Retention Of Statehood And Maritime Claims Notwithstanding The Loss Of Territory Due To Sea Level Rising-An International Legal Perspective

Low-lying island states are submerging due to climate change. This unprecedented phenomenon gives rise to an analytical and practical challenge which the existing laws of statehood, reflected in the Montevideo Convention, may not provide a basis for adequately addressing-does a submerged state remain as a state without territory?Both the relevant but controversial constitutive theory and its declaratory counterpart have their merits and demerits. The widely accepted Montevideo criteria are not universally incorporated into state practice nor widely embraced by legal scholars as criteria for statehood. Over the years, additional criteria have been offered for this purpose such as independence, self-determination, establishment in conformity with law and jus cogens obligations, as well as willingness to observe international law, democracy and civil rights, feasibility of the new state, and UN membership. The corollary is that the notion of statehood and sovereignty is historically contingent and defining statehood should be an ongoing enterprise. That said, the Montevideo criteria do not rule out the possibility of submerged states retaining their statehood, as they are more concerned with the creation of statehood. Once a state has been born, the criteria could tentatively be applied to the elimination of its status.Events in the former Soviet Union and Yugoslavia are indicative of a theoretical shift away from the declaratory approach in favor of the constitutive one. Recognition in certain situations can be important in the process of state creation as well as in the retention of statehood when states lose key criteria of statehood.Moreover, the presumption held by the international community in favor of the continuity of a state and against extinction is conducive to the maintenance of statehood, even when a state has lost all objective effectiveness or territory. The notion of deterritorialized states, as evidenced by the Sovereign Royal Order of Malta (SMOM), may also be invoked in support of the retention of statehood by disappearing states. The implication is that these new circumstances call for a re-conceptualization of the idea of statehood. Specifically, it should not be regarded an all-or-nothing concept, but one having a range of gradations. Disappearing states, like entities whose statehood at some juncture was uncertain (e.g., Kuwait and Somalia), will for all intents and purposes remain states, just in a slightly altered physical form.Another issue stemming from submergence is the retention of maritime claims, which are critical for island states’ survival. As matters stand, the United Nations Convention on the Law of the Sea (UNCLOS), the existing laws governing maritime claims, cannot effectively alleviate the plight of the people of submerging states. It follows that amendments, such as the fixing of baseline and the changing status of artificial islands, need to be seriously considered.It should be emphasized that this unprecedented phenomenon calls not merely for theoretical solutions but also concrete actions of states. The law must evolve to effectively address the reality of the situation it seeks to regulate. One must hope that the dynamism and flexibility of the international community and international law will prove sufficient to meet the multiple challenges posed by rising sea levels.