The 21st century Atlantis: the international law of statehood and climate change-induced loss of territory.
INTRODUCTION I. SETTING A CONTEXT A. Factual Context: What Is Happening to These States? B. Legal Context: Why Is the Loss of Statehood Worrisome? 1. Loss of Statehood Implies Loss of International Legal Personality 2. The Loss of Atlantis' International Legal Personality in These Circumstances Severely Impugns the Legitimacy of International Law C. Analytical Context: Literature Review II. CRITICAL ANALYSIS OF THE INTERNATIONAL LAW OF STATEHOOD A. The Territory Requirement for Statehood in International Law B. What Purpose Does the Territory Requirement Serve? 1. Marek's Argument 2. Critical Analysis of Marek's Argument 3. The Functions of Territory 4. Conclusion C. Is the Territory Requirement Applicable in this Case? 1. The Silence of International Law a. The Montevideo criteria, as envisaged, are not capable of permanent physical loss b. Involuntary extinction of statehood is almost impossible c. No state has ever lost its statehood in similar circumstances 2. The Silence of International Law as Indicative of a Gap in the Law 3. The Role of Equity in Addressing a Non-liquet 4. Conclusion D. Can Submerged Territory Serve as Territory? E. Are There any Other International Law Norms Which May Operate to Prevent Loss of Territory? 1. The Relationship Between Norms Within a Legal System 2. Practical Problems with Invoking Jus Cogens Norms 3. Practical Problems in Invoking Countervailing Legal Principles Generally F. Can Recognition Operate to Prevent Loss of Statehood? G. Conclusion III. CONFRONTING THE POSSIBILITY OF STATEHOOD SANS TERRITORY A. The Possibility of New Territory B. The Logistics and Practicality of De-territorialised Statehood C. Conclusion CONCLUSION
"... [I]n a single day and night of misfortune all your warlike men in a body sank into the earth, and the island of Atlantis (1) in like manner disappeared in the depths of the sea." (2)
It is not clear whether there ever was an actual kingdom of Atlantis that disappeared into the sea. (3) But a substantially similar fate seems likely to befall several low-lying, small island states in the Indian and Pacific Oceans. In the next fifty to one hundred years it is possible that the entire territory of low-lying, small island states like the Maldives, Tuvalu, and Nauru will be submerged as a result of increasing sea levels caused by climate change. While this is currently a mere possibility which will hopefully never become a reality, this possibility raises an interesting question. International law stipulates that territory is a necessary prerequisite for statehood. Given that requirement, will these states cease to be states when they lose their territory? This Article seeks to answer this specific question.
Part I establishes a context for the rest of the Article: it explains the physical changes facing a modern-day Atlantis, explains the legal significance of any state losing statehood, and undertakes a review of existing literature about the crisis these small island states face in order to provide an analytical context for the rest of the Article. Part II analyses and critiques the territory requirement in international law, arguing that the loss of territory does not imperil a modern-day Atlantis's statehood. Part III engages with the logistical challenges of statehood sans territory. The conclusion to the Article summarises the key contributions made herein and defines a future research agenda.
In the course of this Article, the fictional state of "Atlantis" has been used as a representative of the group of small, low-lying island states which stand to lose their territories and potentially their statehood due to the effects of climate change.
I. SETTING A CONTEXT
This Part is divided into three Subparts: (A) lays out a factual context, describing the physical event (loss of territory) that the legal analysis presented in this Article seeks to address; (B) lays out a legal context, explaining the significance of statehood in international law and the implications of loss of statehood; and (C) provides an analytical context, surveying existing literature for answers to the question (effect of loss of territory on statehood) that this Article seeks to answer.
A. Factual Context: What Is Happening to These States?
Legal analysis is always contingent upon the exact facts at hand, and no two cases are ever the same. (4) Therefore, assessing the effect of the loss of territory on statehood requires, first, an understanding of the physical events that lead to loss of territory. (5)
Small island developing states (SIDS) (6) are particularly vulnerable to the effects of climate change. (7) This vulnerability has three primary physical aspects. (8) First, climate change has increased the likelihood (9) of extreme weather events--heavy precipitation events are "very likely" and increased intense tropic cyclone activity is "likely," (10) as is the increased incidence of extreme, high sea levels. (11) As these are small states with large coastal regions, (12) they are particularly likely to face loss of life and property from tropical storms and other natural events. (13) These risks are exacerbated by the concentration of population and infrastructure in coastal areas as well as resource constraints which limit adaptation capacity. (14)
Second, climate change is causing sea levels to rise: (15) by 2100, experts expect sea levels to rise between 0.18 metres and 0.59 metres; (16) by 2300 sea levels may rise by 0.3 metres to 0.8 metres. (17) Continuing contraction of the Greenland ice sheet may ultimately result in a seven metre sea level rise. (18) The magnitude of these increases in sea levels takes on greater significance in light of the average elevations above sea level of several small island states. For instance, the average elevation of the Maldives above sea level is 1.5 metres, (19) while that of the Marshall Islands is 2.0 metres. (20) Moreover, the IPCC's estimates of the rise in sea level have been criticized for "omitting the potential for the rapid loss of ice," (21) which indicates that the IPCC's estimates may be overly optimistic. (22)
Third, climate change is causing sea surface temperatures to rise (23) and increasing the acidity of oceans. (24) This in turn has several undesirable effects for Atlantis and similar states, including: erosion of coastal territory; (25) degradation of already scarce groundwater resources; (26) bleaching and destruction of coral reefs, leading to further loss of territory; (27) declining productivity of agriculture (28) and fisheries; (29) and increased flooding. (30)
Taken together, these effects suggest that loss of territory as a result of climate change will not take the form of rapid submergence as a result of rising sea levels. Instead, it will occur through gradual erosion of territory accompanied by degradation of the quality and inhabitability of the remaining territory. Eventually, these territories will either be completely submerged or will become completely uninhabitable.
