Received: 4 September 2021 Revised: 16 December 2021 Accepted: 4 January 2022

DOI: 10.1111/reel.12431

ORIGINAL ARTICLE


Ceci n'est pas un Etat: The Order of Malta and the Holy See as
precedents for deterritorialized statehood?

Emma Allen | Mario Prost

School of Law, Keele University, Staffordshire,

UK Abstract
Sinking island States have become allegories of the Anthropocene and a symbol of the
Correspondence
Emma Allen, Keele University, School of Law, radical violence of climate change. Various theories have been advanced supporting
Staffordshire, UK. the continued existence of sunken islands as deterritorialized States. A common view
Email: [email protected]
among advocates of the deterritorialized statehood thesis is that, while at odds with
the dominant concept of States as territorial entities, it is supported by precedent. In
this article, we engage critically with this strand of argument and argue that the appeal
to precedent raises important paradoxes for the continuation thesis. We seek to make
clear that a landless State in the full sense of the term is a proposition for which there
is, in actual fact, no precedent in international law and that some of the precedents that
are cited in support of deterritorialised statehood—such as the Order of Malta and the
Holy See—are precedents of non-State sovereign entities. Pursuing deterritorialized
existence on the basis of those precedents would therefore involve a downgrade from
State to non-State status, an outcome we show to be normatively undesirable.

1 | I N T RO DU CT I O N permanent. As Scelle once observed, ‘the disappearance of a state,

from a material point of view, is an inconceivable thing’.4
The physical disappearance of States has long been considered a radical As with so much else, however, climate change changes every-
impossibility, a thing of science fiction or mythology like the legendary thing. What once seemed a far-fetched and purely hypothetical prop-
Greek kingdom of Atlantis. It has always been accepted, of course, that osition has become a dangerous prospect for many around the world.
States can die.1 But State death has historically been understood to The Intergovernmental Panel on Climate Change (IPCC) estimates that
occur in instances of annexation, disintegration or merger, that is, pro- oceans will rise between 0.28 and 1.02 m by the end of this century.5
cesses where new States replace old ones with more or less predictable Other experts are warning that, without deep cuts in carbon emis-
legal outcomes.2 As political entities, States may come and go.3 But sions, sea levels may rise by as much as 2.3 m by 2100 under worst-
their geophysical existence is generally assumed to be more or less case scenarios.6 While the effects of the rising tide will be felt all over
the world, for some they will be nothing short of apocalyptic. Human
communities living in low-lying coastal zones (currently around
1
In this article, we speak interchangeably of the ‘death’, ‘extinction’ and ‘termination’ of
States by which we mean their ceasing to exist from a legal perspective. 700 million people) will see their livelihoods destroyed and experience
2
T Fazal, State Death: The Politics and Geography of Conquest, Occupation and Annexation
(Princeton University Press 2007); J Ker-Lindsay, ‘Climate Change and State Death’ (2016)
4
58 Survival 73, 75–76. G Scelle, Précis de Droit des Gens: Principes et Systématique (Sirey 1932) 110.
3 5
Instances of extinction are extremely rare in the contemporary era. Indeed, while many IPCC, Climate Change 2021: The Physical Science Basis (2021) 2159.
states have come into existence, only a very small number have ceased to exist since 1945. 6
J Bamber et al, ‘Ice Sheet Contributions to Future Sea Level Rise from Structured Expert
See J Crawford, The Creation of States in International Law (2nd edn, Oxford University Press Judgment’ (2019) 116 Proceedings of the National Academy of Sciences of the United States
2006) 700. of America 11195, 11199.

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,
provided the original work is properly cited.
© 2022 The Authors. Review of European, Comparative & International Environmental Law published by Wiley Periodicals LLC.

RECIEL. 2022;1–11. wileyonlinelibrary.com/journal/reel 1

2 ALLEN AND PROST

more intense and frequent extreme weather events. For a small group prospect of entire countries being wholly submerged or depopulated
of low-lying island States, which have an average elevation of just 2 m becomes more likely, attention is also turning to what may be termed
above sea level, the threat is quite literally existential. Habitats will be the ‘fate’ question. In an Atlantis-style scenario, what becomes of a
drowned, arable land and freshwater sources will be destroyed and sovereign state when its territory disappears? Will it live or die? And if
human habitation as we know it will likely be impossible. As the sea it lives, what will be its legal status?12
rises, these island States are at risk of becoming wholly uninhabitable In this article, we engage critically with a specific strand of argu-
and, eventually, submerged. For them, physical disappearance is not ment developed in response to the ‘fate’ question that we believe to
an inconceivable thing. Without radical action to keep global heating be in need of clarification and greater nuance. The common view in
below 1.5 C and major adaptation efforts, it is a near certainty.7 international law is that the loss by a State of any one of its defining
Sinking island States have become allegories of the elements will normally entail extinction. In view of the inequitable
Anthropocene, a symbol of the violence and injustice of our interna- outcomes produced by this approach with regard to disappearing
tional economic order and a harbinger of things to come.8 The situa- island States, however, some scholars have developed alternative the-
tion they face also raises a host of critical and hitherto unknown legal ories claiming that State death may be avoided through a range of
questions concerning the implications, under international law, of possible processes, from the building of artificial islands to territorial
states being swallowed up by the rising tide. Scholars and bodies such transactions.13 A more radical proposition—and the focus of this
as the International Law Association (ILA) and International Law Com- article—is that States may continue to enjoy sovereign status without
mission (ILC) have turned their attention to these questions.9 Most territory, retaining the rights and benefits of sovereignty on a lasting
discussions to date have focused on what may be termed the ‘retreat’ basis, even as their land is rendered uninhabitable and their citizens
question. What happens to a State's baselines and maritime bound- are forced to establish residence in other States.14
10
aries as its coastline recedes? And what protection do persons A central defence of the deterritorialized State thesis is that,
affected by sea level rise enjoy under international law when they are while radically at odds with the general conception of the State as a
forced to retreat and seek refuge in other countries?11 Yet, as the territorially bound polity, it is not without precedent. Advocates have
pointed to at least two precedents as evidence that deterritorialized
7
S Rahmstorf, ‘Global Warming and Climate Change: Modelling Sea Level Rise’ (2012) statehood is not alien to international law—the Order of Malta and
Nature Education Knowledge 3, 4 (‘If sea level rise proceeds beyond one metre, coastal
the Holy See. In what follows, we unpack this claim and show its limi-
protection efforts will in many places not suffice and it is likely that some low-lying island
states will have to be abandoned’). tations and potential hazards. After a brief introduction to the
8
In this article, we speak of ‘sinking/sunken island States’ and ‘disappearing/disappeared
deterritorialized State thesis (Section 2), we argue that, if the Order of
island States’ interchangeably, although we are mindful that each carries problematic
connotations. The term ‘sinking/sunken’ is helpful in that it denotes the severity of the Malta and the Holy See are, to an extent, valuable precedents, they
threat, but is technically inaccurate (low-lying island States are not descending from a higher
are not in actual fact precedents of deterritorialized States but of non-
to a lower position). The term ‘disappearing/disappeared’ is more accurate, but could denote
legal as well as physical disappearance when a central premise of this article is that one does State sovereign entities (Section 3). As will be seen, the distinction is
not necessarily follow the other. We should also be clear that use of this terminology is not not merely semantic but carries with it significant legal implications
intended to exacerbate a sense of disempowerment already present in low-lying island States
from climate change itself. For further discussion of terminological issues, see A Costi and N
(Section 4), which, we argue, should not be ignored in future conver-
Ross, ‘The Ongoing Legal Status of Low-Lying States in the Climate Changed Future’ in P sations about the ‘fate’ question. Our overall argument is therefore
Butler and C Morris (eds), Small States in a Legal World (Springer 2017) 101, 102–104.
9
The ILA established the Committee on International Law and Sea Level Rise in 2012. The
that, while full deterritorialized statehood is the manifestly superior
study undertaken by the Committee in Phase One and its proposals are contained in its 2018 normative outcome, it is also one that is unlikely to be achieved on
Report as well as in two Resolutions. See ILA, ‘Report of the Seventy-Eighth Conference,
the basis of existing precedent and it therefore calls for legal reform
Sydney (19–24 August 2018)’ (ILA 2018). Published also separately in an edited version as D
Vidas, D Freestone and J McAdam (eds), International Law and Sea Level Rise: Report of the
International Law Association Committee on International Law and Sea Level Rise (Brill 2019).
The outcome of the study undertaken by the Committee in Phase Two will be contained in 12
See H Alexander and J Simon, ‘Sinking into Statelessness’ (2014) 19 Tilburg Law Review
its 2022 Report. In 2019, the ILC likewise decided to include the topic of ‘Sea Level Rise in 20; M Burkett, ‘The Nation Ex-Situ: On Climate Change, Deterritorialised Nationhood and
Relation to International Law’ in its programme of work. For information concerning the the Post-Climate Era’ (2011) 2 Climate Law 345; M Gerrard and G Wannier (eds), Threatened
progress and future work of the ILC on this topic, see ILC, ‘Report of the Seventy-Second Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University
Session (26 April-4 June and 5 July-6 August 2021), Official Records of the General Press 2013); J Grote Stoutenburg, Disappearing Island States in International Law (Brill 2015);
Assembly, Seventy-Sixth Session, Supplement No 10’ UN Doc A/76/10 (2021) Chapter IX. A Jain, ‘The 21st Century Atlantis: The International Law of Statehood and Climate Change
10
For early discussion of these issues, see D Caron, ‘When Law Makes Climate Change Induced Loss of Territory’ (2014) 50 Stanford Journal of International Law 1; J McAdam,
Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level’ (1990) 17 Ecology Law ‘Disappearing States, Statelessness and the Boundaries of International Law’ (University of
Quarterly 621; D Freestone, ‘International Law and Sea Level Rise’ in R Churchill and D New South Wales 2010); R Rayfuse, ‘W(h)ither Tuvalu? International Law and Disappearing
Freestone (eds), International Law and Global Climate Change (Graham and Trotman 1991) States’ (University of New South Wales 2009); A Torres Camprubí, Statehood under Water:
109; S Menefee, ‘Half Seas Over: The Impact of Sea Level Rise on International Law and Challenges of Sea Level Rise to the Continuity of Pacific Island States (Brill 2016); D Wong,
Policy’ (1991) 9 UCLA Journal of Environmental Law and Policy 175; A Soons, ‘The Effects ‘Sovereignty Sunk? The Position of Sinking States at International Law’ (2013) 14 Melbourne
of a Rising Sea Level on Maritime Limits and Boundaries’ (1990) 37 Netherlands International Journal of International Law 346; L Yamamoto and M Esteban, Atoll Island States and
Law Review 207. More recently, see C Armstrong and J Corbett, ‘Climate Change, Sea Level International Law: Climate Change Displacement and Sovereignty (Springer 2014).
Rise and Maritime Baselines: Responding to the Plight of Low-Lying Atoll States’ (2021) 13
E Allen, ‘Climate Change and Disappearing Island States: Pursuing Remedial Territory’
21 Global Environmental Politics 89; E Johansen, S Busch and I Jakobsen (eds), The Law of the (2018) Brill Open Law 1; M Gagain, ‘Climate Change, Sea Level Rise and Artificial Islands:
Sea and Climate Change: Solutions and Constraints (Cambridge University Press 2020). Saving the Maldives’ Statehood and Maritime Claims through the Constitution of the
11
See, for example, J McAdam, Climate Change, Forced Migration and International Law Oceans' (2012) 23 Colorado Journal of International Environmental Law and Policy 77.
(Oxford University Press 2012). More recently, see I Borges, Environmental Change, Forced Burkett (n 12); J Ödalen, ‘Underwater Self-Determination: Sea Level Rise and
14

