Sinking nations in a legal limbo

Few images capture the cruelty of climate change more starkly than the plight of the world’s small island nations. From Tuvalu and Kiribati in the Pacific to the Maldives in the Indian Ocean and the Marshall Islands in Micronesia, these fragile states sit quite literally on the frontline of rising seas and stronger storms. Their very survival is at stake—not in the distant future but within the lifetime of their current generations.

The threats are multiple and compounding. Saltwater intrusion into freshwater reserves makes drinking water scarce. Stronger tropical cyclones batter homes, schools and hospitals with increasing frequency. Infrastructure that took decades to build is washed away in a matter of hours. Above all, the inexorable rise of the ocean gnaws away at coastlines, undermines agriculture and renders land uninhabitable. The science is clear: even if global warming is limited to 1.5°C, some of these islands may become unliveable. Should the world fail to meet that target, the very existence of nations will be called into question.

More than a loss of land

What does it mean for a state to disappear? For Tuvalu or Kiribati, it is not only a matter of losing homes or sources of livelihood. The loss cuts deeper—it erodes centuries of heritage, language, spiritual ties to land and sea, and the continuity of communities. A disappearing island is not just geography vanishing; it is culture and identity under siege.

There are also stark geopolitical consequences. The disappearance of physical territory could strip these nations of their seats at the United Nations and regional bodies. It could deprive them of sovereign rights over vast Exclusive Economic Zones (EEZs), which extend hundreds of miles into resource-rich seas. Oil, gas, fisheries and seabed minerals—all of these could slip into the hands of larger neighbours if island sovereignty is extinguished. For small states already facing existential threats, such a loss would amount to a second dispossession.

Early experiments in survival

It is little surprise that small islands are scrambling to protect their future. Tuvalu, recognising the inevitability of rising waters, has signed a treaty with Australia to guarantee continued recognition of its sovereignty irrespective of climate impacts. Australia has also pledged to provide resettlement opportunities for Tuvaluans forced to migrate. In parallel, Tuvalu is undertaking a radical project: digitising itself. Government services, land registries, cultural archives and even geographical models of the islands are being recreated online in what Tuvalu calls the world’s first “digital nation”. The hope is that even if its land sinks, Tuvalu will persist as a legal entity and as a people with a recognised voice.

The Maldives is trying a different path, experimenting with engineering fixes. Artificial elevation projects aim to raise island heights to withstand sea-level rise, though these are costly and technically limited. Meanwhile, initiatives like the “Rising Nations Initiative” seek to mobilise international recognition and guarantees for island sovereignty in the face of climate threats.

The legal conundrum

But will such efforts succeed in the eyes of international law? Traditionally, statehood requires four pillars: a defined population, a defined territory, an effective government and the ability to conduct international relations. If seas cover an island, the population may scatter, the territory may vanish and the government may be rendered inoperative. On the face of it, the legal basis for statehood crumbles.

Yet international law is not always so rigid. The world continues to treat so-called “failed states” such as Somalia or Yemen as sovereign entities despite their lack of effective governments. Once statehood is established, it is rarely revoked. The International Court of Justice (ICJ), in its recent advisory opinion on climate change obligations, gestured towards this flexibility. It noted, albeit cryptically, that “once a state is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood.”

Some judges interpreted this as extending statehood even to submerged nations, offering hope to vulnerable islands. Others cautioned that the ruling was far from definitive. The ICJ’s phrasing—“not necessarily”—was deliberately ambiguous, leaving the matter unresolved. For small islands desperate for legal certainty, the opinion was a disappointment.

Between law and politics

Ultimately, the fate of disappearing states will be determined as much by politics as by law. International recognition is, in practice, a political choice by other nations. If major powers agree to continue recognising Tuvalu, Kiribati or the Maldives as sovereign even in exile, then international law is likely to evolve accordingly. If they do not, these nations risk becoming “stateless states”—a contradiction that leaves their people doubly vulnerable.

That political choice will test the conscience of the international community. Do we accept that entire peoples can be erased from the map through no fault of their own? Or do we adapt the legal order to preserve their dignity, culture and sovereignty? The answer will reveal much about the moral resilience of the multilateral system.

India’s stake in the issue

For India, these questions are not distant abstractions. As a nation with its own vulnerable coastline and island territories such as the Andaman and Nicobar Islands and Lakshadweep, the country faces similar risks. Rising seas threaten fishing communities, ports, and low-lying deltas from Bengal to Kerala. India also has historical and cultural ties with Indian Ocean neighbours like the Maldives, and strategic stakes in Pacific forums where these debates are unfolding.

New Delhi therefore, has reason to champion a generous interpretation of statehood. Supporting the sovereignty of small islands under climate duress is consistent with India’s claims for climate justice—that those least responsible for emissions must not pay the highest price. It also strengthens India’s credibility as a leader of the Global South.

The crisis of sinking islands forces us to confront a radical possibility: that in the Anthropocene, states may die not from war or conquest but from climate collapse. The international community has a narrow window to prevent such tragedies through deep emission cuts, accelerated adaptation and financial solidarity. But even as we race against time, we must also craft legal and political protections to ensure that disappearing land does not mean disappearing peoples.

Tuvalu’s experiment in becoming a “digital nation” may seem surreal, even dystopian. Yet it is a poignant symbol of human ingenuity in the face of abandonment. The ICJ’s cautious flexibility suggests that law can adapt. What remains is for the world’s governments to show similar courage. 

History will not judge humanity kindly if the first nations to vanish beneath the seas do so alone, unheard and unrecognised. Statehood is not just about territory; it is about people, memory and the right to be. To deny that right to island nations imperilled by climate change would be to compound an environmental catastrophe with a moral one. (The Conversation)