It bears emphasizing that the scope of this Article is restricted to questions raised by complete loss of territory, whether as the result of sudden and complete submergence or as the result of gradual erosion. As long as a state possesses some physical territory, irrespective of its quality and size, there can be no challenge to its statehood. (31) The challenge to statehood arises at the point when the state's entire territory is submerged. While the slow erosion and declining quality of the territory of these states raise a host of interesting issues, (32) none of these relate directly to the international law of statehood and are therefore outside the scope of this Article.
B. Legal Context: Why Is the Loss of Statehood Worrisome?
This Subpart argues that the loss of Atlantis' statehood is worrisome because: (1) loss of statehood implies substantial loss of international legal personality; and, (2) Atlantis' loss of statehood in these circumstances would implicate the legitimacy of international law.
1. Loss of Statehood Implies Loss of International Legal Personality
The loss of statehood is undesirable because international law accords primacy to states amongst the subjects of international law. Loss of statehood implies a loss of this preferential status and consequently a significant degradation of international legal personality for Atlantis.
Traditionally, international law regulated relations between "nations" or "peoples." (33) These terms carry connotations of "communities" and "societies," (34) and international law referred to principles that regulated relations between groups of people. Since the Peace of Westphalia in 1648, international law has gradually evolved to regulate relations between states, (35) referring to political or legal units recognised in law. (36) The Treaties of Osnabriick and Munster (37) divided international legal personality between territorial states which were sovereign equals and which possessed exclusive jurisdiction within their territories. (38) Thus, beginning from 1648, international law has primarily revolved around states. (39)
International law privileges states. For instance, a "people" has no right to an exclusive economic zone under the law of the sea; that right only accrues to a state. (40) Similarly, a "people" has no right to invoke the jurisdiction of the International Court of Justice. (41) In fact, even where rights do accrue to a people or to individuals, their enforcement is only possible through the intervention of a state on their behalf. (42) Finally, the primary sources of international law--treaties and customary international law--can only be created by states. (43) These examples reflect the principle that loss of statehood entails significant loss of rights in international law.
Two arguments may be made to oppose this suggested primacy of states in international law. The first relates to the increasing recognition of individuals and peoples as subjects of international law. The second relates to the rights of state-like entities in international law.
With regard to the first argument, it is true that international law does increasingly recognize non-state entities as subjects of international law. One example of this is the legal personality of international organisations. (44) Another example is the rights of groups under international law--for instance, the right of self-determination, (45) human rights of groups, (46) etc. The strongest example is the increasing recognition of the rights of individuals in international law. (47) Foreign investors can arbitrate claims against host states through investor-state arbitration, (48) individuals have the standing to approach international courts and commissions to protect their human rights, (49) and individuals can even be held accountable for gross violations of international law. (50)
This rosy view of international law is, however, at odds with reality. International law does increasingly allow for the recognition of the rights of individuals and other non-state entities. But this increasing recognition of rights is explicitly the result of state consent. (51) International organizations are consensual associations of states, human rights are accepted and enforced through the consent of states, and investor-state arbitration is premised on investment treaties that are negotiated between states. Admittedly, there are some norms of international law that supersede the requirement of state consent. (52) But these norms are few in number and the universality of particular norms is always a source of controversy. (53)
Imagine international legal personality as a spectrum defined by object status (no standing) at one end and subject status (legal standing) at the other. In 1648, states were at the subject end of the spectrum and all other entities were at the object end. In 2014, states continue to occupy the subject end of the spectrum and, while non-state entities have moved quite far from the object end of the spectrum, they nevertheless remain quite far from the subject end as well. Thus, present-day 2013 is not that different from 1648; states are still the primary actors of the international legal system. (54)
With regard to the second argument, it is true that international law recognizes state-like entities which have greater standing than individuals. Examples of such entities include: permanent observers at the United Nations, (55) territories under international administration, (56) and entities that, though affiliated to a particular state, have autonomy. (57) However, none of these legal statuses is equivalent to statehood. Observer states have some state-like rights, such as the right to participate in the deliberations of the United Nations, but they lack the crucial right to vote. (58) Territories under international administration and autonomous entities are necessarily subject to the sovereignty of a state and are thus necessarily inferior. The fact remains that most international law principles are framed by reference to states. In the absence of statehood, an entity is necessarily deprived of the bulk of the rights available under international law.
