“Every night, families across my country go to sleep praying that the ocean will be forgiving.”
— Lauza Ali, Counsellor of the Permanent Mission of the Republic of Maldives to the United Nations.
INTRODUCTION
At the 2021 United Nations Climate Change Conference, Tuvalu’s foreign minister, Simon Kofe, appeared before the world in a full suit and tie, knee-deep in water, and proclaimed, “We are sinking.”
His video speech—recorded on what once was dry land—was meant not only as a political statement but as a warning and a call to action.
If the world does not combat climate change and rising sea levels, entire countries could be swallowed by the ocean.
Unfortunately, science supports Kofe’s assertion. Irreversible damage from climate change has already occurred.
Many scientists agree that if the world does not take action in the next six years to limit the increase of the mean global temperature to 1.5 degrees Celsius, large-scale damage to the environment, including the catastrophic rise of sea levels, will be inevitable.
If the global emissions trend continues as it has, the global average temperature will surpass a 1.5-degree increase within the next five to ten years.
In that scenario, sea-level rise will cause an uptick in natural disasters, a depletion of vital resources, and ultimately the loss of all habitable land in the most vulnerable countries.
Whole populations will be forced to migrate,
as the residents of Papua New Guinea and other island nations have already experienced firsthand.
Beyond its physical dangers, sea-level rise will challenge the very existence of certain Small Island Developing States (SIDS) in the international legal system. Historically, entities could attain statehood only by having a territory and a permanent population.
Statehood carries with it several important benefits that can support the well-being of the state’s population, including maritime entitlements under the United Nations Convention on the Law of the Sea (UNCLOS), access to international adjudication, and membership in international organizations like the United Nations (UN).
While there is a strong presumption against the extinction of states in international law, there is no clear law on whether the presumption of continuity applies to submerged states.
Several contemporary scholars have therefore argued that international law should begin to recognize states that lose the necessary criterion of territory as “deterritorialized states.”
Likewise, they have explored options for how these nonterritorial states might operate in practice.
All of these solutions, however, rely heavily on international cooperation, leaving the fate of at-risk SIDS in the hands of other countries. The goal of this Note, therefore, is to explore a modality of continued statehood that enhances the autonomy and flexibility for at-risk island nations.
At the 2022 UN Climate Change Conference, Tuvalu’s foreign minister, Simon Kofe, once more stood before the world to introduce the concept of Tuvalu’s digital twin.
In a further effort to save the atoll nation, Tuvalu plans to rebuild itself in the Metaverse, preserving itself online for all time.
While Tuvalu would be the first nation to use the Metaverse in this way, it will not be the first country to “digitize” itself into an “e-state.” Dubbing itself “e-Estonia,” the Northern European state provides most public goods and services online, including a digital ID system, digital banking, digital voting, e-residency for businesses, and digital governance.
One reason for this reform was to ensure Estonia’s survival: If an expansionist state occupied Estonian territory and displaced its government, Estonia could continue to operate unimpeded through its digital platforms.
Where it is all but certain that the peoples of sinking states will be displaced from their territories, adoption of “e-statehood” similar to Estonia’s might strengthen states’ ability to preserve their international legal personality.
While the impacts of sea-level rise on the continuity of at-risk SIDS have been previously explored at length, this Note is the first to argue that e-statehood should be recognized as a form of deterritorialized statehood that is strong enough to carry forward the presumption of continuity. In doing so, this Note uses the conceptual innovation of an e-state from Estonia as a framework and advocates that SIDS adopt versions of e-statehood that meet their particular needs. Part I of this Note provides a background on the physical threats sea-level rise poses to SIDS as well as a background on the international law of statehood and continuity. It details several modalities that have been proposed as forms of continued statehood. Part II explains the dangers associated with the loss of statehood in international law, specifically as it relates to the preservation of maritime entitlements, diplomatic protection, other treaty-based protections, and participation in international organizations. This Part further explores why the presumption of continuity might not apply to the case of SIDS. Finally, Part III argues that e-states could provide SIDS a viable pathway toward transitioning into deterritorialized statehood, be developed unilaterally, and create greater legitimacy in the international arena than other options for continued statehood.