The article examines various methods and approaches related to preserving disappearing states due to climate change. It analyses how each approach aligns with international law and the potential consequences. It also considers how the selection of one of the methods might affect the further distribution of island states’ water resources and the possibility of protecting their rights to these resources. Additionally,it explores the legal status of different types of artificial installations within island states.

Keywords: climate change, territory disappearance, international law, endangered states, artificial installations, engineering structures.

The most effective approach to addressing the various challenges faced by disappearing states—while respecting their aspiration to retain statehood and preserve national identity—is to reshape their territorial circumstances through the following strategies:

1. The construction of dams and engineering structures capable of sustaining human habitation.
2. The construction of artificial islands and other installations within the territorial water.
3. Leasing territories to ensure the population’s safety and cohesion, while maintaining national continuity.

The first method addresses two issues simultaneously: it helps keep the islands populated and prevents new issues from arising over maritime zones.

The second method can also address the same set of challenges. Furthermore, it allows the creation of new maritime zones without altering the position of existing maritime boundaries. In international law, this concept is often referred to as «freezing» of sea borders.

The third method involves leasing territories from other states. This strategy enables states to exercise control over territory without claiming full sovereignty. It enables the shared exercise of sovereign rights by multiple states over the same area, providing a flexible legal and political framework when competing state interests cannot be reconciled within existing territorial arrangements.

State practice and decisions by international and national courts show that raising the elevation of islands does not automatically grant them the legal status of artificial islands. This criterion applies only to naturally formed islands and excludes rocks or low-tide features that have never been classified as islands. [1]

The construction of dams and other engineering structures that support essential activities on islands offers a practical and legally regulated solution to the problem of disappearing states under current international law. This approach typically resolves key issues related to territorial relocation by preserving statehood, maintaining existing maritime boundaries, and retaining citizenship while preventing confusion regarding the international legal status of the population.

This method does not address the issue of international responsibility for territorial submersion due to climate change. However, it helps avoid instability in international relations by minimizing conflicts over shifting maritime boundaries and population migrations. The main disadvantage is its high cost and reliance on international support, including funding.

For example, Tuvalu, a small Pacific Island nation with nine atolls and a land area of just 25 square kilometers, faces significant risks due to rising sea levels. Most of its territory lies less than one meter above the spring tide level, and by 2050, over half of the capital, Funafuti, could be flooded. [2]

To address this, a multi-million-dollar coastal adaptation project has been completed in Funafuti, including drainage systems to protect against heavy rainfall and the creation of a small harbor facility to ensure the continued accessibility of the Funafuti Lagoon for the local community. Further developments are planned, with long-term maintenance of the facility expected to last over 40 years.

International law places no restrictions on the construction of artificial structures within a state's territorial waters, which extend up to 12 nautical miles from the baseline. While the 1982 UN Convention on the Law of the Sea does not explicitly grant the right to build artificial islands, such construction is permissible as territorial waters fall entirely under the state's jurisdiction and sovereignty. These waters are considered an extension of the state's territory, providing the state with the right to regulate activities within them. According to international law, an artificial island must be firmly connected to the land to be considered part of the territory, rather than a floating structure. [3]

This legal flexibility has encouraged several states to explore practical solutions to rising sea levels. One notable example is the Maldives is at the forefront of preserving state territory through artificial structures. In 1997, they built the artificial island of Hulhumale, capable of housing 150,000 people, at a cost of $63 million. With international support, similar projects could offer a viable solution for disappearing states. [4]

Considering the opinio juris of affected states and examples of artificial islands, it can be argued that these islands are recognized as state territory, potentially forming a customary international law. There is no need to amend the 1982 UN Convention on the Law of the Sea regarding statehood for endangered states, as it does not define statehood criteria or address the issue of submerged island territories.

International law does not prohibit the recognition of artificial islands within territorial waters. While artificial islands are permissible within territorial waters, they do not generate maritime zones of their own under international law and cannot be used to extend a state's sovereign rights beyond existing baselines. Consequently, reconstructing existing natural islands through dams and embankments remains a more effective strategy for preserving maritime entitlements and addressing the broader challenges of territorial loss faced by disappearing states.

In addition to island reconstruction, endangered states may acquire or lease new territory. This can help maintain statehood and population viability in cases of total territorial submersion or to compensate for lost resources. The best solution for preserving statehood is to formalize agreements for the transfer of part of the state’s territory, where the sovereignty over that territory is fully or partially transferred to another state. This ensures the disappearing state can preserve its territorial integrity and sovereign rights, even if its original territory is submerged, while safeguarding its population, resources, and international status.