Thus, the loss of statehood is not an insignificant or insubstantial event; it represents a significant downgrading of status. For a state to be reduced to the status of a group is tantamount to losing its international legal personality. It is still protected against egregious violations, and it has certain limited rights like self-determination. But it has lost the bulk of rights that were formerly available to it. It has lost the right to maritime entitlements under the law of the sea, the right to negotiate international law as a sovereign equal, and the right to invoke international law on behalf of its people. Beyond all of this, as a group of individuals without its own territory, it is forced to subject itself to the jurisdiction and sovereignty of another state.
The phenomena that will eventually deprive Atlantis of its territory are natural phenomena (e.g., an act of God or vis major) that will affect Atlantis to a far greater extent than others. Even on a more nuanced analysis that blames human activity for climate change and the eventual loss of territory, Atlantis is among those least responsible for the emission of greenhouse gases and those least able to prevent climate change. Atlantis may thus be considered a relatively blameless victim of significantly negative consequences (loss of statehood).
2. The Loss of Atlantis' International Legal Personality in These Circumstances Severely Impugns the Legitimacy of International Law
The inability of the international legal order to prevent blameless victims from suffering significantly negative consequences raises persistent questions about the effectiveness and legitimacy of that system. At a fundamental, conceptual level, international society is similar to any national society. Both are collections of individual actors bound by the rule of law, who consign some part of their liberty in exchange for greater security. (59) International society is merely an extension of the same hypothetical social contract that binds national societies. (60)
The critical feature of the social contract within national societies is the exchange of liberty for security. Individuals restrain their sovereignty in exchange for the privileges of membership of society. However, at the international level, this bargain is not being fully realized. The inability of international law to prevent the physical loss of territory of island states by evolving to prevent or control climate change, (61) together with its inability to prevent the loss of statehood of these states by adapting to recognise the extraordinary nature of these circumstances, (62) nullifies the gain that individual states would ordinarily expect to derive from the social contract.
In this case, the effect of the rules of international law on statehood would constitute a critical challenge to the legitimacy of the international legal order (in the sense of being justified by reference to its security-providing purpose) and the efficacy of the international legal order (in the sense of actually providing security). (63)
Again, it might be argued that these challenges to the legitimacy and efficacy of international law are not novel. Critics have long bemoaned the fact that international law is dwarfed by international relations and any semblance of rule of law in international society is illusory at best. (64) A specific example that is repeatedly invoked is the inability of international law to effectively constrain the use of force by states. (65)
These arguments, while valid, are misplaced. While international law has failed to create an international society marked by the rule of law, international law has nonetheless successfully steered international society away from a state of nature to a very great extent. In the post-U.N. Charter era, the number of states has increased and the existences of states have been altered, but international law has almost always successfully prevented the involuntary extinction of states. (66) In painful contrast, in this instance, international law de lege lata seems incapable of honouring its reciprocal obligations under the international social contract.
In conclusion, the relevant rules of international law, as they currently exist, would deny states that lose their territory to the effects of climate change the rights and privileges of statehood, notwithstanding their lack of culpability, and in doing so would undermine the very basis of the existence of international law.
C. Analytical Context: Literature Review
The previous two Subparts described the physical events involved in the loss of statehood and demonstrated why the possibility of loss of statehood carries tremendous legal significance. Before engaging with substantive questions of law, it is useful to survey the existing literature for answers or suggestions to the issue of loss of statehood of Atlantis and similar states.
As can well be imagined, the potential disappearance of entire states as a result of human environmental "delinquency" has attracted a large amount of academic attention. (67) These analyses have focused on the plight of the inhabitants of these states, (68) the inability of the Refugee Convention to accommodate "climate refugees," (69) the fate of the marine entitlements (coastal zone, exclusive economic zone, etc.) of these states after they lose their territory, (70) the need to address the problem of climate change to avert these catastrophic implications, (71) the responsibility of states and of individuals (natura and legal) for climate change, (72) and practical solutions for the dilemma confronting these nations (construction of artificial islands, etc.). (73)
These inquiries represent essential analytical exercises critical to the evolution of international law to be able to respond to the monumental threat at stake here. In a sense, however, they jump the gun. The primary question concerns the continuing statehood of Atlantis. This question is primary because it is antecedent to and directly affects the other questions mentioned above.
