When a Country Sinks into the Sea

Tuvalu’s sinking raises questions about the private property interests of Tuvaluan property owners. Using American property law as a reference point, we can uncover approaches to answer whether Tuvalu’s national status can be preserved under a theory of property.

Property Law recognizes a difference between avulsion and accretion. Per “1 Clark on Surveying and Boundaries § 24.01”, American courts typically don’t recognize property changes which come about from avulsions (sudden, unexpected shifts in the water boundary) but do recognize boundary changes that emerge from accretion (gradual changes in water lines). The Supreme Court ruled in 2010 that property lost to rising oceans is subject to accretion, and no longer belongs to the original property owner. Under this precedent, Tuvalu itself might cease to exist as an entity with a claim to land.

Tuvalu’s potential losses also include its intellectual property. The .tv ccTLD is a highly profitable asset for Tuvalu—in 2019 it accounted for a seventh of its annual revenue. If Tuvalu’s sinking calls into question its national status, Tuvaluans may end up losing the right to generate revenue from .tv, since there would be no national entity to claim it as property to begin with.

With Tuvalu’s ability to preserve its assets put into question by non-recognition, the cementing of its national status as property held by another entity may offer a means of preservation. For example, Tuvalu may establish a trust in a foreign country with the government/citizens of Tuvalu as beneficiaries, placing Tuvalu nationhood and the .tv ccTLD as trust assets.

Tribune Co. v. Oak Leaves Broadcasting Station gives a synopsis of how American law has created new property rights where they did not exist prior. In its analysis of Druley v. Adam, the court found that the scarcity of water in the West novel to common law warranted the incorporation of water as property even as states further East did not. It analogously decided that to address the (then) modern issue of radio technology being unable to develop with conflicts over contested frequencies, it may be possible to own the rights to a radio frequency.

Tribune found a new property right by noting “there is a peculiar necessity existing and that there are such unusual and peculiar circumstances…that a court of equity is compelled to recognize rights which have been acquired by reason of the outlay and expenditure of money and the investment of time.” In other words, it suggested that new property rights could be found by a showing of (1) investment of time and money and (2) peculiar circumstances warranting protection under private dominion. Nearly by virtue of being a nation, Tuvalu has expended effort into a nation-building project and establishing itself internationally. The novel circumstance of climate change—which Tuvalu has no meaningful ability to deter—means that without a property right the fruits of its efforts come under a unique threat. Accordingly, Tribune might suggest a good showing can be made for protecting Tuvalu statehood as property.

The potential policy implications of treating statehood as a form of property are worth consideration. Such a development would offer unique protections for island countries vulnerable to rising sea levels. It might further expand possibilities for statehood rights to other groups of people with primarily diasporic populations. Simultaneously, the ability of private parties to accrue rights of statehood threatens the furtherance of democratic societies and public access to the economy. Although it may offer specific protections, holding statehood under a theory of property has dangerous potentials and would need to be very narrowly constructed to avoid those risks.

Catherine Sagheb is a law student at the American University Washington College of Law.

Image: INABA Tomoaki, Tuvalu Inaba-4.