Climate-change–induced sea-level rise threatens the very existence of Small Island Developing States. Not only will this crisis create extreme climate conditions that can physically devastate these states, it also threatens their place in the international legal system. For a country to gain or maintain access to the international legal system, it needs to be classified as a “state.” The common understanding is that a state needs to have territory, a population, a government, and independence. For low-lying coastal states, sea-level rise threatens the first two criteria directly and the second two indirectly. This Note explores whether these states can transition their governance system to online and digital platforms and thereby retain their status as states. In doing so, this Note draws on Estonia’s development of the “e-state” that has proven that such a digital governance system can exist practically and politically. With the advent of e-identification, e-governance, and e-banking, among other innovations, this Note argues that the “e-statehood” fulfills enough of the holistic goals of territorial statehood to survive in the international legal system.

This Note is the first to explore the legal justifications and ramifications of a digital state, especially when the state no longer fulfills the traditional criteria of statehood. Ultimately this Note hopes to suggest a path forward that respects and maintains the autonomy of these small island states.

The full text of this Note can be found by clicking the PDF link to the left.

“Every night, families across my country go to sleep praying that the ocean will be forgiving.”
— Lauza Ali, Counsellor of the Permanent Mission of the Republic of Maldives to the United Nations. 1 H.R. Journal, 12th Sess., at 93 (Ala. 1831).


At the 2021 United Nations Climate Change Conference, Tuvalu’s foreign minister, Simon Kofe, appeared before the world in a full suit and tie, knee-deep in water, and proclaimed, “We are sinking.” 2 Guardian News, ‘We Are Sinking’: Tuvalu Minister Gives COP26 Speech Standing in Water to Highlight Sea Level Rise, YouTube, at 00:42 (Nov. 9, 2021), https://www.youtube.com/watch?v=jBBsv0QyscE (on file with the Columbia Law Review ). His video speech—recorded on what once was dry land—was meant not only as a political statement but as a warning and a call to action. 3 See Josephine Joly, COP26: Why Has a Speech by Tuvalu’s Foreign
Minister Gone Viral?, Euronews (Nov. 9, 2021), https://www.euronews.com/green/2021/11/09/cop26-tuvalu-s-foreign-minister-urges-world-leaders-to-address-climate-change [https://perma.cc/K6F5-WPWF] (“[T]he message we are sending to the leaders is for them to look beyond their immediate interests . . . and recognise that we live in an interconnected world.” (internal quotation marks omitted) (quoting interview with Kofe)).
If the world does not combat climate change and rising sea levels, entire countries could be swallowed by the ocean. 4 Joe Phelan, What Countries and Cities Will Disappear Due to Rising Sea Levels?, Live Sci. (Mar. 27, 2022), https://www.livescience.com/what-places-disappear-rising-sea-levels [https://perma.cc/7YX9-BEDM]; see also Joly, supra note 3 (“Where I was standing and filming, . . . there’s that concrete base that was actually built by the Americans during World War Two. . . . [T]his base used to be on land and it’s now in the middle of the sea, about 20 or 30 metres from the land.” (internal quotation marks omitted) (quoting interview with Kofe)).