The continuing statehood of Atlantis will determine whether its inhabitants are stateless or merely refugees. (74) The international law remedies available in either case will be different. The question of Atlantis' marine entitlements is relevant only after the demise of its statehood has been determined. Questions of responsibility under international law will also vary depending on whether responsibility is sought to be invoked for climate change leading to loss of territory or for climate change leading to loss of territory leading to loss of statehood. The ability of the government to intercede on behalf of the people will also vary depending on whether it is the government of a state or the representative of a nation. (75)
Remarkably, this fundamental question of continuing statehood has received very little attention. (76) All publicists who seem to have considered this issue concede that international law conditions statehood upon territory and therefore that loss of territory implies loss of statehood. (77) One analysis suggests possible solutions such as acquisition of territory and continuation of functional sovereignty, (78) among others. Another analysis engages comprehensively with the problems and realities of the de-territorialised state, or the state ex situ. (79) Stoutenberg engages in possibly the most holistic consideration of this issue. She suggests that the de-recognition of entities whose statehood is extinguished in violation of fundamental norms is contrary to international law. (80) She proceeds to argue that the statehood of Atlantis is being extinguished in violation of such norms, and therefore that the de-recognition of Atlantis would be contrary to international law. (81)
The aforementioned analyses provide valuable insights and have contributed to the arguments developed in this Article. All of them, however, assume the loss of statehood and move on to develop practical solutions for it or to consider other international law norms which might be invoked to countervail the loss of statehood. None of them question the applicability of the rule that extinguishes statehood upon loss of territory or consider what the results of its application in this case might be. Thus, in a sense, all of these analyses skirt the issue of continuing statehood. They defend continuing sovereignty and recognition--both legally and practically--but fail to provide a comprehensive legal justification for the continuing statehood of Atlantis.
In conclusion, this Part has sought to lay a context for the discussion in the rest of the Article. It has explained the exact nature of the physical changes confronting Atlantis; it has explained why the loss of statehood is a serious concern for Atlantis and for the international legal order; and it has reviewed existing literature in search of an answer regarding the fate of Atlantis. The failure of existing literature to provide a satisfactory answer highlights the importance of the ensuing analysis of the territory requirement in the international law of statehood.
II. CRITICAL ANALYSIS OF THE INTERNATIONAL LAW OF STATEHOOD
Part II first defines the position of international law with regard to the relation between statehood and territory: territory is a necessary precondition of statehood (Subpart 11(A)). It then critiques this rule in an attempt to prevent its operation in the case of Atlantis.
As a matter of legal argument, this can be achieved in two ways. First, the rule itself can be challenged. This necessarily involves a deviation from lex lata (the law as it is) to lex feranda (the law as it should be); it involves changing the content of a rule based on a notion of what the rule should be. Second, the application of the rule can be challenged, for instance, by contesting the fulfilment of its requirements, questioning its applicability on the facts, etc. These two forms of challenges need not be mutually exclusive: it is possible, for instance, for a challenge based in lex lata (the application of the rule) to produce a change in the rule in line with prescriptions of lex feranda. A strong challenge to the territory requirement rule, however, will encompass both forms of challenges.
The remainder of this Part engages with these two broad forms of challenges.
In an effort to challenge the territory requirement itself, this Part critically analyses the territory requirement to understand the functional utility that territory provides for states and determine whether there is a functional justification for the territory requirement in the international law of statehood. In so doing, it argues that the territory requirement applies to the creation, but not necessarily the continuation, of states (Subpart 11(B)).
In an effort to challenge the application of the rule, Part II asks four separate questions. First, it challenges the substantive contents of the rule by inquiring into the meaning of territory and specifically whether submerged territory meets that requirement (Subpart 11(C)). Second, it challenges the applicability of the territory rule in this case in light of its unprecedented facts (Subpart 11(D)). Third, it challenges the relative hierarchy between the territory requirement and other norms by inquiring into whether any other norms would operate to countervail the effect the territory requirement's application (Subpart 11(E)). Finally, it invokes a pragmatic challenge to the territory requirement's operation by inquiring into whether the political realities of recognition would allow operation of the rule to extinguish the statehood of Atlantis (Subpart 11(F)).