Displacement and International Law (Routledge 2019); G Sciaccaluga, International Law and the Deterritorialised Small Island States’ (2014) 17 Ethics, Policy and Environment 225; Rayfuse
Protection of ‘Climate Refugees’ (Palgrave Macmillan 2020); M Scott, Climate Change, Disasters (n 12); E Woodward, ‘Promoting the Continued Sovereign Status of Deterritorialised Island
and the Refugee Convention (Cambridge University Press 2020). Nations’ (2019) 14 Yale Journal of International Affairs 49.
ALLEN AND PROST 3

or at the very least creative interpretation of existing legal categories. Given the necessity of habitable territory to create State sover-
We conclude with some general thoughts on what is a stake, behind eignty, territorial loss poses an existential problem to sinking island
this seemingly narrow doctrinal debate, for the inhabitants of dis- States. What should happen to a State whose territory becomes uni-
appearing island States. nhabitable or vanishes beneath the rising tide? International law has
developed techniques and doctrines to deal with a range of scenarios
involving territorial loss, from conquest to cession or decolonization.
2 | S T A T E D E A T H , SO V E R E I G N Z O M B I ES But these are scenarios involving political loss, not physical destruc-
A N D D ET E RR I T O R I A L I Z E D E X I S T E NC E tion, of territory and they are managed through the mechanism of
succession, where the territory of one State is taken over by
The dominant concept of statehood requires that a territory of some another.20 The possibility that a State's territorial base might cease to
form must be held in order for a State to exist. Sovereign possession exist altogether, on the other hand, is one that international law has
and control of a given territory is a defining part of what it means to not historically grappled with and for which there are therefore no
be a State under international law and what makes States different readily available legal standards or determinate outcomes. A range of
from other international legal persons. A State's territory does not scenarios have thus been envisaged by legal scholars, from extinction
have to be permanently fixed. It may be small, fragmented, disputed, to continuation in various forms. As will become apparent, these sce-
surrounded by huge expanses of water or enclaved. But the general narios are not necessarily exclusive and proposals often cut across or
assumption is that the nexus between territory and sovereignty is combine them (not always helpfully, as we shall see). However, and
absolute and that there can be no State without territory.15 There for the purpose of our argument, the three dominant approaches are
must be some portion of land a State can call home, a foothold on briefly summarized here.
Earth that belongs to no one else which its population inhabits, and The first scenario, which in most cases represents the default
over which it exercises supreme authority. Paradigmatically, States position in the literature, is State death. According to this line of argu-
are thus rooted in territory. Territory is vitally important in defining a ment, while a State may survive nondestructive fluctuations in its
State's domain of legitimate jurisdictional power, as well as providing population, territory or government—perhaps even the temporary loss
the material basis for its continued reproduction and development. A of one of these requisites—no State lacking territory altogether can
territory-less entity—even one that otherwise meets the relevant legal exist in perpetuity.21 An island State that is submerged, under this
requirements—is thus not generally thought to be capable of view, is not a State any longer. As the rising sea overwhelms the land,
16
statehood. rendering it uninhabitable or submerging it altogether, the criterion of
The requirement of territory has been consistently affirmed by territory is annihilated and a foundational requisite of the State is lost.
legal scholars since at least the 19th century. It was notoriously codi- As its material basis disappears, the State can no longer be reasonably
fied in the 1933 Montevideo Convention on the Rights and Duties of considered to persist and its physical disappearance must necessarily
States, which refers to States as more or less stable human communi- be followed by its legal extinction.22 That stage may be postponed by
ties possessing an effective governmental administration and located building seawalls and other structures to keep the ocean at bay or
within a discrete territory.17 The ‘territory-people-government’ con- retain some area of land above water. But in the event that all of a
cept of the State was likewise formulated in the Deutsche Continental State's territory becomes permanently inundated and no alternative
Gas-Gesellschaft arbitration, where the tribunal found that a State territory is obtained, the prevailing view is that continued existence is
‘does not exist unless it fulfils the conditions of possessing a territory, impossible and state death cannot be avoided. Climate change will
a people inhabiting that territory and a public power that is exercised eventually render disappeared States both factually and legally
over the people and the territory’.18 Although the concept of the extinct.23
State continues to generate great academic controversy—including on The State death thesis leads to outcomes that are fundamentally
the role and legal status of the so-called Montevideo criteria19—the at odds with basic notions of equity and natural justice. Under this
scholarly consensus remains that it is of the essence of a State that it scenario, the end result is one where those least responsible for caus-
exercises sovereignty over a given territory. ing the climate crisis are made to pay the ultimate price—juridical
death—while those overwhelmingly responsible for the problem con-
tinue to exist and may even profit from the disappearance of sunken
15
States (for instance, by gaining access to new maritime resources). In
A Cassese, International Law (2nd edn, Oxford University Press 2005) 82–83; J Crawford,
Brownlie's Principles of Public International Law (8th edn, Oxford University Press 2012) 128–
20
129; V Lowe, International Law (Oxford University Press 2007) 138. Crawford (n 3) 702–717; Fazal (n 2).
16
J Klabbers, International Law (Cambridge University Press 2013) 70 (‘The idea of a 21
S Lee and L Bautista, ‘Climate Change and Sea Level Rise: Nature of the State and of State
cyberstate then, a state without territory, is difficult to conceive of under the requirements Extinction’ in R Barnes and R Long (eds), Frontiers in International Environmental Law: Oceans
of international law’). and Climate Challenges – Essays in Honour of David Freestone (Brill 2021) 194, 205–206; K
17
Montevideo Convention (adopted 26 December 1933, entered into force 26 December Marek, Identity and Continuity of States in Public International Law (2nd edn, Droz 1968) 7; L
1934) 165 LNTS 19 art 1. Oppenheim, International Law: A Treatise (Longmans 1905) 122.
18 22
Deutsche Continental Gas-Gesellschaft v Polish State (Germano-Polish Mixed Arbitral See Alexander and Simon (n 12) 25; Ker-Lindsay (n 2) 77–78; Lee and Bautista (n 21) 209;
Tribunal) (1929) 5 ILR 11, 14–15. Wong (n 12) 365.
19
See, for example, T Grant, ‘Defining Statehood: The Montevideo Convention and its 23
Extinction is often referred to by States—including island States—as the likely outcome of
Discontents’ (1999) 37 Columbia Journal of Transnational Law 403. deterritorialization. See the statements quoted in Wong (n 12) 367–368.
4 ALLEN AND PROST

