The ABA Journal on Addressing the Problem of Sinking States

by Chris Borgen

The ABA Journal has a cover story about the threat posed to island states by climate change. This is a topic we have discussed on Opinio Juris at various times. Duncan wrote at length about the Maldives; I had a shorter piece here, and there are various references in the midst of other blog posts.

The Journal article is long and covers a great deal.  Either I or some of my co-bloggers will likely come back to this at length. For now, I just wanted to post a “heads-up” and highlight some points of interest regarding sovereignty and especially the human toll of sinking states:

“A small island is likely to become uninhabitable long before it disappears,” says Jenny Grote Stoutenburg, an international law scholar who is a Ph.D. candidate at the University of Hamburg in Germany. And it is at the moment when the last remaining residents flee the last inhabited island that the state would cease to exist… [snip]

It would be unprecedented for a nation to lose its statehood because its land actually disappeared, says Caleb W. Christopher, who is legal adviser to the U.N. mission of the Marshall Islands. “There’s never been a time when a government—even a small government—has vanished without somebody else coming over and taking over and succeeding it. Peru is always Peru even if another country takes it over, or if their government changes. It doesn’t just up and vanish off the face of the Earth.”

A key issue is how those nations can seek to preserve their statehood, claims to resources and national identity when they have no actual physical homeland.

Speaking at last year’s conference, Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate, Stoutenburg advised that island nations should try to keep at least some bit of land inhabitable and populated in order to anchor their claims to continued statehood… [snip]

Island nations were advised to freeze existing maritime boundaries by basing them on geographical coordinates that will not shift with retreating coastlines.

The article discusses other possible reactions to the problem of sinking sttaes, including concerted action by states-parties to the UN Convention on the Law of the Sea (UNCLOS) to draft new rules that take into account pre-existing sovereign claims prior to the loss of territory, to the idea of a non-territorial or ex situ state:

It would be made up of citizens scattered around the globe and headed by a government that would manage common resources, such as maritime resources and compensation funds; provide consular protection; maintain cultural ties and identity; and even keep alive the possibility of reunification in a new location.

However, as a law professor who writes about problems if statehood and sovereignty, it was the next two paragraphs that really caught my attention:

Heady ideas, perhaps, but some island nation citizens came away from the conference dispirited. During one question-and-answer session, a highly emotional resident of the Republic of the Maldives, a cluster of atolls and islands in the Indian Ocean where the average elevation is only about 5 feet, insisted that island nations “cannot be and should not be sacrificed on the altar of the good life of the rest of the world.”

Acknowledging such sentiments, Jariabka of Islands First says that, on an abstract level, the imminent statelessness of island nation residents is “a very interesting, sexy topic to be writing about as an academic.” But, he says, “my perception was that when you had the questions and comments, some of the government officials, the people from these islands, were visibly frustrated because they were hoping to learn how to save their islands rather than how to best manage their eventual extinction.”

And that is a good reminder for all that interesting legal conundra for some can be life-and-death issues for many.

I’ll have more to say on these and other sovereignty issues in another post. For now, I recommend reading the Journal article as well as Duncan’s previous post.

http://opiniojuris.org/2012/03/02/the-aba-journal-on-addressing-the-problem-of-sinking-states/

One Response

  1. Yes – so with eminent domain and other types of things.  Legal problems and people’s lives devastated by what happens to their space.  Environmental racism issues (location of polluting plants in poor areas) all these things and the tragedies for the people at the heart of them might be kept in mind as we blather on about this or that doctrinal subtlety.  Not that blathering on is bad and not that doctrinal subtleties do not have a place.  It is just that these other views have an important place that sometimes seems lost in translation.
    Best,
    Ben

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