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Small Island Developing States and Statehood

Název práce v češtině:	Státniost a malé rozvojové státy
Název v anglickém jazyce:	Small Island Developing States and Statehood
Klíčová slova:	Climate Change, Sovereignty, Small Island Developing States, UNCLOS
Klíčová slova anglicky:	Climate Change, Sovereignty, Small Island Developing States, UNCLOS
Akademický rok vypsání:	2015/2016
Typ práce:	diplomová práce
Jazyk práce:	angličtina
Ústav:	Katedra politologie (23-KP)
Vedoucí / školitel:	doc. Martin Riegl, Ph.D.
Řešitel:	skrytý - zadáno vedoucím/školitelem
Datum přihlášení:	11.02.2016
Datum zadání:	11.02.2016
Datum a čas obhajoby:	09.02.2018 08:00
Místo konání obhajoby:	Jinonice - U Kříže 8, J3093, Jinonice - místn. č. 3093
Datum odevzdání elektronické podoby:	03.01.2018
Datum proběhlé obhajoby:	09.02.2018
Oponenti:	PhDr. Mgr. et Mgr. Jakub Landovský, Ph.D.



Kontrola URKUND:

Seznam odborné literatury

Provisional Bibliography:

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Předběžná náplň práce

Aim: The main aim of this thesis was to investigate the potential problems associated with the effects of climate change that are currently facing Small Island States as they relate to the establishment, maintenance, and continuity of a state relative to the requirements of statehood based on existing theory (Declaratory and Constitutive), the Montevideo Convention, and international norms, law, and historical precedent. As will be discussed in this paper climate change is currently affecting, and will continue to result in loss of territory, population, and governments for Small Island States creating unique challenges that threaten the very survival of these states as they relate to the traditional and theoretical requirements for statehood. The overriding question is whether or not there are prototypes to fashion a state from, based on current or historical models, or will the effects of climate change force us to consider alternative frameworks to ensure the continuation of these Small Island States.

Topic:

The spate of warnings that have been issued concerning Climate Change and its damaging impact upon the livelihood of populations has garnered increasing acknowledgement and critical concern. In a century where the potential for states to be submerged, concerns are being raised about how states, especially Small Island Developing States, are susceptible to losing Statehood. Small Island Developing States are already being ravaged by higher sea levels and dramatic loss of livelihood through inundation and potential submergence of their territory by the end of the century. Already these concerns are catalyzing Small Island Developing States to seek out alternative arrangements for their populations and importantly to preserve their legal personality. These arrangements tie in decisive concerns that connect how States are understood within in the international community as possessing a permanent territory,government, permanent population and the capacity to be recognized by others. The angle offered and explored here becomes what happens once a permanent territory is undermined by seawaters and populations are relocated to Host States. If these issues are bound to occur then can historical precedents assisting in projecting what Small Island Developing States could resort to legally and resource-wise to maintain their standing and recognition amongst the International Community.

Existing Literature: The major portion of this work will extrapolate from various research publications and theorists who have delved into the questions pertaining to Sovereignty especially among the likes of James Crawford. Maxine Burkett, Frederick Tse-shyang Chen, Jenny Grote Stotenburg, Susannah Wilcox in conjunction with reports released from IPCC, and news articles that are monitoring the impact of climate change and its impact. The theorists such as James Crawford are critical in the field of evaluating the mutating nature of statehood and particularly identifying examples that challenge the Montevideo Convention. James Crawford is decisive in unearthing the mutating nature of Statehood and evaluating how states have undergone various incarnations, yet have still maintained hallmarks of their identity which is necessary to explore here in terms of Small Island Developing States. Additionally, Maxine Burkett potentially provides a viable pathway that weaves an understanding of the inherent danger that Climate Change poses for Small Island Developing States and how through territorial loss it will be decisive for Small Island Developing States to engineer alternative configurations of statehood such as Ex-Situ or a Trusteeship. Jenny Grote Stotenburg is invaluable in her effort to comprehend international law and investigation the role of derogation of statehood and its relation to peremptory norms or jus cogens that is a thread of focus throughout this thesis.

Research Questions

1. How does Climate Change potentially threaten Small Island Developing States and conflict with the definitions of Statehood outlined in the Montevideo Convention?
2. In what ways have the Montevideo Convention and Declaratory Theory been challenged as it relates to Small Island Developing States? How does the evolving nature of these states affect our understanding of statehood?
3. What are the major issues that are likely to emerge if alternative configurations are proposed for Small Island Developing States in order to preserve their Statehood? More explicitly would Small Island Developing States be able to claim Statehood if they lack a component outlined in the Montevideo Convention?