this ‘perfect moral storm’, the extinction thesis thus produces a radi- States.30 The idea here is that territory may not be necessary for
cal disjuncture between responsibility for climate change and its statehood once firmly established. As typically envisaged,
impacts, leading to the manifestly unjust situation where perpetrators deterritorialised States would consist of a government elected by
face a lesser evil than victims.24 the State's population, which would sit inside the territory of a third
For this reason, a range of alternative scenarios have been envis- State, managing the affairs of the State at a distance. In essence,
aged where the outcome of deterritorialization is something other this ex-situ government would act as a trustee looking after the dis-
than extinction. Under one such scenario—which we will call the appeared State's assets (e.g. maritime zones to the extent that they
‘zombie State’ thesis—statehood would be maintained artificially have been successfully retained) and would manage them for the
through continued recognition by other States.25 In essence, the inter- benefit of its diasporic population. The government would continue
national community would continue to act as if disappeared States to exercise other aspects of its internal sovereignty remotely and
were still effectively in existence, even as their population and gov- would engage in international relations as it did before. It would
ernment relocate elsewhere, bestowing international legal personality also act as a vital political and cultural nucleus for its citizens
on them despite having factually ceased to exist as effective territorial scattered across the globe, representing their interests vis-à-vis their
polities. Like zombies, disappeared States would survive in limbo, new home States and working to maintain their cultural, linguistic
revived through the magical act of recognition, decaying yet undead, and nationality rights.31
exercising all the international rights and competences of States that Various models of ‘removed governance’ have been proposed for
do not require a territorial basis.26 Despite its appealing simplicity— deterritorialized States, some involving governments in exile and
the thesis does not require formal changes to the law of statehood others some form of international administration.32 The essential
and merely entails maintenance of the status quo through collective aspect of these proposals is that, unlike the zombie State thesis, they
nonrecognition of sunken States' de facto disappearance—the down- aim to ensure the continuation of disappeared States on a lasting and
sides of this approach are immediately apparent. If statehood is objective basis, grounded in international law itself.33 Critically, these
maintained through the subjective will of third States, it will remain proposals also require key legal categories to be reappraised and rep-
highly precarious. Some may continue to recognize disappeared urposed to meet the challenges of State disappearance in a heating
States, but others may not. And disputes are bound to occur between world.34 While formal recognition by other States does not typically
27
States with conflicting interests. Some scholars have attempted to form a central component of these proposals, acceptance by the inter-
overcome this problem by claiming that a duty of continued recogni- national community of these legal shifts will necessarily form an
tion may exist under international law, citing the ex injuria jus non essential part of their success.
oritur principle or the obligation of nonrecognition of situations cre- Some of the proposals are not without ambiguities. Those advo-
ated by jus cogens violations.28 However, views differ regarding the cating for a creative interpretation of the law, for instance, so that
content of the nonrecognition principle and the law on this question existing categories may accommodate deterritorialized existence, are
29
is notoriously underdeveloped. not always fully consistent when it comes to the legal status of these
The deterritorialized State thesis represents a more radical pro- deterritorialized subjects. It is not always clear, in particular, whether
posal, intended to remedy the shortcomings of the aforementioned what is being advocated are new and creative ways for States to exist
continuation-through-recognition approach. Under this last scenario, or the creation of a new category of legally proximate non-State enti-
a fundamental shift should take place in the law of statehood to ties. If the latter, it is also unclear whether those legally proximate
accommodate the emergence of a new category of landless subjects may retain all of the rights and privileges of states or would
necessarily lose some of them. We find some of these ambiguities
24
S Gardiner, A Perfect Moral Storm: The Ethical Tragedy of Climate Change (Oxford University
expressed, in particular, when scholars turn to history and precedents
Press 2011). See also H Shue, Climate Justice: Vulnerability and Protection (Oxford University
Press 2014). to justify the plausibility of deterritorialized statehood. It is to some of
25
We use the zombie signifier metaphorically here because of its symbolic potential and these ambiguities that we now turn.
usefulness as a figure that is inherently dual (neither fully living nor entirely dead, agent and
object, master and subject) and that—in Afro-Caribbean folklore—denotes a creature
reanimated by means of sorcery and magic. As others have noted, the figure of the zombie—
in its more contemporary register—also offers a powerful allegory of the violently apocalyptic
30
condition of mankind under late capitalism. On the theoretical potential of zombies, see S See Rayfuse (n 12) 9. Burkett suggests a new concept of international law which she terms
Lauro (ed), Zombie Theory: A Reader (University of Minnesota Press 2017). the ‘nation ex-situ’. See Burkett (n 12) 346.
26 31
See, most notably, Grote Stoutenburg (n 12) 375. Rayfuse (n 12) 11.
27
ibid. 32
ibid 10–11; Burkett (n 12) 356; B Juvelier, ‘When the Levee Breaks: Climate Change, Rising
28
ibid, 315–374; E Allen, ‘Climate Change and Disappearing Island States: Seas and the Loss of Island Nation Statehood’ (2017) 46 Denver Journal of International Law
Deterritorialisation, Sovereignty and Statehood in International Law’ (PhD Thesis, Keele and Policy 21, 31–32.
University 2020); G Wannier and M Gerrard, ‘Disappearing States: Harnessing International 33
There is some difference of opinion regarding how long this status should last. Rayfuse, for
Law to Preserve Cultures and Society’ in O Ruppel, C Roschmann and K Ruppel-Schlichting instance, views deterritorialized statehood as transitional, lasting one generation or one
(eds), Climate Change: International Law and Global Governance (Nomos 2013) 615, 627–630. human lifetime, that is, 30 to 100 years. It is there to give certainty and security to the
29
See generally A Pert, ‘The Duty of Non-Recognition in Contemporary International Law: disappearing island community until their displaced populations have successfully resettled.
Issues and Uncertainties’ (2012) 30 Chinese Yearbook of International Law and Affairs 48; S See Rayfuse (n 12) 13. By contrast, for Burkett, a key element of deterritorialised existence is
Talmon, ‘The Duty Not to Recognise as Lawful a Situation Created by the Illegal Use of Force that it lasts in perpetuity, subject to a decision by members to dissolve at any time. See
or Other Serious Breaches of a Jus Cogens Obligation: An Obligation Without Real Burkett (n 12) 366.
Substance?’ in C Tomuschat and JM Thouvenin (eds), The Fundamental Rules of the 34
See generally T Sparks, ‘Statehood in an Era of Sinking Islands’ in T Jafry (ed), Routledge
International Legal Order: Jus Cogens and Obligations Erga Omnes (Brill 2005). Handbook of Climate Justice (Routledge 2018) 83.
ALLEN AND PROST 5