A. The Territory Requirement for Statehood in International Law
"The best known formulation of the basic criteria for statehood" (82) is laid down in the 1933 Montevideo Convention on the Rights and Duties of States. Article 1 of that convention lists four requirements of statehood: "a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states." (83) Even though this instrument was a regional, inter American instrument, (84) the Article 1 criteria are widely quoted as representing a codification of the customary international law requirements of statehood. (85)
The importance of territory as a criterion of statehood, in particular, was recognised in the writings of publicists well before the Montevideo Convention, (86) and continues to be recognised well after it. (87) For instance, James Crawford, arguably the most influential commentator on the international law of statehood, states: "Evidently States are territorial entities ... 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." (88) Similarly, Oppenheim's masterful and influential treatise on public international law, across nine editions, almost 100 years, and several superlative editors, endorses the territory requirement in almost identical words. (89)
Notwithstanding the volume of support for the Montevideo criteria as representative of customary international law and territory as a requirement of statehood, contradictory authority is also available. (90) For instance, the International Law Commission (ILC) has repeatedly refused to take up the task of defining a "state," (91) and on one occasion, a definition that substantially resembled the Montevideo definition was deleted. (92) Louis Henkin, a noted authority on international law and drafter of the Third Restatement of the Foreign Relations Law of the United States, while acknowledging that the Montevideo criteria are "accepted as law," criticises these criteria on the grounds that they are "not requisite qualifications but descriptions of states as we know them." (93) In a similar vein, Kelsen defined a state by reference to the establishment of a legal order and referred to territory as the space of operation of that legal order. (94) Thus, territory for Kelsen was a consequence of statehood and not a prerequisite. (95)
The volume of support for the Montevideo criteria and the territory requirement clearly overwhelms that of contrary authority. On the basis of a simple weighing of the evidence, it would seem that the Montevideo criteria and the territory requirement emerge unscathed as representations of customary international law.
Moreover, the Montevideo criteria are "based on the principle of effectiveness among territorial units," (96) i.e., the criteria define statehood because they represent the bare minimum required for effective control. (97) Viewed in this manner, the disagreement between Kelsen and Henkin on the one hand, and the mountain of authority in support of the Montevideo criteria on the other, is simply one of method. The former views territory as a consequence of the establishment of governance that constitutes a state. The latter views territory as a prerequisite for a state to be able to exercise effective governance. There is undoubtedly a difference in the conceptualization of the state, but in neither case is territory or any of the other Montevideo criteria dispensable. Once this conceptual difference is recognised for the chicken and egg debate that it is, the ILC's reluctance to enter the fray is more an expression of disinclination to enter a circular debate than an actual doubt as to the definition of a state.
Thus, it is fairly clear that territory is a prerequisite for statehood, in addition to government, population, and capacity to enter into international relations. (98) This last capacity is sometimes referred to under the rubric of independence. (99) Additionally, in an effort to reconcile the objective effectiveness criteria of statehood with the vagaries of state practice in recognition of statehood, it has been suggested that legality and legitimacy in terms of international law operate as additional barriers to the determination of statehood. (100)
In closing this brief discussion of the international law of statehood, two points must be noted. First, the territory requirement is satisfied by the existence of some territory. It does not matter whether the territory is small or large, (101) contested or not. (102) Second, the primary subject of discussion in this Article is statehood, and statehood is an objective fact that is distinct from the subjective question of recognition as a state. (103) In the context of this Article this distinction between statehood and recognition can give rise to two separate lines of inquiry: first, whether loss of territory mandates loss of statehood; second, whether notwithstanding loss of territory, Atlantis will continue to be recognised as a state. Both lines of inquiry are pursued in this Article, but the distinction between them must be maintained.
B. What Purpose Does the Territory Requirement Serve?
The previous Subpart clearly established that international law positions territory as a precondition for statehood, and that the territory requirement has its roots in the idea that territory is necessary for effective governance. But this begs the question of the relationship between territory and effectiveness. Is territory necessary for effective governance? Crawford seems to indicate that a functional assessment of the territory requirement is required. In concluding his discussion of the territory requirement he notes: "the State must consist of a certain coherent territory effectively governed--a formula that suggests that the requirement of territory is rather a constituent of government and independence than a distinct criterion of its own." (104) This assessment seems to hint at a functional value of territory for governance and independence, but fails to elaborate upon it; this Subpart engages with that question. Interestingly, none of the many authoritative publicists and judicial decisions referred to above addresses the question of what purpose is served by territory in adducing support for the territory requirement for statehood. (105) As has been discussed, at most a reference is made to the necessity of territory for effectiveness, but there is no discussion of the linkage between territory and effectiveness. A rare exception to this practice is Krystyna Marek's 1968 treatise on the identity and continuity of states, in which she argues that if a state loses its territory, it must also lose its statehood. (106)
This Subpart aims to challenge the territory requirement itself by arguing that in light of the diminishing functional utility of territory, loss of territory cannot mandate loss of statehood. Given that Marek has considered this question from a similar angle, it is necessary to first understand and analyse her argument. (107)
1. Marek's Argumentm (108)
