Climate change prompts the UN to consider a novel legal question regarding the statehood of Small Island Developing States as rising sea levels threaten their physical existence.
Tuvalu, a small atoll located off the northeast coast of Australia, is one of the many low-lying States in the Pacific region whose elevations render them especially susceptible to the damaging effects of rising sea levels.[1]
For as long as Climate Change has been at the forefront of political discussion, the potential for and effects of rising sea levels have prompted serious concern.[2] Although the public has principally focused on the consequences of rising sea levels in populous coastal regions, no area stands to suffer more acutely than the Small Island Developing States (SIDS) spread throughout the Pacific region.[3] The UN first recognized SIDS during its 1992 Conference on Environment and Development, noting that the states comprise a number of small island nations located throughout the Caribbean, the Pacific, and the Atlantic Indian Ocean and South China Sea (AIS).[4] One example of the heightened impact that rising sea tides have on SIDS is the threat they pose to their statehood.[5]
As established during the UN’s 1933 Montevideo Convention, statehood turns on four qualifications: (1) a permanent population, (2) a defined territory, (3) an organized government, and (4) the capacity to enter into relations with other states.[6] Although not necessarily providing a discrete definition of the term, these prerequisites form the basis of the modern conception of statehood in the international law context.[7] Owing to the environmental impact of rising sea levels, SIDS may soon find themselves unable to meet these threshold requirements.[8] Complete submergence may not be an immediate threat, as it could take between 50 and 100 years for sea levels to reach the peak elevation of many SIDS, but the combination of gradual coastal erosion and increasingly severe storm surges threaten the physical territories of these nations and have forced their populations to retreat.[9]
In its first-ever meeting addressing the peace and security threats emerging from rising sea levels, the UN Security Council acknowledged the legal significance of the issue as it relates to the statehood of affected nations.[10] The President of the UN General Assembly emphasized the unprecedented nature of rising sea levels jeopardizing statehood; he recognized the dilemma as “provoking new legal questions that are at the very core of national and state identity.”[11] Particularly, the deleterious effects of climate change on vulnerable SIDS raises the question: “what happens to a nation’s sovereignty–including U.N. membership–if it sinks beneath the sea?”[12]
In response to the growing risk of uninhabitability resulting from changing environmental conditions, leaders of several SIDS have taken action in an attempt to secure the permanent legal existence of their nations.[13] In 2022, President Nikenike Vurobaravu of the island nation Vanautu sought an advisory opinion from the International Court of Justice addressing “obligations of states under international law to protect the rights of present and future generations against the adverse effects of climate change.”[14] Tuvalu took a similar approach, seeking guarantees from other nations that their governments will continue to recognize Tuvalu’s statehood in the “worst-case scenario” that its land is overcome by rising tides.[15] As recognition by other States does not equate to official statehood or UN membership, nations like Tuvalu will have to pursue more formal means of maintaining their status.[16] More permanent solutions could involve relocating the islands’ populations to new land acquired through purchase or agreement with other States, associating with other States to form new confederations, or seeking recognition from the UN as States without permanent territories.[17] Tuvalu has also looked to emerging technology as a mechanism for indefinitely preserving not only its legal existence but also the cultural history of the nation and its people.[18]
Seven nations–including Venezuela, the Bahamas, Saint Kitts, St Lucia, Vanuatu, Niue, Palau, Gabon and Taiwan–have responded to Tuvalu’s call for support by promising their continued recognition of the nation’s statehood if rising sea levels and other tidal events lead to permanent uninhabitability.[19] These promises reflect the “presumption of continuity” often recognized in international law; the presumption implies the “unconditional and irrevocable” nature of statehood, making it difficult to lose once a nation has fulfilled the threshold requirements.[20] The presumption of continuity helped justify the continued recognition of nations that found themselves unable to meet the requirements for statehood because of political or military strife, but it remains to be seen how the presumption applies to nations failing to qualify for statehood owing to the complete submergence of their land.[21]