3 | DETERRITORIALIZED STATEHOOD instance, has referred to the two precedents as evidence of ‘entities
A N D TH E A P P E A L T O P R E C E D E N T that do not meet the objective requirements of statehood but are in
fact recognised as such by the international community’.40 Likewise,
Advocates of the continuation thesis, that is, the view that loss of ter- Rayfuse has suggested that ‘the most famous example of a
ritory does not have to entail State extinction, typically draw on a deterritorialised state is the Order of Malta’ and that ‘the Holy See
range of arguments. Two sets of arguments, in particular, are often was recognised as a state despite possessing no territory between
used in combination with one another to support the contention that 1870 … and 1929’.41 Burkett, along similar lines, has argued that ‘the
disappeared States may continue to exist in deterritorialized form. deterritorialised state is neither new nor inconceivable under current
A first set of arguments is aimed at the extinction thesis and international law’, citing the Order of Malta and the Holy See as pre-
seeks to demonstrate that it is theoretically and normatively flawed. A cedents of ‘alternative forms of the state’ that participate in interna-
number of scholars have for instance argued that the extinction thesis tional relations ‘on a par with landholding states’.42
is misguided and based on an incorrect reading of the Montevideo It is our contention here that these two precedents—while cer-
Convention, a treaty that is relevant to State creation but provides no tainly providing a degree of support for the continuation thesis—
mechanism for determining the continuity—let alone the cannot be said to support deterritorialized statehood. This is for the
35
termination—of already existing States. State creation and the conti- simple reason that they are not, in actual fact, States. Before
nuity of existing States must, under this view, be treated as entirely explaining why this matters, it is helpful to briefly recount the nature
separate legal questions and, while applicable to the former, the of the Order of Malta and the Holy See and outline their status under
Montevideo criteria provide no legal basis for the assumption of State international law.
36
disappearance. In the absence of clear standards governing the The Order of Malta (officially the Sovereign Military Hospitaller
involuntary extinction question, we should favour outcomes that are Order of Saint John of Jerusalem, of Rhodes and of Malta) is a lay reli-
consistent with public international law's strong preference for legal gious Catholic order with around 13,000 members worldwide. Its ori-
continuity and do not undermine fundamental, overriding principles gins date back to 1048 when Italian merchants obtained authorization
such as self-determination, human rights or the ex injuria jus non oritur from the Caliph of Egypt to establish a monastic order in Jerusalem to
principle.37 run a hospice and tend to Christian pilgrims in the Holy Land.43
A second set of arguments is aimed at demonstrating not the Gaining official papal recognition in 1113, it was initially exclusively
implausibility of extinction as a legally mandated outcome, but the dedicated to its humanitarian mission but was later also tasked with
plausibility of deterritorialized statehood itself. Scholars have for military functions, including the defence of Christians in the Middle
instance pointed out that the history of international law is replete East. After the loss of the Holy Land in 1291, the Order went into
with examples of States continuing to exist and to enjoy recognition exile and resettled in Rhodes 20 years later. By that time, the univer-
despite substantial changes to their territory, population or govern- sally recognized right of the Order to maintain and deploy armed
ment, from occupied States such as Poland during the Second World forces and to appoint ambassadors constituted key grounds for its
War to so-called ‘failed’ States such as Somalia during most of the international sovereignty.
1990s.38 Critically, they argue, some of these examples involved the In 1523, after months of siege and fierce combat, the Order
maintenance of legal personality through governments in exile, a was ousted from Rhodes by the Ottoman Empire and remained
proof that nothing in international law prevents ex-situ continuity of without a territory until 1530 when it took possession of Malta. It
sovereignty.39 ruled the island until it was dislodged by Napoleon's army in 1798
Other scholars, however, go further and claim that international and has remained landless ever since, with the exception of two
legal history provides precedent not just for temporary ex-situ sover- buildings in Rome in which it enjoys extraterritorial legal privileges.
eignty but for potentially indefinite deterritorialized statehood. Two Following the loss of sovereign territory, the Order's humanitarian
precedents in particular are cited as providing a promising path for mission has again become its main focus. However, it maintains for-
disappearing states—the Order of Malta and the Holy See. Jain, for mal diplomatic relations with over 100 States, enters into

35
A Costi, ‘Climate Change and the Legal Status of a Disappearing State in International Law’
(2014) 12 International Law Readings 140, 156–158; Costi and Ross (n 8) 118–119.
36
See O Sharon, ‘Tides of Climate Change: Protecting the Natural Wealth Rights of
40
Disappearing States’ (2019) 69 Harvard International Law Journal 95, 98. See also Y Rim, Jain (n 12) 44.
‘State Continuity in the Absence of Government: The Underlying Rationale in International 41
Rayfuse (n 12) 10.
Law’ (2021) European Journal of International Law 1 (drawing a distinction between 42
Burkett (n 12) 356–357. See also C Douglas, ‘Sea Level Rise, Deterritorialised States and
‘constitutive’ and ‘continuative’ requirements of statehood). Migration: The Need for a New Framework’ (Centre for Climate and Security 2017) 4 (‘There
Burkett (n 12) 362–363; Grote Stoutenburg (n 12) 374; N Ross, ‘Low-Lying States, Climate
37
are more concrete precedents for the “deterritorialised state”, however. The Order of Malta
Change Induced Relocation and the Collective Right to Self-Determination’ (PhD Thesis, is a much more convincing case for a functioning state without territory’); A Nukusheva et al,
Victoria University of Wellington 2019). ‘Global Warming Problem Faced by the International Community: International Legal
38
Burkett (n 12) 356–357; E Crawford and R Rayfuse, ‘Climate Change and Statehood’ in R Aspects’ (2021) 21 International Environmental Agreements: Politics, Law and Economics
Rayfuse and S Scott (eds), International Law in the Era of Climate Change (Edward Elgar 2012) 219, 230 (‘The concept of a “deterritorial state” is not new and is not rejected by current
250; Rayfuse (n 12) 10; Yamamoto and Esteban (n 12) 202–203. international law. An example is the Holy See … as well as the Order of Malta’).
39 43
Burkett (n 12) 356–357; Costi and Ross (n 8) 113; Grote Stoutenburg (n 12) 377; J Kittel, On the history of the Order, see generally H Nicholson, The Knights Hospitaller (Boydell
‘The Global Disappearing Act: How Island States Can Maintain Statehood in the Face of Press 2001); W Porter, A History of the Knights of Malta or The Order of the Hospital of St. John
Disappearing Territory’ (2014) Michigan State Law Review 1207, 1235; Rayfuse (n 12) 10. of Jerusalem (Cambridge University Press 2013).
6 ALLEN AND PROST

