Sinking Sovereignty: Can Island Nations in the Pacific Continue to Legally Exist Despite Rising Seas?

By Natalie Glitz Grumhaus

Climate change affects the whole planet, but the rising seas are affecting low-lying islands and coastal areas in the most immediate ways.[1] The smaller island states in the Pacific have been notably affected, as five islands of the Solomon Islands have fully disappeared into the Pacific Ocean, and many others are slowly losing their land and are likely to join the first five within the next several decades.[2] Along with human welfare crises caused by loss of these islands, a distinct and novel legal issue also arises: What happens to the legal status and sovereignty of the state and its citizens when the island is destroyed by natural causes?

When a country has its territory partially or fully subsumed into another existing or new country through war or conquest, the process has been clearly laid out in the past.[3] Most importantly, that land continues to exist, even if under a different territorial name and flag.[4] The Montevideo Convention has provided that to be an internationally-recognized state, a potential state “should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.”[5] For states severely affected by climate change, the inability to fulfill the first or second requirement will cost them their statehood.

In the Solomon Islands, the sea level is rising three times faster than anywhere else in the world, and five islands have already ‘sunk’ — with more quickly following.[6] Although these particular islands were not heavily populated, nor separate and distinct states, they show just how pressing the problem remains.[7] In Fiji, entire communities have been uprooted and forced to relocate because of the rising seas, like Vunidogola (the first village to be relocated), for which the Fijian government had to build a new settlement further inland.[8] Although no entire Pacific states have been submerged yet, multiple state leaders, like those of the Republic of Kiribati, have expressed concern that the continually rising seas could result in full territorial loss.[9] At this point, there are few solutions beyond having the submerged country’s government and citizens ask for a grant of land from another country to move to, known as a “government-in-exile.”[10] The only other present solution, if it can be called that, is the forced displacement and migration of the submerged country’s citizens to other states.[11]

Allowing any country to build new, artificial islands to extend its territorial waters and land will result in a destructive and militaristic race, like the race to the moon or the nuclear arms race. Courtesy Kadir van Lohuizen / NOOR.

The current typical ‘solution’ of forced migration and potential citizenship in a new country wreaks havoc on preserving the cultural heritage of the now-stateless people whose island was destroyed.[12] While the government-in-exile approach seems to be the best current approach, it is impractical and unrealistic to expect a foreign state to give up its territory and potentially relocate its people to serve a homeless state.[13] Most importantly, but least reparably, the fleeing nation must leave behind its ancestral home, including geography that shaped their histories and their ancestors’ burial sites.[14]

The practical and most likely result is that people living on sinking states will be forcibly relocated by rising seas and must seek refuge in other states. The physical destruction of their state may leave them stateless and unable to pass on their citizenship to their children, creating multiple stateless generations.[15] These refugees could also lose their citizenship, even if their home state still legally exists, due to strict laws in various Pacific states regarding participation in other nations’ state activities.[16] Furthermore, many states have residency requirements for voting, which would disenfranchise climate refugees.[17] Thus, there seem to be two primary paths: (1) moving the entire nation to land in another state — a costly, lengthy, arduous, and heartbreaking task — or (2) allowing the state to dwindle into nothing as its citizens flee and its land sinks into the sea. In either case, the nation loses at least one of the requisites for statehood according to the Montevideo Convention.[18]

The opposite side of the question of state sovereignty, which has also had dire consequences for indigenous peoples of the smaller Pacific islands and surrounding sees, such as the South China Sea, is the creation of artificial islands.[19]  These new islands are considered to be ‘new land’ and a part of the country that built them. But again, the question remains: Are these sovereign territories, and if so, by what measure?[20] China has built fortified artificial islands which are fixed to the ocean floor and, which China considers to extend its territorial reach just like traditional acquisition of a natural island.[21] According to the Law of the Sea, a nation’s territorial waters extend twelve nautical miles beyond the coast, and the nation may establish an “exclusive economic zone” 200 nautical miles from its coastline, which includes any island coastlines.[22] Although artificial islands are meant to count merely as additional land territory and not to generate a greater span of exclusive territorial waters, there is still ambiguity within international law and countries like China have taken advantage of this grey area.[23] The economic consequences for indigenous Pacific Islanders is that they are forcefully prevented from fishing and performing commercial activities in their nation’s original territory.[24] As natural Pacific Islands disappear and the ocean erodes them, aggressive nations further infringe island territory, and the indigenous peoples of Oceania are once again subjected to the consequences of actions in which they never participated.

