Tuvalu, initially populated by Polynesian migrants, fell under the British Protectorate in 1877. It gained independence from Britain in 1978 and voted to become a constitutional monarchy, owing its allegiance to the British Monarch. However, presently the country is facing a dire survival crisis and has been classified as “extremely vulnerable” since its 2012 vulnerability profile. Its exposure to climate change has led to rising sea levels and sand erosion. The issues range from loss of fishing and agricultural occupations to potential loss of territory, population and consequently its government and sovereignty. As a measure, the government of Tuvalu has decided to become the world’s first “Digital Nation” in view of the loss of its physical territory.

The 1986 Constitution of Tuvalu (hereafter referred to as “the Constitution”) defined it as a “sovereign democratic state.” However, Article 2 of the 2023 Constitution (hereafter referred to as “the updated Constitution”) explicitly states “The State of Tuvalu within its historical, cultural, and legal framework shall remain in perpetuity in the future, notwithstanding the impacts of climate change or other causes resulting in loss to the physical territory of Tuvalu.” This makes Tuvalu the first country to Constitutionally exempt ‘territory’ as an element of statehood thus liberating it from satisfying the criteria of statehood as per Montevideo comprising a permanent population, a defined territory, government and the capacity to enter into relations with the other states. This article analyses how the lack of the Montevideo Convention pre-requisites of statehood impact Tuvalu and whether upon becoming a “digital nation”, it would still satisfy such requisites.

Elements of Statehood and Recognition

The declaratory theory of Statehood contests that the elements of the Montevideo Convention must be reflected in a ‘State’ for it to attain that title, while the constitutive theory believes that such Statehood is a “political consideration” where recognition by other States is primary and this in turn is based on satisfying the four elements of the Convention as such. This renders the constitutive theory in stark contradiction to Article 3 of the Convention which states that “the political existence of the state is independent of recognition by the other states”. States like Israel have historically struggled to satisfy the criterion of defined territory but are still termed ‘States.’ Further, the criterion for a permanent population in case of the Vatican City and a stable government in states like Syria and Afghanistan has reflected on the contemporary relegation of the Montevideo Convention. However, in international law, Statehood has been subjected to territory, population and government as far back as 1875, by the likes of Bluntschli who places the ‘personal basis’ of a State in the people and the ‘material basis’ in the land. The Permanent Court of Arbitration authored various advisory opinions rooting statehood in customary international laws as well as general principles. In a case dealing with the Situation in the State of Palestine, the International Criminal Court reaffirmed the elements of Montevideo and coupled them with a right to self-determination. This is what Tuvalu has reified through Article 2 of the updated Constitution wherein Tuvalu has unequivocally declared the its continuous legal existence even in absence of physical territory due to climate change.

What contemporarily perturbs States is the issue of recognition wherein although the Convention itself exempts the “political existence” of a state from being dependent on any “recognition by other states” as per Article 3, global dynamics such as standing in the United Nations, availing a locus standi before International Court of Justice (“ICJ”), reciprocity in international security matters as well as maintaining commercial, cultural and diplomatic relations inevitably make it subservient to such validation. Whether foregoing “territory”, which would eventually impact the existence of other elements of Montevideo Convention remains to be put into perspective by evolving international customary law. How such externalities affect Tuvalu’s standing, in addition to its altered Constitution and whether States and international forums would view it as a valid sovereign decision to omit Montevideo elements from a “State” are questions that can only be answered upon the happening of the contingent event i.e. loss of physical territory of Tuvalu.

Foregoing “territory”- making a case for Tuvalu

Upon considering the element of territory, which the Tuvalu Constitution foregoes or at least foresees to be lost soon given the climate crisis, a question arises: how would the “perpetuity” enshrined upon it by the updated Constitution impact the other three elements of the Convention and whether it would affect the recognition afforded to it by States. Interestingly, this fiction of perpetuity is seen as a viable alternative by various experts in order to not only protect Statehood but also the Nationhood of States in question.

As for the stance of the international courts, such perpetuity might be accommodated. In the Colombia v. Peru (Asylum) case, while determining the application of the Havana Convention on Asylum to a “territorial State”, the ICJ agreed that the Montevideo Convention had failed to be recognized regionally as customary international law amongst the Latin American States. Thus, such a stand did away with the satisfaction of the Montevideo pre-requisites of Statehood making way for arguments of perpetuity and continuity self-determined by States such as Tuvalu. Therefore, irrespective of the application of the Convention, Tuvalu is well within its right to self-determination to declare such exception under its updated constitution.

However, the European Court of Human Rights (ECtHR), while judging the Nagorno-Karabakh dispute in Chiragov and Others v. Armenia, has observed that the Montevideo requisites have not only been approved by international law experts and scholars but that States have “uniformly invoked these criteria when determining their own policies of recognition.” However, the implicit self-determination in attaining Statehood was re-affirmed in this case too. In Sargsyan v. Azerbaijan, arguments favoring the right of sovereign states to defend their territory and protect their populations were made. Whether this ‘defence’ can entail the enshrining of perpetuity irrespective of physical territory as done by Tuvalu could be an interesting development. This can be termed a “responsibility paradigm” of the State and Tuvalu’s decision to go digital and retain stable governance can be included herein.

While a definite legal pronouncement on the necessity or relevance of the Montevideo Convention has not been given, Statehood vested in Sovereign Military Order of Malta and the Holy See posit that it neither suffices nor is mandatory for a legally existent ‘State.’ In recent times, “territory” has been treated more sacredly than the other elements of Statehood as per the Convention. The Badinter Commission defined a State as comprising of a territory and a population subject to an “organised political entity.” It further comments that Constitutional Provision (here, Article 2 of the updated Constitution) will be considered as “necessary facts” to determine the relationship between the Government and its subjects. Therefore, if faced with obstacles of withdrawn recognition, Tuvalu might hope to play the newly added Article 2 in its own favour instead of relegating it to a mere domestic law overriding a favoured international principle.

If all these precedents fail to come to the rescue of Tuvalu, it would still remain a “deterritorialised State” under instruments such as the 2015 Paris Agreement and the United Nations Framework Convention on Climate Change (UNFCCC). These states are ones that have undergone change in their physical territory ranging from alteration, shrinking to mutilation or destruction and are protected under frameworks such as the Paris Agreement and the UNFCCC which demand global co-operation for states whose “territorial integrity” might be affected due to climate change. Tuvalu aptly fits this context. However, it is not only ‘deterritorialization’ that must be accommodated, it is also the ‘reterritorialization’ in terms of a ‘digital’ placement that must also be looked into.

Conclusion

In conclusion, Tuvalu stands at the forefront of an unprecedented challenge in the guise of an attempt to not only redefine itself as a “Digital Nation” but also reflects a bold attempt to navigate the complexities of international law while upholding its sovereignty. Whether this domestic exception would transform into an ad infinitum acceptance globally or would a more transitory understanding of Statehood in contemporary times suffice the cause remains to be seen. Nonetheless, this departure from the conventional understanding of statehood by exempting “territory” as an essential element prompts a reexamination of the theories of statehood and well as principles of international customary laws and how they would evolve to accommodate virtual governance and ex situ sovereignty. Legal scholarship and the international judiciary must approach the development with an inclusive perspective incorporating Statehood and its elements as well as reflect on the loosely binding nature of the Montevideo elements.

Vrinda Chaturvedi is a fourth year law student at HNLU, Raipur. She has keen interest in constitutional and criminal laws.

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[Edited by Ajinkyaraj Pacharaney and Archita Satish and published by Baibhav Mishra from the Student Editorial Team]