2023 CascadingConsequences of Sinking States 141 Although some scholars have argued that the principle of continuity of states is distinct from the rules applicable to the creation of states, it seems unlikely that a state could base its claim to continuity on the basis of artificial islands alone. Thus, artificial islands that are created in a location where there was no prior territory likely could not serve as the sole basis for a state's claim to territory in defense of its own statehood.42 As James Crawford put it, "[A]rtificial islands cannot form the basis for territorial States any more than can ships."43 Although not directly addressing the question of what territory sufficiently constitutes a state, provisions of the United Nations Convention on the Law of the Sea (UNCLOS) can provide some guidance. Under Article 121, an island is defined as a "naturally formed area of land, surrounded by water, which is above water at high tide." Article 121 was interpreted for the first time by the Permanent Court of Arbitration in the South China Sea Arbitration. There, the Tribunal found that whether a maritime feature was to be considered to be a rock or an island was to be "determined on the basis of its natural capacity, without external additions or modifications intended to increase its capacity to sustain human habitation or an economic life of its own."" The determination of a state's "natural capacity" to remain above sea level at high tide may be connected to the question of whether to freeze baselines for the determination of a state's maritime entitlements.4 5 While questions on the existence of territory for the purpose of determining the existence of a state are distinct from the issue of the maintenance of maritime entitlements once baselines are established, one could imagine similar arguments that a state's "territory" consists of the land that existed above sea level prior to sea level rise. 46 Preservation of territory through artificial means may not preserve another element of statehood, namely a permanent population. It's unclear if land reclamation alone could prevent groundwater salinization or preserve soil quality sufficient to sustain agriculture. Furthermore, as demonstrated in the South China Sea Arbitration, land reclamation activities on atoll islands can cause devastating environmental 42 James Crawford, Islands as Sovereign Nations, 38 INT'L & COMP. L.Q. 277, 279 (1989) (observing that "artificial islands cannot form the basis for territorial States any more than can ships"); Imogen Saunders, Artificial Islands and Territory in InternationalLaw, 52 VAND. J. TRANSNAT'L L. 643, 676 (2019); Allen, supra note 28, at 7 (contrasting a sinking state's efforts to create territory in order to preserve its claims at statehood with efforts to create an entirely new state of the Republic of Minerva through the creation of an artificial island). 43 Crawford, supra note 42, at 279. 44 The South China Sea Arbitration (Phil. v. China), 2016 PCA Case Repository No. 2013-19, Award of Jul. 12, 2016, para. 541, https://perma.cc/RA33-LKM6. 45 See Nilufer Oral, InternationalLaw as an Adaptation Measure to See-level Rise andIts Impacts on Islands and Offshore Features,34 INT'L J. MARINE & COASTAL L. 415, 428-30 (2019). While there is not currently full consensus on the issue, states have indicated more openness to maintaining maritime zones established using baselines that would remain unmodified regardless of sea level rise. Pacific Islands Forum [PIF], Declarationon PreservingMaritime Zones in the Face of Climate Change-Related Sea-Level Rise (Aug. 6, 2021), https://perma.cc/VSB2-FBSN. 46 See generally Michael Gagain, Climate Change, Sea Level Rise, andArtificial Islands: Saving the Maldives' Statehoodand Maritime Claims Through the Constitutionof the Oceans, 23 COLO. J. INT'L ENV'T L. & POL'Y 77 (2012) (arguing that states such as the Maldives should advocate for an amendment to the Law of the Sea Convention to expand the legal status of artificial islands in order to maintain their claims to statehood in the event of sea level rise); ILA LISBON REPORT, supra note 28, at 27 (discussing as a hypothetical "whether the concept of 'territory' might be extended de legeferenda to include maritime zones such as the territorial sea, and perhaps also submerged lands which are inundated by sea level rise"). Electronic copy available at: https://ssrn.com/abstract=4321214