4. Self-Determination for Island Inhabitants
4.3 Self-Determination and the loss of Territory
4.3.2 The Deterritorialised State
A novel proposal offers a way to retain the survival of the State in this situation, and thus the self-determination of its environmentally and externally displaced peoples. This could be achieved through the temporary formation of a deterritorialised State after the loss of territory, before progressing to a more permanent solution. This proposal has been proposed by academics as a means of conserving the existing State, and consists of the displaced populations relocating, but retaining sovereign control over the abandoned land, and eventually the territorial waters (once the last rock disappears).128This control would be exercised by a ‘government-in-exile’, which would act as a trustee of the State and its assets.
It would protect the rights and interests of its relocated citizens as much as possible, continue to represent them at the international level, and manage the State’s remaining maritime zones.129This would depend on the willingness of host States to receive majorities of populations, as well as a willingness to allow the government-in-exile to reside therein and extend to its nationals a level of personal sovereignty, such as diplomatic and consular
129ibid 227.
128Jorgen Odalen, ‘Underwater Self-determination: Sea-level Rise and Deterritorialized Small Island States’
(2014) 17(2) Ethics, Policy & Env. 225, 226.
127H. Lauterpacht (ed), International Law: A Treatise (8th edn, Longmans, Green and Co. 1955) 153.
protection.130Even if the peoples were relocated separately to a number of States, they could retain their self-determination rights and collective identity to an extent through its
deterritorialised government.
Admittedly, this solution is far from perfect. Willcox points out that such a government would lack many of its original capacities of independent statehood, such as ability to enforce laws or retain any jurisdictional sovereignty in the new territory.131In fact, its competencies as a government-in-exile, as well as its limited control over its people, would fully depend on what the receiving states of the government and peoples would be willing to grant. In
response, it is submitted that this solution would work best as a temporary one, with the purpose of allowing the peoples of the submerged SIDS to retain a degree of
self-determination rights, before more collective and permanent relocations are adopted.
Odalen notes that this proposal would require a change in the legal system governing jurisdictional rights over territorial waters, whereby maritime zones could be frozen in their current state, in order to be preserved as national waters of the SIDS even after their territory has been completely submerged.132Rayfuse agrees with this approach, noting that no State would have to relinquish sovereignty over a portion of their maritime zones, as this would simply retain the present division of boundaries.133Although this proposal seems unstable, the idea of a state continuing to exist without territory is not entirely new. It has in fact been accepted before under international law. For example, the Sovereign Order of the Military Hospitaller Order of St John of Jerusalem, of Rhodes and of Malta is an order which has historically been recognised as a “sovereign international subject”, despite having lost its territory in 1798.134McAdam notes the many historical examples of governments temporarily operating in exile in other territories,135which suggests that while the existence of territory,
135McAdam (n 130) 135.
134Odalen (n 128) 227.
133Rosemary Rayfuse, ‘International Law and Disappearing States: Utilising Maritime Entitlements to Overcome the Statehood Dilemma’ (2010) 52 UNSW Law Research Paper 1, 4.
132ibid 232.
131Willcox (n 108) 194.
130Jane McAdam, Climate Change, Forced Migration and International Law (OUP 2012) 136.
along with the other Montevideo criteria, may be necessary to establish statehood, a people may continue to retain their self-determination and an “identity analogous to statehood”136 even after this territory has disappeared.
Although recognition by other States of statehood is not determinative, but merely a declaratory “indication of already established statehood”137once the necessary Montevideo standards have been met, Soete submits that the continued international recognition of a deterritorialised State could bolster its legitimacy at the international level.138State practice demonstrates that the international community would be willing to move beyond the restrictions of the Montevideo Convention in order to recognise on-going statehood and self-determination in such a situation. For example, the Congo was still recognised as a State even though it no longer fulfilled the necessary criteria by lacking an effective government.139 If a State which lacks a government can survive in the eyes of the international community, it is submitted that a State which still has surviving political institutions could survive even without a defined territory. The strong presumption in international law of the continuation of States once they are established,140even if going through transitional periods such as this one,141strengthens the position of the deterritorialised State. Although this proposal is
unusual and requires a rethinking of the conventional definition of a State, Burkett reminds us that climate change is an unprecedented problem, and will require unprecedented solutions.142
142Maxine Burkett, ‘The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood, and the Post-climate Era’ (2011) 2(1) Clim. Law 345, 355.
141Ben Juvelier, ‘When the Levee Breaks: Climate Change, Rising Seas, and the Loss of Island Nation Statehood’ (2017) 46 Denver Journal of International Law and Policy 21, 22.
140James Crawford, The Creation of States in International Law (2nd edn, OUP, 2006) 715.
139ibid.
138ibid 51.
137Soete (n 125) 11.
136Lilian Yamamoto and Miguel Esteban, ‘Vanishing Island States and Sovereignty’ (2010) 53(1) Ocean &
Coastal Management 1, 6.