The Nation Ex-Situ

Abstract

It is plausible that by the close of this century the impacts of climate change will render certain States in the Pacific and Indian Oceans uninhabitable. The geopolitical consequences – not to mention the devastation to the nations and peoples at issue – will be great and unprecedented. These consequences will be significant despite the relatively small number of individuals affected. This loss of land may create a conundrum for international law, which is only equipped to deal with neater circumstances of stateless individuals or expiring States. Optimally, there would be sufficient political will and commitment at the international level to reduce emissions aggressively and work toward the continued habitability of all, although as Professor Carr addresses in Chapter 2, sea levels will rise regardless. Absent any indication of such swift action and given scientific eventualities, international law should now find a suitable resolution for the nation-states that will lack a territory. In response to this phenomenon, I argue that international law can accommodate a new category of international actors: the Nation Ex-Situ.

Ex-situ nationhood would be a status that allows for the continued existence of a sovereign State, which would be afforded all the rights and benefits of sovereignty among the family of nation-states, in perpetuity. It would protect the peoples forced from their original place of being by serving as a political entity that remains constant even as its citizens establish residence in other States. It is a means of preserving the existing State and holding the resources and well-being of its citizens – in new and disparate locations – in the care of an entity acting in the best interest of its people.

In practice, this new category would require the creation of a government framework that could exercise authority over a diffuse people. Other scholars have suggested a resurrection of the political trusteeship system as a means of administering the duties of a deterritorialized government. Here, I elaborate on those proposals and recommend a possible hybrid structure that provides a permanent space for long-distance, and perhaps collaborative, governance of Nations Ex-Situ.

In this chapter, therefore, I seek to complete two quite different but intimately related tasks. First, I demonstrate that the recognition of a Nation Ex-Situ is a novel but justified interpretation of the State, one that international law could tolerate and incorporate into its existing definitions. To the extent that critics deem this an impossible departure from existing norms, I argue that the exigencies of the soon-to-be-landless favor new and creative ways for States to exist in the international community. Second, I demonstrate that a modified political trusteeship system is a viable model for effective participation in the international community, given the scenarios that those displaced by climate change face. A key element of this arrangement would be the continued self-governance of those nations by trustees who are elected by their peers and who act for the benefit of the ex-situ nation. (This role would not be a reprise of their – in some cases – prior trustee relationships.) I then detail integral elements of this arrangement as applied to the peculiar circumstances of endangered States.

Keywords: international law, climate change, climate justice, deterritorialization, climate refugee

JEL Classification: K32, K33, K39, K49