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By Zana Syla and Avidan Kent
Zana Syla is a PhD student at the University of East Anglia’s School of Law, specialising in public international law
Avidan Kent (Cantab) is an Associate Professor at the University of East Anglia’s School of Law
Tuvalu, a small island developing state in the South Pacific, faces the possibility of its territory becoming uninhabitable and/or submerging in the future due to climate change-related sea-level rise. This would have an impact on its status as a state under international law, which requires the existence of a population, a territory, a government, and the capacity to enter into international relations. Yet, the question of what would happen in the event that a state’s territory becomes uninhabitable and/or ‘vanishes’ is not entirely clear under international law. Several pathways have been articulated in relation to the future of the statehood of island states, such as Tuvalu, that are threatened by sea-level rise. This blog post briefly and critically overviews these pathways before concentrating on a number of related and relevant developments from the Pacific Region, primarily the signing of the Australia-Tuvalu Falepili Union bilateral treaty.
In November 2023, Australia and Tuvalu signed a bilateral treaty aimed at ‘safeguarding Tuvalu’s future’, particularly in response to the risks posed to it by climate change. This treaty constitutes the first recognition by international law, in a legally binding instrument, that statehood and all that this status entails may persist regardless of the possibility of the loss of territory by a state and/or its becoming uninhabitable in the context of sea-level rise. The treaty should be linked to the wider regional developments, including Tuvalu’s endeavours to ensure the continued existence and recognition of its statehood, ‘with or without land’. This pathway, as it pertains to statehood in the context of sea-level rise and the future of the island states at risk from this phenomenon, appears to be garnering increasing support from a number of states.
The Statehood of ‘Sinking’ Small Island Nations: Background and Context
Sea-level rise constitutes one of the key consequences of climate change, and is primarily caused by the thermal expansion of the ocean and the melting of ice sheets and glaciers. The sea level is rising, and it is projected to continue rising for centuries to come. The implications of this are severe, particularly for low-lying coastal communities and small island developing states that are at the forefront of the climate crises. Significant concerns include permanent land submergence, more frequent or intense flooding, increased erosion, ecosystem loss or change, salinisation, and impeded drainage. Most critically, several small island developing states, including Kiribati, the Maldives, the Marshall Islands, Nauru, Palau and Tuvalu, face the possibility of becoming uninhabitable and/or ‘sinking’ in the future as a consequence of rising waters. Hence, their very existence and future as sovereign states may be brought into question.
Such a scenario is not, however, certain, and these island states have been taking different measures to counter the impacts of sea-level rise. For instance, the Maldives has constructed a new artificial island and implemented coastal barriers for protection. Indeed, implementing engineering solutions, such as creating higher islands or raising island heights artificially, could aid in addressing the existential threats posed by rising waters. Other creative ideas are also being tested: for example, Tuvalu’s move to become the first ‘digital nation’, recreating – online – its entire land, culture, history and all government functions so it ‘can exist as a nation even after its land is no more’.
‘Statehood’ in a Changing Climate: In Search of Pathways
The fear that rising sea levels may impact the statehood and sovereignty of a number of island nations is leading small island developing states to address these legal implications, thereby making these questions of international law both timely and important. The Second Issues Paper of the Co-Chairs of the International Law Commission (ILC) Study Group on sea-level rise in relation to international law, including statehood, similarly notes (para 175) that while:
‘[n]o situation has yet arisen in which the entire land territory of a State has been covered by the sea or become uninhabitable, […] the evolution of sea-level rise and the perception of the phenomenon by affected States, in particular those for which the threat is nearest and most tangible, make it necessary to consider the foundations in international law of the options that could be implemented at some point.’
