Tides of climate change: Protecting the natural wealth rights of disappearing states

Worldwide, there are approximately sixty states for which sea level rise is an existential threat. Described as the “sinking island states,” these low-lying ocean nations are battling with challenges that no other state has ever experienced. From a legal perspective, for the first time in human history, law must address the legal consequences of state extinction. One aspect of this new phenomenon is the question of what is to happen to the natural resource rights of a state that no longer exists. Much of the discussion surrounding this question is taking place in the abstract, such that scholars assume that complete loss of territory entails loss of statehood and therefore loss of rights to natural wealth. In this Article, I argue that we cannot assume what needs to be proven. To determine the impact of any legal event on legal rights, one must answer a series of questions pertaining to the nature of the rights, the character of the holder of the rights, the legal relationship that established the rights, and the circumstances that led to the legal event. When applied to the “sinking island states,” this analytical framework produces very different results than the ones thus far contemplated. The framework I suggest in this Article, therefore, not only is analytically accurate, but also avoids the unjust outcomes prescribed by contemporary legal discussions about the fate of these disappearing states.