Marek begins with the well-established rule that changes in territory do not affect the continuity and identity of states (109) and then proceeds to demonstrate the widespread acceptance of this rule in state practice, judicial decisions, and doctrine. (110) She then suggests that the "unquestioned validity of the rule presupposes, and even demands, a correct view of the legal nature of State territory and territorial sovereignty." (111) She suggests three views of the relationship between a state and its territory: (112) First, territory is the property of the state; second, territory represents the spatial sphere of the state's sovereignty, also known as the competence theory; and third, territory represents an essential characteristic or attribute of the state. (113)
The property theory analogises the relationship between the state and its territory to that between an individual and her property. The competence theory describes territory as the spatial limitation of the state's jurisdiction. Jurisdiction or spatial competence should not be understood solely in terms of coercive power, though that is necessarily one of its aspects, but also in terms of entitlement. The competence theory of the relationship between a state and its territory is essentially a functional appraisal of the importance of territory. Territory is valued in this characterisation because of the purpose it serves as a vehicle for maintaining exclusive jurisdiction and exploitation of resources. The attribute theory irreversibly links the existence of statehood to a particular territory. (114)
Having established and described these three theories, she proceeds to choose amongst them. To guide this selection, she assumes that a state cannot exist without some territory. (115) Based on this assumption, she suggests that the competence theory best explains the rule that territorial changes have no effect on state identity and continuity. (116) First, with regard to the property theory, if territory were mere property and of no greater relevance to the definition of statehood, its alienation in its entirety would not affect the continuation of statehood. But this is not the case, and so she dismisses the property theory. (117) Second, with regard to the attribute theory, "if territory did indeed pertain to the very essence of the State, then no territorial changes whatever could leave the identity of the state unaffected." (118) In contrast to the obvious problems inherent in both the property and attribute theories, the competence theory is reconcilable with her starting premise. Changes in the territory of the subject state merely change the range of its jurisdictional competence, but loss of territory extinguishes that competence completely.
Based on this analysis, Marek concedes one exception to the rule that territorial changes have no effect on state identity and continuity: if the loss of territory is "either total or very considerable." (119) She supports this exception on three grounds: first, it represents a "difference in kind," rather than a "difference in degree"; (120) second, "the physical nature of this reduced territory ... will prevent a State from preserving its old legal order and from being able to bear its previous international rights and obligations"; (121) and third, this points to "an inter-dependence of the so-called elements of the State." (122)
2. Critical Analysis of Marek's Argument
Having understood Marek's argument, it is now possible to critically engage with it. Marek's final conclusion--that changes in territory do not affect the identity and continuity of states--is unchallenged, and indeed, not relevant for the purposes of the present discussion. This critical discussion of Marek's argument is focused on her analysis of the purpose or importance of territory. There are two main problems in this regard.
First, her dismissal of the property theory is debatable. Her argument is that if territory were merely state property, it would be possible for states to alienate all of their property, because "property, being something external to the owner, can be lost without the personality of the owner being affected." (123) But this would create the impossible situation of a state sans territory. This argument mistakenly assumes that an individual can alienate all of her property without change in her legal personality. Under municipal law, a person with no property is legally adjudged insolvent, and by virtue of such insolvency, her legal personality may be restricted in terms of ability to enter into commercial agreements, etc. Thus, insofar as territory represents state property, and insofar as the existence of territory is necessary for statehood, it is impossible for a state to alienate its entire territory. As a result, the property theory represents a plausible explanation for the relationship between statehood and territory under the assumptions that Marek adopts.
Second, her analysis may be criticised for its reliance on an unfounded assumption: that loss of territory mandates loss of statehood. It is possible that loss of territory will mandate loss of statehood, but to assume that this is necessary is premature. Moreover, by using this assumption, Marek effectively engages in circular argumentation. In an analytical exercise intended to understand the importance of territory, Marek begins by assuming the importance of territory; in other words, she analyses the relationship between territory and statehood by assuming that there is such a relationship. This adoption of a prejudicial assumption is a glaring methodological flaw.
Marek invokes the assumption as to the critical nature of territory as a touchstone upon which the three theories of territory can be tested. However, there is a superior touchstone that can be used for this purpose: the legal fact that indeterminacy as to borders does not detract from fulfilment of the territory requirement. (124) For instance, in the case of Israel, at the time that it came into existence as a state, there were legitimate legal questions as to whether it exercised valid legal title over the territory in its possession. (125) Similarly, in the cases of Belize, (126) Kuwait, (127) Mauritania, (128) and Oman, (129) doubts as to demarcation of their borders did not affect their statehood. (130) The permissibility of this lack of clarity regarding territorial borders must be read subject to the overarching requirement of legality and legitimacy in terms of international law. (131)
Using the permissible indeterminacy of borders as a touchstone instead of the unshakeable requirement of territory has two advantages. First, it has been proven true and is therefore not an assumption. Second, it does not suffer from the defect of circularity. It is logically possible to assess the relationship between territory and statehood in light of the fact that the extent of the territory is unclear; it is not possible to make this assessment in light of the necessity of territory.
