When the Levee Breaks: Climate Change, Rising Seas, and the Loss of Island Nation Statehood

By Juvelier, Ben | Denver Journal of International Law and Policy, Fall 2017 | Go to article overview

When the Levee Breaks: Climate Change, Rising Seas, and the Loss of Island Nation Statehood


Juvelier, Ben, Denver Journal of International Law and Policy


Climate change is causing and will continue to cause unprecedented changes for humanity. These changes will disproportionately impact small island and atoll states like Kiribati and the Maldives. Both states are vulnerable to climate change due to a combination of low average elevation, lack of sustainable groundwater, and economic dependence on existing coastlines. By using the United Nations (UN) Trusteeship system as a framework for enabling the continued international relevance, the two deterritorialized nations can continue to provide for their peoples. The traditional elements of statehood, first codified in the Montevideo Convention of 1933, define "states" as entities with territory, a permanent population, a government in control, and capacity for international relations. After climate causes irreversible harm to these island states, neither will maintain their status as a state under international law. UN Trusteeship is a mechanism which directly addresses transitional entities that the international system does not define as states. By using the existing mechanisms of international law contained in the UN Charter, the international community can mitigate the effects of a climate change crisis for its most vulnerable members.

I. INTRODUCTION

The tide washes over what was once home to tens of thousands of people in the island country of Kiribati; remnants of the former capital Tarawa are visible at low tide as the ruins emerge from beneath the sea. It may sound like science fiction, but the facts of climate change are undeniable; the seas are rising, and bringing with them untold difficulties for residents of small island states (1) dependent on oceans for their survival. (2) Ultimately, the prognosis for the denizens of these island nations--such as the Maldives and Kiribati--is grim, but with enough preparation a crushing humanitarian catastrophe may be avoided. (3) However, even in the best-case scenario for the citizens of the Maldives and Kiribati, their governments will still face an existential crisis. (4) The question of existence for these states strikes at the core of the international community's understanding of statehood. (5)

There is a presumption of continuity for states in the international system. (6) Even when states are referred to as being "failed states," they are still unequivocally referred to as members of the existing order of the international system. (7) However, these failed states are often examples of a government simply losing control of a portion of its territory. (8) What happens when a government is disaggregated from its territory--losing its territory completely--or the people controlled by a government no longer reside on the state's physical territory? (9) Kiribati and the Maldives are facing this question as sea levels rise and climate change will render their territory uninhabitable over the next century. (10)

This Note argues that both Kiribati and the Maldives will lose the legal status of statehood because they will no longer fulfill the criteria of the Montevideo Convention defining elements of a state, specifically due to their lack of a permanent population able to reside on some defined territory. Part II of this Note begins by summarizing some of the science on sea level rise, and the prognosis for Kiribati and the Maldives. (11) Part II then provides an overview and context of the understanding of "statehood" in international law, specifically referencing the Montevideo Convention, United Nations (UN) Convention on the Law of the Sea, and UN Charter. (12) Finally, Part II applies the understanding of statehood to the current situation facing island nations, and discusses both the UN Trusteeship system and precedent for non-state sovereign actors. (13) Part III then analyzes the continuing international relevance of the displaced people of the Maldives and Kiribati, and predicts that the states will become a new form of post-climate "nation" as sub-state, sui generis international entities. …

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