2021
Statelessness & Citizenship Review
3(2)
on the Rights and Duties of States (‘Montevideo Convention’ and ‘Montevideo
criteria’) should simply be sidelined. Whether it is by dismissing the relevance of
the criteria altogether,20 restricting their scope to the creation of states,21 or
deeming them inadequate,22 most authors agree that they fail to provide clear
guidance in the case of LLISs. Past cases such as fragile states,23 or governments
in exile,24 highlight the flexibility of the criteria in practice. As a result, it is argued
that it would be premature to assume that a LLIS could not exist beyond the loss
of its physical components.
Furthermore, scholars rely on the existence of a strong presumption of
continuity, which would guarantee that an LLIS retains its statehood long after it
has lost its claim to territorial sovereignty. This principle would have a ‘ratchet
effect’,25 ensuring that statehood, once obtained, is not easily lost. Crawford
explains it as such: ‘there is a strong presumption against the extinction of States
once firmly established’.26 While the exact workings of the presumption of
continuity are not always discussed, the principle is closely linked with the role
assumed to be played by recognition.
Indeed, recognition is understood to be the means through which the
international community would confirm (or reject) the statehood of a
deterritorialised LLIS. For instance, McAdam states that the international
community would defer to the concerned state’s claim to continued existence in
deciding whether to maintain recognition or not.27 As long as the deterritorialised
state maintains a claim to statehood, it should benefit from the continued
recognition of the international community.28
20
21
22
23
24
25
26
27
28
For a discussion of the minimum threshold and a potential alternative, see Susannah Willcox,
‘Climate Change and Atoll Island States: Pursuing a “Family Resemblance” Account of
Statehood’ (2016) 30 Leiden Journal of International Law 117.
Nathan J Ross, ‘Low-Lying States, Climate-Change-Induced Relocation, and the Collective
Right to Self-Determination’ (PhD Thesis, Victoria University of Wellington, 2019) 161
(‘Low-Lying States’); Lilian Yamamoto and Miguel Esteban, Atoll Island States and
International Law — Climate Change Displacement and Sovereignty (Springer-Verlag Berlin
Heidelberg 2014) 176.
Jain (n 19) 29.
Ross, ‘Low-Lying States’ (n 21) 150–51; McAdam, ‘Forced Migration’ (n 6) 134.
Maxine Burkett, ‘The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood and
the Post-Climate Era’ (2011) 2(1) Climate Law 345, 356; Ross, ‘Low-Lying States’ (n 21)
151–53; Jane McAdam, ‘“Disappearing States”, Statelessness and the Boundaries of
International Law’ (Research Paper No 2010-2, University of New South Wales Faculty of
Law Legal Studies Research Paper Series, 21 January 2010) 9.
Willcox (n 20) 122.
James Crawford, The Creation of States in International Law (2nd edn, Oxford University
Press 2006) 715. These words are widely cited to support the existence of the presumption of
continuity. See, eg, Burkett (n 24) 354; Jacquelynn Kittel, ‘The Global Disappearing Act:
How Island States Can Maintain Statehood in the Face of Disappearing Territory’ (2015)
2014 Michigan State Law Review 1207, 1248; Ross, ‘Low-Lying States’ (n 21) 154; Derek
Wong, ‘Sovereignty Sunk? The Position of “Sinking States” at International Law’ (2013) 14
Melbourne Journal of International Law 346, 362; Yamamoto and Esteban, ‘Atoll Island
States’ (n 21) 176.
McAdam, ‘Boundaries’ (n 24) 9.
Kälin (n 12) 101–102.
292