The Power of ‘Constructive Misreading’

Earlier this year, the United Nations General Assembly adopted resolution A/80/L.65, which seeks to ‘translate’ last year’s Advisory Opinion from the International Court of Justice (ICJ) on Obligations of States in respect of Climate Change into ‘enhanced multilateral cooperation and accelerated climate action at all levels, consistent with international law’. In a recent post on EJIL:Talk!, my friend and sometime coauthor Margaretha Wewerinke-Singh provides an insightful summary of this resolution, alongside an analysis of its legal and political significance. As one might expect from a scholar and practitioner so closely involved with the effort to secure climate justice through contemporary international law, the account Wewerinke-Singh provides is sound in terms of legal accuracy and bold in terms of its substantive vision.

There is nonetheless one aspect of her post that strikes me as worthy of closer attention. This is her characterisation of paragraph 7 of the General Assembly resolution; she writes:

“…[this] paragraph recalls the Courts’ findings on statehood and then, in a critical move, ‘affirms the continuity of statehood in the face of sea level rise’. These additions themselves add essential legal certainty for Pacific Island States and other low-lying nations faced with the prospect of losing their land territories to sea level rise. The General Assembly’s endorsement of these principles carries independent political significance.”

Wewerinke-Singh emphasises something of considerable importance here, which has (perhaps understandably) been overlooked within many of the more exuberant online reactions to resolution A/80/L.65. This is that the General Assembly greatly exceeded the conclusions the ICJ provided in relation to State continuity and sea-level rise within paragraph 363 of its opinion, which reads as follows:

“363. Several participants argued that sea level rise also poses a significant threat to the territorial integrity and thus to the very statehood of small island States. In their view, in the event of the complete loss of a State’s territory and the displacement of its population, a strong presumption in favour of continued statehood should apply. In the view of the Court, once a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood.” [Emphasis added.]

This is, perhaps surprisingly, all the Court had to say about statehood, dissatisfaction with which prompted more extensive and ambitious treatment within two Separate Opinions, from Vice-President Sebutinde and Judge Aurescu, as well as one highly critical (and comparatively pessimistic) Declaration by Judge Tomka. By contrast, as Wewerinke-Singh notes, paragraph 7 of the relevant resolution reads as follows:

“7. [The General Assembly] Also recalls that the Court found that, once a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood, and affirms the continuity of statehood in the face of sea level rise;” [Emphasis added.]

Why is this additional wording so significant? According to Wewerinke-Singh, it represents a ‘critical move’ because it provides affected States with greater legal certainty. Whilst I concede the attractiveness of putting the point in these terms, it seems to me that this rather undersells the significance of resolution A/80/L.65, both for the law of State continuity and in broader terms when it comes to understanding international legal reasoning. To see why, we must return to the comparatively limited language employed by the Court.

A Case of Judicial Caution

Paragraph 363 of the ICJ’s Advisory Opinion, I would argue, is striking in that it said almost nothing new or useful in relation to statehood and sea-level rise. The proposition that established States will not necessarily cease to exist just because they lose one constituent element of their international status is both legally trite and of little practical assistance. In fact, international lawyers have known this proposition to be true for a very long time, quite independently from any focused reflection upon the particular challenges created by rising sea-levels.

Consider the formulation most frequently cited as enumerating the ‘constituent elements’ of statehood in question, which can be found in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States:

“The State as a person of international law should possess the following qualifications: (a) a permanent population ; (b) a defined territory ; (c) government ; and (d) capacity to enter into relations with the other States.”

Historically, the fact that one such element might be lost without statehood lapsing is easily demonstrated by pointing to the continuity of States notwithstanding prolonged disruptions of governmental control, either via civil disorder or under belligerent occupation. But this possibility alone tells us almost nothing about, for example, whether States can exist in perpetuity without inhabitable land, or whether their existence depends upon the maintenance of some kind of territory, land-based or otherwise.

As Judge Aurescu notes in their Separate Opinion, the phrase in paragraph 363 ‘would not necessarily entail the loss…of statehood’ (my emphasis), leaves open whether or not losses of the above kind may nonetheless, in particular circumstances, have that very result. Moreover, as Judge Aurescu also emphasises, sea-level rise itself threatens not one element of statehood but two: that is, both territory and population, since mass exodus resulting from uninhabitability is more likely than not to precede any cases of total oceanic submergence. The problem, as this brief analysis makes clear, is that an ordinary language reading of paragraph 363 reveals vanishingly little about the law of State continuity which might shed any useful light upon the appropriate legal responses to sea-level rise.

The Power of ‘Constructive Misreading’

This being so, the General Assembly’s affirmation of ‘the continuity of statehood in the face of sea level rise’ must be viewed as doing considerably more than providing greater legal certainty. In fact, it effectively replaces empty judicial hedging with a firm substantive commitment. That this constitutes a powerful political statement, Wewerinke-Singh rightly recognises; nonetheless, I would go further still. In my view, resolution A/80/L.65 also constitutes a clear legal statement on behalf of 141 States that customary international law does not countenance the extinction of statehood due to rising sea levels, thereby mirroring the powerful regional statements to that effect already made within the Alliance of Small Island States and the Pacific Islands Forum.

With this in mind, it might be tempting to read paragraph 7 of resolution A/80/L.65 as a rejection of the ICJ’s somewhat timid position in relation to the law of State continuity, notwithstanding the otherwise celebratory content of the former text. Nonetheless, I think there is an alternative (and more attractive) reading we might adopt: namely, that paragraph 7 constitutes a specific sort of deliberate and justifiable ‘misreading’ of the relevant part of the ICJ’s Advisory Opinion, which serves a gently corrective function in relation to the latter. To put matters crudely, resolution A/80/L.65 interprets that opinion as though it really is saying what it always should have said.

By taking the position they have in relation to paragraph 363, those 141 States have, to borrow a phrase from Ronald Dworkin, chosen to view the legal conclusions of the ICJ in their ‘best light’, morally and politically speaking. This approach, which elsewhere I have called ‘rational reconstruction’, is the business of locating legal meaning within the relevant ‘raw materials’ (whether those are judicial opinions, treaty texts, or canonical statements of opinio juris) explicitly with reference to whatever construction of that meaning would make the resulting legal standards as just and legitimate as they can possibly be. The only real constraint upon this explicitly evaluative interpretive process is what Dworkin calls the ‘dimension of fit’: the requirement that any such reconstruction must remain minimally plausible as a genuine attempt to understand the legal raw material in question.

Read more traditionally, with reference only to the ordinary meaning of the words the Court actually used, it is hard to understand paragraph 363 as anything more than the kind of unhelpful judicial hedging I critique above. If this road is taken, there would appear to be an unavoidable tension between the position of the Court and that recently adopted within the General Assembly. By contrast, viewing the 141 States voting in favour as engaged in rational reconstruction both preserves the hermeneutic quality of resolution A/80/L.65, while at the same time doing appropriate justice to the moral and political demands of maximising State resilience to the harmful effects of anthropogenic climate change.

For these reasons, while I agree with the general tenor of the summary Wewerinke-Singh provides, I think we have witnessed an even more significant legal moment than her otherwise excellent post would seem to suggest, at least in relation to the law governing State continuity. Naturally enough, this is in no small part due to the efforts of lawyers like Wewerinke-Singh herself.