Vanishing Island States and sovereignty

Ocean & Coastal Management 53 (2010) 1–9

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Ocean & Coastal Management journal homepage: www.elsevier.com/locate/ocecoaman

Vanishing Island States and sovereignty Lilian Yamamoto a, *, Miguel Esteban b,1 a b

Kanagawa University, 3-27-1, Rokkakubashi, Kanagawa-ku, Yokohama-shi, Kanagawa-ken, 221-8686, Japan Kyoto University, Faculty of Energy Engineering, Yoshida Honmachi, Kyoto 606-8501, Japan

a r t i c l e i n f o

a b s t r a c t

Article history: Available online 21 October 2009

Sea level rise could bring about an event that has not previously been seen in modern history, that of the physical disappearance of some low-lying Island States. The objective of this paper is to examine what are the likely scenarios for some of these islands in the course of the next century, and analyse for each scenario if these Island States could continue to claim an Exclusive Economic Zone or not. Also, it will analyse the possibility that Island States could continue having some sort of status analogous to statehood even if it was to lose all territory. Finally, the idea of a ‘‘government-in-exile’’ will be discussed, where the State could retain its identity waiting for a future re-emergence of the island. Ó 2009 Elsevier Ltd. All rights reserved.

1. Climate change and its implications for island nations2 Due to the forecasted increase in sea level caused by rising of CO2 levels in the atmosphere, several Island Nations will probably become submerged in the course of the next century, forcing the relocation of their inhabitants to other countries. The 4th Intergovernmental Panel on Climate Change (IPCC) [1] notes how in contrast to other regions ‘‘there is also an absence of demographic and socio-economic scenarios and projections for small islands’’. Although during the course of history many nations have come and gone, in modern times no country has ever ceased to exist due to submergence by the sea. While the possibility of ‘‘disappearing’’ states has been recognized since the late 1980s, the issue has so far been addressed mainly as involving ‘‘climate’’ or ‘‘environmental refugees’’. This is not really an accurate concept, as these people cannot be considered refugees under the 1951 Refugee ConventionArticle 1. According to this Article a refugee is a person who must be outside their country of nationality or former residence; he or she has to have a fear persecution; and this fear of persecution must be for on grounds of race, nationality, religion, membership of a particular social group or political opinion; and the fear must be well- founded. Therefore, in international refugee law, environmental conditions might not be claimed as basis for refugee

* Corresponding author. Tel.: þ81 45 481 5661. E-mail addresses: [email protected] (L. Yamamoto), esteban@energy. kyoto-u.ac.jp (M. Esteban). 1 Tel.: þ81 75 753 4750; fax: þ81 45 221 2302. 2 SMOM Sovereign Military Order of St John of Jerusalem, of Rhodes and of Malta. IPCC Intergovernmental Panel on Climate Change. UNFCCC United Nations Framework Convention on Climate Change. EEZ Exclusive Economic Zone. UNCLOS United Nation Convention on the Law of the Sea. 0964-5691/$ – see front matter Ó 2009 Elsevier Ltd. All rights reserved. doi:10.1016/j.ocecoaman.2009.10.003

protection. However, in this paper, we will consider ‘‘environmental refugee’’ as ‘‘people fleeing their place of residence because of an environmental stressor regardless of whether or not they cross an international border’’ [2]. The issue of sovereignty over the lands currently occupied by these people, and whether this sovereignty can be maintained if the islands became submerged is an issue which has received little attention up to now. This issue of sovereignty is of vital importance to try to establish what would be the status of the citizens of these countries if their islands ceased to exist. Sea level rise is a substantial issue that has important consequences for many countries, not only for islands. However, the present paper deals only with the effects that it will have on lowlying Island States, where the entire country is formed only of low lying atolls that are likely to either become uninhabitable or disappear during the course of the next century. Prominent in this group of countries are Kiribati, Tuvalu, the Marshall Islands and the Maldives [3]. Dealing with the legal and economic effects to other countries is outside the scope of this paper, though much of what will be discussed can be applied to other types of coastal areas. The aim of the paper is to examine some initial options of the possible legal and economic effects of the relocation of the citizens of these countries. The paper will first explain why sea level rise is important to low-lying Island States, the effect that it is likely to have on their ecosystems and how this influences their inhabitability. It will then discuss the issue of sovereignty, which would determine the ability of the people of these islands to keep longterm control over their current natural resources. Key to this would be the status of a submerged Island State, and if sovereignty could be preserved though civil engineering defence works. Inhabitants of Island States have a strong connection to their islands, and even as some appear resigned of their need to leave their islands, the will

