134
STANFORD JOURNAL OF INTERNATIONAL LAW
59:2
and why. It also describes the legal void surrounding sinking states and their populations.
In Part III, I explore the cascading consequences of sinking states. I provide
an overview of the main proposals currently under consideration followed by an analysis of their implications. By using the phrase "cascading consequences," I mean to
evoke imagery of building momentum, wherein each outcome increases in severity
due to the prior outcome. I examine four such cascading consequences in this Part,
although there are certainly more.
First, efforts to redefine statehood for sinking states will impact the options
available to other states in the future should they lose habitable territory and, as a
result, their permanent population. Additionally, if we allow for a new form of "deterritorialized statehood," we must also account for other populations that are similarly deterritorialized and unable to exercise the rights and duties of statehood due to
their historic or current lack of territory over which they exercise exclusive sover-
eignty. The effort to redefine statehood for this discrete category of states alone
misses an opportunity for a more searching inquiry of the colonial foundations of the
principle of territorial sovereignty and risks entrenching neo-colonial power structures.
Second, allowing for the extinction of sinking states, or, conversely, preserving their continuity through a lesser form of statehood or an international legal personality short of statehood would undermine the principle of sovereign equality of
states. This would be a particularly egregious outcome, as the most vulnerable states
are also those that have only recently exercised their right to self-determination. Thus,
the phenomenon of sinking states exposes the falsity of the claimed sovereign equal-
ity of states.
Third, sinking states whose very existence is imperiled may be unable to
effectively protect the rights of their populations. This becomes even more urgent if
in the future they are deprived of their statehood under law or lack the capacity to
exercise their sovereign rights and responsibilities in a deterritorialized form. If the
territory becomes uninhabitable or disappears, the population will be displaced without a right to reside anywhere else in the world. A failure to proactively protect the
rights of these populations will likely cause other states to respond to the displaced
populations by erecting further barriers to entry, thereby exacerbating future humanitarian crises.
Fourth, underlying all is the threat of a catastrophic loss to world governance. Failures to address climate change as the underlying cause of the rising sea
levels that are creating the sinking states, all in the name of preserving states' sover-
eignty, may result in the collapse of the international legal order.
In Part IV, I examine what the phenomenon of sinking states and our failure
to date to deal with these cascading humanitarian, political, and legal consequences
reveal about the foundational framework and "currently accepted paradigms" of international law.'0
10
INT'L LAW ASS'N, JOHANNESBURG CONFERENCE: INTERNATIONAL LAW AND SEA LEVEL
RISE, INTERIM REPORT, at 9 (2016) [hereinafter ILA JOHANNESBURG CONFERENCE INTERIM REPORT]
(noting that "an Anthropocene epoch may draw into questions some key aspects of international law,
since these rely on the general stability of geographic conditions, and may require the re-examination of
some currently accepted paradigms of international law").
Electronic copy available at: https://ssrn.com/abstract=4321214