Statehood, statelessness, and continuity in a climate-changed world: A worst-case scenario analysis

The impact of anthropogenic greenhouse gas emissions is seriously threatening
the stability of the earth’s climate. The changes are felt acutely in the oceans of
the planet, and one of the key consequences is sea-level rise, the process by
which the average sea levels are slowly increasing. Due to their low elevation
above sea levels, Low-lying Island States (LLISs), sea level rise presents an
existential threat to their very existence, despite LLISs being among the lowest
emitters of greenhouse gases. The predicament of LLISs presents a novel
question to international law: no state has ever risked the permanent, physical
loss of its territory. The absence of clear state practice or authoritative guidance
on whether a state can continue existing beyond the loss of its territory and the
loss of its population has resulted in significant uncertainty.
This thesis aims to address certain elements of this uncertainty and provide
context-relevant legal analyses of possible avenues for palliative solutions, in the
event better solutions could not have been implemented. The thesis’ main
arguments have been published in three peer-reviewed publications. The first
article that constitutes this thesis examines the relevance of the principle known
as the presumption of continuity. The article outlines two distinct doctrines of
continuity, one of which assumes statehood to be mostly irreversible (a
“ratchet”), while the other instead approaches continuity as an assessment of
“sameness” of identity. The article argues that under the “sameness” doctrine,
the presumption of continuity would only play a limited role in preserving the
statehood of a threatened LLIS if the latter were to lose its territory. The second
article investigates the possible relevance of the Sovereign Military Order of
Malta (SMOM) as an alternative form of international legal personality for a
deterritorialised LLIS, a means through which the latter could maintain its
existence independently from statehood. The third article examines the limited
and context-based relevance of the 1954 Convention relating to the Status of
Stateless Persons for the displaced nationals of LLISs.
The summary provides crucial context to the analysis contained in the three
articles by framing the latter’s analyses through a scenario-based approach. Two
sets of scenarios are outlined, respectively addressing a number of possible
outcomes to the question of the future statehood of a deterritorialised LLIS and
the avenues available for the protection of the externally displaced nationals of
the LLIS in question. This framing is key, as it allows this thesis to investigate a
hypothetical worst-case scenario context and context-relevant avenues for
solutions while emphasizing that such an outcome should be avoided, whether
through pre-emptive legal developments, or adaptation and mitigation efforts.