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to periodically return to their islands in order to have a connection to their heritage is strong [4]. Indeed, it could be argued that atoll countries and cultures can never be satisfactorily compensated for the loss of their physical bases [5]. Finally, the possibility of having a government-in-exile will be discussed, which would centre around the idea that these islands could re-emerge one day in the distance future, where the descendants of the current inhabitants could re-claim these lands. 1.1. Sea level rise The IPCC [6] noted there is strong evidence that global sea level has gradually risen in the 20th century. In itself, this is nothing that the planet has not experienced before, as sea levels have naturally increased and decreased following ice age cycles. What is different in the sea level rise recorded in the 20th century is that, according to the IPCC [7] ‘‘it is very likely that the response to anthropogenic forcing contributed to sea level rise during the latter half of the 20th century’’. It appears that prior to the 19th Century sea levels had not changed significantly for around 2 or 3 thousand years, whereas estimates for the 20th century show that global average sea level rose at a rate of around 1.7 mm per year. Satellite observations available since the early 1990s however provide more accurate data and estimate this rate at around 3 mm per year, which is significantly higher than during the previous half a century. It has been forecasted that a sea level rise of between 0.19 and 0.58 m is likely [8], and it has been suggested, for example, that a rise in sea level of approximately 50 cm by the end of the 21st Century is the most reliable scenario for the case of the Maldives [9]. This increase in sea level rise is believed to be the consequence of a general rise in global temperatures, which are thought to be caused by anthropogenic increases in greenhouse gases in the atmosphere. As at present CO2 emissions continue to increase, it appears that a significant amount of work would have to be done to prevent further sea level rising. Furthermore, the IPCC [7] notes that ‘‘atmospheric CO2 will continue to increase in the long term even if its emission is substantially reduced from present levels’’ as these particles are not so easily eliminated once they are in the atmosphere. The impact of the sea level rising would have serious consequences in certain areas of the world, flooding the residence of millions of people living in the low lying areas of South, South-East and East Asia [10]. Even under a conservative scenario of only 40 cm increase in sea level by the end of the 21st century this would increase the projected number of people flooded in coastal areas from 13 to 94 m [11]. Bangladesh would have part of its territory submerged [12], an it is estimated that by 2050 more than 1 m people will be affected by sea level rise in each of the GangesBrahmaputra-Meghna, Mekong and Nile deltas [13]. For atoll islands it is unlikely that coral growth will be able to overcome the stressors to which it is currently subjected [14], and this will lead to increases in flooding, a decreasing ability of the islands to sustain human populations [5] and eventually places like Kiribati, Tuvalu, the Marshall Islands and the Maldives could potentially become entirely submerged [12]. Among these cases, the one that brings about the most interesting questions relating to sovereignty is that of Island States, and hence this paper will focus on these types of islands. Nevertheless, the inundation of these and other populated areas worldwide might cause a massive displacement of people from low-lying areas to higher grounds. The international community will have to cope somehow with this, though currently it is not prepared to grant the necessary protection to the victims of this human created phenomenon. However, the legal questions regarding the status of these ‘‘environmental’’ or ‘‘climate refugees’’ has been widely

discussed up to now (see [15] or [16], for example), and is outside the scope of this paper. The issue is however partially linked to the topic of sovereignty, and this paper will deal with the question of whether these people could operate under a different a system somewhat analogous to statehood or establish a ‘‘government-in-exile’’. 1.2. Environmental and protection scenarios for low-lying islands A great number of the islands that are at risk from disappearing due to sea level rise are atolls. These are a special type of island formed when a coral reef builds up around a volcano that is then eroded beneath the waves, resulting in a ring-shaped archipelago of islets around a lagoon. Sea level rise poses a specially complicated problem for these islands, as their highest point is normally only a few metres from the sea level, as shown in Fig. 1. Amongst all the different types of Island Nations, atoll countries are the most physically vulnerable to sea level rise of all small island states because of their high ratio of coastline to land area, relative high population densities and low level of available resources for adaptive measures [5]. This in turn makes their economies highly vulnerable, and on average they are also more food insecure than other small island states [5]. Although the discussion in this paper will centre around these types of islands, the arguments are also valid for other types of low-lying islands environments, such as sand cays or low-lying volcanic islands. Typically, atolls have an inner section occupied by a salty water lagoon, an outer section composed by coral reefs, and a number of small islands located in between the coral reef and the inner lagoon (as seen in Fig. 1). Fresh water originates from rainfall, and although due to their sandy/coral nature the islands are highly permeable, the fresh water table is only slightly above sea water, allowing for vegetation to flourish in these islands. The location of this water table, however, is critical for the survival of vegetation on these types of islands, and can be easily contaminated by salt water and human and industrial waste [17] (see Fig. 2). A rise in sea level due to climate change could not only eventually flood low lying atolls, but the rising saltwater table could destroy deep rooted food crops and erosion could undermine and topple even coconut trees [4], a tree which is otherwise highly salt tolerant and able to grow in the sand. However, it is not the sea level rise in itself that poses the greatest long-term risk to the existence of the islands themselves, but the ability of coral reefs to keep up with this sea level rise [5]. Global warming is projected to cause an increase in sea-surface temperatures, with episodes of mass coral reef mortality through coral bleaching being experienced around the world [18]. Rising concentrations of CO2 in the oceans could also retard the capacity of coral reefs to keep up with sea level rise [19]. The combination of these two effects, together with the detrimental effects of land-based sources of pollution, make it unlikely that the coral reefs will be able to keep up with the pace of sea level rise [14]. Most of the Island Nations threatened by sea level rise are not formed by a single island but are rather an archipelagic grouping, which has a slightly different legal status under UNCLOS. It is likely that some of the smaller atolls will be eroded first [20], and that the larger, more populated islands will be able to hold for longer through different adaptation measures [4,21]. The disappearance of each individual island would have consequences for the ability of an archipelagic state to continue to claim an Exclusive Economic Zone (EEZ) around it, while the submersion of the last island in the country would creaty important questions on its sovereign status, as will be discussed later in the paper. It is difficult to imagine what will really happen to these islands in the next 40 or 50 years, but a number of scenarios could be envisaged:

