Plato wrote of the legendary island kingdom of Atlantis: “…in a single day and night of misfortune all your warlike men in a body sank into the earth, and the island of Atlantis in like manner disappeared in the depths of the sea.” It is not clear whether there ever was a kingdom of Atlantis which disappeared into the sea. But a substantially similar fate seems set to befall several low-lying, small island states in the Indian and Pacific Oceans.
In the next 50-100 years it is possible that the entire territory of the Maldives, Tuvalu, Nauru and other island countries will be submerged as a result of increasing sea levels caused by climate change. International law stipulates that territory is a necessary prerequisite for statehood. Will these states cease to be states when they lose their territory?
The importance of this question is underscored, first, by the blatant unfairness of loss of statehood in this fashion. These states have barely contributed to climate change and have been at the forefront of efforts to combat climate change, yet they are to be the first victims of a disaster not of their making. Second, these states own vast economic resources in the form of exclusive economic zones. The dissolution of their claims to these resources may incite a global race to appropriate the fruits of these entitlements, to the detriment of international stability.
An easy answer would be to acknowledge the loss of the legal criteria of statehood but preserve their statehood through the power of international recognition. There are several sui generis sovereign entities in international law – the Holy See, the Order of Malta, and associated territories like the Marshall Islands, all arguably fail to satisfy one or more of the criteria of statehood. Other entities like Taiwan, Palestine and Kosovo meet the requirements for statehood but are not universally recognised for political reasons. The international law of statehood is positively full of curious anomalies.
I argue in a forthcoming article in the Stanford Journal of International Law that the loss of territory will not cost these states their statehood, because the territory requirement is a precondition for the creation of states, but not necessarily for their continued existence. First, technological developments have vastly diminished the functional utility of territory, rendering it dispensable for the continued existence of states. Second, international law does not hold that loss of territory implies loss of statehood.
A functional analysis of the territory requirement
Treaties, custom, eminent publicists and judicial decisions all support the territory requirement for statehood. But what purpose does territory serve?
The territory requirement serves as an essential filter in the creation of states. The presence of the territory requirement ensures that any group of like-minded individuals cannot simply decide, one fine day, to form their own state. In so restricting the number of states in the world, the territory requirement works to reduce the complexity of international relations. It also protects, to some degree, the sovereignty and territorial integrity of existing states.
This ‘filtering’ function of the territory requirement justifies its applicability to the creation of states. But it does not immediately explain the continued relevance of that requirement once a state has come into existence. Legal accounts of statehood have almost uniformly ignored functional analyses of territory, but the writings of philosophers, sociologists, political geographers and conflict theorists reveal four functions of territory.
First, it is a source of security, creating a physical divide between ‘us’ and ‘them’, and facilitating internal organisation against external threats. Second, it is a source of economic resources. Third, it demarcates spheres of jurisdiction and thereby facilitates the exercise of jurisdiction. Fourth, it is a source of historical and cultural resources.
I would argue that the impact of modern technological developments poses a challenge to the continued relevance of this functional utility of territory. Each of the four purposes of territory discussed above – jurisdiction, security, culture, economic resources – is fast losing its relevance in the modern world.
With regard to the security function, the ability of national borders to keep out aggressors has long ceased to be a practical reality. Similarly, the economic resources of territory are no longer essential to state survival. With the expansion of international trade, states are no longer exclusively reliant on the physical resources located within their territories. For instance, it may be possible to exist as a service economy powered by tertiary sector services, which account for 63.6% of global GDP, 79.7% of American GDP and more than 50% of the GDP of most countries. Nor do territorial borders appropriately or adequately circumscribe state jurisdiction. In an increasingly global economy and world the exercise of extraterritorial jurisdiction is not only required, it is increasingly common.
The least easily substitutable or replaceable function of territory is its cultural importance. However, two counter-arguments may be made. First, the cultural ties that bind a nation or community are only partly based on territory; thus, the loss of culturally relevant territory may not involve the annihilation of the cultural fabric of a community. Second, arguably the cultural relevance of territory is the least tangible and least immediately critical purpose that territory serves.