international treaties, issues its own passports and is granted the interpretation inaccurately characterizes the legal nature and iden-
status of permanent observer in many international organizations, tity of both entities. While the Order of Malta and the Holy See
44
including the United Nations (UN). undoubtedly possess international legal personality and are in many
The Holy See is the name given to the ecclesiastic jurisdiction and respects State-like, they are best described as sui generis non-State
government of the Roman Catholic Church, administered by the sovereign entities.51
Roman Curia.45 It was historically associated with the Papal States, The Holy See survived as an international legal person after the
territories of central Italy over which the Pope held sovereignty from Papal States ceased to exist and, particularly since the conclusion of
the 8th century to 1870, when they were annexed in the unification the Lateran Pacts, it has achieved a status approaching or resembling
of the Italian peninsula.46 In spite of the annexation, the territory-less statehood, practising many of the acts normally associated with that
Holy See continued to pursue its international political influence and personality, enjoying immunity and inviolability and gaining perma-
religious activity, enjoying diplomatic relations with foreign nations, nent observer status at the UN.52 Yet that State-like nature owes
playing an active role in international diplomacy, concluding much to the fact that, since 1929, the Holy See has possessed a firm,
international agreements and acting as arbitrator to international if exiguous, territorial basis in the Vatican City. For the period preced-
disputes.47 ing 1929, when it was positively landless, the general view remains
This situation lasted until the Lateran Pacts of 1929 between that the Holy See must be regarded as something other than a
Benito Mussolini and the papacy, which normalized the relationship State.53 This was confirmed, among other things, by Italian Courts,
between the Italian State and the Holy See. In exchange for formal which ruled that the Holy See could not qualify as a State prior to
recognition of the unified State of Italy, with Rome as its capital, 1929 due to the absence of territory.54 Even for the period when it
Italy recognized the full and independent sovereignty of the Holy exercised sovereignty over the territory of the Papal States, it is
See over the territory of the Vatican City, also admitting its right accepted that there were in fact two legally distinct but institutionally
to issue coinage, passports and stamps, send and receive intertwined entities—a set of territorial States (the Pontifical States)
diplomatic representatives and govern as citizens those residing and a non-State (the Holy See) with a personality of its own indepen-
within its borders.48 The relation between the Vatican City and the dent of its status as the government of these States.55 The Holy See
Holy See would appear to be that of State and government but has thus always been an atypical legal person in its own right. Both
with the peculiarity that the government in question, the Holy See, with and without territory, then, the Holy See is best described as a
‘has an additional non-territorial status which is much more signifi- sui generis entity with a personality that is not akin to that of a State.
cant in practice than its status as government of the Vatican City To this day, that is indeed the view of the Holy See itself, which
state’.49 The Holy See exists not just as the temporal government acknowledges its peculiar status as a sovereign subject of interna-
of a populated territory (the Vatican City), but also as the non- tional law the nature of which is different from that of a territorial
territorial authority and administrative organ of the Catholic State.56
50
Church. The Order of Malta occupies a similar position. Whatever
As noted above, these two precedents have been taken as evi- statehood the Order may have possessed when it exercised full
dence that statehood can subsist in spite of temporary (Holy See) secular power over physical territories (something that is itself
or permanent (Order of Malta) loss of territory and that the notion
of deterritorialized statehood is, as a matter of fact, already 51
For a similar view, see Costi and Ross (n 8) 123–125; V Engström and M Rouleau-Dick,
accepted in international law. In our view, however, this ‘The State is Dead: Long Live the State! Statehood in an Age of Catastrophe’
(Völkerrechtsblog, 1 May 2020); Juvelier (n 32) 30–31; A Maas and A Carius, ‘Territorial
Integrity and Sovereignty: Climate Change and Security in the Pacific and Beyond’ in J
Scheffran et al (eds), Climate Change, Human Security and Violent Conflict (Springer 2012) 659;
Torres Camprubí (n 12) 110–112; Yamamoto and Esteban (n 12) 203–206.
52
44
For more information, see generally C d'Olivier Farran, ‘The Sovereign Order of Malta in See I Cismas, Religious Actors and International Law (Oxford University Press 2014)
International Law’ (1954) 3 International and Comparative Law Quarterly 217. 155 (speaking of the Holy See as an entity with ‘the resemblance of statehood’).
45
R Araujo, ‘The Holy See: International Person and Sovereign’ (2011) 1 Ave Maria Law 53
See G Arangio-Ruiz, ‘On the Nature of the International Personality of the Holy See’
Journal 1, 2. (1996) 29 Revue Belge de Droit International 354, 361; I Brownlie, Principles of International
46
On the history of the Holy See in international affairs, see generally H Cardinale, The Holy Law (7th edn, Oxford University Press 2008) 64; J Kunz, ‘The Status of the Holy See in
See and the International Order (Colin Smythe 1976); R Graham, Vatican Diplomacy: A Study of International Law’ (1952) 46 American Journal of International Law 308, 313; J Morss, ‘The
Church and State on the International Plane (Princeton University Press 1959); E Hanson, The International Legal Status of the Vatican/Holy See Complex’ (2015) 26 European Journal of
Catholic Church in World Politics (Princeton University Press 1987). International Law 927, 945–946; C Ryngaert, ‘The Legal Status of the Holy See’ (2011)
47
On the Holy See's diplomatic relations, see generally R Araujo and J Lucal, Papal Diplomacy 3 Goettingen Journal of International Law 829, 830. Contra see M Black, ‘The Unusual
and the Quest for Peace: The United Nations from Pius XII to Paul VI (St. Joseph University Sovereign State: The Foreign Sovereign Immunities Act and Litigation against the Holy See
Press 2010); J Coriden, ‘Diplomatic Recognition of the Holy See’ (1988) 48 The Jurist 483; K for Its Role in the Global Priest Sexual Abuse Scandal’ (2009) 27 Wisconsin International Law
Martens, ‘The Position of the Holy See and Vatican City State in International Relations’ Journal 299, 299 (speaking of the Holy See as the ‘world's smallest nation state’).
54
(2006) 83 University of Detroit Mercy Law Review 729. Thome Guadalupe v Associazione di S Cecilia (1937) 8 ILR 151.
55
48
See A Géraud, ‘The Lateran Treaties: A Step in Vatican Policy’ (1929) 7 Foreign Affairs Crawford (n 3) 225–226.
571. 56
See, for example, Committee on the Rights of the Child ‘List of Issues in Relation to the
49
Crawford (n 3) 230. Second Periodic Report of the Holy See: Replies of the Holy See to the List of Issues’ UN
50
See generally M Barbato, ‘A State, a Diplomat and a Transnational Church: The Multi- Doc CRC/C/VAT/Q/2/Add.1 (9 January 2014) para 6 (‘The Holy See is a sovereign subject
Layered Actorness of the Holy See’ (2013) 21 Perspectives: Review of International of international law having an original, non-derived legal personality independent of any
Affairs 27. See also M Batton, ‘The Atypical International Status of the Holy See’ territorial authority or jurisdiction’).
(2001) 34 Vanderbilt Journal of Transnational Law 597, 599–600.
ALLEN AND PROST 7