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Fig. 1. Cross-section through a typical atoll.

 Scenario 1: No change. Although the scientific consensus is that sea level rise is happening (the 4th IPCC [6] estimates that for the 20th century the global average sea level rose at a rate of about 1.7 mm per year, and that sea level is projected to rise during the 21st century at a greater rate than during the 20th century), there is a possibility that coral reefs could keep up with the rise in sea level. The IPCC [6] notes how corals might be able to grow upwards with sea level, or might be able to adapt to higher sea temperatures by hosting more temperature-tolerant symbiotic algae.  Scenario II: Disappearance of Vegetation and/or death of coral reefs. A raise in water level has already lead to large-scale damage to the vegetation in several atolls, such as the Carteret Islands in Papua New Guinea [20]. The impact of extreme weather events (such as the ‘‘king tides’’ in the Carteret Islands) can reduce the availability of fresh water [5] and push sand onto the islands, dramatically decreasing its fertility [4]. Coral bleaching also leads to the disappearance of the fish stocks that depend on it for survival [5], and coral reefs are not expected to be able to sustain themselves against the multiple stresses currently affecting them [14]. Although this would lead to an increase in erosion in the island (which would ultimately lead to its submergence, Scenario III), for a period of time humans could still live on the island, by obtaining food from outside. This is indeed what appears to be the case for the Carteret Islands [4,20].  Scenario III: Submergence of the islands. The stress placed on coral reefs [14] combined with sea level rise could lead to the the erosion and eventual complete submergence of low-lying islands, forcing their inhabitants to migrate to other lands. Indeed, two small uninhabited Kiribati islands have already disappeared under the waves [20].  Scenario IV: Protection by Sea Dykes (‘‘Dutch Scenario’’). Whole sections of low-lying islands could be protected from sea level rise by the usage of sea dykes, in a similar way to what happens in the Netherlands. This would be costly, and would not necessarily solve the problems of a rising saltwater table, but could protect the land itself. It is not clear whether small

islands have the financial resources necessary to implement such a costly scheme. For example, it has been estimated that a temporary sea wall for one Marshall Island atoll would cost $100 million, more than twice the wealth the country produces annually [22]. Although some limited schemes have already been underway for years, in places like the Carteret islands [4] or the Maldives [21], these protection works are still vulnerable to erosion, and their effectiveness is not so clear [4]. However, it could allow for humans to continue inhabiting the islands, though it is likely that a great deal of the food would have to be imported [4].  Scenario V: Lighthouse Scenario. With the islands completely submerged, a ‘‘lighthouse’’ type tall structure could be built to keep a claim on the adjacent lands (a ‘‘sovereignty marker’’). This could be a costly structure to build, but once built it would require small maintenance. The issue of whether such a structure could allow for a claim of ownership on the surrounding seas, even if inhabited by only a reduced number of people or none at all will be discussed later in this paper. 2. International law perspectives on sovereignty The IPCC [1] highlights how ‘‘climate change puts the long-term sustainability of societies in atoll nations at risk’’, and that some Island States are facing the threat of completely disappearing from the map due to the rising sea levels. The potential abandonment of sovereign atoll countries can be used as the benchmark of the ‘dangerous’ change that the UNFCCC seeks to avoid’’ [5]. Climatologists admit they cannot predict with any certainty what the meteorological effects of climate change will be for many areas. However, scientists generally agree that any further global warming will bring with it further sea level rise. ‘‘Sea level rise seems the most probable and perhaps the most globally uniform consequence of warming projected into the next century’’ [12]. As a result some of these Island States might lose one of the basic requirements to be a state: their own territory. This potential problem raises a number of questions regarding the sovereignty of these islands and the status of their current inhabitants.

Fig. 2. Cross-section through a typical Coral Island.

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Scenario II.