This analysis is admittedly optimistic in its assessment of technological advancements. I would not go so far as to say that territory is redundant, but nor is it irreplaceable. Where the idea of a de-territorialised state was earlier impossible, it is now merely difficult and may very well soon be entirely feasible. The limited functional utility of territory for statehood is underscored by the absence of a minimum threshold for satisfaction of the territory requirement (consider, for instance, the Holy See). Nor is indeterminacy as to territorial borders a bar to statehood (consider, for instance, the case of Israel in the first decade of its existence).
The silence of international law on the effects of complete loss of territory
International law does not mandate that the loss of territory means the loss of statehood. The territory requirement does not apply to the situation of these small island states, and even if it did, involuntary extinction of statehood is almost impossible. In any case, no state has ever been extinguished in this fashion.
First, it is unclear that the Montevideo criteria were conceived of as being capable of permanent extinction rather than merely reallocation or temporary loss. If Somalia lacks an effective government, or South Africa lacks the capacity to enter into international relations, the Montevideo criteria in these cases have not been permanently extinguished but are only temporarily absent. Similarly, if Czechoslovakia dissolves into the Czech and Slovak states, or France is militarily occupied by Germany, the Montevideo criteria in these cases have not permanently disappeared; they have only been reallocated. I do not argue that such losses, temporary or permanent, are incapable of leading to the loss of statehood. But such loss is a loss only from the perspective of the particular state and not the entire international community: the Montevideo criterion continues in existence, but is no longer in possession of the state. In the case of the Maldives, etc., by contrast, the loss of territory is permanent physical extinction of a Montevideo criterion, with no successor state or states popping into existence.
It is not possible to analogise from a context in which the possible loss of a Montevideo criterion could only be temporary or re-allocative, to a context in which such loss, and with it the loss of statehood, is permanent and irreparable. As a matter of logical reasoning, therefore, the territory requirement cannot operate to mandate loss of statehood of an established state in the event of permanent and physical disappearance of territory.
Second, even assuming that the territory requirement applies in this case, involuntary extinction of statehood is almost impossible. Involuntary extinction can take place through involuntary loss of territory through forceful occupation or involuntary dissolution.
Forceful occupation leading to involuntary loss of territory is theoretically impossible in the post-Charter era. Practically, there are only three instances during this era of such occupation extending to the entire territory of a state – Hyderabad, Tibet and Kuwait – and none of these supports the possibility of such occupation. . The attempted conquest of Kuwait in 1991 was successfully prevented, and there is a continuing debate as to whether India’s annexation of the princely Indian state of Hyderabad was illegal and whether Tibet ever was an independent state.
Involuntary dissolution is extremely rare. To begin with, it need not always lead to the extinction of the state, as in the case of Pakistan in 1971. The one possible instance of involuntary extinction through dissolution is the former Yugoslavia. It is difficult, however, to extrapolate support for the possibility of involuntary extinction from this one instance. Not only is this very limited practice, but there is also a significant difference between dissolution and loss of territory. The former implies some element of self-determination and conscious will of the peoples (especially in the case of the former Yugoslavia); the latter is completely involuntary. This difference makes it very difficult to analogise between the former Yugoslavia and the Maldives, etc.
Third, even if the territory requirement were applicable, and it were possible for statehood to be involuntarily extinguished, no state has ever been extinguished on account of loss of territory. James Crawford identifies seven instances of extinction of statehood in the post-Charter era, and none of these extinctions was occasioned by the loss of territory. [Crawford, Creation of States in International Law, 716 (2nd ed., 2006)] Indeed, this seems to be largely true even in the pre-Charter era. This in itself is a strong argument that this case is sui generis and not adequately governed by international law de lege lata.
Thus, I would argue that international law does not mandate the extinction of statehood of low-lying island states due to the submergence of their territory. A state cannot be created sans territory, but once created, the involuntary loss of territory in this manner does not compel loss of statehood under international law. The unusual nature of the facts of this situation prevents formalistic application of the territory requirement. The question here is not whether a state can be created without territory, but whether permanent and involuntary loss of territory terminates statehood. The answer to that question is: no.