Unfortunately, science supports Kofe’s assertion. Irreversible damage from climate change has already occurred. 5 Susan Solomon, Gian-Kasper Plattner, Reto Knutti & Pierre Friedlingstein, Irreversible Climate Change Due to Carbon Dioxide Emissions, 106 Proc. Nat’l Acad. Scis. 1704, 1709 (2009) (“Irreversible climate changes due to carbon dioxide emissions have already taken place, and future carbon dioxide emissions would imply further irreversible effects on the planet, with attendant long legacies for choices made by contemporary society.”). Many scientists agree that if the world does not take action in the next six years to limit the increase of the mean global temperature to 1.5 degrees Celsius, large-scale damage to the environment, including the catastrophic rise of sea levels, will be inevitable. 6 See Climate Clock, https://climateclock.world/ [https://perma.cc/U6AD-GM43] (last visited Aug. 11, 2023) (reflecting the approximately six years remaining “to limit global warming to 1.5ºC”); What Is the Climate Clock?, Root the Future, https://rootthefuture.com/climate-clock/ [https://perma.cc/92JA-3L9A] (last visited Aug. 11, 2023) (noting that “a global temperature . . . increase [of] 1.5 degrees Celsius” marks “a dangerous ‘point of no return’ according to scientists”); see also Ove Hoegh-Guldberg et al., Impacts of 1.5ºC of Global Warming on Natural and Human Systems, in Intergovernmental Panel on Climate Change, Global Warming of 1.5ºC, at 175, 178 (Valérie Masson-Delmotte, Panmao Zhai, Hans-Otto Pörtner, Debra Roberts, Jim Skea & Priyadarshi R. Shukla eds., 2019), https://www.ipcc.ch/site/assets/uploads/sites/2/2022/06/SR15_Full_Report_LR.pdf [https://perma.cc/M9RH-Z5HA] (explaining that “[l]imiting global warming to 1.5ºC is expected to substantially reduce the probability of extreme drought, precipitation defects, and risks associated with water availability”). If the global emissions trend continues as it has, the global average temperature will surpass a 1.5-degree increase within the next five to ten years. 7 Peter Schlosser, After COP27, All Signs Point to World Blowing Past the 1.5 Degrees Global Warming Limit—Here’s What We Can Still Do About It, The Conversation (Nov. 22, 2022), https://theconversation.com/after-cop27-all-signs-point-to-world-blowing-past-the-1-5-degrees-global-warming-limit-heres-what-we-can-still-do-about-it-195080 [https://perma.cc/CSR9-XMS4]. In that scenario, sea-level rise will cause an uptick in natural disasters, a depletion of vital resources, and ultimately the loss of all habitable land in the most vulnerable countries. 8 Mary-Elena Carr, Madeleine Rubenstein, Alice Graff & Diego Villarreal, Sea Level Rise in a Changing Climate: What Do We Know?, in Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate 15, 54 (Michael B. Gerrard & Gregory E. Wannier eds., 2013). Whole populations will be forced to migrate, 9 Michael Oppenheimer et al., Sea Level Rise and Implications for Low-Lying Islands, Coasts and Communities (Ayako Abe-Ouchi, Kapil Gupta & Joy Pereira eds.), in Intergovernmental Panel on Climate Change, The Ocean and Cryosphere in a Changing Climate 321, 321–445 (Hans-Otto Pörtner, Debra C. Roberts, Valérie Masson-Delmotte & Panmao Zhai eds., 2022), https://www.ipcc.ch/site/assets/uploads/sites/3/2022/03/SROCC_FullReport_FINAL.pdf [https://perma.cc/4Q34-7ZMU] [hereinafter IPCC, Ocean and Cryosphere]; see also Patrícia Galvão Teles & Juan José Ruda Santolaria (Co-Chairs of the Study Grp. on Sea-Level Rise in Rel. to Int’l L.), Sea-Level Rise in Relation to International Law, para. 47(d), Int’l L. Comm’n, U.N. Doc. A/CN.4/752 (Apr. 19, 2022) (citing Nerilie Abram et al., Summary for Policymakers, in IPCC, Ocean and Cryosphere, supra, at 3, 3–35) (summarizing the findings of the Intergovernmental Panel on Climate Change). as the residents of Papua New Guinea and other island nations have already experienced firsthand. 10 Sharon Brettkelly, Sea Level Rises Forcing Community to Relocate From Carteret Islands in Papua New Guinea, Pasifika Environews (Aug. 29, 2022), https://pasifika.news/2022/08/sea-level-rises-forcing-community-to-relocate-from-carteret-islands-in-papua-new-guinea/ [https://perma.cc/X8RM-86PC]; see also Tristan McConnell, The Maldives Is Being Swallowed by the Sea. Can It Adapt?, Nat’l Geographic ( Jan. 20, 2022), https://www.nationalgeographic.com/environment/
article/the-maldives-is-being-swallowed-by-the-sea-can-it-adapt (on file with the Columbia Law Review ) (“The difference between 1.5 degrees and 2 degrees (Celsius) is a death sentence for the Maldives.”); Joshua Mcdonald, Rising Sea Levels Threaten Marshall Islands’ Status as a Nation, World Bank Report Warns, The Guardian (Oct. 16, 2021), https://www.theguardian.com/world/2021/oct/17/rising-sea-levels-threaten-marshall-islands-status-as-a-nation-world-bank-report-warns [https://perma.cc/RK8U-BP37] (reporting that sea-level rise likely poses an existential threat to the Marshall Islands).

Beyond its physical dangers, sea-level rise will challenge the very existence of certain Small Island Developing States (SIDS) in the international legal system. Historically, entities could attain statehood only by having a territory and a permanent population. 11 See Galvão Teles & Ruda Santolaria, supra note 9, para. 75 (“While there is no generally accepted notion of ‘State’, the reference is usually the . . . criteria that a State has to meet to be considered a subject . . . of international law in accordance with . . . the 1933 Convention of the Rights and Duties of States: (a) permanent population; (b) defined territory . . . .”); Jane McAdam, Climate Change, Forced Migration, and International Law 119–60 (2020) (arguing that statehood might be jeopardized by a loss of population before a loss of territory, and exploring mechanisms of continuing the state). Statehood carries with it several important benefits that can support the well-being of the state’s population, including maritime entitlements under the United Nations Convention on the Law of the Sea (UNCLOS), access to international adjudication, and membership in international organizations like the United Nations (UN). 12 See Rosemary Rayfuse, International Law and Disappearing States––Maritime Zones and the Criteria for Statehood, 41 Env’t Pol’y & L. 281, 284–85 (2011). Beyond these practical challenges, Melissa Stewart argues that “sinking states serve as a metaphor for international law and the whole of humanity” and that a failure to adequately address this crisis threatens the survival of the international legal system as a whole. Melissa Stewart, Cascading Consequences of Sinking States, 59 Stan. J. Int’l L. (forthcoming 2023) (manuscript at 4), https://ssrn.com/abstract=4321214 [https://perma.cc/3SJF-4WPZ]. While there is a strong presumption against the extinction of states in international law, there is no clear law on whether the presumption of continuity applies to submerged states. 13 Sumudu Atapattu, Climate Change: Disappearing States, Migration, and Challenges for International Law, 4 Wash. J. Env’t L. & Pol’y 1, 18 (2014) (“International law does not envision a situation where states disappear altogether . . . .”). Several contemporary scholars have therefore argued that international law should begin to recognize states that lose the necessary criterion of territory as “deterritorialized states.” 14 Rayfuse, supra note 12, at 284–85. Likewise, they have explored options for how these nonterritorial states might operate in practice. 15 Id. at 286–87. All of these solutions, however, rely heavily on international cooperation, leaving the fate of at-risk SIDS in the hands of other countries. The goal of this Note, therefore, is to explore a modality of continued statehood that enhances the autonomy and flexibility for at-risk island nations.