While a detailed review of the concept of the state in international law is beyond the scope of this blog post, at the very basic, in order to exist, a state must have a defined territory, a permanent population, a government, and the capacity to enter into international relations. As Kent and Behrman note, each of these requirements would be questioned if a state’s territory becomes uninhabitable and/or is covered by rising waters. In this case, the population of a state would likely disperse, it would be unclear how its government could continue to function effectively and govern its dispersed population, and additionally, the scope of the areas in which such a state would be able to engage in and perform international (legal) relations would be extremely limited. It is unsurprising, then, that questions arising from the possible loss of foundational elements of statehood by multiple island states and the uncertain future of such states under international law have garnered significant attention. Several potential pathways pertaining to statehood in the context of sea-level rise and the future of island states endangered by this phenomenon have been discussed. Broadly, these can be categorised into five main groups.
The first pathway regards states as territorial communities. Thus, if there were no territory or permanent population on its territory, then statehood would be lost. This possibility is extremely dramatic: it essentially means that multiple island states may confront the loss of their statehood. The moment at which this would occur is not entirely clear.
A second pathway supports the presumption of the continued existence of states and, in the context of sea-level rise, is viewed favourably by multiple states. It draws on examples from international practice when states have maintained such status despite not having control over their territory for different reasons. Such situations were, however, temporary. Conversely, according to the International Law Association Committee working on the topic of international law and sea-level rise, such a presumption ‘could be more usefully related to the process’ of impacted states’ gradually weakened claim to statehood due to sea-level rise, rather ‘than to its possible end result’.
A third pathway entails the introduction of a new category of deterritorialised or ex-situ state, or a more specific international legal personality inspired by the cases of the Holy See (between 1870 and 1929) and the Sovereign Order of Malta (today).
A fourth potential pathway includes the allocation, or full cession of an area of territory from one state to the impacted state, lease of territory, or land purchase. For example, the Maldives has been setting aside for years a portion of its annual revenue generated through tourism to purchase land to transfer its population. Another example involves the Government of Kiribati’s purchase of land in Fiji. While initially it was believed that this land would be used as a new home for displaced I-Kiribati, this land is now intended to be used, for the time being, for food production purposes.
A much older example is the resettlement of Nauru’s residents in Australia’s Fraser Island in the 1960s. However, the outcome of the mere purchasing or leasing of land is unlikely to impact the issue of statehood at all, as the selling or leasing state normally retains its sovereignty over the said area. Rather, such cases are, in effect, similar to ‘normal’ migration, as the new residents are most likely not granted any autonomous rights and effectively become subjects of their new host state. Recent examples of a full cession by a state to facilitate foreign groups’ statehood demands are unknown to the authors.
A final potential pathway for island states, whose statehood may face uncertainties in the future due to sea-level rise, is to associate or join with another state, and various models have been discussed.
Developments from the Pacific Region: A Budding Trend in State Practice?
Until recently, none of these pathways had found their way into international law or been applied in international law terms in the context of sea-level rise and statehood. However, noteworthy developments are occurring in the Pacific region. These developments are expressed in states’ public statements, as well as in the budding state practice of Tuvalu and others.
Perhaps the most prominent example of these shifts is the Australia-Tuvalu Falepili Union bilateral treaty, which is expected to ‘enter into force as soon as possible in 2024’. Tuvalu is a small island developing state threatened by rising waters in the South Pacific. Its average land elevation is only about two meters above sea level, which is precisely the amount that the sea level could rise by 2100, according to some studies. It is projected that by 2050 around half of its capital, which hosts a significant percentage of its population, will already be flooded daily by tidal waters. Indeed, the preamble of the Australia-Tuvalu Falepili Union recognises climate change as the biggest security issue for Tuvalu, while most importantly, Article 2(b) stipulates that ‘the statehood and sovereignty of Tuvalu will continue, and the rights and duties inherent thereto will be maintained, notwithstanding the impact of climate change-related sea-level rise[.]’
