The article examines the legal status of island nations facing the threat of submersion due to rising sea levels, and their potential statehood in international law. It specifically analyses the future of Kiribati and Maldives, considering the impact of the Montevideo Convention on determining the statehood status of these nations.It also provides an idea of the consequences of disappearing states and their impact on the population.
Keywords: statehood, sinking islands, international law, state existence, migration, legal status, island nations, rising sea level, submersion, climate change.
In recent years, the issue of so-called ‘Sinking States’ has become a pressing issue. These are states facing submersion due to climate change and rising sea levels, potentially leading to their complete disappearance. This raises the question: Is it possible to preserve statehood permanently, or can external events deprive them of this status?
The answer to this question requires us to analyse the situations of countries such as the Maldives and Kiribati, which are gradually sinking due to climate change. According to preliminary estimates, their territories will be completely submerged by 2100. [1]
This possibility prompts a critical examination of how the loss of physical territory might affect a state's continued existence. In particular, it calls into question the relationship between territorial integrity and legal statehood, as well as the adaptability of the traditional criteria defining a state.
The Montevideo Convention on the Rights and Duties of States lists the four necessary qualifications to become a recognized state: a) permanent population; b) defined territory; c) government; and d) capacity to enter into relations with others. If a state at some point does not meet these criteria, it is no longer considered a state under international law. [2]
Kiribati and the Maldives may no longer meet the criteria for statehood as defined by the Montevideo Convention due to the absence of a permanent population residing in their defined territory, which could result in the loss of their legal statehood.
This potential loss of statehood also raises complex questions about maritime entitlements, particularly given that island states’ identities, territories, and resources are intrinsically linked to the surrounding sea. It is important to determine if these baselines could change enough to lose any maritime claims. To maintain current claims without concern for future access to ocean resources, many scientists suggest freezing current baselines under UNCLOS.
In addition to preventing future disputes, freezing maritime boundaries would preserve valuable economic zones left behind by disappearing states. These zones—such as the vast exclusive economic areas of Kiribati and the Maldives—offer both financial support and a strong rationale for continued governmental representation. Securing these maritime claims reinforces the legitimacy of such states as de-territorialized political entities.
However, the future does not appear promising for Kiribati and the Maldives. When applying the elements of statehood in international law to the 'post-climate' embodiment of these states, neither will be able to prove the existence of habitable territory or a permanent population.
Despite this, it seems likely that both states will continue to exist even after their territories are lost or become uninhabitable. Both Kiribati and the Maldives are developing plans for saving their populations, meaning their states will continue to exist to oversee the transition period. If both states relocate to the territory of other states in any situation other than outright termination or land purchase, there is a possibility that local legal sovereignty may arise, potentially surpassing the authority of the governments of displaced states.
The principle of state continuity in international law means that the international community will not attempt to externally abolish the governments of stateless people. [3] Moreover, the inherent drive for power within governments suggests that they will not willingly dissolve themselves.
Migration and displacement from low-lying islands have already begun due to climate change, further exacerbating the situation for island populations. Currently, the displacement occurs primarily within island states’ borders. However, in a post-climate scenario, many of these former states will become completely uninhabitable. In this case, survivors will be forced to relocate to other countries, potentially facing the risk of statelessness. Individuals displaced by climate change do not have the same legal status as refugees under the current Convention Relating to the Status of Refugees. As a result, their rights may not be protected in the same way. The granting of durable legal status is entirely on the willingness of the host state.
The continuity of governments of displaced nations could provide stability and international governance for displaced populations. The concept of nationality under international law has evolved from being solely under a state's control to becoming a broader international norm. Modern interpretations suggest that nationality is not exclusively dependent on the physical existence of a traditional state. Therefore, by maintaining continuity, the governments of Kiribati and the Maldives can help preserve their citizens’ right to nationality, even in the face of territorial loss.
Another reason for the governments of displaced nations to continue to exist is to manage the cultural and physical resources left behind by the endangered state. The governments can safeguard these resources for their people, regardless of location. UN mechanisms like trusteeship can provide legitimacy and support cooperation on resettlement, heritage preservation, and resource management.
Building on this, the international community can explore four potential paths to assist small island residents and governments facing climate change and the threat of losing their statehood. The first two paths focus on addressing issues of legitimacy and sovereignty for the states themselves, while the remaining two tackle the emerging humanitarian and refugee challenges.
The four paths are as follows: (1) To sign a comprehensive international agreement on the status of states affected by climate change. (2) The mission of the UN Trusteeship Council should explicitly include states endangered by climate change. (3) Bilateral agreements between endangered states and safer nearby states should be supported. (4) The 1951 Convention Relating to the Status of Refugees should be amended to include people displaced by climate change under the definition of ‘refugee'.
If the Trusteeship Council is unwilling to undertake transitional responsibility for small island states, endangered states have the option to negotiate bilateral agreements on the future of their communities. This process has already begun for many states threatened by climate change. Although bilateral agreements do not have the same precedential force as multilateral treaties, they provide a way for governments to ensure the safety and legality of their people's future. This option allows the host state to negotiate sovereignty and control issues with the de-territorialized nation's government. Despite the numerous concerns associated with relocating an entire nation, this solution is likely to provide the most effective and pragmatic outcome for both Kiribati and the Maldives.
If the multilateral community cannot provide a more comprehensive solution, it should consider amending the Convention Relating to the Status of Refugees to allow individuals displaced by climate change to obtain legal status and refugee status in countries worldwide. This will enable the displaced population to legally reside in a host country.
The international community must reconsider not only the durability and sustainability of international environmental law but also the very framework of statehood under international law, especially after the waves have submerged the territories of Kiribati and the Maldives. Although these nations may cease to exist as traditional states, they will reemerge as sui generis de-territorialized entities, continuing to govern their peoples without the full sovereignty typically associated with statehood.
The need for a governmental structure to oversee the transition for the Maldivian and Kiribati nations is overwhelming. Yet, applying traditional principles of statehood may prevent their governments from retaining full sovereignty within the international legal system.
In this context, the UN trusteeship system could provide both structure and international legitimacy for Kiribati and the Maldives. Although the international system has recognized non-traditional sovereign actors—such as indigenous nations, the Holy See, or the Order of Malta—these cases differ significantly from the existential threat posed by climate-induced state extinction. The experience of the UN Interim Mission in Kosovo, demonstrates how international governance mechanisms can facilitate orderly transitions, maintain institutional continuity, and confer legitimacy during times of legal and territorial uncertainty.
To summarize, the international community must take action to prevent the catastrophic legal effects of climate change on small island states such as Kiribati and the Maldives. This can be achieved through the implementation of a new international convention or by recognizing trusteeship principles for post-climate states. If neither option is feasible, the international community should take steps to improve the conditions for climate change refugees from Kiribati and the Maldives.
References:
- Climate change impacts on health and livelihoods: Maldives assessment. — IFRC, Climate Centre, 2021. — URL: https://www.climatecentre.org/wp-content/uploads/Climate-change-impacts-on-health-and-livelihoods-MALDIVES-assessment_April-2021_.pdf. — p. 8.
- Montevideo Convention on the Rights and Duties of States, Article 1. — Montevideo, 1933.
- When the Levee Breaks: Climate Change, Rising Seas, and the Loss of Island Nation Statehood. — Denver Journal of International Law & Policy. — URL: https://digitalcommons.du.edu/djilp/
- Charter of the United Nations, Chapter XII: International Trusteeship System. — San Francisco, 1945.
