The Disappearing States: Statelessness and Its Reflection on Sovereignty

BY T.J. GREEN — The world is on the verge of witnessing an unprecedented event that has not been seen in modern history: the actual physical disappearance of a nation. The rise in global sea levels is threatening to submerge several small island states in the Pacific and Indian oceans. To make matters worse, this threat to national security cannot be stopped. According to scientists, throughout the next century climate change induced sea levels are expected to rise at a minimum of 3 to 6 feet. This inevitable 21st century national security threat puts the tiny island nations of Tuvalu, Kiribati, the Marshall Islands, and the Maldive Islands on the brink of extinction.

Although during the course of history states have come and gone as a result of wars and political uprising, never before has a nations territory completely “disappeared.” The disappearance of a state’s territory gives rise to one complex question in particular: will the state simply cease to exist, or will it continue be recognized as a sovereign state?

The question of whether the state continues to be recognized as such poses a particularly serious question in international law. There are two main theories on what defines a sovereign state: the traditional or declaratory theory, and the constitutive theory. The constitutive theory defines a state as a person in international law if, and only if, it is recognized as a state by other states. It defines the status of a state as more of a political act. However, constitutive theory, the more traditional and more dominant theory, declares that the recognition by other states is not a requirement. This theory is established in the Montevideo Convention on the Rights and Duties of States (“Montevideo Convention”). Article 1 of the Montevideo Convention defines a state as a person in international law if it meets the following qualifications: 1) a permanent population; 2) a defined territory; 3) a government; and 4) a capacity to enter into relations with other states.

The question then becomes, can a state continue to exist if its territory disappears? One proposed solution has been for the disappearing state to acquire or purchase new territory. The disappearing state would then relocate its population to the new territory, thus preserving its continued existence as a state in accordance with traditional rules of international law. Although ideal, most scholars believe it is unrealistic to think a state will agree to cede a portion of its territory to another state unless it is uninhabitable and devoid of all resources.

Another potential solution to maintaining statehood, which is being utilized by one nation, is the construction of artificial islands. Currently, the Maldives, a small island state in the Indian Ocean, is building an artificial island designed to withstand the rising sea levels that are projected to render its existing islands uninhabitable. The Maldives believe this artificial island is the best chance it has to maintain both its statehood and its maritime zones. Unfortunately, the United Nations Convention on the Law of the Sea, which regulates and defines maritime zones, requires that land be “naturally formed” to possess the status of an island.
Presently, it is unclear how the international community will address the national security threat of a state’s territory disappearing due to the rise in sea levels. What is clear is that preparations must be made if these islands will inevitably be lost.

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