2.1. The Montevideo convention and the definition of a State There are two main theories behind the concept of Sovereignty: the constitutive theory and declaratory theory. The former states that to be a state under the international law, it is necessary to be recognized by other states. The later states that recognition of a new State is a political act, which is, in principle, independent of the existence of the new State as a subject of international law [23]. The formulation of the basic criteria for statehood can be found in article I of the Montevideo Convention on the Rights and Duties of States, 1933. This states that a State as a person of international law should possess the following qualifications: (a) a permanent population; although no minimum limit is apparently prescribed. Currently the smallest States by population are the Vatican city with 768 inhabitants and Tuvalu with just under 10,000 [23]. (b) a defined territory; although a State must possess some territory, there appears to be no rule prescribing the minimum area of that territory. The smallest State by territory is Vatican City with 0.4 sq. km, the second smallest is Monaco with 1.5 km followed by Nauru, 21 km and Tuvalu 26 km. [23]. (c) a government; it is the governing power with respect to a certain territory. (d) the capacity to enter into relations with other states; this is more a consequence for statehood than a criterion for it, being a conflation of the requirements of government and independence [23]. The question therefore is whether a State can continue to exist if the second element that constitutes it (i.e. its territory) disappears. 2.2. Law of the sea convention and exclusive economic zone (EEZ) The International law regarding entitlement to maritime zones is set out in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) [24]. This Convention establishes a number of different rights for the coastal State over a number of regions adjacent to a certain baseline. According to Article 5 of this Convention, the baseline is normally taken as ‘‘the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state’’, although a number of exceptions exist. The determination of these baselines is of crucial importance for the determination of the rights of States in the territories adjacent to them. The zones outlined in this Law of the Sea Convention include the territorial sea, the contiguous zone, the Exclusive Economic Zone (EEZ) and the continental shelf. This EEZ is regulated by UNCLOS as an area beyond and adjacent to the territorial sea in which the coastal state possesses certain rights and jurisdiction and all other states possess certain rights and freedoms (Article 55 UNCLOS III) [24]. The coastal state

possesses sovereign rights over the natural resources, whether living or nonliving, of the waters and seabed in the zone (Article 56 (1) UNCLOS III), while other states possess the freedoms of navigation and overflight. (Article 58 UNCLOS III). The breadth of the exclusive economic zone cannot exceed 200-nautical miles from the baselines from which the breadth of the territorial sea is measured. For the case of Island States, the crucial point is what is considered as the baseline of an island, as the EEZ would be measured from the baseline of each of the island that constitutes the State. The regime of islands can be found in the United Nations Convention on the Law of the Seas (UNCLOS), Article 121 [24]. According to this: 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea,3 the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. 2.3. Claim of EEZ around a ‘‘Barren Rock’’ (Scenario II) Due to the rising sea level, Island States could disappear under the sea (Scenario III), or become an uninhabitable rock (Scenario II). Point 3 of Article 121 of UNCLOS [24] is clear in that an island which is entirely submerged (Scenario III) would have difficulty claiming that it existed as a state, as explained further in the next section. What would happen in the case of Scenario II (where the vegetation of the island died, leaving a barren rock) is complicated. In this case the state would probably lose the right to claim the Exclusive Economic Zone (EEZ) since rocks cannot be a basis for claiming it. The discussion of whether a rock could guarantee an EEZ can be seen in the case of Okinotorishima Island. Located in the south part of the province of Tokyo in Japan, it is constituted of two barren rocks located 1400 yards apart and no more than two feet out of the water at high tide. The island is the subject of controversy between the Chinese and Japanese governments. The Chinese government recognises Japanese sovereignty over Okinotorishima, but the sino-authoriries claim that it is not an island, but a rock, which cannot sustain human and economic life, and hence claim that this island does not

3 The territorial waters, or territorial sea, as defined by the 1982 United Nations Convention on the Law of the Sea, is a belt of coastal waters extending at most twelve nautical miles from the baseline (usually the mean low-water mark) of a coastal state.

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Scenario III.

grant an EEZ around it to the Japanese government [25]. They also do not accept the fact that the island was natural, considering the enlargements and protection works that have been built on it by the Japanese authorities. On the other hand, the Japanese government has been making efforts to save the island by constructing circular blocks of steel and concrete around them. The Japanese government regards Okinotorishima as an island, as it considers that Article 121 (1) states the requirements of an island and Article 121 (3) states the requirements of a rock. In this way as Okinotorishima fulfils the requirement of Article 121 (1) of UNCLOS it is not bound by Article 121 (3) [26]. Chinese specialists do not consider Okinotorishima as a ‘‘naturally formed area of land, surrounded by water’’, but an artificial island. The Japanese however claim that the ‘‘island’’ itself (the two barren rocks) were not touched, and that the breakwaters were constructed around these rocks as a protection against natural disasters. That is to say the construction was not executed in order for the island to fulfil the requirements of the Article 121 (1), but only to preserve the integrity of the islands which already met the criteria of this article [26]. Therefore, if the practical totality of an Island State was submerged and only a rock remained above the sea, it would be possible to claim that the interpretation of an island should rely on Article 121 (1) of UNCLOS and not art. 121 (3). This would be similar to what the Japanese government is doing for the case of Okinotorishima. Moreover, as Kuribayashi [27] points out on the preparatory works of the United Nations Convention on the Law of the Seas III, countries presented two types of ‘‘island’’ conceptions. The first one relied on certain criteria to classify different types of islands and give them different status. The second one was of not distinguishing between different types of islands. The former was made to distinguish between those ones which would have an EEZ around them and those which would not have it. The latter would grant EEZ to all islands, without any distinction [27]. As Article 121(3) was approved it is clear that the intention of the drafters was to make a distinction between different types of island. However, the concept of rock still remains unclear [27].

