Statehood in the Climate Crisis

Greater than two years after the United Nations Common Meeting (UNGA) adopted Decision 77/276, the Worldwide Courtroom of Justice (ICJ) issued its extremely anticipated Advisory Opinion on the Obligations of States in Respect of Local weather Change on 23 July 2025. The ICJ was unanimous in its findings that states have obligations below worldwide regulation to guard the local weather system and different elements of the surroundings from human-caused greenhouse gasoline emissions and uphold the efficient enjoyment of human rights within the local weather context, with breaches by states of those obligations entailing an internationally wrongful act, triggering state duty (para. 457). Moreover, as additionally famous elsewhere, the opinion provides the worldwide authorized group with materials on the relationship between treaty and customary worldwide regulation, lex specialis, state duty, points regarding maritime zones, and statehood, amongst different issues.

On this weblog put up, we zero in on the a part of the opinion that considerations statehood. Particularly, we analyze the ICJ’s restatement of the presumption of state continuity, inspecting each what the Courtroom says and doesn’t say, and what the implications could possibly be. We additionally contemplate the person opinions that debate statehood and add some temporary reflections on the applicability of Article 1 of the Montevideo Conference on the Rights and Duties of States (Montevideo Conference) and on State extinction. Our evaluation is preliminary, and definitely a lot ink can be spilled on the ICJ’s remarks going ahead.

The ICJ’s Remarks on Statehood

Throughout the advisory proceedings, which featured a record-setting variety of members, thirty-three states and 7 worldwide organisations addressed in a technique or one other the subject of statehood. Many of those members articulated, in various methods, assist for the continuity as States below worldwide regulation of the small island nations which will turn out to be uninhabitable or be submerged  because of the impacts of local weather change, significantly sea degree rise. Even with completely different States citing statehood on this context, it was in no way clear, as instructed elsewhere, whether or not the ICJ would weigh in on the matter. The request made no point out of statehood, and the ICJ has typically been cautious in relation to this subject, as evidenced by the 2010 Kosovo Advisory Opinion. Seven direct references to statehood and three key paragraphs put these doubts to relaxation. The ICJ did touch upon the problem of statehood, as did 4 judges of their particular person opinions.

The ICJ’s advisory opinion explicitly talked about statehood in a number of locations. In paragraph 110, the ICJ recalled that many members within the proceedings famous considerations over sea degree rise, which causes coasts to recede and, thus, could impression the outer boundaries of maritime zones and even threaten the very existence of small island and low-lying coastal states. In paragraph 355, the ICJ referred once more to arguments within the proceedings ‘‘that present baselines, maritime entitlements, maritime delimitations and statehood ought to be preserved, however the bodily results of sea degree rise, together with coastal recession.”

The ICJ’s view of the presumption of state continuity and most essential a part of the opinion regarding statehood is about out in paragraph 363. The ICJ began by recalling the members’ statements that sea degree rise “poses a big risk to the territorial integrity and thus to the very statehood of small island States” and that “within the occasion of the entire lack of a State’s territory and the displacement of its inhabitants, a robust presumption of continued statehood ought to apply.” It then notably declared that “[i]n the view of the Courtroom, as soon as a State is established, the disappearance of considered one of its constituent parts wouldn’t essentially entail the lack of its statehood.” Though the opinion doesn’t title them, it’s troublesome to suppose that these constituent parts are something apart from these mirrored in Article 1 of the Montevideo Conference: inhabitants, territory, authorities, and capability to enter into worldwide relations.

Particular person Opinions

The Advisory Opinion is accompanied by twelve particular person opinions from the Courtroom’s judges. 4 judges – Vice-President Sebutinde, Decide Aurescu, Decide Bhandari, and Decide Tomka – addressed statehood of their particular person opinions. 

