We theorists have … to take heed to build our doctrines on tendencies rather than on ‘facts’; otherwise when we have finished constructing our systems, it may happen that the facts are no longer what they were when we began building, and the system is out of date before it is established.Footnote 1
Introduction
Only a few decades ago, students of public international law thought of the extinction of a state almost exclusively in the circumstance of the disappearance of its government as one of the constitutive elements of statehood,Footnote 2 which historically has proved to be the most fragile element. Permanent population and state territory have usually been considered too stable to disappear. Thus, until recently, authors only discussed hypothetical examples of the extinction of statehood due to the disappearance of a state’s territory — for example, the extinction of an island state as a result of a tectonic catastrophe, as in the case of the mythical Atlantis. And the disappearance of the entire population was imaginable only in the scenario of a nuclear war.Footnote 3
Unfortunately, the phenomenon of climate change-induced sea level rise has turned the unimaginable into reality, facing international law with the possibility of the appearance of some new mythical legal creatures: oxymoronic “deterritorialized states” or, as proposed in this article, “climate deterritorialized nations” (CDNs) as potential sui generis subjects of international law — the “orphans” of their inundated small island states. Thus, unfairly, the smallest contributors to the climate change phenomenon could become the most affected by its negative consequences.Footnote 4 The International Organization for Migration (IOM) forecasts that there will be between twenty-five million and one billion climate change migrants by 2050.Footnote 5
International law is by definition a horizontal, non-hierarchical normative system regulating relations among its sovereign subjects, primarily states. As such, it can hardly reverse the consequences of their often egoistic behaviour, but what it can do is at least try to protect the rights of the most imperilled — in this case, the peoples of the sinking “disappearing island states,” which, affected by the sea level rise phenomenon (de jure and/or de facto) are vanishing before our eyes. Besides the general protection of human rights already included in international law, these peoples will need specific protections concerning the preservation of their rights to self-determination and to their culture and identity, particularly in the case of their relocation.Footnote 6 It may be that the international legal system, which unfortunately often lacks teeth, can hardly change the destiny of these peoples. However, it should be the task of international legal doctrine to offer a viable and acceptable solution to protect some of the most threatened members of the international community — the populations of the sinking disappearing states.
This article argues that one such solution could be to transform such populations, which constitute just one element of statehood in classical international law doctrine, into non-territorial, semi-sovereign subjects of international law — CDNs.Footnote 7 By not only acquiring legal capacity, but also some other elements of international legal personality, CDNs as non-state entities could act — probably for the first time in the history of international law — as successors to their predecessor states. In this regard, the recognition of international legal personality for CDNs as new non-territorial subjects of international law could not only provide them with international legal capacity (capacitas iuridica), including the capacity to produce legal consequences in international legal relations like the treaty-making capacity, or the right to legation, but it could also preserve their right to self-determination, including their rights over the natural resources of their disappeared states.
The aim of this article is therefore to try to identify a feasible and durable solution for these nations within the framework of the existing system of international law and its concept of legal personality. Thus, the first part of the article will present an overview of the development of the concept of legal personality and of its elements in international legal scholarship. In the following part, the article will analyze the concept of statehood in contemporary international law based on territory as one of its constitutive elements but, at the same time, relativized by the climate change process and, consequently, by the sea-level-rise phenomenon. Finally, the article will focus on the international legal status of the populations of disappearing island states after the loss of their territory and the possibility of their transformation into new, non-territorial subjects of international law — CDNs.
The Concept of International Legal Personality: A Concise Overview
The concept of legal personality is one of the most important issues in every legal order because it differentiates subjects of law from other participants in social relations. However, there is probably no area of law that has retained the topicality of this concept in such a measure as international law. Reasons for this can be found in legal philosophy and sociology as well as in history, but the best explanation is almost certainly found in the very nature of international law. The horizontal structure of the international legal order, characterized by the lack of a centralized legislative power as it exists in municipal legal orders, explains the peculiar nature of the international law-making process where the connection between theory and practice seems to be much more intensive and direct than in any other branch of law. International law creates its subjects, whilst, at the same time, it has been created by them.
On the other hand, as Hermann Mosler would say, every legal order defines a system of its subjects according to its aims and needs, granting legal personality, in the first place, to those entities in relation to which it desires to realize its aims.Footnote 8 Therefore, the diversity of legal subjects among different legal orders seems unavoidable. International law cannot be the exception here.Footnote 9 On the contrary, it can serve as a perfect example for analysis of this process. However, in spite of some proposals for codification in the field of international legal personality,Footnote 10 contemporary international law does not contain any legal norm enumerating its subjects or even regulating conditions for acquiring international legal personality. The dynamics of international relations most probably aggravate the international law-making process in this sense since the appearance or disappearance of various categories of subjects of international law follows the changing needs of the international community.Footnote 11 Therefore, international law can only accept that “subjects of law in any legal system are not necessarily identical.”Footnote 12 Thus, every attempt at codification and the defining of international legal personality, its elements, or even its minimum standards remains necessarily on the doctrinal level.
