Contents

Acknowledgements

List of Abbreviations

Table of Treaties

Introduction

Part 1 Fathoming the Waters

Chapter 1 Small Island States and the Threat of Anthropogenic Climate Change

1.1 Introduction

1.2 Historical Overview: The Changing Tides of Small Island States Discourse

1.2.1 1972–1982: Developing Island Countries and the Overcoming of Structural Barriers to Socioeconomic Development

1.2.2 1983–1992: Island Developing Countries and the Flagging Momentum for Support to Development

1.2.3 Since 1992: Small Island Developing States and Sustainable Development in the Face of Climate Change

1.2.4 Conclusion

1.3 The Impacts of Climate Change and Sea Level Rise on Small IslandStates

1.3.1 Predictions of Sea Level Rise by the Intergovernmental Panel on Climate Change

1.3.2 The Vulnerability of Small Island States to the Effects of Climate Change

1.3.3 Adaptation Strategies

1.3.4 The Risk of Island Abandonment

1.4 The Climate Change Regime—An Inadequate Response to the Concerns of Small Island States

1.4.1 The UNFCCC

1.4.2 The Kyoto Protocol and Beyond

1.4.3 Conclusion

Part 2 Maritime Entitlements

Chapter 2 The Effect of Sea Level Rise on the Maritime Entitlements of Small Island States

2.1 Introduction

2.2 Island States in the International Law of the Sea

2.2.1 The Silence of the Law of the Sea Regarding Island States

2.2.2 Archipelagic States

2.2.3 The Regime of Islands

2.2.4 Low-Tide Elevations

2.3 The Maritime Zones of Islands

2.3.1 The Territorial Sea

2.3.2 Archipelagic Waters

2.3.3 The Continental Shelf

2.3.4 The EEZ

2.4 The Shrinking of Maritime Zones Due to Sea Level Rise

2.4.1 The Law of Baselines

2.4.2 The Ambulatory Nature of Baselines

2.4.3 The Stabilizing Effect of Maritime Delimitation Agreements or Judicial Dispute Settlements

2.4.4 The Shrinking of Undelimited Maritime Zones

2.4.5 From Island to Rock or Low-Tide Elevation?

2.5 The Loss of Maritime Zones Due to State Extinction

2.5.1 The Loss of Maritime Zones through the Loss of International Legal Personality

2.5.2 Possible Strategies to Preserve International Legal Personality

2.6 Conclusion

Chapter 3 A New Regime of Stable Maritime Zones

3.1 Introduction

3.2 Desirability and Challenges of a New Regime of Stable Maritime Zones

3.2.1 ‘The Land Dominates the Sea’: The Entitlement to Maritime Zones Depends on Title to Territory

3.2.2 The Challenge of Adequate Management

3.2.3 The Spatial and Temporal Scope of Stabilization

3.3 Unilateral Strategies Providing for Stable Maritime Zones

3.3.1 Physical: Artificial Protection of the Coastline

3.3.2 Factual: ‘Masterly Inactivity

3.3.3 Contractual: Maritime Boundary Delimitation Agreements

3.3.4 Historical: Invocation of the Historic Waters Doctrine

3.3.5 Progressive: Working Towards a New Rule of Customary International Law

3.4 Collective Implementation Mechanisms of a New Regime of Stable Maritime Zones

3.4.1 Implementation Agreement on Sea Level Rise

3.4.2 UN General Assembly Resolution on Stable Maritime Zones

3.5 Stable Maritime Zones and ‘Deterritorialized’ States

3.6 Conclusion

Part 3 State Extinction and Continuity

Chapter 4 When Do States Disappear? Thresholds ofEffective Statehood

4.1 States in International Law

4.2 The Loss of Effective Statehood through Sea Level Rise

4.2.1 Defined Territory

4.2.2 Permanent Population

4.2.3 Government

4.2.4 Independence

4.3 Conclusion

Chapter 5 Who Determines Whether an Island State Has Disappeared?

5.1 The Competence to Determine State Extinction

5.2 Individual States

5.3 The Community of States

5.4 The Organized International Community: the United Nations

5.5 Conclusion

Chapter 6 The Continued Recognition of ‘Deterritorialized’ Island States

6.1 Introduction

6.2 A Duty of Continued Recognition of ‘Deterritorialized’ Island States Based on Considerations of Legality?

6.2.1 The Influence of Considerations of Legality on the Recognition of States

6.2.2 Fundamental Norms Possibly Affected by the Disappearance of Small Island States

6.2.3 Serious Breach of a Peremptory Norm?

6.2.4 Conclusion

6.3 Continued Recognition of ‘Deterritorialized’ Island States Based on Considerations of International Justice and Solidarit

6.3.1 The Contents of ‘Deterritorialized’ Statehood

6.3.2 The Maintenance of International Legal Personality

6.3.3 ‘Deterritorialized’ Statehood Under International Oversight?

6.3.4 Implementing ‘Deterritiorialized’ Statehood

6.3.5 The Lifespan of ‘Deterritorialized’ States

6.3.6 Conclusion

Chapter 7 The Consequences of State Extinction versus Continued Existence as a ‘Deterritorialized’ State or Legal Entity Sui Generis

7.1 Three Possible Scenarios

7.2 The Fate of the People

7.2.1 Histories of Forced Relocation in the Pacific and Indian Ocean Regions

7.2.2 The Legal Status of Environmentally Displaced Persons

7.2.3 The Island State Ceases to Exist

7.2.4 The ‘Deterritorialized’ Island State Enjoys Continued Recognition

7.2.5 The Island State Survives as a Legal Entity Sui Generis

7.3 Membership in International Organizations

7.4 The Fate of Treaty Obligations

7.5 The Fate of State Assets and Debts

7.6 Conclusion

Summary and Conclusion: The Limits of Ex Post Solidarity in the Context of Climate Change

Bibliography

Index