contested),57 the consensus of scholars is that statehood was lost in Some among those who advocate for State continuation have
1798 when its territory was seized by France.58 After the State col- acknowledged this point and concede that the Order of Malta and the
lapsed at the hands of the Napoleonic army, the Order sought to Holy See do not offer a path to statehood proper but, rather, would
acquire new territories in the Baltic and Aegean seas. These entail a transition to non-State sovereign entity status.62 Our claim,
attempts, however, were unsuccessful and the Order has remained however, is that this needs to be more universally recognized and that
landless ever since. To this day, the Order has a permanent humani- the implications of this transition also need to be more fully
tarian presence in most countries in the world. It maintains diplo- appreciated—something that, in our view, is currently lacking.63 As the
matic ties with many (though by no means all) members of the following will seek to make clear, the distinction between States and
international community and exercises some of the prerogatives legally proximate entities is not merely semantic. It matters greatly,
usually reserved for states. Yet State and judicial practice confirm not just symbolically but normatively too.
that, to the extent that it is recognized as a subject of international
law, the Order of Malta is viewed as a subject possessing special
and limited legal personality, with some attributes of sovereignty 4 | TRANSITIONING TO LEGALLY
but no statehood proper. Asked to ascertain the legal status of the P RO XI M A T E N O N- S TA T E S TA T U S:
Order, a special Papal Tribunal ruled in 1953 that ‘the status of the NO RM ATIVE I MPL I C A TIO NS
Sovereign Order … comprises the enjoyment of a number of rights
which the Order possesses as a subject of international law. … They Some scholars have taken the view that transitioning disappearing
do not, however, constitute for the Order a complex of rights and island States from full statehood to a legally proximate non-State sta-
privileges which are reserved to entities which are sovereign in the tus should not be dismissed as a path for avoiding extinction and may
full sense of the term’.59 As with the Holy See, the Order of Malta even constitute a desirable option for a range of reasons. Rather than
itself also does not claim to be a State. Instead, its Constitutional trying to shoehorn sunken States into a model of statehood that is
Charter defines the Order as a ‘legal entity’ which is a ‘subject of closely tied to territoriality, there may be benefit in pursuing
60
international law and exercises sovereign functions’. deterritorialized existence under legal categories more tailored to their
The key point to note then is that, even if the Order of Malta and specific circumstances.64 The threshold may be an easier one for dis-
the Holy See are, to an extent, valuable precedents for the dis- appearing States to reach than full-fledged statehood and one for
appearing island community, they are not in actual fact precedents of which the Order of Malta and the Holy See may actually offer plausi-
deterritorialized States but rather of legally proximate non-State sov- ble precedents.65 It has also been suggested that pursuing non-State
ereign entities. The two precedents may be drawn upon to prove that existence may be more palatable to the international community since
there is room in international life for some form of deterritorialized ‘accepting that a state can exist without territory might have implica-
sovereign existence. But these precedents are, at best, examples of tions going far beyond the case of disappearing states’,66 for instance
sui generis entities inhabiting the grey zone between statehood proper by opening the door to concomitant demands by other groups for
and non-State personhood. The idea of deterritorialized statehood in statehood. It has been suggested, to finish, that a transition to non-
the full sense is theoretically conceivable. But it remains the case that State sovereign status may not prevent disappeared States from
a State without territory is a proposition for which there is, in actual retaining their sovereign rights and privileges and pursuing their
61
fact, no genuine historical precedent. essential role in representing and protecting their displaced popula-
tion. Burkett, for instance, has claimed that, to the extent that dis-
appeared island communities become ‘an entirely new category of
57
As noted by Breycha-Vauthier and Potulicki, for example, the contention that the Order of
actors’, they will nevertheless ‘continue to be afforded all of the rights
Malta has ever been a State is the result of ‘a somewhat regrettable confusion of its
permanent position as a non-territorial religious entity and its role as a territorial power’. The and benefits of sovereignty among the family of states’.67
character of the Order of Malta did not originate simultaneously with its territorial It is this latter claim that, we argue, requires critical examination.
sovereignty and therefore was not altered with the gain of its territorial possessions. See A
Breycha-Vauthier and M Potulicki, ‘The Order of St. John in International Law: A Forerunner
The international legal system, as others have shown, remains intrinsi-
of the Red Cross’ (1954) 48 American Journal of International Law 554, 555–557. See also F cally and fundamentally State-centric. The proliferation of non-State
Gazzoni, ‘Order of Malta’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International
Law (Oxford University Press 2009) paras 5, 12 (claiming that the Order of Malta retained its
actors in the last century has hardly made a dent in the normative
supranational character even during the period when it ruled over territory).
58
See N Cox, ‘The Continuing Question of Sovereignty and the Sovereign Military Order of
62
Jerusalem, Rhodes and Malta’ (2006) 13 Australian International Law Journal 211, 212; As already noted, see Costi and Ross (n 8) 123; Engström and Rouleau-Dick (n 51); Juvelier
Crawford (n 3) 230; d'Olivier Farran (n 44) 227; K Karski, ‘The International Legal Status of (n 32) 30; Maas and Carius (n 51) 659; Torres Camprubí (n 12) 112; Yamamoto and Esteban
the Sovereign Military Hospitaller Order of St. John of Jerusalem of Rhodes and Malta’ (n 12) 211.
(2012) 14 International Community Law Review 19, 19; J Kovacs, ‘The Country above the 63
For a notable exception, see Grote Stoutenburg (n 12) 388–446.
Hermes Boutique: The International Status of the Sovereign Military Order of Malta’ (2003) 64
Bílková (n 61) 41; Engström and Rouleau-Dick (n 51); J Jeanneney, ‘L'Atlantide: Remarques
11 National Italian American Bar Association Law Journal 27, 42; M Shaw, International Law 
sur la Submersion de l'Intégralité du Territoire d'un Etat’ (2014) 1 Revue Générale de Droit
(7th edn, Cambridge University Press 2014) 178. International Public 94, 128; S Lavorel, ‘Les Enjeux Juridiques de la Disparition du Territoire
59
Cited in Crawford (n 3) 232. 
de Petits Etats Insulaires’ in P Bacot and A Geslin (eds), Insularité et Sécurité: L'Île entre
60
Constitutional Charter and Code of the Sovereign Military Hospitaller Order of St. John of Sécurité et Conflictualité (Bruylant 2014) 44.
65
Jerusalem, of Rhodes and of Malta (promulgated 27 June 1961) arts 3–4. Costi and Ross (n 8) 123.
61
For a similar conclusion, see V Bílková, ‘A State Without Territory?’ (2016) Netherlands 66
Bílková (n 61) 42.
67
Yearbook of International Law 19, 32. Burkett (n 12) 346. See also Engström and Rouleau-Dick (n 51).
8 ALLEN AND PROST

centrality of the State.68 The State/non-State distinction remains a non-State sovereign entities such as the Order of Malta and the Holy
central structuring feature of international law and, for that reason, it See to issue passports and entertain regular diplomatic relations with
is unlikely that international law will permit non-State entities to claim foreign States. Yet travel documents issued by non-State entities may
the full range of sovereign rights and privileges it has traditionally be refused by destination countries that do not recognize them.73
reserved for states. As the following seeks to make clear, downgrading More importantly, as only States can confer nationality on individuals,
from State to non-State status will inevitably weaken the position of transitioning sunken island States to a legally proximate non-State sta-
disappeared States in at least four key respects, making it a far less tus would mean that their citizens automatically become de jure state-
attractive option than full statehood retention. less.74 Concomitantly, disappeared States would lose the capacity
The first area where a transition to non-State sovereign entity under international law to exercise diplomatic protection and espouse
status would produce undesirable outcomes concerns the legal stand- claims on behalf of their citizens, a privilege traditionally reserved to
ing of displaced islanders. Under a full statehood retention scenario, sovereign States.75 The population of a sunken island, under this sce-
the population of sinking States would not become de jure stateless as nario, would therefore find itself in a much more precarious position,
their national States would continue to exist and regard them as with more limited rights and fewer avenues of redress.76
nationals under the operation of their law.69 Nor would they, as some The advantages of statehood proper are also clear with regard to
have claimed, become de facto stateless residents in their new host continued membership of and participation in international organiza-
States.70 While there are many practical constraints that an ex-situ tions. Due to the personal nature of membership, which is attached
government will face in this scenario and relations with host States more to the state as an international person than to its territory,77 a
will be of fundamental importance, a disappeared island State would deterritorialized State may in principle retain its formal standing in
likely continue to protect its nationals in some form, including by intergovernmental organizations and exercise full membership rights.
negotiating arrangements that best serve their interests, ensuring that The termination of membership may, in limited circumstances, follow
their rights are respected, issuing passports enabling them to travel from an organization's object and purpose being inherently tied to the
abroad and official documents allowing them to carry out the normal possession of territory, or if the disappeared island State were no lon-
71
functions of civilian life. Once people begin to acquire dual national- ger able to fulfil the responsibilities of membership due to its lack of
ity, the burden of protection may gradually shift to the States in which territory.78 As standard, however, the capacity of a disappeared island
islanders have been forced to relocate on the basis that this is where State to defend its interests in international forums would be pre-
nationality is more effective.72 Yet, until this happens, statehood served, including the right to litigate in international courts on an
retention will in theory ensure that displaced islanders do not sink into equal footing with other sovereign States.
statelessness and, with it, lose the precious legal rights and citizenship By contrast, more tenuous forms of membership and participation
protections attached to nationality. in international organizations would likely follow from a downgrade to
The scenario in which a disappeared State maintains international non-State sovereign entity status. Very few international organiza-
legal personality sui generis as a non-State sovereign entity presents a tions allow for full membership by entities other than States.79 In
much less desirable outcome from the viewpoint of human security. accordance with the UN Charter,80 for instance, membership in the
As sovereign actors, sunken island States would still in theory be able UN is reserved to States, so much so in fact that accession to the UN
to exercise some functional competencies usually associated with is often considered as tantamount to universal recognition, the ‘final
statehood. For example, as noted above, it is perfectly possible for baptism’ into the international community.81 As previously noted,
non-State entities such as the Order of Malta and the Holy See have
68
See generally M Koskenniemi, ‘What is International Law For?’ in M Evans (ed),

