The Vanishing State: Assessing the Imperial Making of Sovereignty
Introduction
By 2100, global sea levels are projected to rise between 0.28 and 1.01 metres as per IPCC reports. For Small Island Developing States (hereinafter “SIDS”), these increases signify an existential erasure. The Maldives, home to 540,000 people, would vanish entirely if the sea rose by a single metre. These are not hypothetical scenarios. Projections highlight that these will be uninhabitable well before the century’s end, with some projections indicating habitability loss within 25-50 years. Furthermore, from 1970 to 2020, SIDS have lost USD$ 153 billion due to weather, climate, and water-related hazards, a significant amount given that the average GDP for SIDS is USD 13.7 billion. Yet this crisis is marked by profound injustice. Despite contributing less than 1% of global greenhouse emissions, SIDS confront sovereign extinction as a direct consequence of industrialization by the Global North.
International law's response to this crisis has been largely technical: how do we preserve statehood when a state's territory disappears? This framing is not neutral. The frameworks designed to address climate displacement and state persistence were forged in a Eurocentric tradition and a particular Westernised vision of sovereignty. This paper, through a TWAIL lens, demonstrates how international law’s current response to this climate crisis constitutes a failure to confront the embedded imperialism and the systemic inequalities faced by SIDS.
The Montevideo Problem
The 1933 Montevideo Convention defines statehood through four criteria: a permanent population, a defined territory, an effective government, and the capacity to enter international relations. For nearly a century, this framework has been treated as the customary definition of statehood in international law. When territory itself submerges, the entire Montevideo architecture collapses and with it, any settled legal basis for the continued existence of island states.
Faced with this, the international scholarship has produced a range of creative solutions. Territorial cession, illustrated by Kiribati's 2014 acquisition of 6,000 acres on Fiji's Vanua Levu Island, allows a state to technically preserve all four Montevideo criteria on new land. Another solution, deterritorialised statehood, modelled on the government-in-exile precedents of wartime Europe, proposes that a state's legal personality persist even after its people have relocated, maintaining claims to maritime zones and revenue from exclusive economic zones. Artificial island construction, exemplified by the Maldives' Hulhumalé project, offers an engineering solution to physical erasure. Each of these solutions is, in its own way, coherent. However, each also fails for a deeper structural one that the scholarship has been reluctant to name directly.
Dynamic of Difference
Antony Anghie’s concept of the “dynamic of difference” provides the analytical key here. In the nineteenth century, international law organised itself around a distinction between “civilised” and “uncivilised” peoples, then generated techniques to manage the gap through assimilation, subordination, trusteeship, all dressed in the language of universal legal principles. Post-colonialism did not dissolve this structure. It translated it. “Civilised” and “barbaric” became “developed” and “developing,” and the inequality was reproduced through economic rather than racial vocabulary.
Climate governance performs exactly this operation. The UNFCCC's principle of “common but differentiated responsibilities” acknowledged the unequal historical contribution to emissions, then produced the Kyoto Protocol, which bound only Annex I states to emission targets while exempting over a hundred nations and, ultimately, failing to reduce global emissions. The Paris Agreement, while acknowledging SIDS’ vulnerability explicitly, replaced binding targets with voluntary Nationally Determined Contributions (NDCs) carrying no enforcement mechanism. A Civil Society Review study, as cited by Mitra and Sanghi, found that several developed states’ NDCs fall substantially short of their “fair share” of necessary reductions. The Alliance of Small Island States has been pushing to cap temperature increases at 1.5 degrees since at least the early 2010s. These negotiations have produced language, and no obligation.
What this produces is a specific inversion that lies at the heart of the SIDS crisis: nations that industrialised through fossil fuel extraction over two centuries are not positioned as having incurred a debt. They are positioned as beneficent donors offering climate finance. SIDS, which face sovereign extinction as a direct consequence of this industrialisation, are not positioned as creditors seeking reparations. They are positioned as problem-solvers, tasked with finding creative “solutions” to their own uninhabitability. The responsibility is rendered invisible. The crisis appears as natural misfortune rather than structured injustice.
Viewed through this lens, the proposed solutions do not actually resolve the injustice; they just institutionalise it.
Territorial cession and merger require SIDS to either surrender or disaggregate the sovereignty that is to dispossess themselves of the land, oceans, and intergenerational knowledge systems that constitute their nationhood, in exchange for survival on another state’s terms. Fiji’s President’s observation that “a nation isn't only a physical place” is offered as consolation; but for island communities whose legal, cultural, and economic identity is inseparable from specific maritime zones, fish stocks, and seafaring traditions, the sentiment obscures a profound loss. For states that have fought long battles of decolonisation, merger into a larger, typically Western-aligned polity replicates the subordination they formally escaped.
Deterritorialised statehood is theoretically innovative but practically reveals how sovereign survival has been converted into a matter of host-state discretion rather than legal entitlement. Tuvalu’s experience is instructive. Australia refused its relocation request outright in 2001; New Zealand agreed to accept Tuvaluans, but capped admissions at seventy-five per year. Over time, a deterritorialised state dependent on host-state consent risks becoming sovereignty in name only, a legal shell without the autonomy to protect its own population.
Artificial island construction, meanwhile, creates a hierarchy even within the SIDS category. Only the wealthiest island nations can finance such projects, and even they would likely require international capital, reintroducing the dynamics of conditionality and dependency that have historically defined North-South financial relations. Under UNCLOS, artificial islands carry none of the maritime entitlements of natural islands, generating no territorial sea, no EEZ, no continental shelf. And Tuvalu's digital nation initiative, while a genuinely remarkable act of institutional creativity, preserves state identity without addressing the material crisis: it offers 11,000 Tuvaluans continuity of nationhood but no physical place to live.
Each solution, in other words, asks SIDS to accommodate themselves, either through dispossession, fragmentation, engineering, or digitisation, to a crisis that they did not create. None requires wealthy nations to treat climate justice as a legal obligation rather than a philanthropic option.
Conclusion
The Montevideo framework's territorial criterion, read through Anghie, is not a neutral legal standard. It embodies a specifically Eurocentric vision of the state as a bounded entity exercising control over a fixed surface of the Earth.
There are, however, signs that SIDS are beginning to challenge this framing from within international forums rather than simply accommodating themselves to it. The Pacific Islands Forum's 2023 Declaration on Continuity of Statehood pushed for a UN General Assembly session in 2026 specifically to establish that statehood persists under international law despite climate-induced sea-level rise. It represents a demand that the terms of the legal order be renegotiated and that SIDS define what sovereignty means in light of their own histories, rather than inheriting a definition designed for continental European polities.
The climate crisis facing SIDS is not a technical statehood problem with creative solutions pending. It is an injustice with identifiable perpetrators, and treating it otherwise forecloses the demands for accountability that justice requires. What the situation demands is not doctrinal ingenuity but political reckoning: binding emission reduction obligations; recognition of the climate debt owed by industrialised nations; and most fundamentally recognition of SIDS’ agency in determining what statehood and sovereignty mean under conditions that they neither chose nor create.