A new solution for statehood and statelessness must be developed, then, with both natural and artificial islands in mind. Allowing any country to build new, artificial islands to extend its territorial waters and land will result in a destructive and militaristic race, like the race to the moon or the nuclear arms race.[25] Such actions will hurt the indigenous peoples of the Pacific Islands the most, even though they contribute the least to current greenhouse gas emissions and the changing climate.[26] Furthermore, the laws in the Pacific Islands should be changed to accommodate the migration of citizens to escape rising seas and remain citizens of their home state.[27] Additionally, there must also be changes made, or exceptions granted, to the requirements for statehood to allow existing states to continue in the face of climate change.[28] One solution to retain permanent territory is to allow such island states to designate their territory as specific GCS coordinates, and allow their citizens to continue to utilize the water over their former homes for fishing and commerce, even if the state government must be located elsewhere. Finally, there must be provisions for artificial islands to prevent countries from exploiting them and infringe on the territory and waters of existing island states.[29]

While such erosion may be the natural course of the world — seas rise and fall, earthquakes rip apart communities, volcanoes erupt and destroy cities — this situation is distinguishable because these Pacific nations are suffering unnatural hardships, caused by other, bigger countries around the world.[30] Allowing more powerful and wealthy states to construct new islands, take over ancestral fishing territories, take away legal citizenship and rights, and destroy homelands through excessive greenhouse gas emissions is simply heaping insult upon injury.

[1] Justin Worland, The Leaders of These Sinking Countries Are Fighting to Stop Climate Change. Here's What the Rest of the World Can Learn, Time (June 3, 2019), https://time.com/longform/sinking-islands-climate-change.

[2] GVI USA, Climate change and rising sea levels: 5 Pacific Islands that no longer exist (Sept. 28, 2022), https://www.gviusa.com/blog/disappearing-land-5-pacific-islands.

[3] At least, it has been as clearly laid out as it can be, insofar as something so inherently novel and so altering to the international landscape can be clear. See Rainer Hoffman, Annexation, Oxford Pub. Int. L., https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1376 (last updated Jan. 2020). See also Montevideo Convention on the Rights and Duties of States, art 1, Dec. 26, 1933, 165 L.N.T.S. 19.

[4] Hofman, supra note 3. See, e.g., Off. of the Historian, Creation of Israel, 1948, https://history.state.gov/milestones/1945-1952/creation-israel (last visited January 16, 2023). (Israel is an example of an entirely new state being formed, rather than annexed to a different pre-existing state, although the actual land was not changed.)

[5] Montevideo Convention, supra note 3.

[6] Josh Hrala, Five Islands Have Disappeared Into the Pacific Ocean, and Six More Are Following Suit, Science Alert (May 9, 2016), https://www.sciencealert.com/climate-change-just-caused-five-islands-to-disappear-in-the-pacific; see also Simon Albert, Javier Leon, Alistair Grinham, John Church, Badin Gibbes, and Colin D Woodroffe, Interactions Between Sea-Level Rise and Wave Exposure on Reef Island Dynamics in the Solomon Islands, 11 Env’t Rsch. Letters 5 (2016).

[7] Id.

[8] Worland, supra note 1. Forty-two villages have been forced to relocate or begin the relocation process, as of November 2022. Kate Lyons, How to Move a Country: Fiji’s Radical Plan to Escape Rising Sea Levels, The Guardian (Nov. 8, 2022), https://www.theguardian.com/environment/2022/nov/08/how-to-move-a-country-fiji-radical-plan-escape-rising-seas-climate-crisis.