In October 2023, the UN’s Sixth Committee addressed the issue of rising sea levels while reviewing the “first cluster of topics” from the annual report of the International Law Commission (ILC).[22] The Committee highlighted the growing need for guidance on the interpretation of the United Nations Convention on the Law of the Sea (UNCLOS) in light of the ever-intensifying effects of climate change on low-lying Member States.[23] To the extent that it addressed “Sea-level rise in relation to International Law,” the ILC’s 2023 Report focused on the implications of rising sea levels with respect to ensuring “legal stability” in determining baselines and maritime zones under UNCLOS.[24] The ILC has not yet formally addressed the issue of statehood as it relates to rising sea levels–since introducing the matter during its 73rd session in 2022–however the ILC has noted that its 75th session (2024) “will focus on the subject of sea-level rise in relation to statehood and [the] protection of persons affected by sea-level rise.”[25]
Absent clarity on the topic from the ILC, there is little precedent or authority to guide Member States in securing their permanent existence ahead of impending physical extinction.[26] The UN Charter provides for the expulsion of Member States when “a Member of the United Nations . . . has persistently violated the principles contained in [the Charter],” however it makes no mention of circumstances warranting an automatic loss of membership.[27] Despite this uncertainty, the Pacific Islands Forum (PIF)–a political and economic policy organization focused on promoting the interests of its 18 member nations occupying the Pacific region–has recently submitted to the ILC a formal declaration on “the Continuity of Statehood and the Protection of Persons in the Face of Climate Change-Related Sea-Level Rise” (the Declaration).[28]
The PIF developed the Declaration–which addresses specifically “sea-level rise in relation to statehood”–in response to the ILC’s request for further information on the topic.[29] The Declaration recognizes that “under international law there is a general presumption that a State, once established, will continue to exist and endure, and maintain its status and effectiveness, and that international law does not contemplate the demise of statehood in the context of climate change-related sea-level rise.”[30] The PIF uses these principles to ground its assertions that “international law supports a presumption of continuity of statehood and does not contemplate its demise in the context of climate change-related sea-level rise,” and that “statehood and sovereignty of Members of the Pacific Islands Forum will continue, and the rights and duties inherent thereto will be maintained, notwithstanding the impact of climate change-related sea-level rise.”[31]
Taking a similar approach to Tuvalu’s Foreign Minister, the Declaration ultimately calls on the international community for support and cooperation in pursuing its goals.[32] The PIF bases its support for the preservation of statehood on the core principles forming the foundation of international law: security, stability, certainty, and predictability; fairness and equity; the principle of sovereign equality of states; the overarching duty of cooperation; and equity and good faith.[33] Although the UN Charter offers little textual support for the presumption of continuity, members of the General Assembly’s Sixth Committee echoed the PIF’s rationale–implying that rising sea levels pose a physical threat, but not necessarily a legal one.[34]
The continued recognition by other Member States is not alone sufficient to ensure the statehood of those struggling to maintain the threshold requirements as a result of rising sea levels.[35] However, the ILC intends to consider the practice of States, international organizations, and other relevant entities in addressing the issue of statehood in relation to rising sea levels.[36] Thus, uniform adoption of the presumption of continuity across the member states would give weight to the interpretation and encourage its formal adoption by the ILC and ultimately the UN General Assembly.[37] The potential for perpetual statehood offers a glimmer of hope for the Small Island Developing States forced to endure the devastating effects of climate change, but only time will tell whether the UN will come to their rescue or leave them stranded at sea.[38]
[1] Photograph of the Island of Tuvalu, in Kalolaine Fainu, Facing Extinction, Tuvalu Considers the Digital Clone of a Country, The Guardian (June 27, 2023, 12:00 AM), https://www.theguardian.com/world/2023/jun/27/tuvalu-climate-crisis-rising-sea-levels-pacific-island-nation-country-digital-clone.
[2] See Nemat Sadat, Small Islands, Rising Seas, UN Chronicle, United Nations, https://www.un.org/en/chronicle/article/small-islands-rising-seas (last visited Jan. 10, 2024) (highlighting rising sea levels as “the centrepiece of climate change negotiations” ahead of the December 2009 United Nations Climate Change Conference).
[3] See About Small Island Developing States, Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States, United Nations, https://www.un.org/ohrlls/content/about-small-island-developing-states#:~:text=Small%20Island%20Developing%20States%20(SIDS,social%2C%20economic%20and%20environmental%20vulnerabilities. (last visited Jan. 10, 2024) (“[S]ea level rise poses an existential threat to small island communities, requiring drastic measures such as relocation of populations, and the related challenges this poses.”); see also, e.g., Pat Brennan, NASA-UN Partnership Gauges Sea-Level Threat to Tuvalu, NASA (Aug. 15, 2023), https://sealevel.nasa.gov/news/265/nasa-un-partnership-gauges-sea-level-threat-to-tuvalu/ (highlighting the dangers of rising sea levels as especially “stark” for the island nation of Tuvalu, located in the South Pacific).