One possibility that is open to Island States, in order not to completely lose their claims of sovereignty, would be to make it inhabitable only for a few people, such as the maintenance personnel of a lighthouse (like in the scenario V), or weather observers. Doing this would try to prevent the island being classified as a barren rock under Article 121 (3) of UNCLOS. It is however unclear whether these people could be considered as a population. The number of people to inhabit an island was already discussed by a group of researchers lead by Van Dyke [28] in order to set standards to the inhabitation concept. In their definition, human inhabitation would be the capacity of living in the island on the basis of the natural resources of the island, in a stable community which is an institutionalized human group without external assistance. In this ‘‘stable’’ community 5 people would be considered few, but if there were 50 people it would be enough for it to be classified as inhabited [26]. According to this point of view, Island States would probably not be able to claim their almost submerged territories as islands due to the lack of population and non selfsustainability, as it is not likely that a small Island State would be able to fund a sufficiently large structure to house over 50 individuals. Furthermore, in the preliminary work on de Convention on the Law of the Seas III, military and governmental facilities do not fulfil the requirement of economic life [26]. ’’Economic life of their own’’ is an expression that is not completely clear, as it could refer to activities in the island or the sea area which surrounds it. If it refers to the sea area there is no doubt that the sea-related economical activities (such as fishing) could sustain an economic life. Also, Kuribayashi [27] claimed that ‘‘a priori, it is not possible for it to be determined that Okinotorishima corresponds to a ‘‘rock’’ which cannot sustain human habitation and economic life on its own. For instance, we absolutely cannot deny the possibility that hereafter, with science and technology, a situation where economic life is possible can be created. In addition, ‘‘human habitation’’ and ‘‘economic life’’ are terms which have not yet been internationally agreed’’ [27]. Following this interpretation, it would be possible for Island States which have a non submerged ‘‘rock’’ to claim their EEZ after suffering from the effects of sea level rise. For example, an island that was previously able to support life (Scenario I) but where the vegetation is killed

Scenario IV.

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Scenario V.

due to the rising sea water (Scenario II) would still be able to claim an EEZ. On the other hand, Jon Van Dyke claims that Okinotorishima is the description of an uninhabitable rock that cannot sustain economic life of its own [29]. According to this interpretation, therefore, it would not be possible to claim an EEZ for Scenario II. However, the Japanese case is different from that of Island States because the survival of the Japanese territory as a whole does not depend only on the disappearing island, like in the case of Okinotorishima. Also, the protective infrastructure which the Japanese government has put in place to preserve the rocks is not to mitigate the effects of the sea level rise, but to prevent erosion by wave action. At present there is no doubt of the Japanese sovereignty over the rocks since the Chinese government has not put that into question [30]. 3. The disappearance of Islands, response/adaptation models and sovereignty 3.1. Sovereign Status of a submerged Island Nation The question of what would be the status of an Island State whose whole territory had been submerged (Scenario III) is also unclear. This question is important as it would determine its ability to continue utilising the resources which had previously been within its EEZ, such as fisheries. If there is an uninhabited rock which is still above sea level it falls within Article 121 (3) of UNCLOS and the State would not be entitled to the EEZ, but it would still keep the sovereignty over the rock, as explained in the previous section. However, in the case of the entire island being submerged, the sovereignty over the area might cease to be valid. If an Island State were to physically lose all the islands that make its territory, it would find itself in a situation that has certainly not occurred in modern history [3]. To be noted is how the concept of Island State being referred to here is that of a State being formed by one or more small islands, and the problems discussed in this section would be triggered once the last of the islands was submerged. Normally under international law a State requires a defined territory, as stipulated by the Montevideo Convention [23]. However, the government of these Island Nations could preserve a status somewhat analogous to statehood. Being a sovereign entity, without a territory, is a phenomenon that is already perceived and recognized by some States. One such example is The Sovereign Military Order of St John of Jerusalem, of Rhodes and of Malta (SMOM), an ancient religious order currently dedicated to the provision of medical services. Throughout its history it was sovereign over the islands of Rhodes (1310–1528) and then Malta (1530–1798), from which it was ejected by Napoleon in 1798. Up to this point SMOM was a State, though from that point they still have retained sovereignty under international law, despite not being a State any more [32]. The Papal tribunal added that ‘the status of the sovereign Order.is functional, that is to say, intended to assure the fulfilment of the scope of activities of the Order and its development throughout the world’ [23]. Also, they still have their