International Law (4th edn, Oxford University Press 2014) 29; F Mégret, ‘L'Etatisme
73
Spécifique du Droit International’ (2012) 24 Revue Québécoise de Droit International 105; G For further discussion, see Grote Stoutenburg (n 12) 431–434.
Simpson, ‘Something To Do With States’ in A Orford and F Hoffmann (eds), The Oxford 74
ibid 430; McAdam (n 12) 22. It has been suggested that citizens of disappeared States may
Handbook of the Theory of International Law (Oxford University Press 2016) 564; T Sparks, not even meet the definition of stateless persons under relevant conventions and, as such,
‘The State’ in J d'Aspremont and S Singh (eds), Concepts for International Law: Contributions to may not qualify for the special protections afforded to stateless persons at international law.
Disciplinary Thought (Edward Elgar 2019) 838. See A Harrington, ‘Citizens of the World’ (2010) 104 Proceedings of the ASIL Annual
69
Convention Relating to the Status of Stateless Persons (adopted 28 September 1954, Meeting 55.
entered into force 6 June 1960) 360 UNTS 117 (Statelessness Convention) art 1 (‘For the 75
ILC ‘Draft Articles on Diplomatic Protection with Commentaries’ UN Doc A/61/10 (2006)
purpose of this Convention, the term “stateless person” means a person who is not art 1 commentary, para 3 (‘diplomatic protection has traditionally been seen as an exclusive
considered as a national by any state under the operation of its law’). Only a minority of state right in the sense that a state exercises diplomatic protection in its own right because
scholars have taken the position that disappeared States, even if they remain states proper, an injury to a national is deemed to be an injury to the state itself’).
can have no nationals. See, most notably, H Alexander and J Simon, ‘No Port, No Passport: 76
See generally M Recalde-Vela, ‘Access to Redress for Stateless Persons Under International
Why Submerged States Can Have No Nationals’ (2017) 26 Washington International Law Law: Challenges and Opportunities’ (2019) 24 Tilburg Law Review 182.
77
Journal 307 (claiming that, for a State to consider a person as a national, that State must K Bühler, State Succession and Membership in International Organisations: Legal Theories
assume the duty to other States of re-admitting that person if deported from abroad and this Versus Political Pragmatism (Brill 2001) 5.
78
duty cannot be assumed by a landless State). For instance, membership in the World Meteorological Organisation is only open to States
70
See W Kälin, ‘Conceptualising Climate Induced Displacement’ in J McAdam (ed) Climate with their own meteorological services. See D Heilmann, ‘World Meteorological
Change and Displacement: Multidisciplinary Perspectives (Bloomsbury 2010) 101; McAdam Organisation’ in Wolfrum (n 57) para 7.
(n 12) 14. Although no official definition exists, de facto stateless persons are generally See Bühler (n 77) 19; H Schermers and N Blokker, ‘Membership of International
79

viewed as persons who are nationals of a certain State but cannot derive any benefits Organisations or Institutions’ in Wolfrum (n 57) para 24.
80
therefrom. UN Charter (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI arts
71
Grote Stoutenburg (n 12) 425. 3–4.
72 81
McAdam (n 12) 12. D Geldenhuys, Contested States in World Politics (Palgrave Macmillan 2009) 149.
ALLEN AND PROST 9

been granted permanent observer status in several international orga- instance, that treaties concluded by the Holy See are subject to the
nizations, including the UN.82 Observer status would allow dis- rules of the Vienna Convention on the Law of Treaties but that those
appeared island States some scope to ensure that their interests are concluded by the Order of Malta are not.90 A transition to non-State
known and given due consideration. The granting of observer status is sovereign entity status would therefore create legal uncertainty
purely discretionary, however, and no general rules regulate the rights regarding the validity, operation, interpretation and effects of agree-
and obligations of observers.83 Observers also have much more lim- ments concluded by sunken islands.91 This is especially problematic
ited rights than formal members. While usually granted special facili- as, under most envisaged scenarios, disappeared States would likely
ties for attending meetings and accessing documents, observers have to rely heavily on international agreements with third States to
typically have no voting rights and no agenda-setting powers. Access preserve their interests, whether in the form of maritime boundary
to international courts and tribunals, to finish, is notoriously limited agreements, territorial purchase agreements or agreements securing
for non-State entities. While not entirely precluding their participation protection for their population.
in multilateral institutions, a transition to non-State status would thus Last but not least, it is important to consider the consequences of
clearly restrict the rights of disappeared states and their international the nature of continued existence on retention by a disappearing
agency. island State of its assets, most notably its maritime zones (and the nat-
In terms of treaty obligations, since the treaty-making power of ural wealth contained therein). If it continued as a State proper, a
States is axiomatic,84 a deterritorialized State would be competent to deterritorialized State could in principle retain and continue to admin-
continue concluding all kinds of valid international treaties. Subject to ister maritime zones for the benefit of its people since maritime areas
the proviso that the loss of territory may ground termination for only formally accrue to States.92 Some scholars have argued that the
85
supervening impossibility of performance, the deterritorialized State tie between land and maritime zones is functionally indispensable for
could likewise continue to fulfil its commitments and claim rights this purpose, as the performance of management functions becomes
under treaties concluded before deterritorialization, ensuring a degree vastly more difficult when a state is geographically removed from its
of legal certainty and predictability. ocean spaces.93 As observed by others, however, the challenges of
Conversely, neither the sovereign right to enter into or remain a monitoring, control, surveillance and enforcement could be met with
party to international treaties would be guaranteed if the island State the ongoing development of increasingly sophisticated satellite and
were transformed into an international legal entity sui generis. While other advanced technologies and through cooperation and coordina-
the participation of non-State actors in international law making is tion with regional fisheries management organizations and the Inter-
86
long-standing, jus tractatuum—the capacity to make treaties—is gen- national Maritime Organisation (IMO).94 The more pressing problem,
erally thought to be the exclusive preserve of States, in the sense that only faced by an island government turned into the executive organ
only States possess the inherent competence to conclude treaties, of a non-State sovereign entity, is that it is not self-evident that it
while other entities have it conferred upon them by States.87 What- could retain its maritime zones at all.95
ever treaty-making power disappeared States may possess as non- What can be extracted from this brief examination is that certain
State sovereign entities would therefore be more limited than under powers usually inherent in statehood can also be ascribed to non-
the statehood proper scenario and would in any case be dependent State entities, but only States are plenipotentiaries of the international
upon recognition and acceptance by other States.88 Remaining a con- legal system, that is, only they can claim full and automatic possession
tracting party to treaties concluded previously would also rely on of sovereign rights and privileges under international law. A
acquiescence by the other contracting parties.89 As sovereign non-
State entities, sunken islands may of course conclude international
agreements other than treaties. But the status and legal force of such 90
K Schmalenbach, ‘Article 1: Scope of the Present Convention’ in O Dörr and K
agreements is notoriously indeterminate, as is the applicability of the Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (Springer 2018)
law of treaties to these agreements. It has been suggested, for 22.
91
On some of the uncertainties regarding the effects of agreements concluded with non-
State actors, see O Corten and P Klein, ‘Are Agreements Between States and Non-State
Entities Rooted in the International Legal Order?’ in E Canizzaro (ed), The Law of Treaties
Beyond the Vienna Convention (Oxford University Press 2011) 3.
82
See Gazzoni (n 57) para 16; G Westdickenberg, ‘Holy See’ in Wolfrum (n 57) para 9. 92
See United Nations Convention on the Law of the Sea (adopted 10 December 1982,
83
T Rensmann, ‘Observer Status in International Organisations or Institutions’ in Wolfrum entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS).
(n 57) para 6. 93
J Lisztwan, ‘Stability of Maritime Boundary Agreements’ (2012) 37 Yale Journal of
84
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force International Law 153, 169; T Puthucherril, ‘Rising Seas, Receding Coastlines and Vanishing
27 January 1980) 1155 UNTS 331 art 6 (‘every state possesses capacity to conclude Maritime Estates and Territories: Possible Solutions and Reassessing the Role of International
treaties’). Law’ (2014) 16 International Community Law Review 38, 59.
85 94
ibid art 61. Rayfuse (n 12) 12–13.
86
See generally P Webb, ‘The Participation of Non-State Actors in the Multilateral Treaty 95
Some scholars have argued that loss of statehood does not necessarily entail loss of
Process’ in S Chesterman et al (eds), The Oxford Handbook of United Nations Treaties (Oxford maritime entitlements. By identifying that maritime entitlements vest in the island people, it
University Press 2019) 633. is suggested that only their disappearance entails loss of maritime zones. See Sharon
87
M Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus (n 36) 99. The more common view on a traditional reading of UNCLOS, however, is that a
Nijhoff 2009) 129. people has no right to maritime zones independently nor, presumably, by way of a non-State
88
A Peters, ‘Treaty-Making Power’ in Max Planck Encyclopedia of Public International Law sovereign entity—that right only accrues to a State. See Jain (n 12) 7 (noting that the loss of
(2009) para 13–14. statehood ‘represents a significant downgrading of status’ including, in particular, the loss of
89
Grote Stoutenburg (n 12) 442. ‘the right to maritime entitlements under the law of the sea’).
10 ALLEN AND PROST