At the 2022 UN Climate Change Conference, Tuvalu’s foreign minister, Simon Kofe, once more stood before the world to introduce the concept of Tuvalu’s digital twin. 16 Tory Shepherd, Could a Digital Twin of Tuvalu Preserve the Island Nation Before It’s Lost to the Collapsing Climate?, The Guardian (Sept. 29, 2022), https://www.theguardian.com/world/2022/sep/29/could-a-digital-twin-of-tuvalu-preserve-the-island-nation-before-its-lost-to-the-collapsing-climate (on file with the Columbia Law Review ). In a further effort to save the atoll nation, Tuvalu plans to rebuild itself in the Metaverse, preserving itself online for all time. 17 Lucy Craymer, Tuvalu Turns to the Metaverse as Rising Seas Threaten Existence, Reuters (Nov. 15, 2022), https://www.reuters.com/business/cop/tuvalu-turns-metaverse-rising-seas-threaten-existence-2022-11-15/ (on file with the Columbia Law Review ). While Tuvalu would be the first nation to use the Metaverse in this way, it will not be the first country to “digitize” itself into an “e-state.” Dubbing itself “e-Estonia,” the Northern European state provides most public goods and services online, including a digital ID system, digital banking, digital voting, e-residency for businesses, and digital governance. 18 Story, e-Estonia, https://e-estonia.com/story/ (on file with the Columbia Law Review ) [hereinafter e-Estonia, Story] (last visited Aug. 29, 2023). Tuvalu also has announced its Future Now Project, which seeks similar ends as the Estonian e-state. See Future Now Project, Dep’t of Foreign Affs., Gov’t of Tuvalu, https://dfa.gov.tv/index.php/future-now-project/ [https://perma.cc/TZ97-8JMH] (last visited Aug. 29, 2023) (detailing one of its goals as “[c]onducting digitization activities on appropriate platforms to create a digital Government administrative system” so that if “mass migration becomes necessary, digitized Government services would ensure that Tuvalu could ostensibly shift to another location and continue to fully function as a sovereign nation”). One reason for this reform was to ensure Estonia’s survival: If an expansionist state occupied Estonian territory and displaced its government, Estonia could continue to operate unimpeded through its digital platforms. 19 Nikolai F. Rice, Estonia’s Digital Embassies and the Concept of Sovereignty, Geo. Sec. Stud. Rev. (Oct. 10, 2019), https://georgetownsecuritystudiesreview.org/2019/10/10/estonias-digital-embassies-and-the-concept-of-sovereignty/ [https://perma.cc/C74X-AF6X]. Where it is all but certain that the peoples of sinking states will be displaced from their territories, adoption of “e-statehood” similar to Estonia’s might strengthen states’ ability to preserve their international legal personality.

While the impacts of sea-level rise on the continuity of at-risk SIDS have been previously explored at length, this Note is the first to argue that e-statehood should be recognized as a form of deterritorialized statehood that is strong enough to carry forward the presumption of continuity. In doing so, this Note uses the conceptual innovation of an e-state from Estonia as a framework and advocates that SIDS adopt versions of e-statehood that meet their particular needs. Part I of this Note provides a background on the physical threats sea-level rise poses to SIDS as well as a background on the international law of statehood and continuity. It details several modalities that have been proposed as forms of continued statehood. Part II explains the dangers associated with the loss of statehood in international law, specifically as it relates to the preservation of maritime entitlements, diplomatic protection, other treaty-based protections, and participation in international organizations. This Part further explores why the presumption of continuity might not apply to the case of SIDS. Finally, Part III argues that e-states could provide SIDS a viable pathway toward transitioning into deterritorialized statehood, be developed unilaterally, and create greater legitimacy in the international arena than other options for continued statehood.