25), and groundwater aquifers vulnerable to saltwater intrusion. (26) A rise in sea levels would result in massive destruction of vital infrastructure and economic production. (27) Worst case scenario predictions would leave the Maldives entirely underwater, and the centers of population for Kiribati completely flooded. (28) Even if the Maldives and Kiribati escape complete inundation, they will likely become uninhabitable due to groundwater salinization. (29)

      Island nations like the Maldives and Kiribati are already among the most geographically (30) and socioeconomically vulnerable (31) states in the world. This means that they are pre-positioned to feel the effects of climate change more acutely due to the lack of economic resources required for an effective response. (32) Even if Kiribati and the Maldives do not disappear completely, they will experience unprecedented emigration as increasing ecological pressures reduce the habitability of atoll islands. (33) By the year 2100, it is entirely conceivable that "most or all inhabitants [of small island states] will be forced to migrate." (34)

   2. The Definition of Statehood

      To question the future of the island states is to question the definition of statehood itself. (35) There is no agreed-upon definition of a "state" in international law. (36) This could be explained by the rarity of this question in practice. (37) Still, there are two competing theories of statehood that permeate international law: the "constitutive" theory (38) and the "declarative" theory. (39) The declarative theory is widely accepted as a better analysis for the question of statehood, and is codified by the Montevideo Convention of 1933. (40)

      1. The Montevideo Convention

         The Montevideo Convention on the Rights and Duties of States stipulates that a state, as a "person" of international law, must have four qualifications: "(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states." (41) While these criteria are not absolute, they are intrinsically interlinked with one another. (42) For example, even if the territory were still physically capable of being habitable, if it were not continuously occupied by the population then it would not meet the Montevideo criteria. (43) The disaggregation of the population and territory would mean that the Montevideo criteria were no longer fulfilled, even though there remains territory controlled by the same government responsible for a group of people. (44)

         Each of the four Montevideo criteria has been interpreted by international jurists and scholars. (45) A 'defined territory' means some portion of the earth's surface, regardless of imprecise boundaries or competing territorial disputes. (46) Territory must also be habitable and capable of supporting economic activity. (47) The requirement of a population means that there must be a permanent set of residents within a given territory. (48) However, there is no requisite minimum number of residents. (49) There is only a requirement that a "significant" number of residents be permanent rather than nomadic. (50) There has been no direct definition of what counts as a significant proportion of the population, though there are some states that have nearly as many nationals living outside their borders as living within them. (51)

         The 'government' criterion is predicated on two factors: the actual exercise of authority and the right to exercise that authority. (52) This requirement is also intimately connected with the ideas of territory and sovereignty, and is defined in large part by the nature and extent of control. (53) Finally, the capacity for entering into relations with other states integrates two other requirements together: independence and an effective government. (54) In fact, some academics and jurists see this criterion exclusively through the lens of independence, and even name 'independence' as the "central criterion for statehood." (55) Capacity is thus often simply a consequence of statehood. (56)

      2. The United Nations Convention on the Law of the Sea

         Island state ideas of territory and resources are intimately bound with the sea that surrounds them. (57) The UN Convention on the Law of the Sea (UNCLOS) can be a useful lens through which to view questions of territory in an evaluation of statehood. (58) Importantly, the UNCLOS does not explicitly state whether the low-water coastline mark created by states is capable of moving. (59) What is left to be determined is...