In accordance with this treaty, Tuvalu will remain a state with all that this status entails for Australia, even if it becomes uninhabitable and/or disappears under the sea in the future. The treaty applies such a pathway, or any pathway for that matter (see above), possibly for the first time in the forms of international law, specifically in a legally binding treaty within the context of sea-level rise and statehood. The same novel envisioning of statehood is also reflected in Tuvalu’s newly amended constitution. This constitution provides that Tuvalu’s state status shall persist in perpetuity regardless of possible impacts that would result in the loss of its territory, thus proposing a ‘new definition of statehood’. Thus, the Australia-Tuvalu Falepili Union aligns with such a new definition and the second pathway mentioned above: the presumption that statehood, once obtained, shall persist and that this should apply even if the territory becomes uninhabitable and/or is lost.
While the focus of this blog post has been primarily on the Australia-Tuvalu Falepili Union, twelve other countries also appear to have recognised Tuvalu’s enduring sovereignty through bilateral joint communiques, according to Tuvaluan sources. This includes Kosovo and Taiwan (which Tuvalu recognises as sovereign states), as well as the Bahamas, Cook Islands, Gabon, Marshall Islands, Niue, Palau, Saint Kitts and Nevis, Saint Lucia, Vanuatu and Venezuela. While locating and accessing the letter of each of these joint communiques is not readily possible, as not all have been found in the public domain, the announcements of the joint communique with Niue, Cook Islands and Marshall Islands include express references to the recognition of Tuvalu’s statehood as permanent. With regard to the Cook Islands and Marshall Islands, such recognition is reciprocal.
Tuvalu’s efforts to ensure its continued statehood, which it views as contingent on other states’ recognition, is also reflected in a 2021 joint communique with Venezuela establishing diplomatic relations between the parties, which is possibly one of the only such statements accessible online in its entirety. It includes the following commitment:
‘They [Tuvalu and Venezuela] further commit to recogni[s]ing the statehood of Tuvalu as permanent and its existing maritime boundaries as set, even if Tuvalu’s population is displaced or it loses its land territory due to sea level rise. This is in accordance with international law, which holds that recognition is unconditional and irrevocable.’
Crucially, the efforts of Tuvalu exist within a broader regional context, and the support for the presumption of continuity of statehood is also shared by other Pacific states. An important testimonial of the views of the nations of this region is the November 2023 Declaration on the Continuity of Statehood and the Protection of Persons in the Face of Climate Change-Related Sea-Level Rise. This declaration was issued by the leaders of the Pacific Islands Forum, comprising eighteen members across the Pacific Ocean, with fourteen being small island developing states. Notably, it refers specifically to and supports the presumption of continuity of statehood in light of the possible impacts of sea-level rise and asserts that ‘the 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.’
This pronouncement is the same as the provision of the Australia-Tuvalu Falepili Union concerning Tuvalu’s enduring statehood. Article 16 further urges the international community to back the declaration and cooperate in achieving its purposes. This statement follows an earlier, less specific but still highly relevant, declaration made by the same organisation in 2021 which addresses the relationship between the Law of the Sea Convention and rising sea levels and includes a provision for ‘preserving the maritime zones in the face of climate change-related sea-level rise.’ It calls for an interpretation of the said Convention in a way that will not adversely affect the island nations’ rights due to expected sea-level rise.
Views from Beyond the Pacific
The reports from the ILC’s Co-Chairs on sea-level rise and the subtopic of statehood offer a rare glimpse and important insights into how other states may think regarding the presumption of continuity of statehood in the context of climate change and ‘sinking’ nation islands. Notably, for the United States of America (the USA):
‘sea-level rise driven by human-induced climate change should not cause any country to lose its statehood or its membership in the United Nations, its speciali[s]ed agencies, or other international organi[s]ations.’ (see ILC’s latest report on sea-level rise and the subtopic of statehood, para 85)
The USA’s view in favour of the presumption of continuity of statehood is unsurprising given its ownership of numerous island territories in the Pacific Ocean and possibly also due to potential geo-political ramifications (i.e., China). The ILC’s latest report also reveals explicit support for the presumption of continuity by other nation islands (e.g. Cuba, Jamaica, Malta, New Zealand), as well as by the Alliance of Small Island States. There was also support for the presumption of continuity from some European countries. For example, Germany agreed (para 83) that, while in principle, the loss of a territory should mean that a ‘State would legally cease to exist’, the existing ‘geo-political realities as well as recognition by international community’ merit flexibility. According to Germany, ‘[a] spectrum of viable solutions based on international law is therefore conceivable in order to preserve the international legal personality of island States that are subject to submergence or becoming uninhabitable.’
