2023] SPECTER OF STATELESSNESS 337 not bold action.36 The Maldives’ representative to the Framework Convention highlighted the tension between incrementalism and the need for transformational action needed to protect her island when she exclaimed, “What is balanced and pragmatic to other parties will not help the Maldives adapt in time. It will be too late.”37 II. INTERNATIONAL LAW & THE SPECTER OF CLIMATE-DRIVEN STATELESSNESS A. EXISTING GAPS IN INTERNATIONAL GOVERNANCE While there is no agreed upon definition to meet the statehood requirement under international law, the 1933 Montevideo Convention has proven to be highly influential for international lawyers making this analysis.38 Under the Montevideo Convention on the Rights and Duties of States, a state must possess four characteristics to qualify as a sovereign, recognized state under international law: permanent population, defined territory, functioning government, and capacity to enter into foreign relations.39 The Montevideo definition has proven to be instrumental in establishing a starting point for agreed-upon criteria for determining a state under international law.40 It also establishes the strong presumption of a state’s continued existence, although it remains unclear at what point, precisely, a state loses its status when one or more criteria is lost.41 36. See e.g., Jen Iris Allan, Dangerous Incrementalism of the Paris Agreement, 19 GLOBAL ENVIRONMENTAL POLITICS 1 (2019) (arguing the Paris Agreement “represent[s] continuity with existing climate policy, not a break from the past). 37. See Brad Plumer & Lisa Friedman, Negotiators Strike a Climate Deal, but World Remains Far from Limiting Warming, N. Y. TIMES, (Nov. 13, 2021), https://perma.cc/4DB3-MP7C, (quoting Shauna Aminath, environmental minister of the Maldives who stated that “[Glasgow] is not in line with the urgency and scale required.”). To highlight the existential threat faced by climate change, Maldives held a recent cabinet meeting underwater. 38. Stewart, supra note 2, at 23–24. 39. Montevideo Convention on the Rights and Duties of States, 1933, 49 Stat. 3097, T.S. No. 881, 165 L.N.T.S. 19. See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 201 cmt. A (AM. LAW INST. 1987) (“Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.”). If a recognized state loses one of these characteristics, there is some disagreement under international law whether that state continues to exist. See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 201 cmt. A (AM. LAW INST. 1987). 40. Professor Louis Henkin acknowledged the Montevideo criteria as reflective of international law, while simultaneously critiquing the Montevideo definition as “not requisite qualifications but descriptions of states as we know them.” LOUIS HENKIN: INTERNATIONAL LAW: POLITICS AND VALUES 13 (1995). 41. See, e.g., JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 717 (2006); Antonio Joseph DelGrande, Statelessness in the Context of Climate Change: The Applicability of the Montevideo Criteria to “Sinking States,” 5 N.Y.U. J. INT’L. L. & POL. 151, 155 (2021). Electronic copy available at: https://ssrn.com/abstract=4223806