The Role of Territorial States in International Law

The notion of “state” can be understood from two perspectives: the state as a territorial entity and the state as the way a particular political and social community organizes itself. The state as the primary subject of modern international law is the result of the intersection of these two approaches: a politically organized community on a defined territory. ^{Footnote 26} What also characterizes modern international law is the place of states at the heart of the regime. ^{Footnote 27} The starting point of this state-centred regime is often identified as the Peace of Westphalia of 1648, “where unity was established by nation states exercising sovereignty over certain territories.” ^{Footnote 28} With the establishment of defined sovereign entities came a new political order around which societies organized themselves — the Westphalian system — where the interactions of these sovereign entities — nation-states — were regulated by a corpus of rules that formed the international legal regime.

Sovereignty over a defined geographical area epitomized the inextricable link between nation-states and their territory and led the “territorial state” to become the main actor in the Westphalian system. ^{Footnote 29} The predominance of territoriality brought a new structure to the international order: ^{Footnote 30} “[W]hen contrasted with the age of anarchy and insecurity which immediately preceded it, the age of territoriality appears as one of relative order and safety.” ^{Footnote 31} Indeed, the classical purposes of the territorial state have been stability and security. ^{Footnote 32} As stated by Derek Wong, “territory [is] the physical foundation of power and jurisdiction, as well as nationality and, thus, the basis upon which peace and security rest.” ^{Footnote 33} However, territory is also the basis for a state’s population, the physical area where people “associate and organise themselves” ^{Footnote 34} and where they exercise their right to self-determination. ^{Footnote 35} It is, further, a source of economic, historical, and cultural resources for the maintenance of the population. ^{Footnote 36} It has even been characterized as “reflect[ing] the identity (or goal values) of the society as a whole.” ^{Footnote 37} For governing authorities, territory normally defines spatial limitations for the exercise of jurisdiction. ^{Footnote 38} Territory is therefore both “a factual reality and a legal construction” creating a “functional framework.” ^{Footnote 39}

Territoriality is important not only as one of the characteristics of states themselves and as a basis upon which states achieve organization and stability but also for the role it plays in defining the scope of “various other principles and rules of international law.” ^{Footnote 40} For example, the prohibition on the threat or use of force “against the territorial integrity … of any state” ^{Footnote 41} is expressly linked to state territory. ^{Footnote 42} Similarly, state jurisdiction, while applicable outside a state’s territory in some cases (for example, through the nationality or passive personality principles) is still strongly rooted in a state’s territory through the territoriality principle. ^{Footnote 43}

This portrait of the nature and role of the state — a nation-state intrinsically linked with its territory — is still the one that prevails under current international law. ^{Footnote 44} Even if other actors — individuals, international organizations, corporations, even the market itself ^{Footnote 45} — are now playing a competing role, “there is no evidence that the state has died.” ^{Footnote 46} And in the absence of a better model, the state remains, from both a practical and ideological perspective, “the most viable form of social organization.” ^{Footnote 47} However, the value of the state’s core component — that is to say, its territory — might change. For example, “technological developments have robbed the territory requirement of much of its functional utility” since the issues of security, resources, and jurisdiction can be seen as being more closely related to the globalized world than to a state’s territory. ^{Footnote 48} These developments have reduced territory from an essential component of statehood to only a relevant one, especially when looking at the continuity of the state. ^{Footnote 49} Consequently, as the practical value of the territorial state fades, so too may its ideological value, which might in turn lead to the necessity of adapting the current model. ^{Footnote 50} It might even trigger the need for an alternative model of social organization that departs from territoriality as its foundation stone.

The Classical Definition of Statehood

No express conventional definition of statehood can be found in international law. ^{Footnote 51} As a substitute, one can look to the criteria listed in Article 1 of the 1933 Montevideo Convention (Montevideo criteria), the only international conventional instrument to list such criteria. While the Montevideo Convention is a regional treaty, its Article 1 is now considered as having entered the sphere of customary international law. ^{Footnote 52} It reads as follows:

However, this definition is often criticized as being incomplete or unsatisfactory, and the normative value of its components remains uncertain. ^{Footnote 54} Louis Henkin has argued that the Montevideo criteria are not a prerequisite for the creation of states but, rather, a mere description of what is commonly referred to as statehood. ^{Footnote 55} Further, Thomas Grant has described the continuing use of the Montevideo Convention as “a source of puzzlement” because of its obsolete character:

To be more in line with current, practical realities, it has been suggested that other elements should be considered when assessing statehood. ^{Footnote 57} For example, the independence of a state from other entities (such as the establishment of Manchukuo in 1932, which was widely considered a puppet state under the control of Japanese authorities) and the legality of its creation (such as the creation of Rhodesia based on a racist ideology) should be taken into account. ^{Footnote 58} Further, recognition by other states (for instance, Kosovo or Taiwan) ^{Footnote 59} or the necessity of democratic institutions and respect for the rights of minorities — two criteria discussed since the end of the twentieth century — could also be considered. ^{Footnote 60}

However, it should be borne in mind that this list is not exhaustive, and even if all elements were fulfilled, the recognition of an entity as a state cannot be guaranteed or officially established. ^{Footnote 61} Further, notwithstanding the suggested alternative or additional criteria, “no proposals codifying statehood have been accepted since the [Montevideo Convention]. [T]his problem [has been attributed] in part to a political reluctance by states to announce a clear definition of statehood.” ^{Footnote 62} Whatever the elements used to define statehood and ascertain the existence of an entity as a state, what interests us in the present article is whether and how these criteria can be preserved and applied when faced with the progressive transformations stemming from climate change and sea-level rise. Before a complete loss of territory occurs, the effects of sea-level rise will first render a territory uninhabitable, leading to migration and population displacement. ^{Footnote 63} It is therefore relevant to look more closely at the role played by the criteria of population and territory in the definition of statehood.

