Sea Level Rise and Climate Statelessness As is often the case, this is also a matter of interpretation. Past examples of governments in exile have been characterised as setting a precedent for continued statehood despite the lack of a territory and population. 60 However, this overlooks the exiled nature of a government in exile: the Dutch government in exile in London during the Second World War did not claim to exist in abstraction from its occupied territory and population, but rather on their behalf.61 There can be no government without a state.62 Furthermore, governments in exile are established and recognised based on the illegality of the occupation they are a victim of;63 their existence can thus be construed as a corollary of a breach of a jus cogens norm, where accepting the extinction of the illegally invaded state would give legal value to an illegal act.64 As a result, framing state practice on the matter as a precedent for the assertion that a lack of territory or population does not affect statehood does not accurately reflect the reality and legal foundations of the existence of governments in exile. Consequently, while the ineffectiveness or absence of a government has been shown not to affect the statehood of an existing state in state practice, it seems a stretch to argue that a government could exist as a state without a territory and a population, particularly in the absence of clear state practice to suggest so.65 The fact that the definition of statehood found in the Montevideo Convention fails at providing a useful tool to clarify limit cases does not automatically mean that it can be dismissed as a whole. Instead, a closer look at the threshold it sets, in light of its application in state practice, highlights the potential problems it might present to a LLIS attempting to claim deterritorialised statehood. Another argument that is commonly used to attempt to dissipate the uncertainty around the possibility of continued, deterritorialised statehood is the existence of a strong presumption of continuity. As discussed in Part III(A), this presumption is interpreted to act as a sort of ‘ratchet’, preventing existing states from going extinct once they have been created. A closer examination of the principle reveals that its scope could stop short of overriding the legal consequences of the disappearance of a LLIS’s physical indicia.66 Indeed, rather than being concerned mainly with status (ie statehood), as assumed by those who frame the presumption 60 61 62 63 64 65 66 Burkett (n 24) 356; Ross, ‘Low-Lying States’ (n 21) 151–53; McAdam, ‘Boundaries’ (n 24) 9. Stoutenburg (n 6) 285. Stefan Talmon, ‘Who Is a Legitimate Government in Exile? Towards Normative Criteria for Governmental Legitimacy in International Law’ in Stefan Talmon and Guy S Goodwin-Gill (eds), The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford University Press 1999) 499, 501. Stefan Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (Clarendon Press Oxford 1998) 219. The existence and recognition of a government in exile as a result of an illegal invasion can be explained as the principle of ex injuria non oritur (‘illegal acts do not create law’) overriding its alternative principle of ex factis jus oritur (‘facts create law’). This approach was adopted by the United States in relation the Baltic states: see, eg, Ineta Ziemele, State Continuity and Nationality: The Baltic States and Russia (Martinus Nijhoff Publishers 2005) 27–28; Krystyna Marek, Identity and Continuity of States in Public International Law (Librairie E Droz 1954) 399. Bilkova emphasises this point, noting that claiming that the relevance of territory has changed is ‘not the same as demonstrating that territory has lost all its relevance’: Veronika Bilkova, ‘A State Without Territory?’ in Martin Kujier and Wouter Werner (eds), Netherlands Yearbook of International Law 2016 (Springer 2017) 19, 38. This is mentioned or hinted at by a few authors: see Alexander and Simon, ‘Sinking into Statelessness’ (n 17) 25; Davor Vidas, ‘Sea-Level Rise and International Law: At the Convergence of Two Epochs’ (2014) 4(1–2) Climate Law 70, 82; Bilkova (n 65) 38. 299