Few states are willing to cede territory to «sinking states». Fiji has sold a small portion of its land to Kiribati and Tuvalu and is currently negotiating to sell most of its territory to Kiribati. According to some international legal experts, finding a state willing to relinquish land is difficult unless it is uninhabitable, ownerless, or lacking valuable natural resources.

Kiribati has purchased land, including the 5,500-acre Natoavatu Estate in Fiji, a rare freehold property. After spending time with the villagers there, it became clear that relocating even a small portion of Kiribati's population would be challenging. The village headman noted insufficient land for the community's needs and a threat to food security. Much of the estate consists of steep hills and mangrove swamps, unsuitable for settlement or farming. The main agricultural activity is cattle herding, with crops like kava, taro, and rice. Local fishing rights are reserved for indigenous Fijians, posing further challenges for I-Kiribati residents, whose diet relies heavily on fish. Relocating to this area would be difficult for people from sandy atolls with limited agricultural resources.

In 2001, Australia refused to address Tuvalu's territorial acquisition, while New Zealand chose to gradually host the population of disappearing states, setting a quota of 75 citizens from Tuvalu and Kiribati per year. These individuals must meet specific requirements, including being aged 18–45, having a work permit, and being proficient in English.

If citizens from disappearing states are resettled on land administered by another state, the original state retains sovereignty over any remaining land above sea level and continues to exercise its sovereign rights over the surrounding maritime zones. However, once the original territory is submerged, the affected state will lose its jurisdiction over the maritime areas that were previously measured from the original baselines, as these areas are no longer tied to the land. Therefore, sovereignty over the waters above the flooded territory will no longer be maintained.

To incentivize states to lease their territory, disappearing states may offer access to marine resources in exchange, especially if their entire territory is submerged. In such cases, the disappearing states would retain sovereignty over their islands, territorial seas, and jurisdiction over the contiguous zone and exclusive economic zone, allowing for reciprocal benefits. Leasing territory can be an effective solution for acquiring land in the event of complete submersion, helping to preserve statehood, maintain sovereignty over maritime spaces, and clarify the status of the population.

An international lease of state territory involves one state granting another the use of part of its land for a specified period, purpose, and under agreed conditions. Typically, this includes providing land and real estate for the lessee’s authorities and population, along with a special legal regime governing their status and activities.

Although the lessee exercises limited control, the lessor retains full sovereignty and may terminate the lease under international agreements. Thus, the tenant state's rights are not unlimited and stem from the lessor’s legal order rather than from international law itself. If the leased area is uninhabited by the host population, territorial supremacy may be shared to a degree, but the vanishing state is unlikely to be permitted to exercise coercive jurisdiction.

Importantly, in international law, leasing is distinct from other forms of territorial acquisition, such as occupation, prescription, cession, accretion, or conquest.

Nevertheless, leasing remains a controversial method for preserving statehood in cases of complete territorial submersion. Similarly, building artificial islands within a state's territorial sea poses legal risks, as such constructions may not satisfy the conditions for effective statehood. According to the UNHCR, even if a state continues to be internationally recognized, the absence of key attributes—such as a defined territory or effective governance—could result in its population being considered de facto stateless.

At the same time, since international law lacks clear criteria for determining when a state ceases to exist, the disappearing state's assertion of continuity may carry considerable legal weight. In this context, leasing arrangements could help address the challenge of population distribution and, if structured to allow a certain degree of autonomy, may contribute to preserving cultural identity and national coherence.

While this method helps address issues of population vitality and resource recovery, it does not resolve fundamental concerns such as the loss of sovereignty, control over maritime spaces, and the risk of statelessness. Furthermore, international law does not offer protection to the tenant if the lease agreement is terminated. This method is more applicable in cases of partial submersion, where it can help maintain statehood and ensure the population’s survival.

However, a lease agreement is unlikely to preserve statehood for completely submerged states, as it lacks the transfer of territorial supremacy. During leasing or resettlement, the disappearing state may be treated as a state-like entity, but this does not guarantee full sovereignty. Therefore, the most effective solution for preserving statehood in cases of total submersion is a cession agreement.

References:

1. The 1982 UN Convention on the Law of the Sea. Article 121(3).
2. UNDP. Notes from Tuvalu: Leading the Way in Adapting to Sea-Level Rise. — July 19, 2023. URL: https://www.undp.org/blog/notes-tuvalu-leading-way-adapting-sea-level-rise.
3. The 1982 UN Convention on the Law of the Sea. Article 60.
4. Hulhumalé: Are Artificial Islands a Solution or Problem for Island Countries Grappling with Rising Seas? — URL: https://www.startingwithus.org/the-rundown/hulhumale-artificial-islands.