LAWS704 Public International Law Assessment Soultion

Introduction

The entire globe is shown on the map as being divided into various regions known as "States." Despite the fact that each state has its own territory, a close look at the map will show how each state is linked by the idea of "statehood." The two main perspectives on states are declarative and constitutive.. According to Article1 , a State must meet the requirements of the Rights and Duties of States of 1993, which include having a specified territory, a defined population, and a specific system of government. A state's willingness to engage in any kind of connection with another state serves as the foundation for the declaratory theory. However, "Constitutive theory" is conceptually very distinct from "Declaratory theory." A state can only be considered a State after being duly recognized by another State. However, as there is no international organization that properly recognizes the existence of States on behalf of the entire society, this concept needs to be revised to adhere to and put into practice. 

Legal Challenges

Territorial Changes: Sea level rise, altered wind patterns, and many other factors can all contribute to climate change. These modifications may have a significant influence on a particular territory. Loss of territory can occasionally be a result of sea level rise. Some low-lying places, for instance, may experience a surge in submersion or the creation of new land. Because of this, a situation like this raises the issue of identifying and recognising the newly established area and presents a legal problem under international law.

Population decline and displacement: Climate change has a significant impact on a territory's population. The people who live in fading states are typically referred to as refugees since they have been uprooted from their homes as a result of climatic changes and have lost their status as permanent states. International law faces a significant challenge in recognizing and evaluating these population changes.

Disappearing States: The concept of a sinking state, sometimes known as a disappearing state, refers to the phenomena of a state losing its territory and, as a result, its ability to be recognised under the 1993 Montevideo Convention on the Rights and Duties of States. This state of dissipation and sinking could be caused by a number of things. Climate, sea level rise, and population migration are a few examples of such factors. This particular relocation of the Disappearing state presents a significant difficulty for international law because the population of such disappearing nations is referred to as refugees and is not regarded to be a nation's permanent residents.Even international law found it difficult to recognise them in accordance with the Declaratory Theory or the concept of the State in Article 1 of the Convention. For instance, some small island states, like Kiribati and Tuvalu, have become uninhabitable as a result of climatic changes, and now, under international law, the lack of a population there makes it very difficult for that small island state to be recognised in accordance with the Statehood criteria, which include a defined territory, a defined population, a recognised government, and a relationship with other states.

Relevance of Constitutive and Declarative Theory

Constitutive theory

Statehood, according to the constitutive hypothesis, requires acceptance by other countries. Only when a state is acknowledged does it gain the status of a recognized international person, which is necessary for it to be treated as such in international law.

It is argued from this perspective that a state does not exist in law unless it is acknowledged by other states. From this vantage point, approval is a necessary but not sufficient condition for becoming a sovereign nation. In other words, the recognition "constitutes" or "establishes" the state.

If the entity in question does not enjoy international recognition as a state, then it does not matter if it meets the aforementioned conditions for statehood; it has no rights or obligations related to statehood until that time.

William Worster argues that the constitutive theory represents a certain view of a state as an international entity consisting merely of a collection of rights, with nothing else to it. One could argue that the very survival of a state is predicated on its citizens' ability to secure certain privileges. On;s entitlements are directly related to their standing in society. Supporters of the constitutive theory argue that the hypothetical state's ability to access rights and benefits in the international arena is dependant upon the giving of these advantages by other nations, thereby highlighting the importance of recognition. According to the constitutive view, nascent states cannot acquire rights without the "consent" of more mature ones. This theory also incorporates a particular understanding of the role of state discretion in the provision of rights.

Despite assertions by its proponents, the constitutive theory does not bring absolute legal clarity to the recognition procedure.

It is usually argued that there is little evidence to support the constitutive theory's claim that governments are fundamental collections of legal rights and obligations.

