On the Continuity of Submerged Island States

An island State whose territory has become submerged has thereby, according to an austere view, become extinguished. This may well lead to its people becoming stateless. To refute the austere view and thus to avoid this result requires to argue for the submerged State’s continuity. An ILC Study Group has developed a number of possible arguments therefor. The most persuasive of them is the “Maintenance of international legal personality without a territory”. However, the reasoning the Group has provided is rather elliptic. An intriguing approach to buttressing its argument is to look for a legal theory which defines the State with reference not to its territory but rather to its law and its population. Such a theory has been developed by Felix Somló. Once adapted to a situation in which the government and (parts of) the population of a submerged State function and live on the territory, and with the consent, of a host State, it allows to consider the entity constituted in this way as a peripheral case of the “State”. While international law is free to recognise such an entity as a State, it ought to do so for a number of reasons, first among them the normative one to shield the submerged State’s people from statelessness.