Statehood Without Territory Is Legal Fiction -By Fransiscus Nanga Roka

International consensus on the “continuity of statehood” for sinking island nations: A humanitarian SNAGWAD In fact, it is a doctrinal breakon, e that shows how elastic international law may be bent to bury politics.

This is related to a silent yet ground breaking break with the Montevideo Convention. Four factors forming statehood are permanent population; defined territory; government and capacity to enter into relations with other states, this has been the case for almost a hundred years. Remove the land and it all collapses.

But today the UN, confronted by AOSIS, the Alliance of Small Island States is breaching that equation. Countries like Tuvalu, Kiribati and the Maldives, could be able to Maintain full legal Personality even after they have all but vanished under the rising oceans. Maritimemodel boundaries willbe frozen (IN8091) [previously calculated using theparticular coastlines under UNCLOS]. Sovereignty will persist without soil.

This is not interpretation. It is reinvention.

It is a rational and profoundly unnerving exercise from a Kelsenian perspective. Hans Kelsen’s pure theory of law separates the state from its sociological reality by defining it not as a physical entity but as a normative order. In that understanding, only the existence of legal norms accepted by the international community is important; territory is irrelevant in itself.

The emerging consensus of the UN seems to be a logic which embraces this very idea: A state continues to exist as an entity because it is said so by the legal order.

But Kelsen’s abstraction was never supposed to work as a political escape hatch. Law, if becomes entirely divorced from material reality, threatens to turn into fantasy. No territory, ruling a fragmented society, holding title over underwater spaces—this is a not so much nation as a legal fiction maintained by consensus.

And collective agreement is fragile.

While freezing maritime zones may protect economic rights on paper, it also invites future conflict. Just because a submerged state holds legal title does not mean that ocean resources, fisheries, seabed minerals, strategic routes will remain unchallenged. Every arrangements may be disputed by neighboring powers subjected to their own pressure. In such cases, law obeys power in preference to principle.

Soon to be the recipient of an advisory opinion that reinforces these norms, The International Court of Justice. However, advisory opinions do not compel compliance. They talk about law; they do not enforce it. Without political will, the sustainability of statehood is going to be reduced to some aspirational principle­—sophisticated, modern and useless.

Even more concerning is the moral hazard built into this legal innovation.

The international community can pretend success is just around the corner while keeping statehood on paper in purely abstract terms. It can be used to preserve a legal frontier identity, whilst it suffocates physically. The doctrine substitutes for action, managing climate change instead of mitigating it.

In this the persistence of statehood is less a triumph for law than an surrender.

It provides unable island nations something essential: respect, acknowledgment and the probable to evade statelessness. However, let us be clear what it does not provide. It does not stop the sea. It does not save habitable land. It does not sort out what will happen to people who were displaced.

Montevideo’s territorial state is dissolving. The normative state of Kelsen is coming into its own. But in that transition international law shows its greatest strength, which is also its deepest flaw: it often adapts, but it only matters because people believe that it does.

The law may say a state exists, and thus the state lives forever.

However, having sovereignty but no territory is not resilience.

It is denial.

Faculty of Law University 17 August 1945 Surabaya and Managing Partner Law Firm Victorious Indonesia