downgrade to non-State sovereign entity status à la Order of Malta/ normatively ‘purer’ and more desirable statehood proper option.
Holy See, as well as generating legal instability, would leave dis- Something, in other words, may be better than nothing. But we do
appeared States in a more precarious and vulnerable position than full not take a position on these strategic considerations here. Our main
statehood retention with diminished international agency, rights and argument is simply this: those (and they are many) who mobilize the
resources to preserve their interests and the welfare of their Order of Malta and the Holy See in support of the continuation
populations. thesis must be clear-eyed about the fact that they are not actually
arguing for statehood retention but for something else, leading to
suboptimal legal outcomes. Equally, those advocating full
5 | C O N CL U S I O N deterritorialized statehood retention—the outcome we regard as
most favourable from a normative standpoint—must do so in the
Our claim in this article is fairly narrow but, in our view, important. knowledge that this is something for which there is, in actual fact,
We do not take a firm position here on the big normative questions no existing precedent in legal history. It is not, in other words, an
raised by rising sea levels and State extinction, including whether legal option that is somehow readily available to sunken States. It
disappearance must automatically follow physical disappearance or requires, at minimum, a dynamic interpretation of the law of
the extent to which key categories of international law may be statehood.
revisited in the light of the climate emergency we face.96 Ours is sim- The scale of the climate catastrophe, in our view, offers more
ply a call for greater analytical clarity as the ‘fate’ question progres- than sufficient justification for revisiting key assumptions and inter-
sively takes the centre stage in debates regarding rising sea levels and national legal categories. It cannot be the case that existing doc-
international law. trines are allowed to stand unchanged if they spell a death
There is now a significant body of literature claiming that States sentence for entire nations. In this debate, we just do not think
may continue to exist despite the permanent loss of habitable terri- the appeal to precedent is as helpful as might appear at first
tory. A range of scenarios are typically envisaged for state continua- glance.
tion, from continuation-through-recognition to the creation of a new
category of landless States or continuation as sui generis sovereign OR CID
entities. These scenarios, however, are not always helpfully distin- Emma Allen https://orcid.org/0000-0002-3757-7810
guished and some arguments are, in our view, analytically dubious or
at the very least in need of greater consistency. Some, for instance,
AUTHOR BIOGRAPHIES
claim that statehood proper can be retained under the existing law of
statehood and cite the Order of Malta and Holy See as precedents of
deterritorialized States. Others acknowledge that these entities are Emma Allen is a Lecturer at Keele Law School where she also

best understood as sui generis sovereign entities and that, if used as obtained her first degree, LLM and PhD, which was fully funded

models, they would entail disappeared States pursuing by the UK Arts and Humanities Research Council. Her disserta-

deterritorialized existence in non-State form, while simultaneously tion, and ongoing research, explores the international law implica-

claiming that they may retain all of their sovereign rights and tions of (and potential responses to) climate change-induced sea

privileges. level rise and territorial loss for the community of Pacific small

These claims are, in our view, implausible. As we have attempted low-lying island States. She has been a member of the ILA Com-

to show, the Order of Malta and the Holy See are not precedents of mittee on International Law and Sea Level Rise, which is likewise

deterritorialized States but of landless non-State sovereign entities, a exploring these issues, since November 2018.

distinction that is not merely doctrinal but matters greatly when it Mario Prost is a Senior Lecturer at Keele Law School. He obtained
comes to the legal standing of these international persons. The more his first degree and LLM from the Sorbonne Law School
correct position is thus that there is in actual fact no existing prece- (Université Paris 1) and his PhD from McGill University, where he
dent of deterritorialized States properly-so-called and that pursuing was a Liberatore Major Fellow and his dissertation on the frag-
deterritorialized sovereign existence à la Order of Malta/Holy See will mentation of international law was awarded the Association of
necessarily entail a loss of agency, an outcome we deem to be norma- Quebec Law Professors annual prize for best doctoral thesis
tively undesirable. (2009). As well as his ongoing work on various aspects of interna-
It may be the case that pursuing deterritorialized sovereign exis- tional legal theory, Mario's current research focuses on the colo-
tence in non-State form is desirable for some other reasons, includ- nial history of (international) environmental law and critical
ing strategic considerations. Transitioning to non-State sovereign approaches to transnational arbitration (with special emphasis on
status may be a tactical compromise worth pursuing if it attracts investor-State arbitration).
greater support from the international community than the
While the first author is a member of the ILA Committee on Inter-
national Law and Sea Level Rise, all views expressed in the
96
For one of the authors' views on these questions, see Allen (n 28).
ALLEN AND PROST 11

present article are those of the two authors and do not necessar-
How to cite this article: Allen E, Prost M. Ceci n'est pas un
ily represent or reflect the views of the ILA. The authors would 
Etat: The Order of Malta and the Holy See as precedents for
like to thank the anonymous reviewers and the editor for their in-
deterritorialized statehood? RECIEL. 2022;1-11.
depth reading and valuable proposals for improvement of the
doi:10.1111/reel.12431
manuscript.