Hypotheses:

Two preliminary hypotheses underline our investigation, which concern the maintenance of Statehood for Small Island Developing States and the issues that will arise with respect to alternative configurations for Statehood. The first hypothesis stresses that Statehood itself is not an “absolute” principle but rather a ‘threshold’ principle whereby Statehood is merely recognized as process rather than an end goal. While “The Montevideo Convention” and “Declaratory Theory” may stipulate conditions that are needed to be recognized for Statehood, they are not explicit in what necessarily constitutes a criterion for accepting or conferring the status of ‘Statehood’ to geographical entities. For example, neither the Montevideo Convention nor the Declaratory Theory explain what the minimum threshold of a population that a State or territory must possess in order to qualify for Statehood. Therefore, States that are increasingly vulnerable to the damaging impact of Climate Change, regardless of population size, could potentially preserve their identity as long as they are perceived in the international community as having certain elements that would signify to that community that the territory is inhabited or being used in some capacity. Further, what constitutes a “government” is also debatable considering that there are various incarnations of governments and states that exist all over the spectrum. Most importantly there are entities that operate in the absence of a “government” in their native territory. ’ States have also emerged despite the absence of one or more of the accepted criteria. For example, while Croatia and Bosnia-Herzegovina were candidates for the statehood, they had no effective control over some of their territory. Conversely, states such as Burundi and Rwanda were recognized or admitted to the UN prior to establishing an effective government. Therefore, my hypothesis accepts James Crawford’s assertion that the rules of statehood have been “kept so uncertain or open to manipulation as not to provide any standards at all.” (Crawford, 2006) I contend that since the rules of statehood are so uncertain or open to manipulation they will work in favor of Small Island Developing States as outlined by the Montevideo Convention and Declaratory Theory as their criterion isn’t explicit on what a state needs to do to qualify at a minimum or maximum threshold of population. Further, my hypothesis asserts that it is misleading at best to accept the conventional requirements for statehood, insofar as states are required to meet a minimum population threshold to qualify for that designation. My hypotheses will be supported and demonstrated through an array of examples which highlight each component of the Montevideo Convention and discusses how States have evolved and retained Statehood despite lacking the central requirements of the Montevideo Convention.

Outlook of the Work:

1. The first part of this thesis will examine Small Island Developing States especially located in the Pacific and Indian Ocean that are considered exceptionally vulnerable to the destructive effects of climate change. First and foremost, it will explore their geographical specificity and also examine what renders them especially vulnerable through their elevation, location and crucially lack of resources that enable resilience in the face of rising sea levels. Secondly, we will explore the ramifications of high sea levels that are especially pertinent to the maintenance of these islands and assess the impacts they are bound to face in light of recent disaster events and consolidated research. Furthermore, we will attempt to establish a broad definition to enable a basis for comprehending the interrelationship between Climate Change and its influence on the modus operandi of Statehood.

2. The second part will attempt to comprehend the Montevideo convention and its conception of Statehood and to understand what are considered essential criteria to meet the qualifications for attaining recognition for Statehood. Here, we will explore the Declaratory Theory of Statehood to understand how it has shaped the discourse concerning what constitutes Statehood. The analysis of this “theory” will provide the basis for mapping out the dominant doctrine of the 1934 Montevideo Convention which has been regarded as a yardstick for the definition of Statehood. We will focus in on what are the elements that constitute this doctrine and tackle the question of how the four components of Statehood permanent population, government, permanent territory and the capacity to be recognized by other states could be critically jeopardized by the changes associated with Climate Change.

3. In the third part, we will examine what are the implications if one of these specific components is not fulfilled according to the requirements of the Montevideo Convention. Then specific case examples will highlight how or whether notions of statehood were impacted due to the exclusion of one of these factors. Once we have explored these factors we will progress toward an understanding of the variants of Statehood or quasi-forms of statehood that have been recognized by the international community especially Ex-Situ, Trusteeships and Governments in Exile. These could be perceived as prospective routes for Small Island Developing States to pursue in an effort to preserve their statehood. Then we will evaluate the proposed alternative forms of statehood for Small Island Developing States examining them through historical precedents and provide opinions as what might be a viable avenue for them to undertake to retain this recognition from the international community.

4. In this final part we will summarize the findings concerning the ramifications of Climate Change in terms of it undermining Statehood through loss of territory. We will examine what will be the most viable route for Small Island Developing States to undertake when dealing with loss of territory in order to continue statehood recognition from the international community.

