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CascadingConsequences of Sinking States
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I argue that the state-centric model of international law fails to protect states'
rights of sovereign equality and survival as well as the human rights of individuals. I
make two claims. First, I argue that there is a fundamental imbalance between situations where a state's right to survival is threatened by the actions of a clearly identifiable state, such as an aggressor, and those where the locus of responsibility for a
state's demise is not directly attributable to the actions of a clearly identifiable state.
Second, I argue that human rights are situational rather than universal. I observe that
states have the primary responsibility to protect their populations. However, the cur-
rent international legal structure does not provide for a secondary responsibility to
other states or international entities when a particular state is unwilling or unable to
provide protection, or when a person is stateless. That is, under the current interna-
tional legal structure, human rights depend on states being able to ensure their own
survival and to provide their populations with territory and a nationality.
Sinking states also reveal the danger of our retreat from the progressive development of a more just international legal framework. The international legal community is failing to fill a clear gap in the law that is resulting in the destruction of
states without legal recourse and without rights for the resettlement of their populations. Rather than confronting the concerns of sinking states as a reflection of the
peril we all find ourselves facing, powerful states are hesitant to bind themselves to
any legal framework that would address the underlying cause of their destruction.
Finally, I outline potential avenues of exploration to address the concerns
identified in this Article. They include decolonizing the notion of statehood and preventing further entrenchment of neo-colonial norms in international law. We should
pursue legal solutions with the aim of promoting environmental justice and racial
justice. We should consider a more cosmopolitan approach that decentralizes the state
and prioritizes the rights of individuals. Finally, we should renew our commitment to
the purpose of international law-the creation of a more peaceful and just society.
The phenomenon of sea level rise and its impacts on island states are some
of the most pressing emerging issues in international law. They challenge us to ex-
amine the notions of statehood, the relationship of individuals to their state of nationality, and the protection of rights when the bond between citizen and state has been
irrevocably broken. The solution to the problems posed by sinking states must be a
renewed commitment to a more just international legal framework centered on the
rights of individuals and reflecting a commitment to our collective peace and security.
II.
DEFINING THE SINKING STATE
Climate change has the potential to transform not only our natural world, but
also the societal and legal structures that define humanity. Since the changes to our
natural environment occur gradually over time, the differences can seem almost im-
perceptible. In order to emphasize the scale of the problem, researchers have created
dramatic visualizations of the world's most populous cities under water to demonstrate what the world might look like in the coming centuries if we fail to avoid temperature rises of 1.5 0C or 3.0
"
°C."
The changes to the environment are so profound
Picturing Our Future, CLIMATE CENT., https://pcrma.cc/X3DF-GECG (last visitcd May 26,
2023).
Electronic copy available at: https://ssrn.com/abstract=4321214