Climate change and sea level rise: nature of the state and of state extinction

Climate change and rising sea levels challenge the foundational bases of Statehood. International law does not directly address the question of State extinction confronting island States due to climate change. The imminence and inevitability of outright physical disappearance of all the land territory of a State due to rising sea levels presents a lacuna in the law. This chapter will address the issue of the legal status of a single State at two points along its temporal continuum: at extinction and at reemergence. It discusses the nature of the State and of State extinction, and analyzes the concomitant issue of State reemergence, with an emphasis on the theory of State succession as it relates to the issue of territory. This chapter reviews and challenges the traditional constitutive elements in the definition of a State under the Montevideo Convention of 1933 (permanent population, clearly defined territory, effective government, and capacity to engage in international relations), which is no longer adequate in the contexts of challenges posed by climate change. Specifically, the argument is made that territory may not be necessary to statehood once statehood has been firmly established and capacity is a consequence of Statehood, not a criterion for their formation.