There is, first, no apparent minimum quantitative requirement for population size. ^{Footnote 64} What really matters is the qualitative requirement of a communal life; a mere “care-taking population” (such as for the maintenance of facilities) would not be sufficient. ^{Footnote 65} Similarly, although “a territory must be adequately recognized and controlled regularly by an entity to qualify for statehood,” ^{Footnote 66} there is also no minimum requirement for territory size. ^{Footnote 67} Imprecise boundary delimitations or unfixed borders will not lead to a lack of a defined territory either. ^{Footnote 68} However, a state has to exist on a natural piece of land; “a complete artificial construction does not fulfil the criteria.” ^{Footnote 69} The use of artificial islands to preserve statehood can therefore be questioned. ^{Footnote 70} There is also debate as to whether an uninhabitable island or a rock could fulfil the requirement of defined territory, but it is clear that a low-tide elevation does not. ^{Footnote 71}

Based on the now famous statement of Max Huber, arbitrator in the Island of Palmas case, the existence of a state in the complete absence of a territory does not seem to be a possible option: “International law, the structure of which is not based on any super-state organisation, cannot be presumed to reduce a right such as territorial sovereignty, with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations.” ^{Footnote 72} Two trends exist in the literature as to the necessity of the territorial requirement. ^{Footnote 73} On the one hand, in the same vein as Huber’s statement, Rosemary Rayfuse suggests that, following a complete submergence of a state’s territory, the requirement would no longer be met and statehood would consequently fail. ^{Footnote 74} She is joined by Ineta Ziemele who states that, while mere changes to these elements would not have an impact on statehood, the disappearance of territory and/or population would. ^{Footnote 75} Julien Jeanneney also suggests that if a state is understood as being a community organized on a territory, the complete submersion of that territory would consequently lead to the extinction of statehood. ^{Footnote 76} On the other hand, Wong takes the view that this conclusion of automatic state extinction goes against the “strong presumption in favour of the continued existence of a state.” ^{Footnote 77} The present article follows the latter approach and rejects the premise that territorial disappearance automatically entails the extinction of statehood.

What is certain is that international law aims at stability. And to preserve that stability, it operates on a key premise: once statehood has been acquired, it is very difficult to lose. ^{Footnote 78} This is why, once an entity becomes a state, “the loss of one or more of these criteria will not necessarily deprive an entity of its statehood.” ^{Footnote 79} One author has even suggested that, by stretching the reasoning that “[t]here is no lower limit on the size of this territory or of its ability to sustain a population,” we might consider a submerged territory as meeting the territorial requirement. ^{Footnote 80} We could also rely on Article 6 of the Montevideo Convention, which supports this strong presumption of continuity by stating that once recognition has been given, it is irrevocable. ^{Footnote 81} Based on this reasoning, SIDS, having been recognized by the international community, would still have the right to have their legal personality acknowledged whatever might happen to the components of their statehood.

In fact, the Montevideo criteria address the elements needed for an entity to become a state and not the circumstances under which it can continue as such or how statehood becomes extinguished. ^{Footnote 82} The requirement of territory therefore seems essential for the creation of a state, but loses its importance when discussing the continuity of that state. ^{Footnote 83} Indeed, in state creation settings, territory plays a double role: it is first seen as a source of functional utility and social organization (as discussed earlier in this article), but it also acts “as a desirable barrier to statehood” to prevent the “uncontrolled proliferation of states.” ^{Footnote 84} However, when talking about the continuity of an existing state, only the functional purpose remains. We could therefore posit that, if a new model for functional utility could be found, the territorial requirement would not be necessary for state continuity.

Nonetheless, a loss of statehood entails a deprivation of entitlements. This is why it “is not an insignificant or insubstantial event; it represents a significant downgrading of status.” ^{Footnote 85} For SIDS especially, statehood is important. First, statehood gives access to United Nations (UN) membership, ^{Footnote 86} which “is crucial because it provides a cost-effective method of maintaining international contacts, thus avoiding the need for a worldwide diplomatic apparatus.” ^{Footnote 87} Statehood is also a sign of links between state, culture, and identity, which are core values for the peoples inhabiting SIDS. Finally, the loss of statehood could lead to the loss of maritime rights and other resource-related rights, which could be fatal for states with economies that mostly rely on revenues from such activities. ^{Footnote 88} These issues will be discussed in greater detail in the following sections.

What we are left with is a system that is not adapted to the permanent physical disappearance of territory ^{Footnote 89} and that is not well suited to anticipating whether the loss of population and/or territory is fatal to statehood. ^{Footnote 90} However, while rooted in factual elements, statehood is a legal status stemming from rules and practices. ^{Footnote 91} We can therefore presume that a modification of the legal principles upon which statehood rests could lead to a new way of envisaging it. But one must also keep in mind that statehood is “ultimately a matter of acceptance by the international community.” ^{Footnote 92} The coherence normally expected from the Westphalian system is now being confronted by new realities brought on by climate change and sea-level rise. ^{Footnote 93}

Claims over Maritime Zones and Rights to Resources

A first concern that arises when talking about territorial loss is the potential loss of resources that would ensue. The entitlement to resources found in a state’s territory also extends to its maritime zones. ^{Footnote 95} In the case of SIDS, resources are intrinsically linked to states’ maritime zones, ^{Footnote 96} particularly through revenues coming from fishing licences and the fishing industry. ^{Footnote 97} As shown by Ann Powers and Christophe Stucko in 2007, fishing licences alone accounted for 42 percent of all government revenues in Kiribati and 11 percent of all government revenues in Tuvalu. ^{Footnote 98} In the Maldives, 10 percent of the gross domestic product is attributable to fisheries. ^{Footnote 99} Achim Maas and Alexander Carius have also observed that “the combined exclusive economic zones [(EEZs)] of the Pacific island states are several times larger than the whole of the [European Union, and with] the potential of blue-sea fishing and deep-sea mining, the [EEZs] are important economic assets.” ^{Footnote 100} From a human perspective, the identity and welfare of coastal communities are “closely intertwined with the resources, ecosystems, goods and services available in those particular regions,” putting maritime resources at the core of socio-economic and cultural conditions of the populations of SIDS. ^{Footnote 101}

In light of the law of the sea principle that “the land dominates the sea,” the disappearance of the entire territory to which these zones relate raises questions about the continuity of the zones themselves. ^{Footnote 102} Even partial submersion of territories could create some concerns because formerly habitable territories that become “[r]ocks which cannot sustain human habitation or economic life of their own” may not support claims to an EEZ or a continental shelf. ^{Footnote 103} Even the United Nations Convention on the Law of the Sea (UNCLOS) does not provide answers to these questions as the convention “was tailored to the geographical circumstances of its own time, not the ones yet to come.” ^{Footnote 104} Yet there seems to be a consensus that “[t]hese marine resources will be lost with the shrinking or disappearance of an island state’s maritime zones caused by sea level rise, a consequence that could be prevented only by amending the law of the sea to provide for stable maritime zones.” ^{Footnote 105}

The basis for this consensus resides in the ambulatory nature of baselines. With the rise of the sea level, these baselines, from which the measurement of zones proceeds, ^{Footnote 106} move inland, consequently creating ambulatory maritime zones. ^{Footnote 107} The International Law Association’s Committee on Baselines concluded in favour of keeping ambulatory baselines, ^{Footnote 108} but the possibility of fixing the outer limits of maritime boundaries is still being discussed. ^{Footnote 109} Another concern arising from ambulatory baselines is the water/land ratio required under Article 47(1) of UNCLOS for the drawing of archipelagic baselines. ^{Footnote 110} Sea-level rise might affect this ratio and deprive archipelagic states of rights to which they are entitled under the current regime, most particularly those associated with archipelagic waters. ^{Footnote 111}

Even if a stable regime of baselines or maritime zones were adopted, a problem would remain. While a stable regime is “an adequate solution if only a part of the territory was to be submerged … it is not clear at present whether this solution is acceptable for a completely submerged Island State.” ^{Footnote 112} This is why scholars have suggested that, even faced with the complete disappearance of territory, the maritime zones could still be managed either by an authority for “the benefit of the displaced population, through resource rents that could fund relocation and livelihood in the new host state” ^{Footnote 113} or by the displaced population itself. ^{Footnote 114} These suggestions open the door to a model that goes beyond the “territory-resources” relationship and creates a direct link between the resources and the populations benefiting from them.

Forced Displacements

The phenomenon of “environmentally displaced persons” fits the two-step model of consequences of sea-level rise: a territory might become uninhabitable long before it completely disappears, triggering the issue of whether a state can survive the loss of its population. ^{Footnote 115} This phenomenon is also likely to be multifaceted: climate change not only affects migration, but “it will do so in combination with a range of other economic, social and political drivers which themselves affect migration.” ^{Footnote 116}

Inhabitants of SIDS are among those who will be forced by climate change-related causes to relocate. They will do so either internally (for example, by moving to another island forming part of the state’s territory, although this resettlement might only be temporary, as all territory of low-lying island states is endangered by sea-level rise) or, potentially, by crossing international borders. ^{Footnote 117} While forced displacements may affect the population criterion of statehood, these displacements indubitably also raise concerns related to the future of the populations themselves as well as to the protection that can be offered to them. The issue of internally displaced persons has, for example, been addressed in the 1998 Guiding Principles on Internal Displacement. ^{Footnote 118} These principles aim to “address the specific needs of internally displaced persons worldwide by identifying rights and guarantees relevant to their protection” during the different phases of displacement. ^{Footnote 119}

Externally displaced persons, however, face a “legal protection gap.” To benefit from refugee protection, one must have a “well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, [be] outside the country of his nationality and [be] unable or, owing to such fear, [be] unwilling to avail himself of the protection of that country,” and the fear of persecution must be personalized. ^{Footnote 120} It has been concluded by the New Zealand Immigration and Protection Tribunal — the first instance to have rendered decisions on this matter — that environmentally displaced persons do not fall under the protection of the Convention Relating to the Status of Refugees, above all, because the risk is faced by populations as a whole and is not personalized to a particular applicant. ^{Footnote 121}

Under the current regime of refugee protection, the status of environmentally displaced persons therefore remains uncertain. This is why those who advocate in favour of extending refugee protection do so on the basis that, because “both ‘normal’ and climate-change-related refugees represent involuntary migrants who are unable to return to their homeland, they are both equally entitled to protection under international refugee law.” ^{Footnote 122} Indeed, because of the close relationship between environmental degradation and human vulnerability, “pathways [could] … be created into international protection regimes.” ^{Footnote 123} For example, the International Law Commission has recently adopted draft articles on the protection of persons in the event of natural disasters, and its work could potentially be used as a framework for filling the current gap regarding persons who are externally displaced due to environmental-related causes. ^{Footnote 124}

Self-Determination

Potential loss of territory goes even further than affecting a state’s entitlements to its resources or causing the forced displacement of its people. As argued by Jenny Stoutenburg, “[c]limate-change-induced sea level rise will damage island state economies, tear up the social fabric, and uproot island cultures. By destroying the physical basis for the exercise of any kind of activity, the inundation of a small island state’s territory would impair the ability of the islanders to determine their political, economic, social, and cultural future.” ^{Footnote 125} Indeed, changes triggered by territorial loss could even be seen as affecting a people’s right to self-determination.

The right to self-determination recognizes the right of peoples to “freely determine their political status and freely pursue their economic, social and cultural development.” ^{Footnote 126} In light of this definition, and following the discussion in the previous sub-sections of this article, two observations can be made. First, a negative impact on peoples’ ability to “pursue their economic … development” due to impacts on entitlements over maritime zones and their resources would be a direct interference with their self-determination. Second and similarly, if a SIDS population cannot be relocated as a people to a new territory, that people’s potential dispersal caused by forced migration would create an obstacle to its social and cultural development. ^{Footnote 127}

This right to free manifestation of status and development is expressed from two perspectives: autonomy and independence, which can be intertwined. While autonomy normally refers to the ability of a people to govern itself, or what is also called internal self-determination, “independence is the requirement that a group possesses a domain of political control independent of higher or foreign political units,” which is also referred to as external self-determination. ^{Footnote 128} A people or self-determination unit normally expresses autonomy and independence against another entity, most traditionally another state or colonial power. One could therefore question, under existing rules of self-determination, against whom a SIDS people, as a self-determination unit, would express this right.

It has also been argued that the right to self-determination, from the perspectives of both autonomy and independence, cannot be fully exercised without a connection to territory. ^{Footnote 129} Jörgen Ödalen, summarizing Cara Nine’s argument, explains how the absence of such a connection would negatively impact on the exercise of the right of self-determination:

This explanation raises a major concern. According to this approach, the only way to ensure the full self-determination of the people of SIDS would be to change the way territorial entitlements are understood and applied since there are nowadays no new territories available. ^{Footnote 131}

State Responsibility and the Consequences of Territorial Disappearance Due to Sea-Level Rise: The Appropriateness of the Climate Change Regime

The above discussions of the right to resources, forced displacements, and self-determination show that the consequences of territorial disappearance stemming from sea-level rise must be assessed from a broad perspective. Indeed, as discussed above, the situation must not only be seen from the sole perspective of statehood but also from the perspective of rights and obligations associated with it. This broader perspective therefore leads us to address how the impacts of sea-level rise could affect certain obligations owed by states under other regimes and trigger consequences for potential breaches of these obligations.

In order for a state to raise the responsibility of another, it must show “[a]n internationally wrongful act[, which] requires two elements: first, the attribution of a certain conduct (which can be an act or an omission) to a state under international law, which must secondly constitute a breach of an international obligation of the state.” ^{Footnote 132} In the present case, it is difficult to see how the impacts of sea-level rise on SIDS could trigger the application of the regime of state responsibility or satisfy both of its requirements.

Nevertheless, it would be logical to turn to the climate change regime to determine whether there is a way of raising responsibility and seeking reparation, as climate change has been identified as the most probable cause of sea-level rise. ^{Footnote 133} The conventional climate change regime is based on two main instruments. First, the United Nations Framework Convention on Climate Change (UNFCCC) sets general commitments directed towards GHG reduction. ^{Footnote 134} The second instrument, the Kyoto Protocol, establishes hard targets and timetables to achieve the reduction of emissions as well as the means to achieve these targets. ^{Footnote 135} Additionally, once it enters into force, the recently adopted Paris Agreement will complete the framework for climate change mitigation by limiting the increase of global average temperatures to 2 degrees Celsius — and preferably 1.5 degrees Celsius — through nationally determined, progressive contributions that will be renewable every five years. ^{Footnote 136}

This conventional regime, however, has had limited impact as the obligations imposed on states are mainly restricted to obligations of means, and the few obligations of result do not bind major emitters. ^{Footnote 137} Further, the nationally determined contributions under the Paris Agreement will be non-binding and solely dependent on the will of states, and while a pledge to mobilize US $100 billion for a “green fund” has been made, no specific mechanism has been established to achieve that target. The Paris Agreement nevertheless shows the strong desire of states to come together to revitalize the structure of the climate change regime, based on transparency and facilitation rather than on a punitive approach. ^{Footnote 138}

To these conventional instruments can be added the duty to prevent transboundary harm, which finds its root in the Trail Smelter Case (United States v Canada) and the Stockholm Declaration on the Human Environment. ^{Footnote 139} The 2001 Articles on Prevention of Transboundary Harm from Hazardous Activities complete the general framework. ^{Footnote 140} It is now well established that the prohibition on causing significant transboundary environmental damage has entered the realm of customary international law. ^{Footnote 141}

To establish responsibility, the first issue that arises would be to identify the breach of an international obligation. The emission of GHGs is not in itself an activity prohibited under international law. What triggers responsibility is “the failure of states to regulate” the emissions by not fulfilling their general commitments under the UNFCCC or reaching the specific reduction targets established under the Kyoto Protocol ^{Footnote 142} and, eventually, the Paris Agreement. A state having taken appropriate means to ensure this regulation would therefore have fulfilled its duty on that level. Another breach, related to the first one, would be a failure to fulfil the general duty to prevent significant transboundary harm. Loss of territory could reasonably be considered a significant harm. Yet, as Abhimanyu Jain puts it, “there is a clear legal duty to not deprive a state of its territory, but there is no duty to protect a state from loss of territory.” ^{Footnote 143}

Stoutenburg raises another possibility. Under Article 41(2) of the Articles on Responsibility of States for Internationally Wrongful Acts, a state would be in breach of international law if it recognized as lawful a situation created through a serious breach of jus cogens norms. We could see this provision as expressing “a general principle of modern international law according to which there is a duty not to recognize the extinction of a state caused by a serious violation of jus cogens, and thus to continue recognizing the international legal personality of the affected state.” ^{Footnote 144} The key issue, then, would be to determine “whether the extinction of low-lying island states due to anthropogenic climate change constitutes a serious violation of peremptory norms of general international law.” ^{Footnote 145} Thus, this possibility brings the additional challenge of proving not only the breach of a general obligation but also the breach of a peremptory norm of international law.

What would that peremptory norm of international law be? Certainly, territorial loss or inundation of certain parts of territory may raise human rights issues. While a stand-alone human right to a healthy environment could hardly form the legal basis of a claim, as it has not yet been codified or generally recognized as customary international law, ^{Footnote 146} the rights to life, security, and an adequate standard of living including food, water, and housing could however be relied upon. ^{Footnote 147} Even the right to nationality could potentially be triggered as it is uncertain what nationality people forced to relocate would be able to claim. ^{Footnote 148} However, while climate change and sea-level rise impact the enjoyment of human rights, there is doubt as to whether such impact flows from, or gives rise to, an actual human rights violation. ^{Footnote 149} And it is impossible to assert that a jus cogens norm requiring the prevention of climate change exists. ^{Footnote 150}

As noted above, even if one succeeded in establishing a breach of an international obligation, a second requirement would have to be fulfilled: attribution of the breach to a state. While states cannot normally be held responsible for natural disasters, ^{Footnote 151} there is nowadays conclusive scientific evidence that climate change does result from human activities. ^{Footnote 152} However, even if we relied on “cumulative causation — the fact that not one state alone, but all states together (mainly of course the largest emitters) contribute to climate change,” ^{Footnote 153} the causal link between the GHG emissions of a particular state (or group of states) and climate change, and, subsequently, between climate change and sea-level rise, would still have to be established. ^{Footnote 154}

While a claim against major emitters would not be a complete legal impossibility, as suggested by the foregoing arguable legal bases for such a claim, there would remain problems at the level of geopolitics and international relations: “[F]or example, does the complaining island nation have the financial and human resources and capacity to pursue these claims against large emitters? And, on a related note, if a vulnerable nation pursues legal recourse, will the very nation-state(s) from which it seeks remedy retaliate?” ^{Footnote 155} For example, in 2011, Palau intended to propose that the UN General Assembly request an advisory opinion from the International Court of Justice on the legal responsibility of large emitters for climate change. ^{Footnote 156} Palau, however, did not pursue its initiative, seemingly following a threat of reprisal from the United States. ^{Footnote 157} Indeed, the states most responsible for GHG emissions are those that SIDS are most reliant upon, not only for general economic and commercial activity but also for assistance measures to counter the effects of sea-level rise. ^{Footnote 158} One can therefore question the legitimacy and adequacy of the international system to protect vulnerable states suffering from a situation for which they are the least responsible. ^{Footnote 159}

Other avenues for relief have been envisaged. SIDS could raise the responsibility of emitters on which they are less dependent. ^{Footnote 160} The same issues of proving breach of an obligation and attribution would however arise. Alternatively, SIDS could rely on dispute settlement mechanisms under other environmental law regimes, such as the Convention on Wetlands of International Importance Especially as Waterfowl Habitat, the Convention Concerning the Protection of the World Cultural and Natural Heritage, or the Convention on Biological Diversity. ^{Footnote 161} UNCLOS “may [also] be a promising instrument … due to its expansive definition of pollution, the clear obligations on states parties to preserve the health of the environment, and the availability of voluntary and compulsory dispute resolution mechanisms to press claims related to environmental pollution.” ^{Footnote 162} It must indeed be remembered that the legal impacts of sea-level rise extend far beyond concerns of baselines, migration, and human rights and must also be assessed from the perspective of affected ecosystems. ^{Footnote 163}

Apart from the major legal issues stemming from the physical disappearance of territory due to sea-level rise, the portrait drawn in the first part of this article shows that various regimes under international law are ill-equipped to face this new reality created by climate change. Further, the relevance of the core building block of the current international system, the territorial state, is being questioned as the physical disappearance of some of its components may affect the continuity of its legal status. To be able to address this changing state of affairs adequately, the international legal framework will have to adapt itself to “actual needs and purposes, and not primarily ... the ... assertion of sovereign rights over territory.” ^{Footnote 164}

Man-Made Preservation Solutions: Protecting Existing Land by Artificial Means and Building Artificial Islands or Installations

The first solution envisaged in the literature — the construction of artificial structures to preserve land territory — has already been applied in practice. The Netherlands, with its system of dykes and dams, is often cited as an example. ^{Footnote 170} The Maldives have also used hard engineering mechanisms, building walls to protect the capital island of Malé and even constructing an entirely artificial island, Hulhumalé, to which people have been relocated to alleviate the overpopulation of Malé. ^{Footnote 171} Similarly, in the 1980s, Japan undertook the construction of various structures (including walls, blocks of steel and concrete, and other sea defences) to preserve the existence of Okinotorishima, “two groups of very small rocks” used to claim an extensive EEZ and a continental shelf beyond 200 nautical miles. ^{Footnote 172} These solutions have one main goal: maintaining the land territory of a state or its baselines and, consequently, the maritime claims associated with it.

Artificial preservation construction can be divided into two categories: structures that aim at protecting existing land territory and completely artificial islands or installations. Regarding the former, the mechanisms most commonly used are sea walls or other barrier-type structures that “are intended to stabilize the position of the coast and protect key infrastructure located in the coastal zones.” ^{Footnote 173} However, hard engineering solutions have the potential of impacting the coastline by “interrupting natural sediments flows and causing unexpected erosion and/or deposition to other parts of the coast.” ^{Footnote 174} This is why “soft” engineering approaches, such as the creation of dunes or the revegetation of coastlines, which “replicate naturally occurring features that may have been previously removed,” are also used. ^{Footnote 175}

The man-made protection of a natural feature, and even structures that extend a natural feature, do not transform that feature into an artificial island as understood in Article 60 of UNCLOS, “given that the island state would not try to generate maritime entitlements through artificial means, but only aim to preserve its already recognized rights.” ^{Footnote 176} For example, preserving an island so that it retains its ability to sustain human habitation or economic life (that is, so that it does not become a rock as understood under Article 121(3) of UNCLOS) would be acceptable, but the improvement of a rock so that it becomes an island potentially capable of generating zones would not. ^{Footnote 177} This distinction raises questions as to whether the structures around Okinotorishima constitute mere protection of an existing feature that can generate zones or an attempt to give rocks an upgraded status.

The second category of preservation construction includes wholly artificial islands or installations and can only be defined a contrario — that is, in contrast to the wording of Article 121(1) of UNCLOS — which describes an island as “a naturally formed area of land, surrounded by water, which is above water at high tide.” ^{Footnote 178} The legal status of artificial structures is clear: “Artificial islands, installations and structures do not possess the status of islands” and cannot generate maritime zones of their own. ^{Footnote 179}

However, can artificial islands or installations be relied upon to preserve, physically, the territorial component of a state? Stoutenburg argues that if a state were to build an entire artificial island, as the Maldives did with the artificial island of Hulhumalé, the island would count as part of the state’s defined territory, although it could not generate maritime zones. ^{Footnote 180} On the other hand, this would not be the case if a state were to replace its entire territory with artificial installations, which would not be characterized as territory. ^{Footnote 181} This approach, however, is contested by Wong, who states that “current international law does not allow for wholly man-made structures to constitute territory,” therefore not distinguishing between artificial islands and artificial installations. ^{Footnote 182} This conclusion is supported by the decision of the Administrative Court of Cologne in Re Duchy of Sealand, which held that territory must “consist in a natural segment of the earth’s surface” and must “come into existence in a natural way,” thus discarding the characterization of artificial islands or installations as territory. ^{Footnote 183}

In the end, the notion that artificial islands and installations cannot generate maritime zones remains a major concern for the preservation of the entitlements of SIDS. As a solution, Michael Gagain has suggested that “the regime of artificial islands should be expanded to encompass attribution of maritime zones.” ^{Footnote 184} Amending the regime of baselines has also been suggested as a solution in order to thwart the potential manipulation of maritime zones through man-made constructs. ^{Footnote 185} Ultimately, these man-made solutions raise questions of cost and development since SIDS are developing states. SIDS must therefore carefully balance the costs involved in the construction of such features “against the revenues which the sea [and land] area[s] that may be lost can generate.” ^{Footnote 186}

Acquisition of Territory

A second solution discussed by scholars is the possibility of acquiring new territory, either by way of cession of territory by another state or through merger or union with other entities. ^{Footnote 187} While leading to different legal statuses for SIDS, these two possibilities both imply cooperation with other sovereign entities. ^{Footnote 188} Under the first scenario, territory could be ceded either by donation or sale or even by lease. ^{Footnote 189} SIDS could exercise sovereignty over this newly acquired territory. ^{Footnote 190} Cession of territory has happened in the past, giving rise to precedents such as the purchase by the United States of Alaska from Russia in 1867 and of the Danish West Indies (now the US Virgin Islands) from Denmark in 1917. ^{Footnote 191}

Under the second scenario, a SIDS would merge with another state or would form a union or a federation with one or various other states. While both processes would lead to the disappearance of the SIDS as a sovereign entity, these two options involve different legal processes: a merger would entail absorption of the SIDS by the other state, whose legal personality would remain intact; while a union or federation would lead to the creation of a new legal entity and the extinction of the legal personalities of the formerly separate units (one of them being the former SIDS). As indicated, under both options, the SIDS would lose its statehood to the benefit of the state it was merging with or the newly formed entity by union or federation. ^{Footnote 192} Similarly, the “territory and population would be governed by [either] the terms of the [union or federation]” ^{Footnote 193} or the laws of the state with which the SIDS had merged. It has been suggested, however, that some kind of autonomy could be preserved for the population of the former SIDS. ^{Footnote 194}

These two territorial acquisition scenarios obviously raise the issue of the status and fate of the maritime zones of the SIDS. Under the cession scenario, the SIDS could theoretically retain its entitlements to the maritime zones appurtenant to its former territory. Under the merger/union scenario, however, “the zones would belong to [and be under the control and management of] the host state” or the newly fused state. ^{Footnote 195} This outcome has been criticized by Rayfuse since, as she explains, the establishment of maritime boundaries in a manner to achieve equitable results is now recognized under customary international law, ^{Footnote 196} and the retention of maritime zones should follow the same principle. Since the merger/union scenario would trigger the loss of a SIDS’ maritime entitlements, it “would [therefore] appear to be intrinsically inequitable and contrary to international law.” ^{Footnote 197} However, under both scenarios, whether maritime zones could still be claimed in the face of complete submergence of the land territory to which they are related remains uncertain in any event. And while determining the best solution for the preservation of baselines and maritime zones goes beyond the scope of this article, it is significant that maritime zones and “the state’s rights over the valuable marine resources … could offer economic support to populations displaced as a result of sea level rise.” ^{Footnote 198}

While the acquisition of territory might be a perfectly acceptable legal solution, it seems very unlikely that any state would agree to give away or share, with or without financial compensation, part of its territory. ^{Footnote 199} Not only would such a state be voluntarily alienating or modifying its sovereignty over the territory in question, an improbable situation considering the rights and entitlements attached to such status, but it would also be risking complex political, social, and economic outcomes. ^{Footnote 200} If such a response to territorial loss were to materialize, however, such a territorial transformation “would arguably constitute a fundamental change to the culture of the islanders” as they would most probably interact with other peoples and modify their relationship to the land. ^{Footnote 201}

The Deterritorialized State: What Is It?

Simply put, a deterritorialized state would consist of a government or other form of authority that would continue to represent and protect its people and to manage its resources, wherever they were. The state would continue to exist as a member of international organizations, entitled to rights and the bearer of international obligations, even if it lacked territory. ^{Footnote 204} The main benefit of such a new form of organization would be that “[i]n whichever way the former citizens of a vanishing island state continue their lives after having left their homeland … they … could retain a measure of self-determination by exercising independent and autonomous control over their abandoned territory or territorial waters.” ^{Footnote 205}

International law is already familiar with the existence of entities that lack a territorial basis, which could facilitate the acceptance of the concept of the deterritorialized state. ^{Footnote 206} Not only are non-territorial entities recognized under international instruments, but, in some cases, they also enjoy limited forms of functional or non-territorial sovereignty. ^{Footnote 207} For example, entities such as the European Union possess some elements of functional sovereignty despite not fulfilling the criteria for statehood. ^{Footnote 208} Another example, which is even more analogous to the situation of potential entities without territory, is the Order of Malta, recognized by various states and enjoying multiple benefits of international legal personality. ^{Footnote 209} The order formerly occupied the territory of Malta but has existed extra-territorially since 1798. The existence of this entity shows that “sovereignty and nation can be separated from territory.” ^{Footnote 210} The striking difference between the Order of Malta and the theoretical deterritorialized state, however, is that the former, while sovereign, is not a state. ^{Footnote 211}

Questions nevertheless remain as to the nature and functionality of the proposed deterritorialized state. First, sovereignty concerns must be addressed. For example, as Wong puts it, “would the ‘deterritoriali[z]ed state’ be equal to other states?” ^{Footnote 212} Relegating a former state to the status of a lesser sovereign entity could trigger issues of legitimacy. ^{Footnote 213} Second, if the population were dispersed throughout other states, there is a risk that they would become nationals of those other states, therefore limiting the role of the deterritorialized state to that of “advocate for its diaspora.” ^{Footnote 214} Finally, the exercise of jurisdiction by the deterritorialized state might raise practical challenges. ^{Footnote 215} While prescriptive jurisdiction could be exercised over nationals abroad, and adjudicative jurisdiction could be exercised through cooperation with host states and technical means (for example, video conferences for judicial proceedings), exercises of enforcement jurisdiction by the deterritorialized state in another state’s territory could be seen as interference. Such challenges require that we dedicate attention to some existing mechanisms under international law that could be relied upon to find possible answers.

How Would It Work? Government in Exile and Political Trusteeship Analyzed

How can authority be exercised over a population that might not be on the same territory as the governing body? While relying on the notion of government in exile seems like an appealing solution, “scholars have [also] suggested a resurrection of the political trusteeship system as a means of administering the duties of a ‘deterritorialized’ government.” ^{Footnote 216} While not a solution for the preservation of statehood as such, these mechanisms may be seen as logistical means of administrating a deterritorialized state.

The former option — a government in exile — “accepts governments that are detached from the requirement of territory, or at least locality.” ^{Footnote 217} This form of government, however, requires the continuing existence of the state the government represents. ^{Footnote 218} Based on this premise, it may be possible to push the concept further, to the point of “states-in-exile.” ^{Footnote 219} But when relying on this model, two distinctions must be drawn with the particular situation of states with disappearing territory. ^{Footnote 220} First, in past cases of governments in exile, the population has normally been concentrated on one territory, while the governing authorities have been away in another territory. In the case of SIDS, while displacements could be organized (such as in the resettlement plans already envisaged by various nations), there is also the possibility of the population being dispersed. ^{Footnote 221} Second, a government in exile normally acts temporarily because there should always be “the possibility of restoring its power over a determined territory.” ^{Footnote 222} This would not be the case with SIDS since their territory would be unlikely to re-appear once it was submerged, although this possibility is not officially discarded. ^{Footnote 223}

The second option would involve a form of trusteeship system. While the trusteeship regime of the Charter of the United Nations, as it stands, could not be relied upon, its essential structure could still serve as a basis. ^{Footnote 224} A trusteeship entity could be in charge of promoting “the political, economic, social and educational advancement” of the deterritorialized entity. ^{Footnote 225} The nature of such a trusteeship regime, however, would differ from that of the UN Charter. The main purpose would still be the traditional one of “the administration of national assets for the benefit of [the nation’s] people.” ^{Footnote 226} But, as explained by Maxine Burkett, “[a] critical difference in the contemporary application of the trusteeship system is that the purpose of the arrangement would be to maintain self-governance and self-determination, and elected citizens of the [deterritorialized state] would serve as trustees.” ^{Footnote 227} The UN would leave the internal functioning to the new entity, contrary to the managing role of the Trusteeship Council, and would act mainly in support of the transition. ^{Footnote 228}

The preservation of the displaced people’s right to self-determination under such a system would be imperative considering that the notion of trusteeship may have negative connotations for SIDS, many of which “have histories as colonies, trust territories, or the like, and have only achieved statehood and sovereignty in recent decades.” ^{Footnote 229} The Marshall Islands, for example, were administered as a trust territory under the supervision of the United States before becoming an independent state. ^{Footnote 230} Trusteeship could therefore be seen as undermining sovereignty and “be interpreted as a lack of capacity of [SIDS] to deal with [the impacts of sea-level rise] by themselves.” ^{Footnote 231} Nonetheless, oversight by an international body could have positive outcomes: “Symbolically, this recognises that an international solution is required for the international problems of climate change. Practically, it ensures that there is international oversight of the process.” ^{Footnote 232}

The legitimacy of all of the proposed solutions discussed in this article would be “subject to the acquiescence of the international community.” ^{Footnote 233} While the man-made responses so far do not seem contested, schemes for the acquisition of territory and, above all, the concept of the deterritorialized state, because they have not yet been applied in practice, could benefit from some sort of institutionalized framework that could dissipate uncertainty as to their impact on statehood and sovereignty. ^{Footnote 234}

The options analyzed above are geared towards fulfilment of the goals sought by the Westphalian system: the promotion, achievement, and protection of security, stability, peace, certainty, fairness, and efficiency. ^{Footnote 235} The preferred solution for the attainment of these objectives is the physical preservation of the territory of the state, the basis of the Westphalian system, so that its legal equivalent — statehood — can also be preserved. The idea of the deterritorialized state offers an option that detaches state and statehood from territory. However, it also triggers the question of whether the territorial state itself is the only form of social organization that can provide the stability and security so prized by the Westphalian system.

Diasporas and Cosmopolitanism

As discussed above, to be legitimate within current realities, the international order should develop by focusing on human communities. Burkett has looked at the possibility of relying on the population of SIDS as the sole element of social organization and the continuity of these states (that is, without territory) through the use of two concepts: the role played by diasporas and the cosmopolitan theory. ^{Footnote 271} Before discussing how these concepts have evolved, a word must be said on that to which they are opposed: boundaries. Indeed, a boundary was originally seen as drawing a line between “[w]ho is and who is not a member of a particular community … between members and strangers, insiders and outsiders.” ^{Footnote 272} Buchanan similarly refers to the congruence assumption — that is, the assumption that the membership boundary coincides with the geographical boundary. ^{Footnote 273} Citizenship brought this idea of belonging within the legal realm: citizens are part of the group, while non-citizens are not.

Diasporas, and migrant groups in general, provide evidence that belonging to a specific group goes beyond boundaries. ^{Footnote 274} It shows that the “deterritorialization” of communities “is another process of imaginary nation-building born of displacement, [sharing] many characteristics of … long-distance nationalism.” ^{Footnote 275} The existence of these groups also stimulates further migration, acting as an attracting pole for other members of the same community who will rely on their peers for connections and networks to facilitate their establishment. ^{Footnote 276} Under a diasporic theory of belonging, the rights and duties between members of a group are held independently of where the members of that group are physically located. The diasporic theory therefore moves the focus away from the nation-state and reorients it towards the nation, understood as a community or society that shares similar historic and cultural characteristics.

Cosmopolitanism has pushed the concept of belonging even further and brings us to another meaning behind the word “nation,” one that builds on the notion of “togetherness.” Based on a shared morality, persons belong to a global community, independently of their origin, cultural or religious background, and affiliation. ^{Footnote 277} Cosmopolitanism has been defined as “a global politics that … projects a sociality of common political engagement among all human beings across the globe.” ^{Footnote 278}

Prima facie, cosmopolitanism seems contradictory to the diasporic theory. It seems that cosmopolitanism would threaten or destroy the sense of community that members of formerly territorially based groups have with one another in favour of a homogeneous global community. However, cosmopolitanism does not entail the dilution of cultural identities — it builds on “differential equality (together, but different),” ^{Footnote 279} on the inclusion of these communities within “transcendent solidarities,” based on a moral duty to preserve common values. ^{Footnote 280} As explained by Burkett, refugees — and environmentally displaced people — would benefit from belonging to a global community that could provide them with such transcendent support. ^{Footnote 281}

In short, social entities that are not necessarily related to a territorial area are concepts that the territorial state-driven system is ill-equipped to capture since that system builds on the premise that belonging to a group is grounded in the exercise of rights and duties that are themselves dependent on shared territorial location. ^{Footnote 282} Therefore, the diasporic and cosmopolitan theories both rely on a concept of social belonging that would exist independently of territory and that could be used to ensure the continuity of SIDS as social entities.

These theories, however, present some limitations. First, they appropriately put the emphasis on human communities, which should be the main focus, given the current reality, but, for now, still lack pragmatic elements that would be required to be considered as a complete basis for social organization. How would the rights and obligations of the dispersed people be instantiated? How could the members of the diasporically scattered group make claims against one another and satisfy their mutual obligations? Would the rights and obligations between members of the group become correspondingly weaker as they move further apart physically? This raises the question of whether it is really conceivable, on a long-term basis, to ensure the survival of a community and its “feeling of belonging” without any link to territory. ^{Footnote 283}

Furthermore, applied to the particular situation of the populations of SIDS, it is necessary to take into consideration the actual will of these populations. Is falling under the label of “global citizens” really what they are hoping for, especially in a context where “the distinction between ‘us’ and ‘them’ … remains a pervasive syndrome of humankind,” even if the world has “become a ‘global neighbourhood’ in some respects”? ^{Footnote 284} These populations want to be helped in order to survive as they now are, and the diasporic and cosmopolitan theories fail to address such a desire clearly.

Global Governance

The situation of SIDS illustrates the global problems to which Nico Krisch refers in this passage. Not only does uncertainty relating to maritime zones affect SIDS themselves, but it also affects the international community because of the potential impacts of territorial disappearance on areas beyond national jurisdiction and the resources found in these areas. Similarly, concerns related to migration and climate change are inherently transboundary in nature. We suggest that alternative solutions that address the global character of the consequences faced by SIDS can be found within the doctrine of global governance. This theory could therefore be used to reach both a procedure-oriented (through global processes) and a result-oriented (through global solutions) legitimacy of the international system’s response to the situation of SIDS.

The shaping of international law is connected to the development of public policy. ^{Footnote 286} By importing the concept of governance into the legal realm, international law became willing to abide by the principle of “close cooperation by states and other actors to achieve desired objectives.” ^{Footnote 287} Indeed, governance can be seen as a way to complement the role of international law because “in contrast to traditional forms of international law, [governance is] characterized by a focus on the dynamic of processes, as opposed to stable structures … by the permeability of state ‘borders’ in both the literal, and the symbolic, sense.” ^{Footnote 288}

The related doctrine of global governance suggests an organizational structure for the international regime that goes “beyond the state,” ^{Footnote 289} that envisages the “prospect of a new world order in a future ‘world state’.” ^{Footnote 290} The doctrine was also suggested as the way to establish an organizational and institutional cosmopolitanism. ^{Footnote 291} Global governance therefore brings the issues faced by SIDS within a sphere that transforms these issues from being “their concern” to being “our concern” and, in fact, “everyone’s concern.” This, we believe, triggers more global interest and accountability towards these issues and leads to solutions characterized and applied beyond the limits of one’s state territory.

Global governance also posits that the creation of norms must be based on a mechanism of rule making and decision making besides state consent. ^{Footnote 292} Indeed, the number of states and of other actors, as well as the complexity of the international legal regime, “makes consent an increasingly fictitious means of justifying norms.” ^{Footnote 293} Broader and more pluralistic mechanisms of norm making should therefore be envisaged ^{Footnote 294} — for example, opting for soft law instruments and informal regulations; ^{Footnote 295} favouring “club negotiations” (that is, only including states and other actors that have a major impact in a particular field); ^{Footnote 296} looking for solutions in various regimes and legal orders; and so on. ^{Footnote 297} Global governance therefore makes doctrinal space for permeable boundaries, transnationalism, and a broader perspective on norm making and decision making. This creates an appropriate framework for addressing the situation of SIDS, which, as can be seen, presents unprecedented practical and legal dilemmas.

Yet, while global governance theory proposes taking into account global interests and mechanisms that could help address the consequences stemming from the disappearance of SIDS’ territories, the doctrine does not necessarily question the status of the state as a main actor under international law. ^{Footnote 298} The theory might be sufficiently well developed to shed light on the changes brought by globalization to international society and the international legal order, but it is weaker at providing a critical analysis of the state-centred regime and at suggesting an alternative form of social organization dissociated from territory. ^{Footnote 299}

Equity and Moral Duty: Exceptional Solutions for Exceptional Circumstances

The third path for grounding the legitimacy of international law in accommodating the realities of territorial disappearance is two-pronged: first, it implies a possible extension, or broad interpretation, of existing rules, and, second, it suggests that the international community is bound by a moral duty to recognize the continuing existence of SIDS independently of their territory. ^{Footnote 300} These two approaches are based on the notion of equity as a principle of fairness and reasonableness. ^{Footnote 301} “Equity” may refer to a power of complementarity, allowing decision makers to exercise their discretionary power within what is prescribed by law in ways that are proportional to the power exercised by other decision makers. ^{Footnote 302} It may also refer to the possibility of a more autonomous power of norm creation, outside the law or even in contravention of it, ^{Footnote 303} which makes equity, as Francisco Francioni puts it, “a catalyst for change and modernization of the law.” ^{Footnote 304}

Under the first of the understandings stated above, equity as a way of achieving fairness would justify “significant departures from precedent or the legal status quo,” ^{Footnote 305} manifesting itself through a broader interpretation and application of existing rules and, eventually, as discussed under the doctrine of global governance, a broader and more pluralistic variety of norm making mechanisms. ^{Footnote 306} And not only could rules be interpreted and applied more flexibly; moral considerations might also inform what these rules should address, suggesting a focus not on “entitlement to, but on responsibility for” the object or interest they address (for example, resources, protection of human rights, and so on). ^{Footnote 307}

A concrete example of the extension of rules following an equity-based analysis of territorial disappearance and state continuity can be found within the law of self-determination. A self-determination unit (for instance, a community or people) normally expresses its right to self-determination against another entity, traditionally a state or a colonial power. ^{Footnote 308} Populations of SIDS, as members of sovereign states recognized by the international community, are undoubtedly bearers of this right. The preservation of the right to self-determination of these populations without reference to a defined territory will involve extending the meaning and application of the right since the right will not be raised against another entity but, rather, sought to be preserved in the abstract. ^{Footnote 309} Alternatively, if, as suggested by Nine, we consider that this right can only be fully expressed in relation to physical territory, and in light of the fact that there is little or no more unoccupied territory available, territorial rights and entitlements of other states will have to be modified to fulfil the moral duty of providing these populations with access to territory. ^{Footnote 310} The existing rule of self-determination is therefore extended to achieve equity.

Under the second understanding of equity, if continuity of statehood cannot be accommodated under an expansion or creation of positive law, we could rely on equitable reasoning to continue recognizing states with physically disappearing territory. ^{Footnote 311} Equity would, in itself, become the end to be achieved. This would be translated as a moral duty for the international community to ensure such recognition, based on “international justice and solidarity.” ^{Footnote 312} In other words, “if the international community does not act quickly enough to prevent small island states from losing their effective statehood, the acknowledgment of their entitlement to survive as a legal community is the least that is owed to them.” ^{Footnote 313} As the example of self-determination once again illustrates, the international community would have the moral duty to recognize the continuing expression of the right of self-determination by the populations of SIDS.

What equity and morality suggest is that exceptional circumstances — the circumstances of climate change and sea-level rise faced by SIDS, created by geophysical phenomena and enhanced by the conduct of other states and leading to unprecedented uncertainty as to their survival ^{Footnote 314} — in themselves justify a departure from the norm — that is, a departure from the classical requirements for statehood and from the territorial state regime. ^{Footnote 315} What we are defending here is that the exceptional nature of the situation calls for exceptional solutions. As Jain points out, “[i]f the historically exceptional nature of the submergence of an entire state … cannot justify exceptionalism, then nothing can.” ^{Footnote 316}

Equity and morality, as with the other theoretical lenses explored above, present some limitations. First, these concepts suggest a path towards the expanded applicability of existing rules and rule-making mechanisms of international law, but they fail to explain how this would be translated into legal mechanisms. Second, equity as an end in itself that triggers a moral duty for the international community is also dependent on political will and geopolitical realities. In the end, “[d]espite the rhetoric of a ‘borderless world’ and the ‘end of geography’, globalization has not reduced the political significance of borders and boundaries,” suggesting that the state-centred regime and the model of the territorial state are not so easily eroded. ^{Footnote 317}

In any event, the three theoretical lenses outlined above contemplate the expansion of international law through the adoption of new values. ^{Footnote 318} They are “slogans” at the crossroads between norms, rules, and values. They can be interpreted either as having normative force or as being mere labels from which no rule can be deduced but which can serve as a basis for the development of something new. The power to determine what interpretation is to be given to which concept lies in the hands of what remain, for now, the main actors of the current regime —states. ^{Footnote 319}

In spite of these observations, we believe the concepts of diasporas and cosmopolitanism, global governance, and equity and morality remain relevant to the issues addressed in this article. It is true that none of them, taken individually, suggest a clear alternative to the model of the territorial state. However, they may, particularly if considered in the context of one another, shape the mindset that one should adopt when aiming for a change in how we conceive the international legal system, by pointing the way towards a broader norm-making arena.