Worster contends that state practise does not demonstrate that states consider unrecognised governments to be without legal standing. Governments, for instance, have repeatedly decided not to recognise a newly established state while nevertheless recognising it as a "de facto state with many of the rights of a de jure state." As a result, the questioned entity needs to possess some sort of pre-state international legal personality. The constitutive approach also has trouble articulating how non-recognized states are held responsible by international law. In other words, how can the international community hold a non-state corporation accountable for breaking international law since it is not a subject of international law and has neither rights nor obligations. Talmon cites the case of Rhodesia, a country that had not been recognised as a state and was found responsible for a number of violations of international law.

Declarative

The declarative approach, is an act of recognition which has legal consequences. Instead, the moment an organisation achieves the factual prerequisites for statehood, it becomes a state. In other words, whatever the criteria for statehood are, they give the appropriate organisation a legal status independent of recognition. Therefore, acknowledgment wouldn't help create a state; it would only serve to recognise an already-existing situation. Crawford claims that when a state truly exists, "the legality of its creation or existence must be an abstract issue: the law must take account of the new situation.It is predicated on the notion that a state consists of more than just a set of legal rights and that recognition confirms rather than creates status. On the other hand, one could say that a state has the power to exist before it has international legal rights and even after they are taken away, since it is both a legal concept and a living thing.

The creation of a state does not automatically mean the gain of certain rights. As a result, recognition should be given immediately if certain basic conditions for statehood are met. The declarative nature of acknowledgement means that governments can't do everything they want during the whole process. People who support the declaratory paradigm say that it aims to set up a legal system that puts law over politics by limiting the power to make decisions. The declaratory theory focuses on the law to fix the problems with the constitutive school of thought that have been seen in terms of reasoning and practice.

Both these theories are relevant in the instant matter as they point out the challenges in private international law. The idea of friendship, strong ties, and mutual benefit underlies the relationship between New Zealand and Vantanu. As a result, the constitutive or recognition theories are highly relevant to the current situation. The implication of the theories and the case is that the old criteria for statehood need to be reevaluated in light of climate change. Among other adjustments, alternate spatial forms might be taken into consideration, state institutions might be perceived as persisting, and the notion of state consent in recognition might be reviewed. Climate change-related state extinction highlights the importance of global accountability and collaboration. It requires reexamining how the international community reacts to weak states that are about to be wiped out. Given the difficulties presented by climate change, it is possible to modify the declarative theory to account for a more flexible approach to statehood.

Obligation

To produce an International Court of Justice (ICJ) Advisory Opinion that is advantageous in the context of pressing issues like climate change, territorial sovereignty, and sustainable development would be necessary. The following is how New Zealand could support such an advisory opinion:

Recognition of International Customary Law: New Zealand can advance the notion that obligations are properly derived from customary international law. Customary international law, which was developed through consistent state practise and opinio juris (the conviction that the practise is legally required), has a substantial impact on state activity. New Zealand could argue that in the context of environmental protection and climate change, customary law has evolved to include obligations related to combating climate change and safeguarding vulnerable countries.

Regional Accords and Treaty Obligations: New Zealand might underline the importance of international treaties and regional agreements. Vanuatu is a signatory to various international agreements relating to environmental protection, human rights, and climate change, like many other little Pacific Island republics. New Zealand may stress the significance of these accords in order to persuade the International Court of Justice (ICJ) to take them into account while determining Vanuatu's obligations.A Legal Obligation to Address Climate Change: New Zealand can push for the legalization of climate change as a global problem with obligations for all nations, particularly those that produce a considerable amount of greenhouse gas emissions. This viewpoint is consistent with the Paris Agreement pledge and New Zealand's efforts to mitigate climate change. Vanuatu and other Pacific Island nations that are particularly susceptible to its effects can benefit from a focus on the legal obligations of states to combat climate change.

Territorial integrity and sovereignty: As fundamental tenets of international law, New Zealand can embrace the concepts of sovereignty and territorial integrity. It can support the defense of Vanuatu's territorial integrity in the time of difficulties like rise in the sea level that can put certain Pacific Island nations' survival in jeopardy. This viewpoint might support the legal case for defending the rights of Vanuatu and other comparable countries.

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