The historical development of international legal personality can be understood as an evolving relationship between states, as sovereign and probably the most influential subjects of international law, and a spectrum of other participants in international relations as members of the international community. However, this relationship has not always been equally understood by international legal doctrine, particularly if the notion of sovereignty is taken as a starting point. Thus, Cezary Berezowski points out that, if we take the notion of sovereignty as the basic element of international legal personality, all international relations would seem to be simply inter-state relations (relations interétatiques) and, consequently, states would be the only subjects of international law. On the contrary, if we do not insist on the element of sovereignty, we approach a much broader concept of international legal personality.Footnote 13
From the very beginning of the development of so-called classical international law, in the second half of the sixteenth century, up to the threshold of the twentieth century, only states were recognized as subjects of international law in the international legal order.Footnote 14 Such a restrictive approach can also be found in the second half of the twentieth century in the works of some East European, particularly Soviet, authors.Footnote 15 However, it is impossible to disregard the presence of some entities, atypical to the traditional “state-centric” approach, such as the Holy See, the Sovereign Order of Malta, or the growing number of intergovernmental and even non-governmental organizations (NGOs) (like the International Committee of the Red Cross). Conversely, French legal thought at the beginning of the twentieth century attempted to turn the concept of international legal personality completely upside-down. For example, according to one of the leading French legal theoreticians of that time, Georges Scelle, all international relations should be understood only as relations between individuals belonging to different states. Consequently, the individual was recognized not only as a subject of international law but also, moreover, as the only subject.Footnote 16
While the reality of international relations did not confirm this approach, it should nevertheless be acknowledged that, from that time, the door of international legal personality has been opened to many other state-unlike entities that have effectively taken part in the international community and its law. Numerous authors within international legal scholarship have offered their own definitions of the notion of international legal personality. Thus, for example, Bin Cheng and Julio Barberis consider a subject of international law to be every person capable of being an addressee of an international legal norm that directly imposes certain rights or duties.Footnote 17 Similarly, it seems that Francesco Capotorti makes no distinction between international legal personality and legal capacity in the international legal order.Footnote 18 It is probably an oversimplification or overly theoretical to limit the understanding of international legal personality to legal capacity, but, on the other hand, it seems equally unconvincing to strictly detach legal capacity from the other elements of legal personality. After all, the capacity of participants in international relations to produce legal consequences (capacitas agendi), such as the treaty-making capacity (ius contrahendi) or the right of legation (ius legationis), is itself the emanation of rights given to such participants by the norms of international law. Thus, as Malcolm Shaw points out,
[p]ersonality is a relative phenomenon varying with the circumstances. One of the distinguishing characteristics of contemporary international law has been the wide range of participants. These include states, international organizations, regional organizations, non-governmental organizations, public companies, private companies and individuals.Footnote 19
Thus, some authors, in addition to international legal capacity (capacitas iuridica), require that an international legal person should be capable of acting according to the requirements of the international legal order and, consequently, of producing legal consequences of such acts (capacitas agendi).Footnote 20 Some of these authors do not even differentiate between whether such a capacity is realized directly at the international level or by means of a state and its organs.Footnote 21 On the other hand, there are authors who emphasize the element of international responsibility as necessary to acquire international legal personality. Thus, for example, Constantin Eustathiades seems to consider that a subject of international law should be capable of breaking international legal norms.Footnote 22 Similarly, Nkambo Mugerwa considers that international legal personality encompasses “responsibility for any behaviour at variance with that prescribed by the system,” “the capacity to enter into contractual or other legal relations with other legal persons,” and “the capacity of claiming the benefit of rights.”Footnote 23 In all the above-mentioned conceptions, there is one requirement that appears to be undisputable: legal capacity — that is, the capacity of an entity to be an addressee of legal rights and/or duties established directly by international legal norms.Footnote 24
However, in international law, the classification of international persons according to the content of their legal personality usually does not seem very convenient. In fact, the content of the international legal capacity of an international legal person depends primarily on its role in the international community.Footnote 25 Therefore, it seems correct to conclude that international legal personality does not depend on the quantity of rights and duties conferred.Footnote 26 On the contrary, it is sufficient for an entity to acquire any specific right or duty directly under an international legal norm to become a subject of international law. After all, even the subjects of municipal legal orders do not necessarily have all municipal legal capacities. For instance, children do not usually possess capacitas agendi at all, and, even for adults, it can be limited and, in some cases (for example, mental disorders), removed. They do not thereby cease to be subjects of the law, enjoying legal capacity (for example, fundamental human rights) and, consequently, legal personality in these legal orders. Seen in this light, even so-called non-state actors in international law cannot be an exception. Some of them, such as the International Committee of the Red Cross,Footnote 27 the International Federation of Red Cross and Red Crescent Societies,Footnote 28 the Inter-Parliamentary Union, the International Olympic Committee, and a number of other, so-called “advanced NGOs,”Footnote 29 have already opened the door of international legal personality, proving that any attempt to freeze the content of the “international community” would necessarily halt its development as well as the development of its law.
On the other hand, in international legal doctrine, there is no consensus concerning the content of another element of international legal personality — the capacity to act directly according to international law — that is, to produce legal consequences of such acts (capacitas agendi). In this context, some authors put an emphasis on international law-making capacity — in particular, on treaty-making capacityFootnote 30 — while others highlight the element of international responsibilityFootnote 31 or even the requirement for ius standi before international fora.Footnote 32 This being so, Shaw considers the rising number of participants on the international plane as one of the most significant characteristics of contemporary international law. For him, “international personality is participation plus some form of community acceptance.”Footnote 33 What is more, as Myres McDougal states, “[c]ontemporary theory about international law, obsessed by a technical conception of the ‘subjects of international law’, continues, however, greatly to over-estimate the role of the ‘nation-state’ and to underestimate the role of all these other new participants.”Footnote 34 Similarly, following McDougal, and keeping with the language of his school of international legal process,Footnote 35 Rosalyn Higgins goes even further here. Instead of “subjects,” she talks about “participants” in international (legal) relations.Footnote 36
Therefore, and as concluded by Philip Allott, international law does not have a priori subjects. States and international organizations are just two among the countless participants in international legal relations that are as numerous and various as the needs of international society demand and their actual legal relations, regulated by contemporary international law, recognize.Footnote 37 Although, in international law, there is no legal norm defining the notion of international legal personality or its elements,Footnote 38 the search for possible international legal personality in any (new) participant in international relations should be concentrated on the above-mentioned elements: the capacity of the entity to be an addressee of legal rights and duties established by international legal norms and its capacity to act directly on the international scene producing consequences relevant to the international legal order.
Understood this way, international legal personality is a legal concept that is neither simply a set of elements (like legal capacity, treaty-making capacity, right to legation, international responsibility, and so on) nor necessarily their entirety. These elements are just proof of the presence of a new participant in international relations that has become so intensive that it can no longer be ignored by the international community. Moreover, the presence of a new participant confronts the international community with the necessity of regulating its existence in international relations by its normative system — that is, international law, providing it with rights and duties according to its nature and role in the international community. Therefore, international legal personality is nothing more than a consequence of the actual acquisition of rights and duties already given by international law to participants in international relations.
Climate Change and Disappearing Island States
Although a paramount phenomenon of international relations and the principal subjects of contemporary international law, states have not yet received a universally accepted definition under international law.Footnote 39 Probably, as James Crawford states,Footnote 40 the best known formulation of the basic criteria for statehood is that laid down in Article 1 of the 1933 Convention on the Rights and Duties of States (Montevideo Convention): “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.”Footnote 41 What is more, according to some authors, the above-mentioned Article 1 is commonly regarded as reflecting customary international law.Footnote 42 In this sense, it is worth noting Opinion no. 1 of the Conference on Yugoslavia Arbitration Commission. Paragraph 1(a) of this opinion clearly states: “[T]he existence or disappearance of the State is a question of fact.”Footnote 43 As Budislav Vukas has pointed out, the reasoning of the Arbitration Commission concerning the existence and dissolution of the Socialist Federal Republic of Yugoslavia was based on the same traditional factual criteria for the existence of a state under international law.Footnote 44
However, anthropogenic climate change has confronted international law with the need to reconsider the very notion of the state. In recent times, international law has been challenged with some alternative points of view concerning the preservation of the de facto, or at least de jure, statehood of disappearing island states, although such points of view have primarily been aimed at finding a solution for the populations of such states. Some authors have urged reconsideration of the necessity of the simultaneous existence of all four elements of statehood as provided by the Montevideo Convention, pointing out examples of recent civil wars when the central government ceased to function and yet the state retained its statehood and even its membership in the United Nations (UN).Footnote 45 Similarly, examples of the belligerent occupation of the entire territory of another state have been advanced where the continuity of statehood was accepted by the international community by recognizing the legitimacy of the government in exile — such as, for example, in the case of the Iraqi belligerent occupation and declaration of annexation of Kuwait in 1990.Footnote 46 In addition, one should not overlook the fact that belligerent occupation, or a government operating “in exile,” are legally per definitionem just temporary situations, no matter how long they might last.
Further, with regard to the element of territory, Derek Wong observes that states such as Albania, Burundi, Estonia, Israel, Kuwait, Latvia, Rwanda, and Zaire, which at the time of their recognition or even admission to international organizations (for example, the League of Nations or the UN) had “ill-defined borders,” but that this was not considered an obstacle to the fulfilment of the requirement for territory as a component of statehood.Footnote 47 Thus, according to the International Court of Justice (ICJ) in the North Sea Continental Shelf cases, “[t]here is for instance no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations.”Footnote 48 Law, of course, sometimes uses legal fictions (for example, nasciturus in Roman law),Footnote 49 but they have always been just pragmatic solutions used to overcome a temporary status that could otherwise result in irreversible and unjust consequences. On the contrary, legal fictions can never be an appropriate normative option to regulate irreversible situations such as the permanent loss of an island state’s territory due to sea level rise.
Similarly, proposals based on analogies between disappearing island states and the Sovereign Order of Malta or the Holy See (1871–1929) are equally misleading.Footnote 50 Both of the latter non-territorial subjects of international law differ significantly from disappearing island states since they lack not only territory but also population. For that reason, they do not face the legal problems connected with the status and rights of populations, either in public international or private law. As Jenny Grote Stoutenburg correctly remarked,
[i]t is the maintenance of all the legal attributes of statehood, and the continued enjoyment of sovereign equality, that would distinguish “deterritorialized” island states from other non-territorial so-called special sovereign entities, such as the Sovereign Order of Malta, which have been reduced, after the loss of their territory, to international legal subjects with only functionally circumscribed competences that enable the fulfilment of their (limited) tasks.Footnote 51
Therefore, such analogies seem oversimplified, overlooking the relationship between territoriality, sovereignty, and statehood as legal concepts. Sovereignty in the case of the Sovereign Order of Malta or the Holy See does not include territoriality and statehood. Conversely, the territoriality of a subject of international law does not necessarily include sovereignty or statehood (as in the case of the Free Territory of Trieste (1947–54) or the former trust territories). Therefore, sovereignty and territoriality can exist separately depending on the category of an international legal person. Conversely, statehood necessarily comprises both of them. It includes by definition at least a limited sovereignty (in the case of protected states, for example)Footnote 52 and territory, though Crawford clearly points out that, “although a State must possess some territory, there appears to be no rule prescribing the minimum area of that territory.”Footnote 53
Thus, faced with sea level rise, Grote Stoutenburg mentions three scenarios: “In the first scenario, the island state ceases to exist not only physically but also legally, because the majority of other states, or the ‘international community’, refuses to grant it continued recognition after the loss of the effective insignia of statehood.”Footnote 54 The second scenario would be the legal fiction of “deterritorialized” island states that enjoy recognition of continuity of their statehood.Footnote 55 The third scenario would be that the island state survives but as a sui generis legal entity, like the Sovereign Order of Malta.Footnote 56
On the other hand, the UN High Commissioner for Refugees (UNHCR) has stated that, “in situations where a State does not exist under international law, the persons are ipso facto considered to be stateless unless they possess another nationality.”Footnote 57 Moreover, prior to the physical disappearance of the last part of the land territory of a state, most of its population would have left since it would already be uninhabitable due to the scarcity of fresh water or extreme climate conditions.Footnote 58 In this context, it is worth noting that a “caretaker population” or “land-keeping population” without a basic social infrastructure that enables some sort of communal living would not constitute a permanent population within the traditional meaning of statehood.Footnote 59
In the scenario of the legal fiction of the “deterritorialized” island state, it would retain a symbolic relationship with its former territory, and its government would continue to operate in exile, subject to recognition on the part of other states. Thus, its nationals would, although de facto stateless persons, retain de jure nationality of their disappeared state since in that case no successor state would exist.Footnote 60 In our view, such a fiction is not only in contradiction to the concept of statehood in international law, but it also does not seem to offer a very useful solution to disappearing island state populations: “As a result, the affected islanders would not be protected by the international statelessness regime.”Footnote 61 In classical international legal theory, if a state loses its territory or its permanent population when the territory becomes uninhabitable, its statehood ceases to exist, and it disappears as a state. Thus, as Vukas points out, “[t]he existence of all the three elements of statehood is indispensable not only at the moment of the creation of a State, but also for its continuing existence. The disappearance of any of them means the extinction of the legal personality of a State.”Footnote 62 Of a similar opinion are Shaw — “Extinction of statehood may also take place as a consequence of the geographical disappearance of the territory of the state: see e.g. with regard to the precarious situation of Tuvalu”Footnote 63 — and Sir Robert Jennings and Sir Arthur Watts — “A state without a territory is not possible, although the necessary territory may be very small.”Footnote 64 Therefore, a concept of statehood that would abandon “defined territory” (un territoire déterminé)Footnote 65 as a widely accepted requirement for statehood in international law as well as the creation of newly coined notions such as “deterritorialized states” may not only seem to be oxymoronic but, at the same time, lead to undermining the fundamental difference between territorial and non-territorial subjects of international law. As Crawford clearly states, “[e]vidently, States are territorial entities.”Footnote 66
Although there is “no rule that the land frontiers of a State must be fully delimited and defined,” a state as a territorial entity (unlike, for example, the Sovereign Order of Malta) cannot “move” from one territory to another.Footnote 67 Therefore, the relocation of a “state” after the permanent loss of its entire territory would be legally impossible since it would already, ipso facto, have lost its statehood and consequently ceased to exist as a state. Therefore, it should come as no surprise that island states, faced with climate change and sea level rise, have felt compelled to institutionalize their cooperative efforts to combat their common peril.
some attempts at de facto preservation of statehood
By the early 1970s, the disappearing island states had formed a group of developing island countries (1972–82) and, later, island developing countries (1983–92) and, since the beginning of the 1990s, the Alliance of Small Island States (AOSIS)Footnote 68 and small island developing states (SIDS).Footnote 69 However, sea level rise caused by climate change can potentially result in significant damage not only for low-lying atoll island states but also for high islands since their infrastructure is mostly located in coastal areas.Footnote 70 Even some non-island states, like Bangladesh,Footnote 71 could be faced with the negative effects of climate change other than sea level rise (for example, ocean warming and acidification, the increase in greenhouse gases, deoxygenation or coral bleaching, the problem of compromised freshwater, and consequent huge negative impacts on the economy, particularly relating to tourism, fisheries, and agriculture).Footnote 72 In this context, one should bear in mind that the maritime zones of SIDS are usually much larger than their land mass,Footnote 73 which any change of their boundaries determined by the “land dominates the sea principle” due to sea level rise makes more complex.Footnote 74
The importance of preserving the statehood of SIDS and their maritime boundaries and entitlements, as well as protecting the de facto and de jure status of their populations, has inspired a series of initiatives concerned with these phenomena. For instance, “the former maritime zones of the disappearing island states would become high seas or would be under the jurisdiction of a neighbour state entitled to claim them.”Footnote 75 Alternatively, as Eduardo Jiménez Pineda has remarked, “could a neutral regime over those waters, like common heritage of humankind, be established?”Footnote 76 In principle, few would disagree with Tullio Treves that the United Nations Convention on the Law of the Sea (UNCLOS) ought to be considered not only as a “point d’arrivée” but also as a “point de départ” for its further development, application, and adaptation.Footnote 77
The de facto preservation of the statehood of the states most affected by sea level rise by constructing “sea-walls,”Footnote 78 or by artificial accretion,Footnote 79 would probably be legally the most acceptable solution, although not necessarily the most feasible one, particularly for small island states.Footnote 80 It would depend not only on technical and physical feasibilities but also on states’ political will and the readiness of international financial institutions to support such initiatives. For instance, in the South China Sea, Vietnam, China, Malaysia, and the Philippines have built relatively small features such as sand cays and modest rocks into military facilities with runways, barracks, and helipads to substantiate exclusive economic zone (EEZ) claims, while Japan’s efforts to preserve Okinotorishima Island consisted of forming two groups of very small rocks on top of a broad coral reef platform, less than one metre above sea level.Footnote 81 In this regard, Tuvalu’s foreign minister Simon Kofe in his speech to the twenty-sixth Conference of the Parties warned: “Tuvalu is made up of nine atolls and has a population of around 11,000 people. Its highest point is just 4.5 metres above sea level, making it particularly vulnerable to climate change. Since 1993, sea levels have risen about 0.5 centimetres per year, according to a 2011 Australian government report. … The one thing is clear — that the people have a very close tie to their land.”Footnote 82 And, as Susannah Willcox explains, “[l]ike Tuvalu, the Kiribati government insists that it will ‘do all that [it] can to preserve Kiribati as a sovereign and habitable entity.’”Footnote 83 Thus, the International Law Association’s (ILA) Committee on International Law and Sea Level Rise in its report of 2018 pointed out
… the duty of States affected by sea level rise to turn to the international community for support, as well as a general obligation of other States to provide needed support either bilaterally or collectively through the UN humanitarian and development agencies, the funding mechanisms for humanitarian action, development banks, and the “Green Climate Fund” supporting States to adapt to the effects of climate change.Footnote 84
Similarly, the report of the co-chairs of the Study Group of the International Law Commission (ILC) on sea level rise in relation to international law stated: “There is general agreement that the use of artificial means to maintain base points, coastal areas and island features is acceptable under international law as evidenced by wide State practice. However, the practicality in terms of scope and expense raises questions as to the feasibility of this option for all States.”Footnote 85
other legal options for the preservation of statehood
Alternatively, some options could offer solutions that would be more realistic and in accordance with the above-mentioned concept of statehood in contemporary international law, if applied while the state affected by sea level rise still exists. Thus, if a disappearing island state acquired additional territory, this would preserve its statehood de jure even after its original territory later disappears since, as long as states exist, they can acquire or lose parts of their territory — that is, change their boundaries. This can happen, for example, in the case of accretion or creation of a new volcano island (for example, in Tonga in 2009 with the island of Hunga Tonga-Hunga Ha’apai and in Iceland in 1963 with the island of Surtsey).
Instances of cession/purchase will have the same effect—for example, the purchase of Alaska by the United States in 1867 from Russia or the sale by Denmark of territories in the West Indies in 1916 to the United States.Footnote 86 An example worth noting here is the 2014 purchase by Kiribati of about eight square miles on the Fijian island of Vanua Levu for a little less than US $9 million, potentially to relocate its population there one day.Footnote 87 However, the Kiribati government purchased the property from the Church of England, and there was no formal acknowledgement of the transfer of sovereignty from the government of Fiji.Footnote 88 On the other hand, former Maldivian president Mohamed Nasheed announced plans to purchase a new “homeland” to which to relocate the Maldivian population en masse, although admitting that collective relocation would only be viable as a last resort.Footnote 89 However, as Rosemary Rayfuse has remarked, “from a practical perspective it is difficult to envisage any State now agreeing, no matter what the price, to cede a portion of its territory to another State unless that territory is uninhabited, uninhabitable, not subject to any property, personal, cultural or other claims, and devoid of all resources and any value whatsoever to the ceding State.”Footnote 90
A land lease would also not be a legally appropriate solution for preserving the statehood of a disappearing state since a lessee would only acquire temporary sovereignty over that land, dependent on the legal conditions stipulated with the lessor. Therefore, the “criterion of independence” could not be met.Footnote 91 Thus, with regard to leases of land, Shaw concludes that this has usually “disguised the reality that ultimate sovereignty lay with the lessor.”Footnote 92 In addition, land lease could here only be an option ad interim, determined by the duration of the lessee’s statehood. In this context, it is worth mentioning that the Indonesian maritime minister announced in 2009 that Indonesia was considering renting out some of its more than seventeen thousand islands to “climate change refugees.”Footnote 93 In addition, other often-mentioned solutions would also not be able to preserve the statehood of disappearing island states. On the contrary, some of them would be the causes for the extinction of states in international law—for example, the creation of a federation with a host stateFootnote 94 or a merger.Footnote 95 Although there are federations where, according to the distribution of power between the central and local organs, their members can sometimes retain some elements of international personality, in international law they are not considered as sovereign states.Footnote 96 Similarly, Crawford mentions the case of the merger of North and South Yemen as an example of the extinction of states.Footnote 97
A confederation could legally preserve the statehood of its component units, but it would also be only a temporary solution since it would cease to exist with the extinction of the statehood of the disappearing member state. For the same reason, the option of a condominium over the sea areas of the disappearing island state and the host state would also not be a more lasting solution.Footnote 98 Therefore, in the following section, the article will focus on the international legal status of the populations of disappearing island states as potential new, non-territorial subjects of international law.
CDNs as New Subjects of International Law?
The loss of territory will lead to the extinction of statehood and, consequently, of the legal personality of that state. While some of the above-mentioned solutions focus on the preservation of the status quo statehood of disappearing island states (de facto or at least fictitious — de jure — statehood), international legal scholarship has also turned to the question of the legal status of their populations. In general, these proposals could be summarized as “planned relocation”; the recognition of the status of “climate change” or “environmental refugees”;Footnote 99 the recognition of the status of “climate,” “ecological,” or “environmental migrants”;Footnote 100 the recognition of the status of “environmentally displaced people”;Footnote 101 or the “international protection of minority rights of the displaced disappearing island state’s population.”Footnote 102
the “planned relocation” scenario
According to the ILA’s Sydney Declaration of Principles on the Protection of Persons Displaced in the Context of Sea Level Rise,
“planned relocation” means a planned process in which persons voluntarily move or are forced to move away from their homes or places of temporary residence, are settled in a new location within their own or another state, and are provided with the conditions for rebuilding their lives. Planned relocation is carried out under the authority of the state, and is undertaken to protect persons from risks and impacts related to disaster and environmental change in the context of sea level rise.Footnote 103
As a preventive measure, “planned relocation” is provided for as a temporary solution to help disappearing island state populations to “move away from dangerous areas in advance of anticipated disasters or long-term environmental degradation.”Footnote 104
However, planned relocation only offers a temporary de facto solution for the future status of the populations of the disappearing island states since, unlike other natural disasters like tsunamis, fire, earthquakes, and so on, sea level rise unfortunately seems to be a continuous and irreversible process.Footnote 105 Grote Stoutenburg mentions some recent examples of planned relocations of populations, such as the Marshall Islands and the Chagos Archipelago. The Chagossian population, removed to the Seychelles and Mauritius, quickly descended into deep poverty.Footnote 106 Rayfuse gives examples of intra-state relocations: in 2006, the residents of Lohachara Island in the Bay of Bengal moved to a nearby island to escape their rapidly disappearing island, and, in 2007, the residents of Papua New Guinea’s Cateret Islands were evacuated to nearby Bougainville.Footnote 107 Willcox notes that Tuvaluans have invoked their right to self-determination within their own country, claiming that relocation would lead to the loss of their sovereign rights and their identity.Footnote 108 Similarly, Jane McAdam concludes that if en masse relocation to another country is to be considered as a permanent solution, then issues other than land alone need to be considered in order to provide security for the future, such as the maintenance of identity, culture, and social practices, balancing the needs of existing communities with relocating communities, self-determination, sovereignty, and so on.Footnote 109
However, during the 1980s and 1990s, due to new approaches to international law (NAIL), “human rights constituted the rising star of international law and carried an uncontested air of moral superiority.”Footnote 110 Thus, as Gregory Shaffer has remarked, “[a]ctors increasingly conceive of social problems that transcend the nation-state in ways in which international law and international legal institutions play an important role. Scholars now apply empirical methods to understand how international law operates in these situations.”Footnote 111 In this context, the president of Kiribati, Anote Tong, in his address to the UN General Assembly in 2008, noted that “such large scale evacuations require long-term planning, so that when people migrate they can do so ‘with dignity.’”Footnote 112 On the other hand, it is worth noting here the words of the prime minister of Fiji in 2014, providing reassurance to the Banaban community (present-day Kiribati) that, if sea levels continue to rise, some or all of the people of Kiribati may have to come and live in Fiji: “You will be able to migrate with dignity. The spirit of the people of Kiribati will not be extinguished. It will live on somewhere else because a nation isn’t only a physical place. A nation — and the sense of belonging that comes with it — exists in the hearts and minds of its citizens wherever they may be.”Footnote 113
Thus, it seems that the peoples of disappearing island states consider relocation as more of a process of the disappearance of their national identity than as an appropriate, lasting and just solution that the international community can offer to alleviate their troubles. Therefore, it has come as no surprise that the concept of Third World approaches to international law (TWAIL) appeared in contemporary international law highlighting the need to translate the principle of permanent sovereignty over “natural resources” into a set of legal concepts that embed the interests of Third World peoples as opposed to their ruling elites. As Bhupinder Chimni, dealing with the problem of conceptualizing permanent sovereignty as the right of peoples and not states, has said, “[f]rom this perspective, there is a need to address the difficult question of how to give legal content to peoples’ sovereign rights? There is often in this respect the absence of appropriate legal categories and [sic] are difficult to implement in practice.”Footnote 114
the “environmental refugees/migrants” options
On the other hand, the options that treat disappearing island state populations as “environmental refugees/migrants” or “displaced persons” are not only questionable in regard to the feasibility of relocating the entire population of disappearing island states but also open to some legal and ethical dilemmas. First, Article 1 of the 1951 Convention Relating to the Status of Refugees (Refugee Convention)Footnote 115 provides only five circumstances for acquiring refugee status, and neither sea level rise nor other natural catastrophes are among them. Article 1(2) of the 1974 Convention Governing the Specific Aspects of Refugee Problems in Africa provides for extensive interpretation of the definition of refugees, which includes “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.”Footnote 116 Perhaps such an extensive definition could be applied de lege ferenda, by analogy, or even in the form of customary international law to “environmental refugees.”Footnote 117
However, it seems that the fundamental problem with such broadening of the definition of refugees lies in its contradiction of the grammatical interpretation of Article 1 of the Refugee Convention as well as the 1967 Protocol Relating to the Status of Refugees. Footnote 118 According to Article 1(A)(2) of the Refugee Convention, refugee status is a consequence of the “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” (emphasis added). For that reason, the Refugee Convention in Article 1(C)(1) provides that its provisions “shall cease to apply to any person … if he has voluntarily re-availed himself of the protection of the country of his nationality.” The situation here is very different. Persons who leave their country “owing to external aggression, occupation, foreign domination or events seriously disturbing public order,” similar to “environmental refugees” as victims of ecological catastrophes such as sea level rise, are not persecuted by their state; just the opposite, they share de facto and de jure its destiny. Therefore, even if these persons were considered to be refugees, their voluntary re-availing themselves of the protection of their country as a reason for the cessation of their refugee status would be absurd. By the same logic, following the Refugee Convention’s definition, refugee status implies a mutual relation between the persecuted person and his or her state of origin, which would necessarily cease by the fact of the extinction of the “persecuting” state.
On the other hand, international law, inasmuch as it regulates the status of migrants at the present stage of its development, protects only migrant workers and members of their families, defining the term “migrant worker” as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.”Footnote 119 Migrants and “environmental refugees” can undoubtedly share economic reasons for leaving their countries, but, in the case of the latter, it will be a necessity rather than simply a search for a better life. Thus, as Reed Koenig has remarked, “[c]urrently, there is no framework for dealing with the citizens of uninhabitable countries. At the international level, there is much caution, as major countries and international organizations are unable or unwilling to address the situation.”Footnote 120 On the other hand, according to the same author, amending the Refugee Convention lacks international consensus, and, even if consensus existed, opening the convention for amendments would allow the possibility of proposals that could weaken the convention.Footnote 121 Moreover, there have been calls for a new stand-alone treaty or the amendment of the United Nations Framework Convention on Climate Change (UNFCCC) to provide “climate refugees” with international protection.Footnote 122 However, as McAdam has pointed out, the disadvantages would probably be a lack of political will, problems of definition and conceptualization, and, consequently, ineffectiveness in practice.Footnote 123
An illustrative example of the above-mentioned difficulties is the case of Ioane Teitiota v New Zealand before the UN Human Rights Committee in 2019.Footnote 124 The author of the communication claimed that the effects of climate change and sea level rise forced him to migrate from the island of Tarawa in the Republic of Kiribati to New Zealand since the situation in Tarawa had become increasingly unstable and precarious. Fresh water had become scarce because of saltwater contamination and overcrowding on Tarawa, inhabitable land had eroded, and the island had become an untenable and violent environment. Therefore, the author sought asylum in New Zealand, but the New Zealand Immigration and Protection Tribunal issued a negative decision concerning his claim. Also, New Zealand’s Court of Appeal and Supreme Court each denied the author’s subsequent appeals concerning the same matter and deported him to Kiribati. Ioane Teitiota filed a communication with the UN Human Rights Committee on the basis of the International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocol,Footnote 125 claiming that his right to life (Article 6(1) of the ICCPR) had been violated. However, the Human Rights Committee decided that the facts before it did not permit it to conclude that the author’s removal to the Republic of Kiribati violated his right to life under Article 6(1) of the ICCPR. Footnote 126
On the other hand, besides the under-developed framework for dealing with the populations of uninhabitable countries in international refugee and migration law, it is also hard to ignore the question of ethical justification for the applicability of these concepts to the populations of disappearing island states. International law, in spite of the valuable endeavours of the UNHCR and IOM, sometimes leaves the fate of island state populations in the hands of states that caused their calamities. Furthermore, in spite of numerous violations of the Refugee Convention and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), and the fact that the provisions of Article 38 of the Refugee Convention and Article 92(1) of the ICRMW provide for jurisdiction of the ICJ for any dispute between the parties to these conventions,Footnote 127 no such dispute has ever been submitted to the court. It seems that this fact could also point to the indifference of states towards the fate of the populations of disappearing island states that, due to sea level rise, would arrive at their doors as refugees or migrants.
Unfortunately, neither the ILC’s Draft Articles on the Protection of Persons in the Event of Disasters,Footnote 128 nor several UN General Assembly resolutions,Footnote 129 although they are soft law documents, offer more feasible solutions, except the principles on humanitarian assistance with regard to all persons affected by a disaster. Equally, internal relocation in the form of assistance with regard to internally displaced persons does not appear to be a more durable solution, bearing in mind the progressive and irreversible process of sea level rise,Footnote 130 while, at the same time, the UNHCR points out the necessity of the progressive development of international law in unprecedented situations.Footnote 131
In addition, as Willcox has remarked, disappearing island states’ populations, for example, “the population of Tuvalu, Kiribati, and Maldives count as self-determining peoples whose members share not just a common cultural life, language, and attachment to land and colonial history, but also a history of participation in the common political institutions of their state.”Footnote 132 In seeking new territory on which the peoples of disappearing island states could re-establish themselves as self-determining communities, they will inevitably encounter other peoples exercising their own rights to self-determination and territorial integrity.Footnote 133 Thus, such a position of the disappearing island state population could raise the question of their minority status in the host country, including the international protection of their minority rights. This situation becomes even more complex in practice when one bears in mind that the extinction of an island state in classical international law results in the de jure statelessness of its population. Although the right to self-determination is a right of peoples and not of states — that is, not of disappearing island states — their peoples however “will need to be incorporated within the boundaries of any future host state, which situation will require further negotiation about the extent to which they can continue to exercise their collective autonomy.”Footnote 134 McAdam mentions in this context various solutions, including complete independence as a sovereign state, trusteeship, status as a protected state, associated status, as well as the scenario of withdrawal from the international community of the population, “effectively becoming a non-entity” and consequently “dropping out of the world community.”Footnote 135
the international legal personality of nations?
The extinction of the legal personality of a state does not impede the “transformation” of that state into another, non-territorial subject of international law. Here, it is worth noting that even in the nineteenth century, some authors went as far as considering nations, and not states, as the basic subjects of international law.Footnote 136 Moreover, peoples on other continents were living in different communities where the European concept of statehood, and, consequently, the concept of international legal personality, was very different, erasing the clear distinction between peoples and states. As McAdam correctly points out, “[t]he positivist international law approach enabled imperial States to ‘overcome the historical fact that non-European states had previously been regarded as sovereign’ by dismissing forms of tribal organization and imposing wholly foreign conceptual constructs on them.”Footnote 137 Thus, the ambassador of Cameroon Paul Bamela Engo stated before the ICJ that the African concept of “kingdoms” has been defined in terms of an emphasis on peoples and their cultures, irrespective of where they choose to migrate or live.Footnote 138
Although this argument was not accepted as relevant by the ICJ, it can hardly be denied that, in contemporary international law, peoples enjoy certain rights and, consequently, a limited legal capacity in international law (for example, the rights of Indigenous peoples or the principle of “self-determination of peoples”).Footnote 139 An UN Educational, Scientific and Cultural Organization (UNESCO) Meeting of Experts in 1989 defined a people as “a group of individual human beings who enjoy some or all of the following common features: (a) a common historical tradition; (b) racial or ethnic identity; (c) cultural homogeneity; (d) linguistic unity; (e) religious or ideological affinity; (f) territorial connection; (g) common economic life.”Footnote 140 On the other hand, as Vukas states, the word “nation” is very often used as a synonym of “state.”Footnote 141 Moreover, some important international instruments, in which states are referred to in a more solemn manner — having their population in view — use “nations” rather than “states.”Footnote 142 Even the name of the present world organization — the United Nations — seems to confirm an equivalence between “nations” and “states” as only “States may become Members of the Organization.”Footnote 143 Even the very first sentence of the Charter of the United Nations (UN Charter) could be considered confusing: “We the Peoples of the United Nations.” And it is worth mentioning that not only independent states, but also “dominions” and “colonies,” could become members of the League of Nations, the predecessor of the UN. They had to “give effective guarantees” of their sincere intention to observe their international obligations, and their military forces had to remain under the control of the League.Footnote 144
However, in 1851, Pasquale Mancini had already integrated his vision of the nation creating “a natural society of men who — by the unity of territory, origin, customs and language — are led to a community of life and a social consciousness.”Footnote 145 More than a hundred years later, Yoram Dinstein wrote that “a nation is easy to define inasmuch as it consists of the entire citizen body of a State. All the nationals of the State form the nation.”Footnote 146 For this reason, the (re)appearance of “peoples” or “nations” (here, referred to as CDNs), provided with international legal capacity, could enable the population of states affected by sea level rise to retain (or succeed to) the international legal personality (but not the statehood) of their disappeared state, retaining at the same time some of its rights and entitlements. If international law recognized these entitlements/rights of the populations of disappearing island states as belonging to a new category of entity (CDNs) — that is, as new subjects of international law and, consequently, the successors of their inundated states — it could be a much more feasible and durable solution for regulating the status of those populations. After all, there is little doubt that solutions like land leases, cession/purchase of a part of a host state’s territory, or even the option of jointly retained entitlements/rights by a host state and CDNs would be more feasible for disappearing island state populations, as “collective” subjects of international law, than for individuals as “environmental refugees” or “migrants.”Footnote 147
Although the legal status of CDNs in host states could be regulated within the concept of the protection of minorities in international law, bearing in mind that CDNs and minorities enjoy not only fundamental human rights but also the “right of self-determination,” as recognized by Article 1(1) of the ICCPR, this could be more complex in terms of the legal nature of the beneficiaries than the content of these rights. Minority rights in practice belong to individuals who, according to UNESCO’s definition quoted above, enjoy common ethnic, cultural, historical, or other features that are different from those of the majority population of the state where they live. In contrast, a CDN is not simply a group of individuals sharing common features but also a collective, sui generis entity composed of the entirety of a population who would probably maintain at least some of the legal institutions of their disappearing island state after its disappearance as elements of its extinct statehood.Footnote 148 Therefore, CDNs should not be considered as peoples in the narrow meaning of “ethnos” — as primarily individuals belonging to one particular ethnic group — but, rather, as “demos” — as the entire population of a state — that is, all the citizens of a disappeared state.Footnote 149