[4] See About Small Island Developing States, supra note 3 (describing SIDS). The aggregate population of all SIDS–approximately 65 million–accounts for nearly 1% of the world’s population. Id.
[5] See Jonathan Watts, ‘We Could Lose Our Status as a State’: What Happens to a People When Their Land Disappears, The Guardian (June 27, 2023, 6:00 AM), https://www.theguardian.com/environment/2023/jun/27/we-could-lose-our-status-as-a-state-what-happens-to-a-people-when-their-land-disappears (quoting Simon Kofe, the Foreign Minister of Tuvalu, who noted, “the threats of sea level rise and the erosion of our statehood are not mere hypotheticals, but very real and present dangers that we must face head on”).
[6] See Convention on the Rights and Duties of States (Montevideo Convention), Dec. 26, 1933, 165 L.N.T.S. 19 (1934).
[7] See Thomas D. Grant, Defining Statehood: The Montevideo Convention and its Discontents, 37 Colum. J. Transnat’l L. 403, 413-14 (1999) (discussing the significance of the Montevideo Convention’s criteria for statehood in forming the foundation for many modern definitions of statehood); see also Watts, supra note 5 (recognizing the Montevideo Convention as reflecting the “definition of statehood under international law”).
[8] See, e.g., id. (highlighting the potential for SIDS to lose statehood under the Montevideo Convention’s criteria if rising sea levels and tidal flooding lead to losses in their physical territory or otherwise force their inhabitants to relocate).
[9] See Fainu, supra note 1 (identifying Tuvalu as “one of the first countries in the world to be completely lost to climate change,” as a result of tidal waters that threaten to flood its land).
[10] See Edith M. Lederer & Jennifer Mcdermott, UN Chief: Rising Seas Risk ‘Death Sentence’ for Some Nations, Associated Press (Feb. 14, 2023, 8:08 PM), https://apnews.com/article/politics-climate-and-environment-united-nations-security-council-antonio-guterres-5df7986b2b27989acb729d4da17155f8 (reporting on the UN Security Council’s meeting to discuss the “threat to international peace and security from rising sea levels”).
[11] Id. (quoting UN General Assembly President Csaba Kőrösi in emphasizing the novel legal issue arising out of the threat to statehood posed by rising sea levels and the resulting inhabitability of affected SIDS).
[12] Id. (introducing the core issue concerning statehood arising out of rising sea levels threatening the continued existence of low-laying island nations).
[13] See Lagipoiva Cherelle Jackson, Amid Rising Seas, Island Nations Push for Legal Protections, Associated Press (Sept. 30, 2022, 5:28 PM), https://apnews.com/article/united-nations-general-assembly-international-law-samoa-apia-257d5ce0d5123b7056f8f75ae5dbd5bb (discussing the efforts put forth by the leaders of Tuvalu, the Marshall Islands, and Kiribati in attempting to secure “a global settlement that guarantees [their] nation states . . . a permanent existence beyond the inhabitable lifetime of [their] atoll homes”).
[14] Id. (discussing President Vurobaravu’s push for clarification on how international laws can be applied to better protect individuals and nations adversely affected by climate change).
[15] Watts, supra note 5 (highlighting Tuvalu’s attempt to secure its statehood in light of the impending threats imposed by climate change and rising sea levels).
[16] See Michael B. Gerrard, Statehood and Sea-Level Rise: Scenarios and Options, 17 Charleston L. Rev. 579, 589-90 (2023) (noting the distinction between recognition by other Member States and official UN membership).
[17] See id. at 590-96 (discussing potential alternatives for maintaining statehood in the event a country’s land becomes uninhabitable).
[18] See Fainu, supra note 1 (discussing Tuvalu’s innovative use of the metaverse to create a “digital clone” of the country to ensure the survival of its legal existence and cultural values in the event that rising sea levels result in the physical disappearance of its land).
