Questions of statehood and statelessness are generally laden with controversy and emotion, yet with Pacific islands such as the Republic of the Marshall Islands (RMI) at risk of becoming gradually uninhabitable and entirely submerged under rising seas, along with losing their sovereignty and lucrative marine rights, there is an urgent need for legal solutions. Solutions are available, even if uncertainties surrounding precedents and current options mean they will depend as much on politics as they will on law.
According to customary international law as codified in the 1933 Montevideo Convention, a state must have a permanent population, a defined territory, a government, and the capacity to enter into relations with the other states to be considered sovereign. Nevertheless, even without climate change taken into account, not all recognized states today conform to all these requirements, and some academics have long argued that the definition is inadequate.
With regard to climate change, there is no precedent for a state losing its territory for any reason other than war, annexation or the sale of land. One option for a state threatened with submersion to retain its sovereignty is to purchase new territory if it is available. For example, the Indonesian government has agreed to rent out one of its thousands of uninhabited islands for the Maldives. Another possibility could be the resettlement of the state’s citizens into a receiving state, in which they would retain some autonomy. This option, however, is fraught with political difficulties, and so far, it is mostly unprecedented, as movements tend to be within one country rather than between countries – for example, in Papua New Guinea, the Carteret Islanders have begun relocating to higher ground in Bougainville, an autonomous region 50 miles away.
There are two kinds of state independence: factual, which is the set of four elements above, and legal, a status conferred by the international community and based on fundamental, inviolable jus cogens norms. Even if an uninhabitable island is no longer factually independent, it can still be recognized by other states as legally independent as long as it maintains a “population nucleus” of 50 or more people – or, in the case of complete submersion, if it maintains a functioning government, even one located in another state, that claims continued statehood. Only if the majority of the world’s states decided not to recognize it any longer would the island no longer be legally independent, but that is an unlikely scenario. Morally, other countries have an obligation to support the islands’ continued existence. Politically, many would want to avoid setting dangerous new precedents.
Other options include a trusteeship run by the islanders with financing from other countries, a “nation ex situ” that can hold a scattered Pacific island diaspora together and would align well with today’s global, cross-border citizenships and rich online communities. Yet the trustneeship known as the United Nations Trust Territory of the Pacific Islands, administered by the United States between 1947 and 1986, caused significant problems before RMI became independent in 1979. During that time, America conducted 66 nuclear test explosions, leading to the Marshallese peoples’ first exposure to radiation – and relocation. The effects of that radiation and relocation still linger in the form of more than 35 severe medical conditions, such as cancer of the bone, and destroyed homes and property. If a trusteeship were the answer, then, it would have to work entirely differently from how it has in the past. But it also remains unclear how an island diaspora would work without the land and resources that form the basis of its cultural identity.
This one example highlights the difficulty surrounding possible solutions to safeguard the islanders’ statehood if the worst-case scenario becomes a reality – a reality that is extraordinarily challenging for Pacific islanders like the Marshallese to contemplate, not least because today’s generation may be challenged by a statehood they struggled to achieve only 25 years ago. But if discussing legal theories in advance of submersion prepares the world for such changes and smooths inevitable political difficulties, that statehood – while hardly ideal – will at least not be lost.
This piece is based partially on presentations made by Maxine Burkett of the University of Hawaii and Jenny Grote Stoutenburg of the University of California, Berkeley, as well as comments made by RMI Ambassador Phillip Muller, all at the Columbia University’s law school conference, Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate.