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Climate Change and Atoll Island States: Pursuing a ‘Family Resemblance’ Account of Statehood

Published online by Cambridge University Press:  17 October 2016

SUSANNAH WILLCOX
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Abstract

‘Climate change inundation’ – the process whereby climate change-related impacts like rising sea levels, higher storm surges, and changing rainfall patterns interact with and exacerbate existing vulnerabilities like poverty, isolation, resource scarcity, and inadequate infrastructure – presents a unique challenge to the territorial, legal, and political infrastructure of low-lying coral atoll island states. This article uses the example of climate change inundation to illustrate some of the shortcomings of the mainstream ‘minimum threshold’ account of statehood. It then proposes an alternative account of the criteria of statehood as a set of overlapping similarities or relationships between state-like entities, drawing on Wittgenstein's concept of ‘family resemblances’. Although problematic in some respects, this family resemblance account provides a broader conceptual space for assessing the merits of alternative forms of statehood.

Keywords

atoll island stateclimate change inundationfamily resemblancestatehoodWittgenstein

Information

Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 30 , Issue 1 , March 2017 , pp. 117 - 136
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2016 

1. Introduction

Contemporary international law works to sustain a state system that operates, with a handful of exceptions, as a ‘radical monopoly’.Footnote 1 This system is one in which states exercise territorial jurisdiction and all land is under the jurisdiction of some state;Footnote 2 in which the state is ‘the principal maker and subject of international law’.Footnote 3 It is primarily states that provide the legal and political infrastructure through which laws are enforced, treaties are negotiated, sovereignty is exercised over natural resources, and claims are brought before the International Court of Justice (ICJ). Without the protection of a state, individual and collective human rights are likely to go unrecognized. As James Crawford observes, ‘it still makes a great difference whether an entity is a state or not’.Footnote 4

Given the centrality of the state to the international legal order, it is perhaps surprising that international law provides no unequivocal definition of what it means to be a state. The most widely recognized definition is found in Article 1 of the Montevideo Convention, which sets out a minimum threshold for statehood.Footnote 5 In order to qualify as a state, an entity must have a permanent population living in a defined territory with an effective government and the capacity to enter into relations with others of its kind. However, this ‘minimum threshold’ account becomes problematic at the margins of statehood, where difficult questions arise about the scope and content of the category of states.

One context in which such questions arise is that of ‘climate change inundation’, the process whereby climate change-related impacts like rising sea levels, higher storm surges, and changing rainfall patterns interact with and exacerbate existing vulnerabilities like poverty, isolation, resource scarcity, and inadequate infrastructure and will eventually leave the territory of small island states uninhabitable, causing the displacement of entire populations.Footnote 6 Among those most at risk are low-lying coral atoll states like Kiribati and Tuvalu in the Pacific Ocean and the Republic of the Maldives in the Indian Ocean.

The issue of climate change inundation demands our attention because of the unique challenge it presents to the state. Without a habitable territory or permanent population, the existence of low-lying atoll island states becomes increasingly uncertain. Various solutions to this problem have been proposed. An atoll island state might, for example, construct artificial islands on which to relocate its population or acquire new land via a treaty of cession that transfers full sovereignty from one state to another.Footnote 7

The proposals considered in this article envisage the transition of an atoll island state to a ‘state-in-exile’ or ‘deterritorialized state’ whose citizens are dispersed across one or more host states. However, in seeking to decouple statehood from territory, these proposals challenge the ‘minimum threshold’ account of statehood introduced above. If an atoll island state no longer exercises jurisdiction over a defined territory, can it continue to exist as a state? According to the minimum threshold account, the answer must be no. If we are to assess whether the legal status of atoll island states can be preserved even after their territory becomes uninhabitable, we must therefore find some way of understanding statehood that accommodates entities that do not pass the minimum threshold established by the Montevideo Convention.

While recognizing that states hold a privileged legal, political, and cultural position today, this article does not argue that statehood should be preserved at all costs, nor does it advocate any one solution to climate change inundation. Instead, it seeks to problematize the mainstream legal definition of statehood and to suggest an alternative account; one that relies on a series of overlapping similarities between states, rather than a binary distinction between state and non-state. This alternative account is not without its problems. However, in providing a conceptual space in which to assess whether or not an atoll island state can and should remain a state, it offers us a starting point for further discussion.

The article begins by briefly surveying existing international law on statehood, highlighting some difficulties with its general application. Second, it considers whether an atoll island state threatened by climate change inundation can continue to meet the criteria of statehood set out in international law. It appears that, when applied in practice, the minimum threshold account of statehood is problematic both in general and in the specific context of climate change inundation. Third, it puts forward an alternative account of statehood, drawing on Wittgenstein's concept of ‘family resemblances’. Can international legal doctrine be more readily reconciled with state practice if we understand the criteria of statehood as a set of overlapping similarities or relationships between state-like entities, rather than as a fixed minimum threshold? How might this alternative account apply to atoll island states at risk of climate change inundation? The final section considers some objections to and a possible modification of this proposal.

2. The ‘minimum threshold’ account of statehood

International law envisages the extinction of a state, through succession, in terms of either merger with or absorption by another state or voluntary or involuntary dissolution followed by the emergence of one or more successor states.Footnote 8 In each case, the territory of one state is taken over by another: succession entails a ‘change in sovereignty over territory’.Footnote 9

The issues raised by climate change inundation, however, are ‘markedly distinct’.Footnote 10 A loss of habitable territory has not been recognized as a possible cause of state extinction in international law.Footnote 11 And, in the event that it becomes uninhabitable, the territory of a low-lying atoll island state cannot be absorbed by, merged with, or taken over by another state. Any legal obligations relating to its citizens, treaties, national debt, diplomatic posts, economic exclusion zone, and so on – all of which would typically be assumed by the successor state(s) – risk falling into a legal vacuum.Footnote 12 In this context, the existing international law on state extinction, understood in terms of succession, is therefore not particularly helpful.

Given this lacuna, perhaps we must instead identify what makes – and, by analogy, unmakes – a state. The criteria for statehood set out in international law apply to the emergence rather than the extinction of states. However, in the absence of explicit legal rules regarding state extinction in this case, these criteria ‘should presumably govern not merely the legal “creation” of states, but also their “extinction”’.Footnote 13 It is worth bearing in mind, however, that any application of the law to the unprecedented issue of climate change inundation is necessarily speculative.

While statehood has ‘long been the central organizing idea in the international system’,Footnote 14 a universally accepted definition has proved elusive. Article 1 of the Montevideo Convention sets out the most widely accepted version of statehood, in which all states satisfy each of the following criteria: a defined territory, a permanent population, an effective government, and the capacity to enter into relations with other states.Footnote 15 According to this story, ‘territory, people, and government coincide in the state to produce international law's map of the world as a jigsaw puzzle of solid colour pieces fitting neatly together’,Footnote 16 where each piece passes the threshold set by the Montevideo criteria.

The attractions of this minimum threshold account of statehood are apparent. A clear and concise definition of statehood ensures certainty and predictability, thereby strengthening the rule of law.Footnote 17 If statehood is a ‘legal status attaching to a certain state of affairs’,Footnote 18 then the Montevideo criteria provide a clear explanation of what this state of affairs entails. They ‘operate as threshold evaluations’ that determine which entities are included within the category of states and which are excluded.Footnote 19

In practice, however, the application of this minimum threshold account is far from straightforward. The criteria it relies on are neither necessary nor sufficient for statehood.Footnote 20 First, the final criterion – the capacity to enter into relations with other states – is more accurately conceived of as an outcome rather than a requirement of statehood, depending as it does on the recognition of other states.Footnote 21 The criterion of independence is often proposed in lieu of this capacity: ‘the right to exercise [within a given territory], to the exclusion of any other state, the functions of a state’.Footnote 22

Second, states have emerged despite the absence of one or more criteria. Croatia and Bosnia-Herzegovina emerged in the early 1990s despite lacking effective control over some of their territory,Footnote 23 while Burundi, Rwanda, and others have been recognized as states or admitted to the UN prior to establishing an effective government.Footnote 24 Several micro-states have also emerged despite ongoing debate about whether or not they pass the threshold for statehood. The Vatican City is the smallest of these, with a territory of just 0.44 square kilometres and a population of around 842.Footnote 25 It is also unique insofar as residence permits are usually granted on the basis of employment with the Holy See and can be revoked at any time. Duursma concludes that its residents cannot constitute a permanent population within the meaning of the Montevideo Convention, because they lack any common history or stable attachment to a state or territory.Footnote 26 Nevertheless, the Vatican City is generally recognized as a state.Footnote 27

Third, even if we accept that all four criteria are necessary for a state to begin its existence, the absence of any of them does not necessarily mean its end.Footnote 28 Once established, states resist extinction, whether their own or that of other states,Footnote 29 often regardless of ‘substantial changes in territory, population or government or even, in some cases, by a combination of all three’.Footnote 30 This implies that there is a kind of ‘ratchet effect’ at work, whereby the status of statehood, once achieved, is difficult to lose.Footnote 31 Kreijen suggests that states ‘may have a complicated birth, but they do not die easily’,Footnote 32 while Lowe goes so far as to argue that the ‘road to statehood is a one-way street’.Footnote 33

The strength of this presumption against extinction or ratchet effect was apparent during the International Law Commission's (ILC) debate on the draft Declaration on the Rights and Duties of States in 1949. ILC members discussed whether or not to include a first Article to the effect that ‘Each State has the right to exist and to preserve its existence.’Footnote 34 While some members described this right as ‘a mainspring for other rights to be declared’, others felt that it would be ‘tautological to say that an existing state has the right to exist; that right is in a sense a postulate or a presupposition underlying the whole draft’.Footnote 35 Whether as an explicit ‘mainspring for other rights’ or an implicit ‘presupposition underlying’ those rights, the message is clear: the right to continue to exist as a state is seen as fundamental to the international legal order of states.

This ratchet effect is said to underpin the stability and order of the international legal system,Footnote 36 but derives strength from other motivations as well. It may, for example, reflect a reluctance to acknowledge a void in international relations within which it would be difficult for states to carry out transactions or rely on the fulfilment of international legal obligations.Footnote 37 It may reflect an unwillingness to interfere in the domestic affairs of a state by recognizing its dissolution.Footnote 38 It may reflect states’ reluctance to recognize that another state is struggling, thereby incurring some obligation to provide assistance.Footnote 39 Or, in the context of climate change inundation, it may reflect a reluctance to ‘tarnish its own reputation by being seen as lacking any compassion for the dire fate of such island states by asking for their exclusion’ from the international community.Footnote 40 Participants in a recent UNHCR expert roundtable similarly insisted that ‘the legal presumption of continuity of statehood needs to be emphasized and the notion and language that [atoll island] states will “disappear” (i.e., lose their international legal personality) or “sink” ought to be avoided’.Footnote 41

We need not wait for climate change to render the territory of atoll island states uninhabitable to find examples of states that continue to exist despite failing to satisfy at least one of the four criteria. Governments operating in exile, for example, continue to be recognized as the representatives of states despite lacking control over a permanent population living in a defined territory.Footnote 42 The continued recognition of so-called ‘failed states’ like Cambodia, Somalia, and the Congo during prolonged periods of crisis indicates that the criteria of an effective government and some level of independence may also be waived for the purposes of ongoing statehood.Footnote 43 Despite failing to meet one or more criteria of statehood, these ‘fictitious’ states retain their status: ‘their borders and legal personality have not been called into question’.Footnote 44 They remain members of international organizations, their diplomatic relations remain (largely) intact, and the treaties they have previously concluded remain in force.

As these examples demonstrate, ‘a state may not fully meet all the conditions of statehood or its status may otherwise be in some way anomalous, but still merit general recognition’.Footnote 45 It therefore appears that the traditional account of statehood, according to which all states must pass the minimum legal threshold by meeting each of the necessary criteria, is misleading at best.

3. Climate change inundation and the minimum threshold account

This section applies the minimum threshold account to atoll island states at risk of climate change inundation. It becomes clear that identifying the point at which these states will fail to meet each of the proposed criteria for statehood – and therefore fail to pass the minimum threshold set by the Montevideo Convention – is difficult, if not impossible, providing us with additional incentive to identify an alternative account of statehood.

3.1. Territory

A ‘defined territory’ is seen as integral to statehood. Statehood, Jennings argued in 1963, ‘is inseparable from the notion of state territory’Footnote 46 – a view that is still commonly held today. The principle of territorial control is closely tied to complementary principles of effective government and political independence. As Crawford notes, ‘the right to be a state is dependent at least in the first instance upon the exercise of full governmental powers with respect to some area of territory’;Footnote 47 thus, the concept of a state is ‘rooted in the concept of control of territory’.Footnote 48

Nevertheless, the threshold test for determining a defined territory is set fairly low. A state is not required to meet any minimum territorial requirement, nor does its territory need to have precisely defined boundariesFootnote 49 or be contiguous. In fact, ‘little bits of state can be enclaved within other states’.Footnote 50 While a state's territory is usually a naturally occurring surface of the earth, artificially reclaimed land may also count,Footnote 51 as may uninhabitable rocks.Footnote 52 As the Vatican City (0.44 square kilometres) and Monaco (two square kilometres) demonstrate, a state's territory can be nominal at best.Footnote 53 In fact, cases in which a state persists despite the belligerent occupation of its territory suggest that, ‘Territory is not necessary to statehood, at least after statehood has been firmly established.’Footnote 54

As a criterion of statehood, therefore, territory appears ‘simultaneously indispensable’ and impossible to define.Footnote 55 How much territory must an atoll island state lose before it no longer qualifies as a state? The international law of the sea suggests that only once its territory is completely submerged or reduced to a low-tide elevation will a state no longer satisfy the territory criterion.Footnote 56 Until this occurs, ‘territory which was once connected to land and then submerged by the sea can continue to be regarded as a connected part of state territory’.Footnote 57 However, atoll island states will become largely uninhabitable long before the last of their land is submerged, due to the saltwater contamination of soil and water, unpredictable rainfall patterns, higher storm surges, and so on. We must therefore look to some other criterion of statehood to identify the point at which they will cease to exist.

3.2. Population

Given that increasingly harsh living conditions will displace atoll island populations long before their territory is completely submerged, the loss of a permanent population may ‘provide the first signal that an entity no longer displays the full indicia of statehood’.Footnote 58 However, the population criterion, like that of territory, has no explicit minimum threshold. Tuvalu, with a population of just over 10,000, is already one of the world's smallest states,Footnote 59 and it is unclear how many citizens would need to move elsewhere before it fails to meet the population requirement. The 48 inhabitants of Pitcairn Island have been recognized as holding a right to self-determination and independence,Footnote 60 suggesting that the minimum population threshold, if there is one, is minimal at best.

Ideally, ‘the criteria for statehood are interlinked: in principle, the population should inhabit the territory and be under the control of the government’.Footnote 61 Yet, in practice, a large proportion of the populations of some island states are nomadic or live abroad, without jeopardizing their statehood.Footnote 62 However, without a permanent population, land cannot serve the functional role of territory: it no longer provides ‘the physical basis that ensures that people can live together as organized communities’.Footnote 63

The question then becomes whether a state fails to meet the population criterion if all but a tiny fraction of its population lives elsewhere. The government of Kiribati has been advised that, even if most of its population resettles elsewhere, ‘If we maintain our islands, get some people to live there, and be able to issue passports, we'll still be able to remain a state.’Footnote 64 However, while the Administrative Court of Cologne admitted that the 106 persons claiming to be nationals of the ‘Principality of Sealand’ could in theory constitute a population (given that ‘size [is] irrelevant’), it held that they must also form a dynamic, cohesive community. ‘An association whose common purpose covered merely commercial and tax affairs was insufficient.’Footnote 65 This suggests that, even if there is no minimum quantitative requirement built into the population criterion, there may be a qualitative threshold that atoll island states will eventually struggle to meet.

3.3. Effective government and independence

The two remaining criteria – an effective government and independence – are closely interlinked. For Crawford, ‘government is treated as the exercise of authority with respect to persons and property within the territory of the state; whereas independence is treated as the exercise, or the right to exercise, such authority with respect to other states’.Footnote 66 In order to count as independent, a state must exist alone within reasonably defined borders and be (relatively) free from the authority of any other state.Footnote 67 In order to count as effective, a state's government must have the capacity to maintain authority within its borders and fulfil its obligations under international law.Footnote 68

However, in certain cases – including those of ‘failed’ statehood discussed above – an effective government may be ‘unnecessary . . . to support statehood’.Footnote 69 An atoll island state might therefore continue to be recognized as a state despite a ‘very extensive loss of actual authority’Footnote 70 or even the temporary absence of an effective government or formal independence.Footnote 71 Indeed, in the absence of any competing claim to statehood – as is the case with an atoll island state threatened by climate change inundation – ‘[i]n many instances the claim to continuity made by the state concerned will be determinative; other states will be content to defer to the position taken’.Footnote 72 Regardless of whether it is understood as constitutive or declaratory,Footnote 73 recognition will therefore play an important role in determining whether – and to what extent – atoll island states continue to enjoy the rights and competences of statehood. Where states are reluctant to withdraw recognition, an atoll island state is more likely to retain its status as a state, with the capacities this entails, despite the loss of its habitable territory, permanent population, effective government or capacity for independence.Footnote 74

While this section has raised more questions than it has answered, one clear message that emerges from a closer examination of the criteria of statehood in the context of climate change inundation is that there is no clearly identifiable minimum threshold of statehood in international law. On closer inspection, each criterion of statehood lacks a clear scope and limits,Footnote 75 and each is faced with counterexamples. Despite its apparent clarity and simplicity, the traditional account – according to which the status of statehood is allocated to any and all entities that meet a clearly defined set of minimum criteria – is therefore unconvincing.Footnote 76 Perhaps, rather than its efficacy, its popularity simply reflects ‘the lack of a better model’.Footnote 77

But what if a ‘better model’ could be identified? The following section proposes an alternative account of statehood as a category of state-like entities that share a series of overlapping similarities or relationships rather than a fixed set of characteristics.

4. Pursuing a ‘family resemblance’ account of statehood

In Philosophical Investigations, Ludwig Wittgenstein examines many of the ways in which language is, or might be, used.Footnote 78 One of his aims is to discover how all of these different uses are related to each other. What is the common feature that makes them all types of the thing that we call ‘language’? It appears that there isn't one.Footnote 79 Nevertheless, they are connected by an overlapping set of similarities or relationships, in virtue of which we group them together in the category of language.

Wittgenstein explains this by analogy with games.Footnote 80 Things that fall into the category of games do not share some fixed set of characteristics or properties that are unique to them, but we nevertheless recognize them as games. Solitaire and poker involve playing cards. Poker and high jump involve many individual players competing against each other. High jump and football take place in a stadium. Football and tennis are ball games. Many games involve winning and losing, but so do elections and auctions. As Beardsmore explains,

[W]e recognize poker or monopoly as games, not because of the presence of some defining characteristic common to all games, but because they share some (though not all) features with other games, which in turn share some (though not all) features with still other games.Footnote 81

Wittgenstein describes this in terms of ‘a complicated network of similarities overlapping and criss-crossing: sometimes overall similarities, sometimes similarities of detail’.Footnote 82 This network, he suggests, is best captured by the idea of ‘family resemblances’, ‘for the various resemblances between members of a family: build, features, colour of eyes, gait, temperament, etc. etc. overlap and criss-cross in the same way’.Footnote 83

The question here is whether the concept of statehood could also be thought of in terms of family resemblances.Footnote 84 On this alternative account, statehood would be understood not in terms of a common set of characteristics shared by all states – as per the minimum threshold account – but in terms of a series of overlapping similarities. Norway (1940–1945)Footnote 85 and the Vatican City, for example, both have some capacity for independence. The Vatican City and Somalia both have a defined territory. Somalia and Cuba both have a permanent population. Cuba and Australia both have an effective government. While there is no one common set of characteristics shared by all of these states, they are nevertheless connected by a series of overlapping similarities or family resemblances.

Here, an attempt is made to reclaim the concept of statehood from the difficulties and counterexamples identified earlier. Rather than abandoning statehood as a victim of ‘conceptual stretching’, it might be better understood as a ‘broad family of objects that have altered considerably in form and meaning . . . rather than as a singular phenomenon’.Footnote 86 The category of things that we call ‘states’ is identifiable not by some fixed set of characteristics, but an overlapping series of family resemblances that continue to evolve across time and space, shaped by processes of industrialization, decolonization, urbanization, globalization, migration, fragmentation, secession, and, now, climate change.

In fact, Crawford suggests that the rules of statehood have been ‘kept so uncertain or open to manipulation as not to provide any standards at all’, allowing the concept of statehood to remain flexible enough to incorporate unorthodox entities that do not meet all of the criteria.Footnote 87 ‘To suggest that entities such as “protected states” or “internationalized territories”’, he argues, ‘are a priori excluded from statehood is unjustified and exaggerates the exclusivity of the international legal regime of statehood.’Footnote 88 This suggests that a more open and flexible account of statehood would more accurately reflect state practice and more effectively respond to the changing legal, political, cultural, and environmental demands of the world today. A similar approach is reflected in the work of the ILC, which concluded (with shades of Wittgenstein) that ‘no useful purpose would be served by an effort to define the term “state”’, being content to use it ‘in the sense commonly accepted in international practice’.Footnote 89

As we saw earlier, identifying the point at which low-lying atoll island states will fail to meet the minimum threshold for statehood is difficult. From the perspective of a family resemblance account of statehood, however, this would not be necessary. On this account, in order to continue to qualify as a state, an atoll island state would need to continue to share one or more similarities with other ‘state-like’ entities.

In recent work, legal scholars have suggested various ways in which atoll island states might retain their identity as states in the face of climate change inundation.Footnote 90 While each theorist explicitly or implicitly adopts the traditional minimum threshold account of statehood, the conclusions they reach often lead them in the direction of a more flexible, responsive, family resemblance-type account. Jenny Grote Stoutenburg, for example, sets out to identify ‘the thresholds at which the loss of personal and territorial effectiveness would presumably occur’.Footnote 91 However, her analysis does not lead her to conclude that all criteria must be satisfied, but that the cumulative weight of a number of shared criteria may be sufficient to ensure the continued recognition of atoll island states in the face of climate change inundation.

In what follows, several of these proposals are examined from the perspective of a family resemblance account of statehood. The aim is not to assess the relative merits of each proposal but to evaluate the capacity of the minimum threshold and family resemblance accounts of statehood to accommodate them.

4.1. Preserving territory on which to maintain a ‘population nucleus’

An atoll island state might try to ensure that some of its original territory remains habitable by means of ‘hard’ or ‘soft’ defence measures, including building sea walls or nurturing coastal ecosystems.Footnote 92 It could then maintain a ‘population nucleus’ or ‘symbolic presence’ on this remaining territory: a small permanent population that could provide a ‘legal anchor’ to the wider diaspora.Footnote 93 The President of Kiribati, for example, has suggested relocating his government to Banaba Island, the country's highest landmass, in order to maintain a population on their territory for as long as possible. ‘I dream that some of us would stay. If we had enough resources, we could build up one of these islands to a height a few metres above sea level to render it a place where we could survive.’Footnote 94

However, the capacity of an atoll island state to continue to satisfy the criteria of a permanent population living in a defined territory is uncertain. Its population will diminish as fresh water becomes scarcer, coastlines erode, infrastructure is destroyed and its citizens gradually emigrate, which in turn may ‘start to erode longer-term claims to continued sovereignty and statehood’.Footnote 95 In the event that it eventually lacks a permanent population and defined territory, an atoll island state will need to rely on other state-like characteristics to maintain its status as a state.Footnote 96

While the minimum threshold account of statehood is unable to accommodate this situation, a family resemblance approach takes into account the fact that an atoll island state might continue to share similar properties with some states (an effective government and independence), even if it eventually does not share certain properties with others (a permanent population living in a defined territory).

4.2. A government-in-exile

Provided that it can find a willing host state, an atoll island state might continue to fulfil the criteria of effective government and independence by establishing a government-in-exile.Footnote 97 While its powers would be circumscribed by the territorial sovereignty of the state within which it operates,Footnote 98 an island government-in-exile could continue to perform certain functions of statehood, including maintaining formal diplomatic relations, concluding treaties, participating in international fora, exercising jurisdiction over its nationals abroad, providing consular services, and issuing passports.Footnote 99 The successful operation of governments-in-exile suggests that ‘the existence of territory, while essential to the original constitution of that entity as a state, is not integral to the exercise of certain governmental functions’.Footnote 100

Yet governments-in-exile have thus far operated on the basis that their exile is temporary, and their recognition is premised on the existence of a permanent population and defined territory to which they will eventually return.Footnote 101 As discussed above, an atoll island state could maintain a ‘population nucleus’ on its remaining territory, thereby retaining some jurisdiction over a defined territory and permanent population. However, in this case, ‘the momentum would not be toward an eventual return home, but toward permanent diaspora’.Footnote 102 As islanders gradually resettle and gain citizenship elsewhere, the role of the government-in-exile will diminish over time, undermining an atoll island state's claim to effective governance and independence.Footnote 103

Again, the traditional minimum threshold account of statehood cannot take us this far: it is unable to account for a government-in-exile in the first place. However, a family resemblance account may also exclude an atoll island state at this point. Without a clearly defined territory, permanent population or effective government in the long-term, the number of similarities or ‘family resemblances’ that an atoll island state shares with other state-like entities begins to diminish, calling into question its continued recognition as a state.

4.3. ‘Deterritorialized’ statehood

It has been suggested that an atoll island state might continue to exist as a ‘deterritorialized’ state or ‘state-in-exile’, even once it lacks a permanent population residing in a defined territory.Footnote 104 Maxine Burkett, for example, proposes the recognition of a new kind of state: the ‘nation ex-situ’, a sovereign entity with a body of elected representatives that governs its citizens even as they scatter across the world.Footnote 105 A deterritorialized state, Burkett argues, provides a ‘means of conserving the existing state and holding the resources and well-being of its citizens – in new and disparate locations – in the care of an entity acting in the best interests of its people’.Footnote 106 It would continue to participate in intergovernmental organizations, provide diplomatic protection and consular services, resolve disputes and protect (some of) the rights of its citizens.Footnote 107 Where provision is made for regular elections, its citizens, like other diaspora populations, would continue to vote for political representatives.Footnote 108

A deterritorialized state would, therefore, look much like a government-in-exile, with the additional benefit of a permanent legal status that would ensure its ongoing recognition as a state, despite the gradual relocation of its citizens elsewhere.Footnote 109 By preserving a ‘vital political and cultural nucleus’ that persists over time, it may also help to ‘ease the rootlessness’ its scattered population face, allowing islanders to sustain a sense of identity arising from their common membership in a deterritorialized state.Footnote 110 And, in the event that the deterritorialized state continues to exercise jurisdiction over its maritime zones,Footnote 111 the revenue they generate may also help to maintain social, political and legal institutions for the benefit of its dispersed citizens.Footnote 112

Although a deterritorialized state might retain some territory on which a ‘population nucleus’ could remain, this is not a prerequisite for its continuing statehood under this proposal. As Walter Kälin and Nina Schrepfer argue, ‘International law would be flexible enough to provide for the continued existence of such states as non-territorial entities.’Footnote 113 What is crucial here is that it continues to maintain an effective government and the capacity for independence. Provided that recognition is not withdrawn following the loss of habitable territory and a permanent population, ‘the deterritorialized state could continue to interact as part of the community of nations’.Footnote 114

However, while a state's independence can be qualified without its statehood being called into question,Footnote 115 it is thought unlikely that a state can retain its independence if it permanently resides on the sovereign territory of another state.Footnote 116 While a deterritorialized state would have a formally recognized legal status, it would remain dependent on the consent of the host state(s) within which its citizens reside and is therefore likely to face many of the constraints imposed on a government-in-exile.Footnote 117

Yet, as explained at the outset, this article is not concerned with the viability or otherwise of these proposed solutions to climate change inundation. Instead, it questions whether the traditional minimum threshold account of statehood can provide the conceptual space within which to have such a discussion in the first place. Again, as with the previous proposals, this seems unlikely: the minimum threshold approach is unable to account for the existence of a deterritorialized state, let alone provide us with the conceptual tools required to assess its strengths and weaknesses. It therefore appears that a family resemblance account of statehood provides a more flexible, responsive account with the capacity to incorporate both pre-existing and future counterexamples and to adapt to changing legal, geopolitical, social, and environmental conditions. However, this approach is not without its own difficulties. The following section considers several of these.

5. Method or madness?

Having considered the role that a family resemblance account of statehood might play in addressing some of the weaknesses of the minimum threshold account, this section outlines some objections. The first set of problems concern the proper role of a legal account of statehood. What is its relationship to state practice and international relations? Should it be descriptive or prescriptive, idealistic or pragmatic? On the one hand, perhaps the minimum threshold account of statehood is not intended to reflect state practice, but to guide it. On this account, the role of law is to provide consistent, universal rules that ensure certainty and stability, and the counterexamples described earlier are just that: counterexamples that prove the general rule. On the other hand, perhaps the role of law is to evolve in response to changing conditions and threats, rather than to preserve some essential concept of statehood at all costs. On this account, ‘failed’ states, micro-states, governments-in-exile, and deterritorialized island states are not counterexamples but evidence of the need for legal rules that are flexible and responsive to new or unusual demands.

A related problem is that, in doing away with a minimum threshold for statehood, we risk granting states ‘unfettered discretion’ in deciding which entities to recognize, or not.Footnote 118 By establishing objective criteria, the minimum threshold approach is said to mitigate the abuse of the law by those with power. However, it might also be argued that the minimum threshold approach relies on a set of Western-centric criteria that exclude certain groups – including indigenous, nomadic, and tribal peoples – from statehood anyway, a bias that is concealed behind a façade of objectivity.Footnote 119

The second set of problems relates to the fit between a family resemblance account and the concept of statehood. First, there is the question of whether a family resemblance model is compatible with an all-or-nothing concept of statehood. Does it imply that some states – that is, those with more shared characteristics – are more ‘state-like’ than others, thereby contradicting the fundamental principle of sovereign equality? While this may intuitively appear to be the case, the answer is no, or at least no more so than the minimum threshold account. According to Wittgenstein's games analogy, something either is or is not a game, regardless of how many similarities it shares with other games. Football is not more ‘game-like’ just because it shares many characteristics with, say, rugby, and the same is true of states. However, where the minimum threshold approach is unable to account for the fact that a failed – or less ‘state-like’ – state like Somalia is in fact a state, the family resemblance account is. Perhaps it is in fact an unreflective commitment to the minimum threshold approach that clouds our view of ‘counterexamples’ like Somalia, encouraging us to view them as second among equals.

Second, some might object that the family resemblance model is open-ended or over-inclusive, requiring us to recognize as states entities that we would rather not. ‘[S]ince we can always find some resemblance between instances of one concept and those of another’, Anderson argues, ‘family resemblance does not suffice to limit the extension of concepts’.Footnote 120 Paintball, for example, involves paint, but so too does redecorating a house. Chess involves a king and queen, but so does a monarchy. Similarly, all states have a flag, but so do cities, municipalities and football clubs. Even if we restrict ourselves to the criteria set out in the Montevideo Convention, non-state entities like Taiwan, Abkhazia or Tokelau have a defined territory, a permanent population, and an effective government. Would we really want to recognize all of these things as games, or as states? As Grant points out, the ‘central task of a definition is, after all, to isolate its object from others’.Footnote 121

Wittgenstein himself embraces this apparent open-endedness. ‘What still counts as a game and what no longer does? Can you give the boundary? No . . . (But that never troubled you before when you used the word “game”.)’Footnote 122 But this sense of indeterminateness is understandably troubling when we are attempting to construct a legal account of statehood. Law is typically binary in nature, relying on clear, fixed boundaries between opposing concepts: legal vs. illegal, guilty vs. not guilty, state vs. non-state, and so on. Then again, as above, it is not that Wittgenstein would deny that we can distinguish clearly between things that fall into the category of ‘games’ and things that do not; merely that we can draw clear boundaries between them based on characteristics that they either share or do not. The same goes for many of the categories central to international law, including – as this article makes clear – that of statehood. Given this, perhaps the family resemblance account is preferable insofar as it is willing to acknowledge this conceptual blurring, rather than insisting that the threshold between ‘state’ and ‘non-state’ is clearly demarcated by a fixed set of criteria.

Or, we might argue that there is something shared by all and only states: ‘namely, the disjunction of all their common properties’.Footnote 123 In the account of statehood set out in this article, the set of common properties shared by all states includes a defined territory, permanent population, effective government, and independence. This is not to say that all states must share all of these properties, merely that this is the common basket of properties from which we can draw in identifying something as a state. We could even take this one step further, requiring that all states possess a minimum number of these properties,Footnote 124 or privileging certain properties that contribute in some way to our particular needs or goals.Footnote 125 For instance, in order to count as a state, an entity might need to satisfy three out of four common criteria or at least two criteria plus the recognition of other states.Footnote 126

However, if we are to adhere to a family resemblance account, this response is problematic for two reasons. First, for Wittgenstein, any appeal to the disjunction of common properties is meaningless: ‘One might as well say [of a thread made of overlapping fibres]: “Something runs through the whole thread – namely the continuous overlapping of those fibres”.’Footnote 127 For Wittgenstein, there is no such common basket of properties. Second, in adopting certain requirements about which or how many criteria a state must satisfy, a family resemblance account quickly collapses into a variant of the minimum threshold account of statehood. Instead of insisting that all states must satisfy all criteria, we are simply cashing out the idea of a ‘minimum threshold’ in terms of a minimum number or combination of criteria.

Perhaps, instead, we could take the approach favoured by Thomas Kuhn, who argues that the members of a particular category are distinguished not only by similarity between members of the same category, but also difference from members of other categories.Footnote 128 The scope of one category is limited when it collides with or mutually restricts a second category. These two categories might be straightforwardly contradictory (e.g. ‘state’ and ‘non-state’) or they might involve one broad category and other specific contrary categories (e.g. ‘state’ and ‘city’ or ‘minority group’). A problem arises, however, when we encounter intermediate objects that fall into two or more categories, like Somalia, Palestine, Taiwan or a deterritorialized island state. For Kuhn, the possibility of grouping objects into categories depends on there being ‘an empty conceptual space between the families to be discriminated’,Footnote 129 a space that is often difficult to find in practice.

Finally, there is the question of whether the minimum threshold account of statehood is worth rescuing from the difficulties discussed in this article. It is, after all, an intuitively plausible approach to take. Are the weaknesses identified evidence of merely a failure to adequately develop and implement the idea of a minimum threshold of statehood, or of the difficulty, or impossibility, of identifying a minimum threshold at all?

If the former, it might be possible to combine the minimum threshold and family resemblance accounts to create a two-pronged approach, where the former applies to the establishment of states and the latter to their continuing existence and potential extinction.Footnote 130 According to this combined account, even if the criteria governing the emergence of states are ‘logically the same’ as those governing their extinction, their application may be different.Footnote 131 Once an entity has passed the minimum threshold of statehood, the ratchet effect discussed earlier may prevent them from falling back below this threshold, even if they no longer satisfy one or more criteria – providing that they continue to share certain characteristics with other states. A ‘failed state’, for example, could continue to exist as a state as long as it sustains a reasonably stable population within reasonably well-defined borders, despite no longer having an effective government,Footnote 132 while the reverse might hold for an atoll island state threatened by climate change inundation.

6. Conclusion

While international law is often thought to rely on certainty and stability, one of its central concepts – that of statehood – lacks a clear, reliable definition. By raising difficult questions about the ongoing existence of states whose territory is rendered uninhabitable, climate change inundation prompts us to re-examine the legal concept of statehood, challenging us to clarify what we mean when we call something a ‘state’.

This article highlights some weaknesses of the traditional minimum threshold account of statehood, both in general and in the specific context of climate change inundation. It identifies a plausible alternative account, drawing on Wittgenstein's concept of family resemblances. However, the usefulness of this family resemblance account is yet to be determined. On the one hand, it is more responsive to changing circumstances and provides a better reflection of the way in which the legal vocabulary of statehood applies to the world. On the other, it may err too heavily on the side of flexibility and suffers from a lack of clarity that is not easily resolvable.

Further work will be needed to identify the purpose and objective of a legal account of statehood, with particular reference to the context of climate change inundation. What is the role of law in determining which entities are categorized as states? Can the family resemblance account answer the objections from indeterminacy raised above? Or should we abandon the search for a definition altogether and simply rely on the way the term ‘state’ is used in practice, as Wittgenstein – and, indeed, the ILCFootnote 133 – would have us do?

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8 M. Shaw, International Law (2008), 208; Crawford, supra note 4, at 700–24; L. Oppenheim and H. Lauterpacht, International Law: A Treatise (1955), Vol. 1, at 206–7.

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11 Although it is mentioned in Craven, supra note 9, at 159; L. Oppenheim, International Law: A Treatise (1905), Vol. 1, at 117–18; Shaw, supra note 8, at 208, note 52.

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13 Craven, supra note 9, at 159. For Marek, for example, independence is ‘indispensable to the continued existence of a state . . . With its loss, it becomes extinct’. K. Marek, Identity and Continuity of States in International Law (1968), 188. See also Grant, T., ‘Defining Statehood: The Montevideo Convention and Its Discontents’, (1999) 37 Columbia Journal of Transnational Law 403 Google Scholar, at 435; Wong, supra note 7, at 22. McAdam, however, is more cautious: McAdam, supra note 7, at 127.

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22 Island of Palmas Case (United States v. Netherlands), (1928) 2 RIAA 829, at 838. Other proposed criteria include self-determination, democratic legitimacy, minority rights protection, legality and self-sufficiency. Craven, supra note 21, at 220–21; Grant, supra note 13, at 437–52; Österdahl, I., ‘Relatively Failed: Troubled Statehood and International Law’, (2003) 14 FYIL 49 Google Scholar, at 50–1.

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26 Duursma, supra note 25, at 412. Compare Jennings and Watts, supra note 25, at 327.

27 However, the Vatican City's relationship with the Holy See has implications for its recognition by other states. Duursma, supra note 25, at 416–17.

28 UNHCR, IOM and Norwegian Refugee Council, ‘Climate Change and Statelessness: An Overview’, Submission to the 6th Session of the Ad-Hoc Working Group on Long-Term Co-operative Action under the UNFCCC (2009), at 1.

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31 Thanks to Delphine Dogot for suggesting this term.

32 G. Kreijen, State Failure, Sovereignty and Effectiveness (2004), 37.

33 V. Lowe, International Law (2007), 165. But see Marek, supra note 13, at 5–6.

34 International Law Commission (ILC), Draft Declaration on the Rights and Duties of States: General Debate, UN Doc. A/CN.4/2 (1949), at 259.

35 Ibid.

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41 UNHCR, Summary of Deliberations on Climate Change and Displacement (22–25 February 2011), para. 2 (see also para. 30).

42 See generally Crawford, supra note 4, at 688–95; S. Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (1998), 115–206.

43 See generally Helman, G. and Ratner, S., ‘Saving Failed States’, (1992–93) 89 Foreign Policy 3;CrossRefGoogle Scholar Kreijen, supra note 32; Österdahl, supra note 22; Thürer, supra note 38.

44 Thürer, supra note 38, at 752. Compare Duursma, supra note 25, at 118; Grant, supra note 13, at 435; Higgins, supra note 24, at 40.

45 Jennings and Watts, supra note 25, at 131–2.

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47 Crawford, supra note 4, at 46.

48 Lowe, supra note 33, at 138. Compare Malanczuk, supra note 21, at 75; S.P. Sharma, Territorial Acquisition, Disputes and International Law (1997), 2; Shaw, supra note 8, at 199 and 960.

49 Deutsche Continental Gas-Gesellschaft, supra note 15, at 15; North Sea Continental Shelf Cases, Judgment of 20 February 1969, [1969] ICJ Rep. 3, at 32–3.

50 Crawford, supra note 4, at 47. Crawford cites Sovereignty over Certain Frontier Land (Belgium/Netherlands), Judgment of 20 June 1959, [1959] ICJ Rep. 209, at 212–13 and 229; Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment of 12 April 1960, [1960] ICJ Rep. 6, at 27.

51 In re. Duchy of Sealand, (1989) 80 ILR 683, at 684–5. However, artificial islands do not count. See Arts. 60(1) and (8), 1982 UN Convention on the Law of the Sea (UNCLOS), 833 UNTS 397.

52 Although the state is not entitled to an exclusive economic zone or continental shelf in respect of these, per Art. 121(3), UNCLOS, supra note 51.

53 CIA, supra note 25. See also Duursma, supra note 25, at Chapters 6 and 8.

54 Grant, supra note 13, at 435. Compare I. Shearer, Starke's International Law (1994), 85.

55 Craven, supra note 21, at 224.

56 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, [2001] ICJ Rep. 40, at para. 206. In rejecting the argument that low-tide elevations that do not lie with the territorial sea of an existing state constitute territory, the ICJ finds that ‘The few existing rules do not justify a general assumption that low-tide elevations are territory in the same sense as islands.’

57 Duchy of Sealand, supra note 51, at 686.

58 McAdam, supra note 7, at 124.

59 Behind the Vatican City (842) and Nauru (9,488). CIA, supra note 25. See further Shaw, supra note 8, 199.

60 UN Doc. A/RES/2869 (XXVI) (1971).

61 Park, supra note 7, at 7.

62 For example, around 57 per cent of Samoans and 46 per cent of Tongans live outside of their country of origin. C. Stahl and R. Appleyard, Migration and Development in the Pacific Islands: Lessons from the New Zealand Experience (2007), 7. See also Malanczuk, supra note 21, at 76.

63 Stoutenburg, supra note 7, at 61. Compare Sharma, supra note 48, at 4.

64 T. Lambourne, Kiribati Secretary of Foreign Affairs. Interviewed on D. Carrick, ‘Climate Change: The Pacific’, ABC Radio National: Law Report, 22 November 2011.

65 Duchy of Sealand, supra note 51, at 686.

66 Crawford, supra note 4, at 55.

67 Island of Palmas Case, supra note 22, at 838. A state's independence is not necessarily compromised by the size of its territory or population, nor by its political or economic co-operation with other states. Duursma, supra note 25, at 125–6.

68 Stoutenburg, supra note 7, at 66. See further J.G. Stoutenburg, Disappearing Island States in International Law (2015), at Section 4.2.3.

69 Crawford, supra note 2, at 129. Craven describes effectiveness as a ‘moveable feast’. Craven, supra note 21, at 226.

70 Crawford, supra note 4, at 63 and 89. See also Thürer, supra note 38, at 752.

71 Shaw, supra note 8, at 203–4. For historical examples, see Park, supra note 7, at 6–7.

72 Crawford, supra note 4, at 668. However, these conclusions have not been tested in the case of climate change inundation. See Stoutenburg, J.G., ‘Review of Jane McAdam (ed.), Climate Change and Displacement: Multidisciplinary Perspectives ’, (2011) 22 EJIL 1196 CrossRefGoogle Scholar, at 1199.

73 On recognition, see, for example, Berman, N., ‘Sovereignty in Abeyance: Self-Determination and International Law’, (1988–89) 7 Wisconsin International Law Journal 51 Google Scholar, at 81–4; Craven, supra note 21, at 240–6; Crawford, supra note 2, at 143–65; Duursma, supra note 25, at 110–15; Jennings and Watts, supra note 25, at 127–203; Talmon, supra note 42.

74 On the role of recognition in remedying a failure to meet one or more criteria of statehood, see Duursma, supra note 25, at 430; Grant, supra note 13, at 447. On recognition in the context of climate change inundation, see W. Kälin and N. Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches’, (2012) UNHCR Legal and Protection Policy Research Series No. 39; McAdam, supra note 7, at 137–8; Park, supra note 7, at 14; Rayfuse, R., ‘Sea Level Rise and Maritime Zones: Preserving the Maritime Entitlements of “Disappearing” States’, in Gerrard, M. and Wannier, G. (eds.), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (2013), 167 Google Scholar at 177; Stoutenburg, supra note 7; Stoutenburg, supra note 68, at Chapter 6; Wong, supra note 7, at 35–8 and 45.

75 ‘[C]ommon objective operational criteria for the elements of the definition’ of statehood are lacking. G. von Glahn and J. Taulbee, Law Among Nations (2013), 148.

76 Compare Craven, supra note 21, at 221.

77 Grant, supra note 13, at 414.

78 L. Wittgenstein, Philosophical Investigations (1953).

79 Other than the fact that all language is used as language. For Wittgenstein's emphasis on the role of use in determining meaning, see ibid., Section 43.

80 Wittgenstein, supra note 78, at Sections 66–71.

81 Beardsmore, R., ‘The Theory of Family Resemblances’, (1992) 15 Philosophical Investigations 131 CrossRefGoogle Scholar, at 132.

82 Wittgenstein, supra note 78, at Section 66.

83 Ibid., at Section 67.

84 This has not been proposed by legal scholars elsewhere, although some accounts of statehood as a continuum of state-like entities come close. See, for example, Österdahl, supra note 22. Elsewhere, Mark Beissinger argues that the concept of ‘empire’ should be understood in terms of a ‘Wittgensteinian “family resemblance” whose meaning and referents have altered significantly over time’. M. Beissinger, ‘Soviet Empire as “Family Resemblance”’, (2006) 65 Slavic Review 294, at 303. Duncan Bell suggests that ‘it is possible to identify a family resemblance in the preconditions considered essential for successful statehood’, but does not elaborate. Bell, D., ‘The Victorian Idea of the Global State’, in Bell, D. (ed.), Victorian Visions of Global Order (2007), 159 CrossRefGoogle Scholar at 162. Yael Tamir observes that ‘all members within the category “nation” . . . show some family resemblance’, but does not cite Wittgenstein nor stay true to his understanding of family resemblances. Y. Tamir, Liberal Nationalism (1993), 65. James Tully applies Wittgenstein's family resemblance model to political concepts like cultures and constitutions. J. Tully, Strange Multiplicity (1995), 112–13 and 120–2.

85 During the Second World War, the Norwegian government operated in exile and the state of Norway therefore lacked effective control or jurisdiction over its territory.

86 Beissinger, supra note 84, at 297.

87 Crawford, supra note 4, at 45.

88 Ibid., at 88.

89 ILC Draft Declaration on the Rights and Duties of States, supra note 34, at 259. Shearer similarly argues that, ‘Of the term “state” no exact definition is possible.’ Shearer, supra note 54, at 85. Compare Grant, supra note 13, at 408; Higgins, supra note 24, at 39; Knop, supra note 14, at 107.

90 See, for example, M. Burkett, ‘The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood and the Post-Climate Era’, (2011) 2 Climate Law 345; McAdam, supra note 7, at Chapter 5; Rayfuse, supra note 74; Schofield, C. and Freestone, D., ‘Options to Secure Maritime Jurisdictional Claims in the Face of Global Sea Level Rise’, in Gerrard, M. and Wannier, G. (eds.), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (2013), 141;Google Scholar Stoutenburg, supra note 7; Stoutenburg, supra note 68.

91 Stoutenburg, supra note 7, at 57.

92 See, for example, Schofield and Freestone, supra note 90, at 152–6.

93 Kälin, supra note 40, at 102 and 90–1; Stoutenburg, supra note 7, at 65.

94 Cited in McAdam, supra note 7, at 137.

95 McAdam, supra note 7, at 159.

96 Stoutenburg, supra note 7, at 68; L. Yamamoto and M. Esteban, Atoll Island States and International Law (2014), 176.

97 See generally Talmon, supra note 42, at 215ff.

98 Allied Forces (Czechoslovak) Case, (1941–42) 10 Annual Digest of Public International Law 123, at 124.

99 Stoutenburg, supra note 7, at 69; Stoutenburg, supra note 68, at Section 4.2.3.2. Compare Talmon, supra note 42, at 16 and 146–9.

100 McAdam, supra note 7, at 135.

101 Park, supra note 7, at 6–7; Talmon, supra note 42, at 136; UNHCR, IOM and Norwegian Refugee Council, supra note 28, at 1; Wong, supra note 7, at 21–2.

102 Stoutenburg, supra note 7, at 69.

103 McAdam, supra note 7, at 136–7.

104 Ibid., at 138; Burkett, supra note 90; I. Kelman, ‘Difficult Decisions: Migration from Small Island Developing States under Climate Change’, (2015) 3 Earth's Future 133, at 137; McCullough, S., ‘A Call for a New International Convention to Safeguard the Human Rights of Citizens of Deterritorialised Asia-Pacific Small Island States’, (2015) 26 Colorado Natural Resources, Energy and Environmental Law Review 109;Google Scholar Ödalen, J., ‘Underwater Self-Determination: Sea-Level Rise and Deterritorialized Small Island States’, (2014) 17 Ethics, Policy and Environment 225;CrossRefGoogle Scholar Rayfuse, supra note 74, at 179–80; R. Rayfuse, ‘W(h)ither Tuvalu? International Law and Disappearing States’, (2009) UNSW Faculty of Law Research Series No. 9, at 11–12; Stoutenburg, supra note 7, at 70–2 and 85–7; Stoutenburg, supra note 68, at Section 6.3; Vaha, M., ‘Drowning Under: Small Island States and the Right to Exist’, (2015) 11 Journal of International Political Theory 206 CrossRefGoogle Scholar.

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106 Ibid., at 346. Compare Rayfuse, supra note 104, at 11.

107 Burkett, supra note 90, at 363ff. But see Dietrich, F. and Wündisch, J., ‘Territory Lost: Climate Change and the Violation of Self-Determination Rights’, (2015) 2 Moral Philosophy and Politics 83.CrossRefGoogle Scholar

108 See, for example, A. Sundberg, The History and Politics of Diaspora Voting in Home Elections (2007). On the diaspora as the ‘present-tense experience of the deterritorialized nation’, see Burkett, supra note 90, at 359.

109 Burkett, supra note 90, at 367–9.

110 Ibid., at 363ff.

111 This is, however, far from straightforward. In addition to the question of whether maritime baselines can be preserved in the face of rising sea levels, there is also the question of whether a deterritorialized state can continue to exercise jurisdiction over the maritime zones these delimit. For further discussion, see Caron, ‘When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level’, (1990) 17 Ecology Law Quarterly 621, at 641–51; Rayfuse, supra note 74, at 181–90; Schofield and Freestone, supra note 90, at 158–63; Soons, supra note 7; Yamamoto and Esteban, supra note 96, at Chapter 5.

112 Rayfuse, supra note 104, at 11; Soons, supra note 7, at 230, note 90. However, on the expense of preserving and managing maritime zones, see Caron, supra note 111, at 639–40; Rayfuse, supra note 104, at 12–13.

113 Kälin and Schrepfer, supra note 74, at 39.

114 McAdam, supra note 7, at 138.

115 SS Wimbledon, PCIJ Rep. Series A No. 1, at 25. On the independence of microstates, see Duursma, supra note 25, at Chapters 4–8; Wong, supra note 7, at 29–31.

116 Grant, supra note 13, at 439–40; Wong, supra note 7, at 26–8, 31 and 40–1.

117 Park, supra note 7, at 7 and 13–14.

118 Crawford, supra note 2, at 127.

119 Grant, supra note 13, at 449.

120 H. Anderson, ‘Kuhn's Account of Family Resemblance: A Solution to the Problem of Wide-Open Texture’, (2000) 52 Erkenntnis 313, at 313. See also Beardsmore, supra note 81; Bellaimey, J., ‘Family Resemblances and the Problem of the Under-Determination of Extension’, (1990) 13 Philosophical Investigations 31 CrossRefGoogle Scholar.

121 Grant, supra note 13, at 435.

122 Wittgenstein, supra note 78, at Section 68.

123 Ibid., at Section 67.

124 Bellaimey, supra note 120, at 33–6.

125 Ibid., at 40–3.

126 On the constitutive effect of recognition in this sense, see Duursma, supra note 25, at 430; Grant, supra note 13, at 447; Wong, supra note 7, at 36; Yamamoto and Esteban, supra note 96, at 183 and 212.

127 Wittgenstein, supra note 78, at Section 67.

128 For example, T. Kuhn, The Structure of Scientific Revolutions (1970); Kuhn, T., ‘The Road Since Structure’, (1991) 2 Philosophy of Science Association 3.Google Scholar See also Anderson, supra note 120.

129 Kuhn, Structure, supra note 128, at 197, note 14.

130 Compare Österdahl, supra note 22, at 60. See also Higgins, supra note 24, at 39; Von Glahn and Taulbee, supra note 75, at 139.

131 Craven, supra note 21, at 159.

132 Österdahl, supra note 22, at 60–1.

133 ILC Draft Declaration on the Rights and Duties of States, supra note 34, at 259.