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Statehood in Times of Climate Change

Impacts of Sea Level Rise on the Concept of States

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Frederick von Paepcke

Climate change is a most complex, global challenge for the international community and for international law. The tremendous negotiation efforts in the last decades did not result in effective mitigation measures, leading to a rising need for adaptation. Amidst a myriad of challenges, some small island states face an existential threat of losing their state territory due to sea level rise, a situation without precedence. What happens to their statehood when they lose a constituent criterion of a state? This thesis argues for a claim to a new state territory. Due to the existence of such a claim, island states continue to exist even when their territory is inundated, as the lack of a territory is not necessarily permanent.
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cc. Unjust Enrichment

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Jacobs examines a potential claim of Tuvalu against the United States, however not regarding a total land loss, but compensation for ‘normal’ damage resulting ← 146 | 147 → from changed climate.1101 She considers a state’s sovereign right over its own natural resources (being a section of sovereign equality) as one of the two general principles of customary international environmental law Tuvalu could assert for the purpose of suing polluting states.1102 The only obstacle she identifies for Tuvalu in this context is (different from the opinion held in this thesis1103) the proof of causation.1104

Kehrer, examining a possible right to exist, initially argues in favour of the existence of such a right based on sovereign equality1105, but does not describe it as “primary norm” – a finding that leads to no responsibility of emitting states and no compensation for inundated states.1106 This argumentation is inconsistent, especially with regard to the crucial interest of states to further exist. Despite not being a primary norm, this approach still can argue in one way or another and thereby give guidance as interpretational aid.

More extensive comments were made on the principle of sovereign equality in the light of states’ contradicting interests and rights and state responsibility.1107 The principle of sovereign equality is being considered in the context of the no harm rule with the following result: International law understood as right to co-exist incorporates sovereign equality (and territorial integrity), a principle which aims at the protection of each state against any adverse effects...

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