Residual Legal Subjectivity and Continuation of Sovereignty after a Complete Loss of Territory due to rising Sea Levels
Utilizing the Maltese Experience
In September, the issue of climate justice for drowning states was raised in INTERNATIONAL LAW. Some states, especially small island states, are at risk of losing all of their territory to rising sea levels caused by the melting of ice in the Arctic and Antarctica. This is no longer a wildly hypothetical scenario but a real risk to several island nations.
Traditionally, international law requires three components for statehood: a people, a territory and effective governance. There is no statehood without territory. For this reason, it is currently discussed how these nations could somehow continue to exist after the end of statehood due to the complete loss of territory. A simple solution would be to prevent the loss of statehood by giving these states alternative territory. While not entirely impossible, it can be doubted whether other states will have the political will to do so.
But there is one historical example of a former state retaining sovereignty after the loss of all territory - and not only in cases of occupation, like in the cases of Estonia, Latvia, and Lithuania, that regained independence after decades of occupation, but that never really lost their statehood. Their status as subjects of international law had only been dormant because of the occupation, but it had never been lost. The example in question is that of the Sovereign Order of Malta.
The Sovereign Order of Malta can serve as an example of the potential future status of states that lose all of their territory. In the cases of Estonia, Latvia, and Lithuania, which were occupied by Nazi Germany during World War II and then by the Soviet Union for several decades, their statehood was never lost, it was just inactive due to the occupation. In the case of the Sovereign Order of Malta, its rule over Malta has come to a permanent end. However, as the Italian Court of Cassation decided in the case of Nanni v. Pace and the Sovereign Order of Malta ((1935-37) 8 A.D. 2, reprinted in: D. J. Harris (1998), Cases and Materials on International Law, London: Sweet & Maxwell, pp. 142-143), the Order continues to be sovereign and independent from other subjects of international law, even though it no longer controls a territory (ibid., p. 143). Originally, the Order had become a subject of public international law through the acquisition of territory (ibid.). This was followed by the Order’s sovereignty by other relevant actors of the time, such as the Catholic Church and the Byzantine Empire (ibid.). To this day, “[t]he Order maintains diplomatic relations with over 40 states” (D. J. Harris (1998), Cases and Materials on International Law, London: Sweet & Maxwell, p. 143). It is because of its continued ability to interact with other subjects of international law that the Sovereign Order of Malta has been able to remain a subject of international law. While recognition is not an essential element of statehood, centuries ago it was constitutive for the establishment of the status of the Order as a non-state subject of international law, albeit - due to the control of territory - a subject of international law that was in many ways similar to a state. It was this component of territorial control that made the Order a quasi-state and made recognition by other subjects of international law (to use an anachronistic term) easier. Later, the loss of territory did not harm its legal status.
The same could be applied to actual states. Under the classical rule of the three elements of statehood, a potential complete loss of territory would mean an end of statehood. But former states might argue in favor of a kind of residual legal subjectivity. This argument is strengthened by the fact that states that are at risk of a complete loss of territory due to climate change-induced sea level-rise are already states that enjoy sovereign equality with all other states. They, therefore, have already overcome a hurdle to recognition that the Sovereign Order of Malta had to face initially.
In fact, there is a more modern example of the residual effect of the sovereignty of a former state. This example, too, is connected to the Catholic Church: the Holy See is a subject of international law that is distinct from the Vatican as a state. This, too, is at least in part the result of a complete loss of territory. Until 1870, the Papal States (despite the English term, the Italian term Stato Pontifico indicates that this was a single state, although the different provinces had their own identities for historical reasons, which is reflected in the commonly used English plural term) were a state that covered large parts of what is today central and northern Italy. In 1870, Italy was united as one state and the Papal States ceased to exist. It was only in 1929 that the state of the Vatican City in the modern sense came into existence when it gained independence from Italy. During all the time, however, the institution of the Holy See, as a subject of international law, never ceased to exist. It became more relevant as a subject of international law due to the end of the existence of the Papal States, and it remains a subject of international law to this day, almost a century after the beginning of modern Vatican statehood.
That both the Holy See and the Sovereign Order of Malta can connect their respective status as a subject of international law to states that existed in the past, and that their current status is independent of these former states, shows that it is not unthinkable for international law that in the future other non-state subjects of international law might find recognition. In both cases, these processes took centuries, and had their origins in a time when the relative power of these subjects on the international level was far higher than today - and the relative power of states, in general, was less than in Westphalian international law. Today, international law once more experiences more diversity in terms of its subjects, in particular since 1945. These developments could also pave the way for some kind of non-state sovereignty for other peoples that do not have a state of their own, such as the Kurds or the Sami people. There is of course a key difference which would make this next step politically more difficult because these peoples are closely associated with specific territories. A better comparison would be transnational peoples such as the Roma people who are not associated with a specific territory.
Such non-state sovereignty would still require a clearly defined human component and an effective governance structure that is actually capable of engaging with other subjects of international law. While other non-state actors will face difficulties developing such structures, doing so is not impossible.
There might be a lesson here for states that face complete destruction, for example, small island nations that are threatened in their existence by rising sea levels. State actors that face the loss of all territory should be well-equipped to organize such a transition - just like it had originally happened in the case of the Sovereign Order of Malta. This is only one of several potential futures, but one option that might be worth exploring further.