To Be or not to Be: State Extinction through Climate Change

Abstract

Sea levels are rising. Within our lifetimes, several low-lying island states will be submerged. Until recently, the dominant position in legal circles has been that sinking island states lose their status as states once their territory is submerged. However, a contrary view is emerging. Writing in aid of island states, prominent legal scholars have advanced the position that the state, as a legal person, may continue to exist detached from territory. This proposition is supposed to aid island nations during the tumultuous times ahead. Maintaining the legal person of the state, we are told, allows access to international tribunals, facilitates coordination of international support, and protects the substantive rights of the individual citizens of island states facing climatic catastrophes. Legal scholars who advance this new position are more concerned with theoretical legal questions than the real challenges island states will inevitably face. What the people of island states need are options for communal resettlement. Continued statehood undermines communal resettlement efforts. No state will admit the people of an island state into its sovereign territory if they come as a State. Fighting for the continuation of the state post-submergence is therefore a disservice to island states. To protect the people of island states from becoming climate refugees, I propose a new pragmatic approach that trades statehood for life. Potential host states would only agree to accept communities from island states, if doing so will not entail competing sovereignty claims. Survival of the people of island states, therefore, is founded in state termination, not continuation. Based on this appreciation, I develop a legal framework of state-association that eliminates sovereignty clashes between potential host states and the people of island states. This framework secures communal resettlement options for the people of island states, guaranteeing their long-term survival.