own government and issue passports, but detain a personality recognized by particular States only. In a similar way the Papal See was recognized as a State after it was annexed by Italy in 1870, despite possessing no territory, until it was granted sovereignty over the Vatican City by the Lateran Treaties of 1929 [3]. However, Island States such as Tuvalu and Maldives are facing the threat of losing their territories not because of a war or occupation, but as a result of rising sea levels caused by climate change, a situation that has never happened before. If they lose their territory they would depend on other States to recognize their international personality. However, unlike SMOM they might not have functions that might be of interest to the whole world, such as providing medical services for other countries, as in the case of SMOM. It is possible that Island States, even after disappearing as countries, could retain some form of ‘‘deterritorialised’’ statehood, as explained by Rayfuse [3], having their international personality recognized by States. They could also, for example, be granted a status of Permanent Observer at United Nations, as what happens with the SMOM. In the case of the SMOM, Italy hosts its organs, which are not subject to taxation. What is more, the Order enjoys sovereign immunity in countries that recognize it. Currently, the order has formal diplomatic relations with 102 states and missions to some European countries, as well as to European and international organisations [31]. Therefore, Tuvalu, Maldives and other small islands which are facing the threat of being submerged would have the possibility of keeping some form of identity analogous to statehood. However under current international law it does not seem possible for them to keep their status as a conventional State, as the 1st Article of the Montevideo Convention clearly states that a State should have a territory [23]. In order to keep an alternative sort of sovereignty they would have to rely on other States to host part of their organs of government. It is more likely that States which are geographically closer to them would accept to do so or it could be reasonable to have the States which were responsible for major emissions of greenhouse gas to share the burden of receiving not only part of the population of these countries, but to also assure the preservation of this special form of statehood. The question which remains is whether the international community would accept this form of statehood. A detailed discussion as to which countries could share the burden of hosting the inhabitants and institutions of ‘‘deterritorialised states’’ is outside the scope of this paper. However, and despite the limitations which exist in the framework of climate change law, victims are seeking responses using existing international law instruments. For instance, in 2005, the Inuit of the Arctic regions of the United States and Canada filed a petition at the InterAmerican Commission on Human Rights claiming that the United States was responsible for the changes of their environment, violating their fundamental rights [32]. In this case, the petitioners were trying to show the link between the environmental change and the responsibility of the United States. They claimed that this violated their rights protected in the American Declaration of the

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Rights and Duties of Man (American Declaration) and refer to the American Convention on Human Rights, International Covenant on Economic, Social, and Cultural Rights, other regional conventions on human rights, and ILO Convention n. 169 on Indigenous and Tribal Peoples. The petitioners claim violations of the right to life, liberty and personal security (Article I); the right to residence and movement (Article VIII); the right to inviolability of the home (Article IX); the right to the preservation of health and well being (Article XI); the right to the benefits of culture (Article XIII); the right to work and fair remuneration (Article XIV); and the right to property (Article XXIII) of the Inter-American Declaration of human rights [32]. The Commission is reported to have dismissed the petition technically in December 2006, but held a hearing in Washington DC at which the petitioners made their case on 1 March 2007 [33]. A way of solving the problem of islands which might lose territory due to sea level rising would be to follow the suggestion of Caron [12] and Soons [34]. These authors draw attention to the fact that the current system of delimiting territorial sea, based on ambulant baselines, might cause conflicts among countries concerning the dispute of ocean resources. Caron [12] suggests that States ‘‘should move toward permanently fixing ocean boundaries and in doing so, design a process that will minimize costs and avoid possible abuse’’. He predicts the raise of conflicts due to this problem of moving borders. However for the case of Island States it is not clear whether this would be enough, as the question remains as to what would happen if the entire country was submerged. The question would remain unsolved in this case, as the whole territory of a country would disappear and not only a part of it. This could, however, be an adequate solution if only a part of the territory was to be submerged, as the problem would be more related to the size of the EEZ rather than sovereignty. In this case fixing the boundaries might be a solution, but it is not clear at present whether this solution is acceptable for a completely submerged Island State. 3.2. Preservation of sovereignty though coastal protection structures One way to prevent the loss of sovereignty would be to build sea defences around an island, as shown in Scenario IV. The creation of these sea defences would be very costly indeed, for example in the case of Okinotorishima the Japanese government spent 29.3 billion yen [26] protecting two rocks located 1400 yards apart and no more than two feet out of the water at high tide [26]. It is not clear where enough money could be found to effectively protect large areas of these islands, as, for example, the total GDP of the Maldives is 1.296 billion USD and 80% of the area is 1 m or less above sea level [35]. Also, the effects of these protection works could destroy the local economy, as tourism accounts for 28% of GDP in the Maldives, generating over 90% of government tax revenue [35]. Generally the creation of these protection works could ultimately prove to be unsustainable. It would destroy the natural beauty of the islands, and would probably negatively affect tourism and hurt revenues, making it even more difficult to sustain a defence works programme. Other Island States, such as Tuvalu or Kiribati, are poorer than the Maldives, and would find it even more difficult to attempt such a scheme. Also, it is not clear whether it would be possible to preserve the vegetation behind the defensive works from dying, as a rise in the saltwater level and high tides could effectively kill the trees and crops [4]. This would raise the question once more of what is an inhabitable island, as discussed in previous sections. Eventually, as the sea level continued to increase, the defense works could crease a situation were the islands would be at a lower