Vice-President Sebutinde (para. 8) and Decide Aurescu (paras. 20-21) each argued that the opinion might have been clearer or extra resolute in affirming the presumption of state continuity within the context of local weather change. In keeping with Decide Aurescu (paras. 21-22), it will have been essential so as to add that the lack of constituent parts of statehood not solely doesn’t have an effect on present statehood, but in addition doesn’t and can’t have an effect on membership in worldwide organisations, together with the United Nations (UN). Decide Aurescu additionally said that the ICJ ought to have included as a authorized foundation for presumption within the context of local weather change the precept of authorized stability, safety, certainty, and predictability (paras. 4, 23). Lastly, it was opined by Decide Aurescu (para. 24) and alluded to by Decide Bhandari (para. 7) that the opinion might or ought to have acknowledged continued recognition of statehood as a type of restitution below the regulation of state duty for these small island States which will lose their efficient statehood. 

Probably the most detailed remedy of statehood is within the declaration of Decide Tomka. Decide Tomka centered significantly on the anomaly of the opinion’s half on the presumption of state continuity and the dearth of a customary authorized foundation for the ICJ’s doable affirmation of the presumption of state continuity within the context of local weather change. 

Did the ICJ Endorse State Continuity within the Context of Local weather Change?

There are two methods to learn paragraph 363. On the one hand, the ICJ might be seen as merely restating a traditional place that statehood isn’t a authorized standing that’s simply affected (e.g., right here). Alternatively, it may be learn as affirming the presumption of state continuity within the context of local weather change, wherein case the implications are profound: it will contain the ICJ accepting that statehood as a authorized standing can exist even with out the constituent parts of statehood, primarily inhabitants and territory. The variations between the 2 eventualities are important. 

Beginning with the primary interpretation, there’s nothing significantly  outstanding in regards to the ICJ declaring  that “as soon as a State is established, the disappearance of considered one of its constituent parts wouldn’t essentially entail the lack of its statehood.” Worldwide regulation isn’t unfamiliar with conditions the place States misplaced compliance with the constituent standards of statehood, e.g., on account of army occupation or authorities failure (“failed States”), with out this affecting their standing as States (e.g., right here). It’s, in any case, this follow that has knowledgeable and substantiates the presumption of State continuity in worldwide regulation. In keeping with this interpretation, paragraph 363 of the opinion holds little significance past entailing the ICJ’s assist or affirmation of this presumption, with no important implications able to being drawn from it.

Beneath the second interpretation of paragraph 363, the ICJ’s restatement of the presumption of State continuity isn’t just a basic comment, however it’s thought-about and framed towards the backdrop of local weather change (separate opinion of Decide Aurescu, separate opinion of Decide Bhandari, declaration of Decide Tomka, para 2).  There are two principal arguments favouring this studying. First, not solely is the declaration issued in an advisory opinion on local weather change, nevertheless it comes after the ICJ recollects the existential threats of sea degree rise and participant statements backing the presumption for the States which may be impacted. Second, the ICJ didn’t say that the presumption applies solely when there’s a change within the constituent parts of statehood, but in addition when these parts disappear fully.  In keeping with Decide Tomka (para. 2), there isn’t any doubt that right here the ICJ “has in thoughts the disappearance of the territory of a State in case it turns into utterly submerged because of sea-level rise.” 

However, nevertheless, the ICJ was extraordinarily cautious and didn’t, within the sentence in query, embrace any references to sea degree rise or local weather change extra broadly. It’s doubtless that this was a deliberate choice; have been the ICJ as a complete snug and legally satisfied that this presumption extends to the state of affairs of statehood in relation to local weather change, the opinion would have clearly said this. The person opinions stating that the opinion might have been firmer in affirming a presumption of State continuity within the context of local weather change lend assist to what the ICJ deliberately ignored (see significantly the separate opinion of Vice-President Sebutinde). Typically refraining from saying one thing might be as highly effective – and revealing – as stating it, particularly in authorized writing.

Additional Reflections

If one is able to settle for that the ICJ prolonged the presumption of continuity to the context of local weather change (e.g., right here), the query then turns into whether or not that is supported by state follow, both previous or current (see significantly the declaration of Decide Tomka). 