Applying this new touchstone, it becomes clear that the property and competence theories are both acceptable explanations of the relationship between territory and statehood. In municipal law, the uncertain legal status of property does not prevent the possessor from deriving benefit from it. (132) By analogy, the legal indeterminacy of a state's territory does not prevent it from using its territory. It is thus possible to reconcile the possibility of statehood, notwithstanding indeterminate territorial borders, with the idea of territory as property. Similarly, territory as spatial delimitation of jurisdiction is reconcilable with this idea in accordance with the competence theory. The de facto territorial limits will serve the jurisdiction limiting function instead of the contested de jure territorial limits. In contrast, the attribute theory remains inapplicable because it is not possible for the defining characteristic of a state to be indeterminate.
Thus, there are two explanations for the relationship between territory and statehood which emerge from this critical parsing of Marek's analysis: territory as property and territory as spatial limitation of jurisdiction. These theories of the relationship between territory and statehood open the door to an analysis of the functions that territory serves.
3. The Functions of Territory
Surprisingly, legal analyses have failed to offer a convincing explanation of the specific purposes or functions of territory. For such explanations, it is necessary to turn to the writings of political geographers, (133) conflict theorists, (134) sociologists, (135) and philosophers. (136)
These analyses of the functions of territory reveal the following four insights.
First, territory is a source of security. (137) The security function of territory is achieved primarily through its ability to create a physical divide between "us" and "them," and secondarily by its ability to facilitate internal organisation against external threats. (138) This is an aspect of the coercive power of the state insofar as it manifests the ability of the state to prevent foreign elements from intruding within this space.
Second, territory is a source of economic resources. (139) This focus on the economic utility of territory and its ability to provide resources and means for sustenance of individuals and communities is a manifestation of the entitlement aspect of jurisdiction; within state borders, the state controls the exploitation of resources.
Third, territory facilitates the effective exercise of jurisdiction. (140) Territorial borders allow states the certainty of knowing the extent of their jurisdiction and allow them to avoid conflicts with other states. It has been suggested that this produces economically valuable certainty. (141) Related to this is the function of territory as allowing states a distinct "place in the sun," a mostly unrestricted sphere of free action within which they possess the power of sovereigns, and outside which they are guaranteed equality on account of this sovereignty. (142)
Fourth, territory is a source of historical and cultural resources. (143) Territory exploits and develops a pre-existing cultural identity, and may also facilitate the growth of a new common identity based on ties to the territory and its physical attributes. This presents the cultural value of territory as a resource available for the exclusive exploitation of the state. It also presents a cultural constraint on the jurisdiction of the state, in that the identity of the state is derived from the cultural-territorial ties that bind that community together and the state lacks the cultural credentials to assert authority over persons outside those territorial limits.
Thus, territory is a critical constituent of statehood because it provides security, economic and cultural resources and delimits and protects the jurisdiction and sovereignty of the state. This ties in with the two overarching theories of territory that were found to be applicable in this case: the property theory and the competence theory. (144) The function of territory as a source of economic and cultural resources is a reflection of its value as property. The function of territory as a source of security and of jurisdictional delimitation is a reflection of its competence function.
But what does this imply for the problem at hand? It is submitted that it is possible to defend the continuing statehood of Atlantis on the basis of technological developments that have diminished the value of the functions served by territory. Each of the four purposes of territory discussed above--security, jurisdiction, economic resources and culture--is quickly losing its relevance in the modern world.
The security function of territory has been compromised in today's world where terrorists can infiltrate elaborate border controls and wreak devastation with lethal devices that can be contained in briefcases. (145) In a globalizing world, effective security and economic opportunity are increasingly at odds with each other. Further, the open economies that are required in today's global economy make effective territorial security very difficult. (146)
The idea of territorial frontiers as restrictions on jurisdiction is far from realistic today. First, jurisdiction need no longer be circumscribed by territory. It is technologically possible to exercise jurisdiction over persons outside the territorial frontiers of a state. Second, jurisdiction is not, in practice, circumscribed by territory. Increasingly states are finding themselves forced to exercise extraterritorial jurisdiction and tolerate similar exercises by other states. For instance, American antitrust law has been applied extraterritorially in accordance with the "effects doctrine" since at least 1942. (147) A brief period of conflict with the European Commission over such extraterritorial application was resolved in the late 1980s, (148) and ever since then the European Commission (149) and many other states have been applying their antitrust regimes extraterritorially. (150)
Similarly, with the expansion of international trade, the physical resources inherent in territory are no longer critical to the survival of a state. It may be possible to exist as a service economy powered by tertiary sector services. (151) It has been suggested that human capital far outweighs physical territorial resources. (152)
The least easily substitutable or replaceable function of territory is its cultural importance. One example of the enduring importance of cultural ties is the continuing attachment of the diaspora to its homeland community. (153) It also cannot be denied that the loss of culturally relevant territory cannot be remedied through alternative means. However, two counter-arguments may be made. First, the cultural ties that bind a nation or community are only partly based on territory; thus, the loss of culturally relevant territory may not involve the annihilation of the cultural fabric of a community. Second, the cultural relevance of territory is arguably the least tangible and least immediately critical purpose that territory serves. The purpose of this twofold argument is not to undermine the importance of the cultural ties that bind communities or the role of territory in contributing to those cultural ties. The purpose is merely to illustrate that first, the entire cultural history of the community will not be lost; and, second, the loss of part of the community's culture is not necessarily fatal to the existence of the community as such. An interesting example of this is the Urapmin tribe in Papua New Guinea, which, under the influence of Pentecostal Christianity and influenced by possible gains from economic integration with a globalized world, voluntarily and unanimously renounced its historical territory in exchange for integration into the modern economy. (154)
The feudal model emphasized personal authority because of the impossibility of exercising authority over distance; technological evolution, which both facilitated the movement of subjects and the assertion of control over distance, brought about the rise of the modern territorial state. (155) Ironically, technological development has come full circle to allow the assertion of personal authority (to a state or government) over non-contiguous territory and large distances.