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level than the surrounding sea, similar to that of the polders in the Netherlands. Although the sovereignty of the Netherlands over these areas is not questioned (and indeed during the centuries over 3000 polders have been created [36]), the polders in the Netherlands contain farmable lands. The hypothetical ‘‘polder-like’’ atoll island would in the best of cases be a barren piece of land due to the high salinity of the water under it. More likely, water would seep under the defence works due to the pressure differential, and inundate the area behind it, requiring expensive ground improvement works and constant pumping. This is probably far from economical, and the consequences to the sovereignty of the island would be similar to those of Scenario II, as discussed previously. 3.3. Governments-in-exile and future sovereignty claims Governments-in-exile have frequently been recognized by their allies as governments of an enemy-occupied State during the course of the conflict and pending its outcome [23]. The possibility exists that in the case of the total submersion of an Island State a government-in-exile could be envisaged, as in the case of the Polish government during World War 2. Governments-in-exile normally exist on the assumption of restoring power in their own country and until recently are more connected to situations of national (China and Taiwan) or international conflicts (Baltic countries and Poland during World War 2). In World War 2, after Germany invaded Poland the government-in-exile was constitutionally continuous with the pre-1939 government [23]. After the Yalta and Potsdam Agreements, Poland’s territory and population were redistributed and a different constitutional system was imposed. However, in practice the State remained the same as before 1939 [23]. Could a form of government-in-exile for disappearing Island States be envisaged? The difference between an Island State which is due to disappear and a government-in-exile is that while the latter would have the possibility of restoring its power over a determined territory, the former cannot expect to recover its sovereignty over its territory, unless the island was to re-emerge again. The IPCC [6] notes how surface temperature has changed for the past few million years following glacial cycles, where mean global temperatures changed by between 4 and 7  C. This also influenced sea level, which rises and lowers according to these variations in temperature. The IPCC [6] notes however that ‘‘most of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic greenhouse concentrations’’. Current world efforts, centred around the Kyoto Protocol, have not yet managed to halt the global increase in the quantities of greenhouse gases released into the atmosphere. However, a future where humans no longer produce great quantities is not inconceivable. Even then the IPCC [6] points how ‘‘if actions are taken to reduce the emissions, the fate of the trace gas concentrations will depend on the relative changes not only of emissions but also of its removal processes’’. This means that it could potentially take a very long time for the earth to revert to its current condition. Nevertheless, there is the potential possibility that even if Island States were to disappear, they could eventually re-emerge due to a lowering in the sea level. Islands could disappear in the 21st Century, and reappear centuries later in a time when greenhouse concentrations in the atmosphere revert to current levels. Although these possibilities appear pointless in the mind of individual human beings, several nations on earth have a history that spans millennia. Indeed, it could be argued that when Britain asked China for a 99 year lease on what is now called the New Territories, they clearly where not thinking that the lease would one

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day come up. Similarly, territories which are under a threat of disappearing could one day re-emerge. In this later case, the question would be whether the island could be recovered by the old sovereign power or be considered as terra nullius. In the future, if the islands were to emerge again due to a lowering of the sea level, then it appears right that they should belong to the descendants of the people who once lived there. But, this would depend on the continuous existence of a sovereign entity which defends the interests of those who once lived in the island, highlighting the importance of such a hypothetical ‘‘government-in-exile’’. This government could have similar functions to the ‘‘deterritorialised state’’ proposed by Rayfuse [3]. The ‘‘government’’ would be elected by registered voters of the ‘‘deterritorialised state’’, and would continue to represent the state at the international level and the rights and interests of its citizens with regards to their new ‘‘host’’ state or states. Upon the eventual re-emergence of the island, the ‘‘deterritorialised state’’ would regain its status as a conventional state. The question, however, is finding a country which is willing to accept this ‘‘government’’ and its inhabitants in the meantime. 4. Conclusion Several Island States are currently at risk of disappearing due to sea level rise. The present paper proposed a number of different scenarios detailing what is likely to happen to these islands and possible remediation strategies that could be tried to preserve their sovereignty under international law. This is crucial so that they continue to be able to exploit the Exclusive Economic Zones that are associated with islands, but which are not given to barren rocks or submerged islands. The concept of a ‘‘deterritorialised state’’ is also explored, which could become a special type of international entity that would allow these Island States to survive in some form the disappearance of their territory. This would be essential in order to preserve their inhabitant’s identity and culture, and it could be argued that the major emitters of greenhouse gas should work to protect those communities as they are very likely to be the ones responsible for sea level rise. The concept of human habitation and ‘‘economic life of its own’’ are not well defined and will be target of a continuing discussion, which could be one of the keys to preserve the interests of Island States under the current United Nation Convention on the Law of the Sea (UNCLOS). The authors suggest that it would be better to interpret the term economic life regarding the activities surrounding the island and not only on it to preserve the interests of the population of Island States, or to fix the outer limits of maritime zones. This would insure the ability of Island States to continue exploiting their EEZ in the face of rising waters. Finally, the concept of government-in-exile was also suggested as being complementary to that of the ‘‘deterritorialised state’’, as based on the long-term history of the planet sea level will eventually go down. Based on this the descendants of the inhabitants of these islands could re-claim the lands that were once theirs. Several nations are currently starting to evaluate the relocation of their population to different areas, and for example the Maldives will begin to divert a portion of the country’s billion-dollar annual tourist revenue into buying a new homeland [37]. In order to consolidate the voices of small island developing states to address global climate change, 43 States have formed the Alliance of Small Island States (AOSIS). This association is calling for drastic mitigation measures by developed and key developing states, with the aim of establishing short and medium targets to limit temperature increases to below 1.5  C [38].