Theoretical Framework: The theoretical framework is organized around one of the major competing theories that are preeminent within the field of Statehood: Declaratory Theory. It will draw upon international law’s understanding of this theory and its relation to how statehood becomes impacted by the role of climate change. It attempts to examine and probe the components of the Declaratory Theory Criteria, which are considered the minimum criteria that an entity must meet for statehood. To offer guidance we can understand that the Declaratory Theory is based on the belief that statehood and international legal personality emerges through the independence of recognition when certain objective criteria of statehood are met by an entity. Here, the creation of a state is a simple “fact” that is acknowledged by the recognizing states. This theory’s object or doctrine becomes enshrined in the Montevideo Convention that will be briefly expounded upon here. The necessary criteria for statehood are outlined in the Montevideo Convention of 1933 that is normally accepted as customary under international law cites the following: “The State as a person of international law should possess the following qualifications : (1) a permanent population; (2) a defined territory; (3) government; and (4) capacity to enter into relations with the other states.” Overall, the declaratory theory understands statehood as fully determined by a set of factual conditions—where once an entity fulfills these criteria is recognized as a state. Recognition is nothing more than an official confirmation of a factual situation—a retroactive act that traces back to the moment at which the factual criteria were fulfilled and the entity became a state. Importantly, recognition does not impact statehood as such or a state’s international rights and obligations—objective condition of statehood is independent of recognition. Yet issues have also arisen and been directed towards the declaratory theory on the grounds that de jure recognized states don’t meet the objective criteria of statehood and de facto states seem to be able to fulfill the aforementioned criteria.
It is critical to examine what the Declaratory Criteria stipulates concerning the minimal criteria. It is considered to be instrumental for an entity to attain statehood and what happens if those conditions are not met considering the fact that the Small Island Developing States as discussed and focused upon here will be adversely impacted especially by territorial loss, a prerequisite of such theory. Similarly, other criteria which are outlined in the Declaratory Theory and its synonymous relationship with the Montevideo Convention revolve around key components such as Permanent Population, Permanent Government and The Capacity to Be Recognized. The prospect of the loss of a Permanent Population and Government are also potential outcomes that Small Island Developing States could face as the result of climate change and therefore serve to derogate their possibility of meeting the Declaratory Theory requirements. These factors as we will see poses severe difficulties and presupposes that territorial entities can easily by virtue of their mere existence meet all of these components.

Methodology:
The methodology that was employed in this thesis was primarily qualitative in nature relying heavily on documentary analysis with research focused on observational secondary data and content analysis. However, there were aspects of quantitative data employed as they relate to a discussion of the definition and effects of climate change. Overall, the work will analyze Statehood through the angle of a realist which understands the state to be a unit of representation within the international community. The first part of this work attempts to delve into the two major schools of thinking that are understood to be indicative of an entity attaining statehood. We will employ a ‘process tracing’ methodology that will derive historical examples to evaluate and provide a comparative means to understand on what grounds historical examples can and have served as a precedent for exceptions to the established notion of Montevideo definition of Statehood. This quantitative and qualitative approach can be defined as Process Tracing (a) identifying novel political and social phenomena and systematically describing them; (b) evaluating prior explanatory hypotheses, discovering new hypotheses, and assessing these new causal claims. Thus, to further gauge how process tracing is critical to the focus of this thesis it critically looks at established patterns among two or more phenomena notes how a relationship has been uncovered repeatedly. First and foremost, we will provide a definition of the Declaratory Theory to grasp the implications for how a State acquires recognition within the international community. Once we have outlined their differences we will then investigate into particularly the dominant theory of the declarative theory of Statehood and how it has molded notions of Statehood on grounds that States must fulfill the following criteria: 1) Permanent Population 2) Permanent Government 3) Permanent Territory 4) The Capacity to be Recognized by Others. Once we have established these definitions we will proceed to outline how Climate Change potentially undermines claims and the preservation of Statehood on the grounds that Permanent Territory, Government, and Population are the criteria most likely to be undermined. Accepting that they will be undermined by these factors the central question and focus of this thesis then revolves around an investigation as to how Small Island Developing States could preserve their recognition from the international community. This question further formalizes the focus of the remainder of the thesis where we employ a quantitative and qualitative approach that identifies historical examples and important case studies where one of the components of the Declaratory or Montevideo Convention was absent and show how recognition of Statehood was maintained.
Process tracing immediately relates to testing how the four components of the Montevideo Convention have been historically challenged and similarly have confronted novel conditions and situations as that will be explored in the thesis. We will investigate first and foremost the first criterion of Permanent Population, Permanent Territory, Permanent Government and the Capacity to Be Recognized on grounds where each of those components in their components was not adequately fulfilled or importantly isn’t adequately fulfilled due to de jure or de facto states. Once, we have investigated into these components we will also investigate into how states importantly have retained recognition from Statehood. These models will be accorded the following spotlight where we will look at Governments in Exile, Cession of Territory, Trust Systems, International Personalities and the prospect of Deterritorialized States and their success in procuring forms of recognition from the international community. We will then inquire how successful they have been in their ventures. It is through the employment of Process Tracing that we aspire to understand and recognize these historical exceptions and provide a basis for considering what avenues Small Island Developing States could undertake to retain statehood.

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