This Subpart should be read in the context of a broader effort to analyse and critique the territory requirement for statehood. The argument presented here has sought to question the territory requirement itself and argue that in light of the waning functional utility of territory, the loss of territory may not necessarily endanger the statehood of an existing state. The following subparts will engage with the substantive contents of the territory requirement and argue that if that requirement is applicable, its operation need not lead to the loss of Atlantis' statehood.
In concluding this assessment of the functional utility of territory it is necessary to acknowledge two limitations of this argument.
First, the analysis of the diminishing relevance of territory for effective governance is admittedly optimistic in its assessment of the capabilities of technology. However, the argument is not that territory serves no function or is completely replaceable. The argument is that territory is no longer irreplaceable. It is now possible to envisage alternative sources for the functional utilities provided by territory, though there may well be significant practical problems. But where those practical problems might earlier have been prohibitive, they are now merely discouraging. (156) Further, the promise of technology as a substitute for territory is wonderfully demonstrated by the example of non-state actors, which are increasingly acting as subjects and shapers of international law. (157) For instance, transnational NGOs are increasingly playing a decisive role in shaping international law norms; (158) similarly, international terrorist organisations have produced changes in jus ad bellum and jus in bello that are comparable to the adoption of the UN Charter in their sweeping restatement of existing international law rules. (159)
Second, this argument should not be interpreted as opening the floodgates to de-territorialised states, nor should it be construed as support for the existence and recognition of pirate states like the infamous Sealand. (160) This argument, rooted in recognition of the diminishing utility and importance of the territory requirement, is thus limited to the continuation rather than the creation of states. (161)
The creation and continuity of states are distinct legal phenomena. Recognising and maintaining the difference between creation and continuation of states is necessary to prevent the uncontrolled creation of new states. In the past, the finite nature of global territorial reserves, together with strict enforcement of the territory requirement, effectively served as a check on the creation of states. This was desirable because: first, if any organized political entity could form a state, the number of states and the complexity of international relations would increase without any control; (162) second, recognizing the statehood of de-territorialised entities creates a strong moral basis upon which claims to territorial rights may be found and such claims to these rights would imperil the territorial sovereignty of established states. (163) Thus, international law has traditionally emphasized the territory requirement as a precursor to the creation of states. (164) In so doing, the territory requirement for the creation of statehood serves two purposes: It acts as a desirable barrier to statehood and as a source of functional utility.
In contrast, the territory requirement for the continuation of statehood provides only functional utility and is not justified by the desirable barrier argument. Concerns as to uncontrolled proliferation of states obviously do not arise with regard to the continued existence of statehood. Admittedly, concerns as to moral claims to the territory of other states arise in this case as well, but states which have lost their territory would have a strong moral right to territorial resettlement irrespective of continued statehood. Therefore, on these grounds, the territory requirement for the continuity of statehood is justified on the basis of the functional utility of territory, while the territory requirement for the creation of statehood is justified on the basis of functional utility and the desirable barrier argument.
My analysis concerning the continuing validity of the territory requirement has addressed only the functional utility argument; it has not addressed the role of territory as a desirable barrier. Thus, my arguments here cannot and should not be interpreted as justifying the permissibility of de-territorialised statehood with regard to the creation of states.
In conclusion, in light of the fading validity of the functional utility of territory, loss of territory should not be construed to demand extinction of statehood, even though it retains its validity as a barrier to the creation of states.
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|Title Annotation:||I. Introduction through II. Critical Analysis of the International Law of Statehood B. What Purpose Does the Territory Requirement Serve?, p. 1-27|
|Author:||Jain, Abhimanyu George|
|Publication:||Stanford Journal of International Law|
|Date:||Jan 1, 2014|
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