[19] See Watts, supra note 5 (identifying the seven countries to have agreed to recognize the permanence of Tuvalu’s statehood, including).
[20] Gerrard, supra note 16, at 586-88 (discussing the strength afforded to a nation’s statehood by the “presumption of continuity” and citing Article 6 of the Montevideo Convention to emphasize the “perpetual existence” that the presumption seems to guarantee for nations earning statehood).
[21] See id. at 588 (acknowledging the lack of precedent for assessing the statehood of States “ceas[ing] to exist because of physical occurrences”).
[22] Press Release, General Assembly, Sixth Committee Speakers, Concluding Cluster 1 of International Law Commission Report, Stress Need for Legal Framework Protecting States from Sea-Level Rise, U.N. Press Release GA/L/3701 (Oct. 27, 2023) https://press.un.org/en/2022/gal3701.doc.htm [hereinafter “Sixth Committee Review”] (addressing the various legal issues involved in managing the effects of rising sea levels).
[23] See id. (“[M]any speakers highlighted the need for an international framework that protects States from being threatened by sea-level rise, especially in light of how climate change was not on the horizon when the 1982 United Nations Convention on the Law of the Sea was put into force.”)
[24] Rep. of the Int’l Law Comm’n; Seventy-Fourth Session, Apr. 24-June 3 and July 3-Aug. 4, at 91-94, U.N. Doc. A/78/10 (2023) (discussing the issue of legal stability in the context of identifying baselines and maritime zones amidst changing coastlines resulting from rising sea levels).
[25] Seventy-fourth Session (2023), International Law Commission, https://legal.un.org/ilc/sessions/74/ (providing an overview of the topics the ILC considered in its 2023 report). Ahead of its 75th session, the ILC has requested further information in relation to the subtopics of “statehood” and the “protection of persons affected by sea-level rise” and the related “practice[s] of States, international organizations, and other relevant entities.” Id.
[26] See Gerrard, supra note 16, at 588-89 (noting the lack of precedent for situations involving the physical deterioration of Member States and UN Charter’s “silen[ce] on the issue of the extinction of a [S]tate”).
[27] Id. at 589 (citing Article 6 of the UN Charter in recognizing the potential for expulsion from the UN upon affirmative action by the General Assembly and highlighting the absence of any provision calling for automatic removal of Member States).
[28] See The Pacific Islands Forum, Pacific Islands Forum, https://www.forumsec.org/who-we-arepacific-islands-forum/ (last visited Jan. 14, 2024) (introducing the Pacific Islands Forum and highlighting its core objectives); see also Pacific Islands Forum, PIF Submission No. 5 to the International Law Commission, at ¶ 5 Doc. CP/20/26 (Jan. 9, 2024).
[29] See id. (discussing the focus of the PIF’s Declaration); see also Seventy-fourth Session, supra note 22 (describing the ILC’s request for additional information relating to statehood and rising sea levels ahead of its 75th session).
[30] Pacific Islands Forum, supra note 25, at ¶ 8.
[31] Id. at Annex A ¶ 13-14.
[32] See id. at Annex A ¶ 16. For further discussion of Tuvalu’s appeal to other Member States in securing its perpetual recognition, see supra note 14 and accompanying text.
[33] See Pacific Islands Forum, PIF Submission No. 4 to the International Law Commission 3 (Aug. 1, 2023) (identifying the legal principles offering support for the presumption of continuity).
[34] See Sixth Committee Review, supra note 22 (quoting the delegate of the Federated States of Micronesia in cautioning against the use of the phrase “existential threat” to characterize rising sea levels as the physical damage likely to result does not necessarily pose a threat to a territory’s legal status).
[35] See Gerrard, supra note 16, at 589-90 (noting the disjunction between official membership in the UN and the recognition of statehood by other member states).
[36] See Seventy-fourth Session, supra note 25 (noting the ILC’s request for further information to supplement its consideration of rising sea levels in relation to statehood).
[37] See cf. Pacific Islands Forum, supra note 33 (describing statements from various Pacific Leaders as demonstrating the “growing practice in the region that is indicative of an intention of preservation of statehood and sovereignty in the event of sea-level rise”).
[38] Pacific Islands Forum, supra note 28, at Annex A ¶ 11 (recognizing the “continuity of statehood” as “necessary and fundamental” to ensure the enduring protection of a State’s people).
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