While the views expressed by states indicate rising support for the presumption of continuity of statehood in the context of sea-level rise, it should be emphasised that they do not express an international consensus. India, for instance (see ILC’s latest report on sea-level rise and the subtopic of statehood, para 63), has ‘noted that greater caution was needed in considering the presumption of continuing statehood for States directly affected by sea-level rise, in particular from the perspective of the criteria set out in the Convention on the Rights and Duties of States.’ And the United Kingdom was quoted in the same report (para 82) as supporting a comparable position:
‘With regard to recognition of statehood, the United Kingdom’s general practice has been to consider whether a State has, and seems likely to continue to have, a clearly defined territory with a population, a Government who are able of themselves to exercise effective control of that territory, and independence in its external relations.’
By way of another illustration, Croatia’s position reflected in the said report (para 28) is even more forthright in that, ‘[i]f a state were to lose its territory by being totally submerged as a result of sea-level rise, it could no longer be considered as a State.’
Concluding Remarks
Clearly, a thorough investigation of bilateral arrangements and state practice in regional and international fora is essential for developing an accurate and complete interpretation of international practices, patterns, and trends related to the future of the statehood of the island states at risk from sea-level rise. Such an investigation would address important questions such as, for instance, the existence of a customary international rule in relation to sea-level rise and statehood. This and other pertinent questions will be researched further by the authors.
The above review nevertheless points at and analyses a budding acceptance by a number of states of the presumption of continuity of statehood for those island states that may face survival threats in the future due to sea-level rise. This is appropriate given that the rules on statehood were conceived long before the era of climate change and, therefore, warrant updating in view of new developments. Additionally, the updating of these rules is justified considering that a strict interpretation of the foundational elements of statehood is likely to severely affect island nations that have contributed least to the emergence of climate change.
It remains unclear whether the Australia-Tuvalu Falepili Union and the recognitions of the presumption of continuity of statehood discussed above will be followed and how the international community at large will choose to respond to the challenges posed by sea-level rise as it pertains to statehood. If followed, envisioning what such statehood will precisely look like will not be an easy task. The loss of territory will inevitably impact the other elements that are indicative of a state’s existence. How can a state function in practice without a territory? How can it maintain a permanent population? How can it govern people effectively if they are already subject to the domestic laws of (possibly more than one) host state?
The domino effect of a territory’s ‘disappearance’, which impacts the fulfilment and validity of the other statehood elements, may, therefore, somewhat undermine the position of states that support the presumption of continuity. According to the ILC’s latest report (paras 77 and 80), states such as the Netherlands, Antigua and Barbuda and Lichtenstein have all argued in favour of a flexible, holistic approach, supporting continued statehood even if ‘one or more of the criteria for statehood are no longer met’. But what if all of the statehood criteria, or the vast majority of these, are no longer met due to the lack of a territory?
Significantly, if the above-reviewed practice is followed, it will surely invite questions about the potentially changing nature and notion of statehood as conventionally understood, including recognition. Indeed, creative solutions that depart (wholly or partially) from existing notions of statehood, linked to the principles of environmental/climate justice, and tailored to the realities of each individual island state may be required. Alternatively, suppose it were followed by some states and not others; in that case, it may be expected that uncertainties regarding the status of the impacted states will arise when and if the time comes—whatever that may be.