[9] Sarah Munoz, What Happens When a Country Drowns?, The Conversation (July 1, 2019), https://theconversation.com/what-happens-when-a-country-drowns-118659.

[10] Id.

[11] Lauren Martin, Protecting the Nationality of Pacific Islanders as Climate Change Hits, U. New South Wales Sydney (May 17, 2022), https://newsroom.unsw.edu.au/news/business-law/protecting-nationality-pacific-islanders-climate-change-hits.

[12] Id.; see also Dinesh Bhugra and Matthew Becker, Migration, Cultural Bereavement and Cultural Identity, 4 World Psychiatry 18 (2005).

[13] Martin, supra note 11.

[14] See e.g., Lyons, supra note 8.

[15] See generally Michelle Foster, Nicola Hard, Hélène Lambert and Jane McAdam, The Future of Nationality in the Pacific, Peter McMullin Ctr. on Statelessness at U. Melbourne, Kaldor Ctr. for Int. Refugee Law at U. New S. Wales, U. Tech. Sydney (May 2022).

[16] Id. at 22-26.

[17] Id. at 32.

[18] Montevideo Convention, supra note 3.

[19] Serena Seyfort, What Are China's 'Artificial Islands' and Why Are There Concerns About Them, 9News Sydney (Nov. 26, 2021, 8:11 AM), https://www.9news.com.au/world/what-are-chinas-artificial-islands-in-the-south-china-sea-and-why-are-there-concerns-about-them/3f0d47ab-1b3a-4a8a-bfc6-7350c5267308.

[20] Christopher Mirasola, What Makes an Island? Land Reclamation and the South China Sea Arbitration, Asia Mar. Transparency Initiative (July 15, 2015) https://amti.csis.org/what-makes-an-island-land-reclamation-and-the-south-china-sea-arbitration/; see generally Imogen Saunders, Artificial Islands and Territory in International Law, 52 Vanderbilt J. Transnat’l L. 643 (2019).

[21] See Francesca Galea, Artificial Islands in the Law of the Sea (May 2009) (J.D. dissertation, University of Malta) (retrieved from https://www.blue21.nl/wp-content/uploads/2015/10/Artificial-Islands-in-The-Law-of-the-Sea.pdf); Kristin Huang, Fortified South China Sea Artificial Islands Project Beijing’s Military Reach and Power, Say Observers, S. China Morning Post (Nov. 6, 2022, 2:02 PM), https://www.scmp.com/news/china/diplomacy/article/3198504/fortified-south-china-sea-artificial-islands-project-beijings-military-reach-and-power-say-observers .

[22] Robin Churchill, “The Law of the Sea,” Encyc. Britannica (Oct. 10, 2022), https://www.britannica.com/topic/Law-of-the-Sea.

[23] Saunders, supra note 20 at 645.

[24] Shashank Bengali, Sunken Boats. Stolen Gear. Fishermen Are Prey as China Conquers a Strategic Sea, LA Times (Nov. 12, 2020), https://www.latimes.com/world-nation/story/2020-11-12/china-attacks-fishing-boats-in-conquest-of-south-china-sea.

[25] See e.g., History.com, Arms Race, https://www.history.com/topics/cold-war/arms-race (last updated Dec. 12, 2022); John Logsdon, “Space Exploration – Race to the Moon,” Encyc. Britannica, https://www.britannica.com/science/space-exploration/The-race-to-the-Moon (last updated Jan. 4, 2023).

[26] UN News, Sink or Swim: Can Island States Survive the Climate Crisis?, UN (July 13, 2021), https://news.un.org/en/story/2021/07/1096642.

[27] See Foster, et al., supra note 15.

[28] See Montevideo Convention, supra note 3.

[29] See Huang, supra note 21.

[30] UN News, supra note 26.