It isn’t apparent {that a} presumption of State continuity in relation to local weather change, and thus the ICJ’s view, might be based mostly on previous State continuity follow. As mentioned by Decide Tomka (para. 5) and in addition some States in different fora (e.g., right here), worldwide follow surrounding the presumption of State continuity is in conditions distinct from that of local weather change (see extra on the restricted worth of previous follow in Corneo and Scherer’s forthcoming evaluation on this symposium). It has been linked to non permanent conditions of lack of constituent parts, e.g., of efficient authorities (Decide Tomka, para. 5) or different conditions associated to adjustments within the measurement of territory and inhabitants (e.g., right here). Even when plenty of States favouring State continuity have referred to this previous worldwide follow, local weather change could current challenges to statehood which are rather more far reaching and lasting (e.g., right here). The weather of inhabitants and territory could also be gone fully. This might, after all, compromise the weather of presidency and capability to enter into worldwide relations. It follows that it isn’t clear and sure that the presumption of State continuity, as developed by means of worldwide follow, furnishes a sound authorized floor for presumption in relation to local weather change.  

True, as additionally expressed by Decide Tomka (para. 6), lately an rising variety of States have superior the place in each bilateral and multilateral settings that local weather change shouldn’t have an effect on the present worldwide authorized character of small island states which may be impacted. However a widespread and consolidated physique of State follow remains to be to develop. A lot of the proof concerning State follow is contained within the experiences of the Co-Chairs of the Worldwide Regulation Fee (ILC) Examine Group on sea degree rise in relation to worldwide regulation (right here, right here and right here). Importantly, neither of those experiences posits that State follow, accompanied by opinio juris, has developed to increase the presumption of state continuity to the context of local weather change. It’s related to notice that the opinion doesn’t have interaction with latest State follow on this matter, nor does the ICJ present any systematic empirical examination of it. All that’s talked about is the view of “a number of members” within the proceedings that sea degree rise “poses a big risk … to the very statehood of small island States” and that “within the occasion of the entire lack of a State’s territory and the displacement of its inhabitants, a robust presumption in favour of continued statehood ought to apply” (para. 363).

Some States have additionally linked their assist for persevering with statehood within the context of local weather change with the fitting of self-determination,  respect for territorial integrity, the State’s basic proper of survival, everlasting sovereignty over pure assets, and so forth (e.g., written feedback of Kiribati, oral assertion of Tonga, oral assertion of Tuvalu, and oral assertion of El Salvador; see additionally Decide Tomka, para. 7). Whereas the ICJ did point out territorial integrity, everlasting sovereignty over pure assets, and self-determination, this was finished within the context of the threats that sea degree rise presents to those authorized norms (paras. 357 and 363). The opinion didn’t cope with the authorized arguments that join these authorized norms with the presumption of State continuity, if or how they work together with each other, after which what content material or scope the norms have. Decide Tomka devoted some consideration to those arguments in his separate declaration. For him, the important problem in making use of these authorized norms to State continuity is that they “are closely tied to territory” and presuppose the existence of territory or the State as a territorial unit, suggesting that they don’t apply to a state of affairs wherein territory has been submerged on account of rising sea ranges (paras. 7-8).

Lastly, if one is to simply accept the interpretation that paragraph 363 implies an acceptance of State continuity within the context of rising sea ranges, the ICJ’s restatement of the presumption of State continuity additionally bears on the applicability of Article 1 of the Montevideo Conference and the contours of State extinction. The complete submergence of States on account of rising sea ranges implies not merely the lack of one of the constituent parts listed in Article 1 however quite all of them.  With out territory, the inhabitants is more likely to disperse, there’s little left to control, and the capability to have interaction in worldwide relations can be severely constrained. Thus, if paragraph 363 is to be understood as endorsing State continuity within the context of local weather change, Article 1 of the Montevideo Conference turns into largely irrelevant in relation to sustaining statehood, and a State wouldn’t essentially be extinguished by the disappearance of all the primary parts of statehood.

Conclusion

Paragraph 363 of the ICJ’s advisory opinion might have important implications – or very restricted ones – relying on how it’s understood. If one have been to search for a silver lining, it’s that a minimum of the ICJ didn’t assert that the presumption of state continuity couldn’t apply within the context of local weather change, and that’s nonetheless significant in itself. On the identical time, the anomaly within the dialogue of statehood and state continuity is unhelpful for the small island nations which are at best danger from local weather change however have contributed subsequent to nothing to it and the worldwide group extra broadly. The ICJ should have addressed this significant matter with larger care, articulating a clearer stance and offering extra rigorous authorized evaluation and relying extra substantively on State follow.