This article explores the debate surrounding the continuity of statehood in cases where a state loses its territory. The article examines two primary positions: the first asserts that statehood is intrinsically tied to territorial possession, referencing the dominant 19th-century view that territory, population, and government are essential components of a state; the second challenges this assumption, pointing to earlier legal traditions that recognized the possibility of a state continuing to exist even without territory. By analysing historical and legal perspectives, the article highlights the complexity and evolving nature of the legal concept of statehood in international law.
Keywords: climate change, legal analysis, disappearing state, disappearing territory, statehood, territory, international law, sovereignty, recognition in international law.
There is no consensus on whether a state ceases to exist after losing territory. Throughout history, some states have maintained their status despite losing territory, while others have not. Let us examine various scenarios of this phenomenon:
Position 1: Statehood automatically ends when territory is lost.
Since the beginning of the 19th century, most international lawyers have held the position that a state is defined by three essential elements: territory, population, and power. It is widely accepted that territory is a necessary legal requirement for statehood, and the loss of it results in automatic termination.
Applying this approach to disappearing states means that their statehood will automatically terminate once the entirety of a state's territory is completely submerged. If the population of the disappearing state successfully settles on a new territory as an independent sovereign entity, it would constitute the formation of a new state and a distinct subject of international law. According to some scholars with more radical views, the statehood of these states could be considered to have ended when the population began to relocate, even before the territory was completely submerged.
Territory disappearance due to climate change is characterized by gradual submergence under water, rather than instantaneous disappearance caused by a natural disaster. Therefore, the evacuation of affected populations is likely to unfold incrementally over an extended period of time, unless alternative legal or political arrangements—such as extraterritorial sovereignty or international territorial concessions—are put in place.
The international legal personality of state-like entities is more limited than that of fully sovereign states, so it is not in the interest of disappearing states to become sui generis entities. In this case, disappearing states will face the following negative consequences:
— Article 4 (1) of the UN Charter provides that only states can be UN members. Exclusion from membership could weaken the disappearing states’ position in international forums. However, even if they lose statehood, they may still engage in certain UN activities, provided they retain some degree of international legal personality. Importantly, participation in the UN does not determine a state's legal personality. [1]
— A disappearing state would lose the right to bring cases before the International Court of Justice, as Article 34(1) of its Statute allows only states to be parties to proceedings. [2]
— A disappearing state would be unable to claim rights to maritime zones under the 1982 UN Convention on the Law of the Sea, as Articles 2, 24, 33, 55, and 76 explicitly assign such rights and obligations to states and coastal states only. [3]
In practice, sui generis entities can engage in international relations largely depending on recognition by other states. This raises a key issue arising regarding legal succession in international treaty participation, given the unique change in the subject of international law. States have universal legal personality, and many international treaties apply exclusively to states. Thus, Article 1 of the Vienna Convention on the 1969 Law of Treaties limits its scope to treaties between states, [4] while the 1978 Vienna Convention on the Succession of States in respect of Treaties applies only to written treaties concluded between states. Consequently, continued participation in treaties and international organizations remains uncertain and depends largely on recognition by the international community. [5]
Given the unique loss of state territory caused by climate change, international law must develop alternative concepts to help preserve the statehood of disappearing states. This necessity has prompted scholarly debate on which existing legal frameworks, if any, can be adapted to address this unprecedented situation. In particular, several authors examine whether the concepts of 'governments in exile' and 'failed states' are applicable to states whose territory is gradually sinking underwater. Ultimately, the evolution of international law in this area will be crucial in determining how disappearing states can retain their legal identity and continue to participate in global governance.
Position 2: Statehood does not automatically end with the loss of territory unless there is a clear and irrevocable loss of territory.
It has already been noted that, prior to the nineteenth century, international legal doctrine placed little emphasis on territory, and a state was considered capable of existing without it. Consequently, the loss of territory was not viewed as necessarily terminating statehood. [6, p. 112]
Most modern scholars define territory as an essential feature of a state's legal structure. However, a different approach may be necessary when a state loses its territory. As English professor T. D. Grant states, «Territory is not a necessary criterion, at least after the state was created. It is obvious that if a state is already recognized by the international community, then it does not lose its status as a state, having lost its territory or effective control over the territory». [7] Similarly, J. McAdam argues, «The idea of statehood is based on the concept of control over a territory, not simply on the fact that there is a particular territory as such». [8]
Failed states are still regarded as states, even during periods of failure. The requirement for effective government control over territory is applied less strictly to them. For instance, during World War II, Belgium was considered a failed state for a year but retained its state status.
Another relevant concept is that of governments in exile, which allows states to operate outside their territory without losing statehood. Throughout history, several governments in exile, such as those of France, Belgium, and Czechoslovakia during World War II, have concluded international treaties and maintained diplomatic relations. For example, the UN Secretary-General, as depositary, permitted the Cambodian government-in-exile to sign key multilateral treaties, including the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights, despite objections from other states.
Do governments in exile apply to disappearing states? The key similarity is that the continuation of statehood for both depends on continued recognition by the international community. This is also true for failed states in the context of territorial loss. The constitutive theory of state recognition, which posits that a state only exists as a legal entity once it is recognized by other states, is particularly relevant here. The same could apply to disappearing states if, during their migration, their government temporarily lacks effective control over any territory, thus failing to meet the criteria for statehood.
The main differences between disappearing states and governments in exile are twofold. Firstly, in disappearing states, both the government and the population are effectively 'in exile' due to the loss of territory. Secondly, while a government in exile is a temporary situation, the loss of territory for disappearing states is permanent and irreversible, except in cases of territorial expansion through artificial structures, which does not apply to governments in exile.
Thus, the territorial element of statehood is applied less strictly to states already recognized in the international arena: statehood does not cease if the loss of territory or resettlement of the population is temporary. However, when the physical territory of a state permanently disappears, the state itself ceases to exist. This position is widely supported at the international level by the UNHCR, the UN General Assembly's Sixth Committee, specialists in international law, participants in climate change conferences, and national refugee committees. As climate change accelerates, it is essential for international law to evolve, offering new frameworks that not only address the disappearance of state territory but also safeguard the rights and legal status of affected populations.
References:
- UN Charter, Article 4 (1): https://legal.un.org/repertory/art4.shtml
- Statute of the International Court of Justice, Article 34(1):https://www.icj-cij.org/en/statute
- United Nations Convention on the Law of the Sea 1982, Articles 2, 24, 33, 55, and 76: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
- Vienna Convention on the Law of Treaties, 1969, Article 1: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
- Vienna Convention on Succession of States in respect of Treaties, 1978: https://legal.un.org/ilc/texts/instruments/english/conventions/3_2_1978.pdf
- Vattel, Emer de. The Law of Nations, 1758, p. 112.
- Grant, T. D. Defining Statehood: The Montevideo Convention and its Discontents. — 1999. — p. 435: https://www.worldcat.org/title/defining-statehood-the-montevideo-convention-and-its-discontents/oclc/822457524
- Burson, Bruce, Kälin, Walter, and McAdam, Jane. Statehood, Human Rights and Sea-Level Rise. 13 Apr 2023: https://brill.com/view/journals/yido/4/1/article-p265_12.xml?language=en
