'Three Reconstructions of ‘Effectiveness’: Some Implications for State Continuity and Sea-level Rise' by
Alex Green in
Oxford Journal of Legal Studies comments
Small Island Developing States (SIDS) are uniquely threatened by rising sea levels. Not only does the retreat of their coastlines place them in danger of losing maritime territory; the concurrent possibility of their landmasses becoming either uninhabitable or completely submerged also threatens their very existence. According to one understanding of the law that governs the continuity and extinction of states, political communities that permanently lose ‘effectiveness’—typically understood as sufficient governmental control of a relatively determinate territory with a permanent population—must lose their statehood as well. In this article, I provide three reconstructions of effectiveness, each of which rests upon a different normative rationale. My contention is that, regardless of which reconstruction one adopts, the continuity of submerged SIDS is eminently supportable, notwithstanding the arguments frequently made in favour of their formal extinction.
The existence of states under international law turns on a range of connected factors, including a strong presumption in favour of continuity once legal statehood is established. When it comes to state creation, relevant factors include the presence of foreign recognition, the delimiting influence of treaties making territorial concessions, the express or implied consent of any ‘parent’ states, demonstrable commitments to democratic principles and human rights norms, and the provision of suitably constituted independence referendums at the point of emergence. It is arguable that some of these factors, particularly that of foreign recognition, also govern the existence of states beyond the point of their creation.
Whatever the case, one concept almost always discussed whenever statehood is in question is that of ‘effectiveness’. Traditionally conceived, effectiveness concerns whether a given physical space and human population are subject to factual control by the governance institutions that partly constitute the state in question. It is often considered necessary for the creation of states, in addition to being an independent basis upon which territorial title can be grounded. This article partly concerns the nature of effectiveness in general. However, my primary focus is upon the role that it plays within the law of state continuity, which governs the conditions under which states persist through time. The antithesis of continuity is extinction, which usually occurs due to some disruptive event, such as destruction by a foreign power or voluntary dissolution. States are continuous to the extent that their existence under international law is not disrupted by events of this kind. State continuity is sometimes linked with the neighbouring question of state identity, which concerns whether (and why) a state at time T1 is the same entity as the one identified with it at time T2. These topics can nonetheless be treated separately, which is what I propose to do here.
My analysis of effectiveness is partly theoretical, turning upon three distinct accounts of that concept and what each has to say about state continuity. However, my motivation is practical, stemming from the existential threats currently faced by Small Island Developing States (SIDS) in light of human-caused sea-level rise. I aim to show that even though the three ‘reconstructions’ of effectiveness I advance have different normative foundations, each one supports the existential resilience of SIDS notwithstanding the danger of sea-level rise. That danger might be crudely described as ‘loss of effectiveness’. Under austere accounts of the effectiveness principle, no entity without inhabitable land and a permanent population living upon that land can maintain statehood, particularly not if the loss of these factual prerequisites is permanent. I elaborate upon this ‘austere view’ below, arguing that each reconstruction of effectiveness I examine requires it to be rejected.
All three accounts of effectiveness I advance are derived via the ‘rational reconstruction’ of international law. This hermeneutic method, sometimes called ‘creative’ or ‘constructive’ interpretation, seeks to induce from the social facts of international legal practice the set(s) of general evaluative commitments underpinning that practice. ‘Practice’, in the relevant sense, encompasses not only the state practice and opinio juris necessary for the formation of customary international law, but also the text and context of relevant treaties, the judgments of international courts and tribunals, and other international legal instruments with probative value on de lege lata. What distinguishes rational reconstruction from purely doctrinal legal interpretation is that it also relies upon ‘critically normative’ or ‘moral’ considerations to explicate the justificatory basis of the legal positions being examined. It takes social practices like international law seriously as sources of genuine practical reasons, and elucidates those reasons to yield prescriptive implications specific to these practices. Rational reconstruction, to that extent, exemplifies the ‘Grotian tradition’ of international law, as articulated by those such as Lauterpacht, and can be understood largely in those terms. The value of examining effectiveness in this way lies not only in the radical potential of rational reconstruction to generate progressive legal arguments, but also in its capacity to draw out the most foundational commitments of the international legal order. By asking why effectiveness matters in normative terms, we get a clearer picture of how it should be understood and applied in response to unprecedented legal challenges such as those of sea-level rise and the global climate crisis.
To provide context, section 2 introduces the most commonly accepted elements of effectiveness and connects them to other aspects of the law governing state continuity. After this, three discrete reconstructions of effectiveness are advanced, each corresponding to a different conception of why effectiveness matters normatively. The first emphasises the value of stability within international relations (‘effectiveness as stability’, section 3). The second focuses upon the function of governments as fiduciaries for their people, emphasising the connection between effectiveness and the protection of human rights (‘the fiduciary model’, section 4). The third stresses the importance of states as the primary communities within which intrinsically valuable political action occurs (‘statehood as political community’, section 5). Sections 3–5 are each divided into two halves: a normative reconstruction of effectiveness, followed by an application of that analysis to state continuity and sea-level rise. I conclude by reviewing the contribution of all three reconstructions. To the extent that each has featured within legal scholarship before, all three are typically presented as incompatible competing reconstructions. I engage with them here on a different basis: as distinct but compatible conceptions of effectiveness, each of which reinforces the existential resilience of SIDS under contemporary international law.