The present paper thus raises a number of questions regarding the interpretation of the Law of the Sea and the status of Island States in the future. It is important that all these questions should be answered in the coming years, and should be inserted into the current talks on climate change. They are particularly relevant in the present political environment and in the run-up to the 15th UNFCCC Conference of the Parties in Copenhagen, where a successor treaty to Kyoto could be agreed. Island States should press for recognition of the consequences that climate change will have on their population, and some of the solutions outlined in this paper could be proposed as remedies to the situation they are facing. Acknowledgements The authors would like to thank Japanese Education Ministry (Mombukagakusho) for the research scholarships awarded (Mombusho and GCOE, respectively) to two of the authors. Without these the current research would not have been possible. We would also like to thank Dr. David Leary for his input on the structure and format of the paper. Two anonymous reviewers also kindly contributed to improving the structure of the paper and highlighted a number of inconsistencies and areas for improvements, and their help in this is kindly appreciated. References [1] Mimura N, Nurse L, McLean RF, Agard J, Briguglio L, Lefale P, et al. Small islands. Climate change 2007: impacts, adaptation and vulnerability. Contribution of Working Group II to the 4th Assessment Report of the IPCC. Cambridge University Press; 2007. [2] Renaud F, Bogardi JJ, Dun O, Warner K. ‘‘Control, adapt or flee- how to face environmental migration?’’. In: Intersections, ‘Interdisciplinary Security Connections’ Publication series of UNU-EHS, vol. 5; 2007. Bonn, Germany, p.14. [3] Rayfuse R. W(h)ither Tuvalu? International law and disappearing States. Paper 9. In: Uni. of New South Wales faculty of law research series. Berkeley Electronic Press; 2009. [4] Rakova U. How-to guide for environmental refugees. Ourworld 2.0, http:// ourworld.unu.edu/en/how-to-guide-for-environmental-refugees/. Retrieved 23.08.09. [5] Barnett J, Adger WN. Climate dangers and atoll countries. Climatic Change 2003;61. 321–227. [6] Bindoff NL, et al. Climate change 2007: the physical science basis. Contribution of Working Group I to the 4th Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge University Press; 2007. [7] Solomon S, et al. Climate change 2007: the physical science basis. Cambridge University Press; 2007. Contribution of Working Group I to the 4th Assessment Report of the Intergovernmental Panel on Climate Change. [8] Meehl, et al. Global climate projections. Climate change 2007. The Physical Science Basis. Contribution of Working Group 1 to the 4th Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge University Press; 2007. [9] Woodworth PL. Have there been large recent sea level changes in the Maldive Islands? Global Planet Change 2005;49:1–19. [10] Stern N. Stern review on the economics of climate change. Cambridge: Cambridge University Press; 2007. p. 992. [11] Wassmann R, Hien NX, Hoanh CT, Tuong TP. Sea level rise affecting the Vietnamese Mekong Delta: water elevation in the flood season and implications for rice production. Climatic Change 2004;66:89–107. [12] Caron D. When law makes climate change worse: rethinking the law of baselines in light of a rising sea level. Ecology Law Quarterly 1990;17:621. [13] Ericson, J.P, Vorosmarty, C.J., Dingman, S.L., Ward, L.G. and Meybeck, M. Effective sea-level rise and deltas: causes of change and human dimension implications. Global Planet. Change, 50, 63–82. [14] Westmacott S, Teleki K, Wells S, West JM. Management of bleached and severely damaged coral reefs. Gland, Switzerland: International Union for the Conservation of Nature; 2000. [15] Okamatsu A. Problems and prospects of international legal disputes on climate change, http://web.fu-berlin.de/ffu/akumwelt/bc2005/papers/okamatsu_ bc2005.pdf; 2005 [accessed 05.02.09]. [16] Conisbee M, Simms A. Environmental refugees-the case for recognition. Nef, pocket books, 2003. [17] UNEP (United Nations Environment Programme). Pacific Islands environment outlook. Apia: UNEP; 1999.

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