Consequently, what would differentiate CDNs from states is primarily the lack of territory due to the effects of sea level rise. For that reason, collective human rights like minority rights should be differentiated from the rights of CDNs as collective entities, inasmuch as “collective rights” should be differentiated from the rights of a “collectivity.”Footnote 150 Therefore, CDNs could appear as non-territorial, sui generis subjects of international law provided with legal capacity (capacitas iuridica) and capacity to produce legal consequences in international law (capacitas agendi). Although some authors doubt the (pragmatic) value of international legal personality as a theoretical concept in contemporary international law,Footnote 151 Martti Koskenniemi’s approach seems to reconcile these dilemmas:
Engaging in practical reasoning, the lawyer shall have to recognize that solving normative problems in a justifiable way requires, besides impartiality and commitment, also wide knowledge of social causality and of political value and, above all, capacity to imagine alternative forms of social organization to cope with conflict. It shall lead him to overstep the boundaries between practice and doctrine, doctrine and theory.Footnote 152
The capability of international law to imagine alternatives could offer a more just and feasible solution for CDNs in the form of international legal personality. Besides CDNs’ right to self-determination in the form of election of their own authorities, and possibly some other rights that might be agreed upon with their host states, international law could recognize in them some of the sovereign rights/entitlements in the marine areas that had previously belonged to their disappeared states.Footnote 153 After all, it would not be the first time in the history of international law that a non-territorial entity exercised not only sovereign rights but also sovereignty over a territory (for example, the Sovereign Order of Malta). Thus, perhaps for the first time in history, a non-state entity would appear as a successor of its predecessor state. Understood in this way, CDNs would become non-territorial, semi-sovereign subjects of international law, with the extent of their disappeared states’ sovereignty (for example, criminal or civil jurisdiction) likely limited in accordance with the legal regulation of their status in the host states.
However, it is worth noting here that the legal concept of sovereignty in international relations should not be understood as a uniformly shaped model but, rather, as a scale of rights and duties that can differ even from one state to another. Thus, in this context, some authors speak of the right of a population to extract the natural resources of their disappeared state,Footnote 154 the right to their “underwater heritage,”Footnote 155 or even the right to financial resources to create a navy in order to effectively control the site of their abandoned territory.Footnote 156 The latter possibility would not be unprecedented for a non-territorial entity since Article 93 of UNCLOS provides for the right of the UN, its specialized agencies, and the International Atomic Energy Agency to employ ships flying the flag of these organizations.Footnote 157
In addition, it should not be unimaginable for CDNs to gain some other international rights that have already been recognized for some non-state and even non-territorial entities. Thus, for example, the Holy See,Footnote 158 the International Olympic Committee (IOC),Footnote 159 the Sovereign Order of Malta,Footnote 160 and, formerly, the Palestine Liberation OrganizationFootnote 161 have been provided with observer status at the UN General Assembly. Some of these entities maintain diplomatic relations with numerous countries. Thus, for instance, the Sovereign Order of Malta has diplomatic relations with 112 countries.Footnote 162 Furthermore, it is worth noting in this context that, for example, the Final Act of UNCLOS was signed in 1982 by eight liberation movements and fifty-seven non-governmental organizations having consultative status to the UN Economic and Social Council.Footnote 163 By the same logic, there should be no obstacles for CDNs to continue participation (at least with limited decision-making powers as with the above-mentioned non-territorial entities) at international conferences on climate change and sea level rise issues (the Conferences of the Parties) as successors of their inundated states — namely, the victims of these phenomena.
Further, the earlier-mentioned IOC as a non-governmental organization realized some aspects of diplomatic privileges and immunities and treaty-making capacity, at least in statu nascendi. As Christain Tomuschat correctly remarked, “some NGOs have been given a status that is modelled on régimes normally granted only to States or international organizations.”Footnote 164 Thus, on 1 November 2000, the IOC concluded an agreement with the Swiss Federal Council regarding the IOC’s status in Switzerland, providing the IOC with some of the diplomatic privileges usually granted to states and intergovernmental organizations (IGOs) — that is, independence and freedom of action of the IOC on Swiss territory (Article 2) and exemption from direct federal taxes (Article 3).Footnote 165 In addition, Article 9 of the Agreement provides that “the Swiss authorities shall take all necessary measures to facilitate entry into Swiss territory, exit from this territory and stay of all members of the IOC as well as, as far as possible, all persons, whatever their nationality, who are called upon to work with the IOC in an official capacity.”Footnote 166
This being so, at least theoretically, the option of the conclusion of an agreement between a CDN and a host state on the cession/purchase of a part of the latter’s territory could even lead to the creation by the CDN of a new state, provided that an effective government and territorial sovereignty could be established on such territory. As Shaw points out, “[t]he basis of cession lies in the intention of the relevant parties to transfer sovereignty over the territory in question.”Footnote 167 Finally, subject to the consent of host states, the role of the UN, perhaps even in the form of temporary reactivation of the functions of the UN Trusteeship Council and the UN General Assembly in accordance with Chapter XIII of the UN Charter, could offer considerable help in the regulation of the status of CDNs and the preservation of their right to self-determination.Footnote 168
Concluding Remarks: Fictitious Statehood versus CDN Reality?
There is no doubt that international legal personality is an extremely dynamic category in international law. International legal scholarship has made efforts to sort out the elements of international legal personality in order to create a clear definition of an “international legal person,” but, in fact, the doctrine simply follows social processes in the international community and their legal regulation. In that sense, international law doctrine does not differ very much from the natural sciences, its task being to describe, systematize, and understand the world around it. Faced with the phenomenon of disappearing island states in the context of climate change, three possible scenarios concerning the international legal status of the island state populations affected by sea level rise can be set out:
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(1) The de facto and de jure preservation of the statehood of the disappearing states: constructing “sea-walls,” or artificial accretion, with the support of the international community and, in particular, of international financial institutions (UN humanitarian and development agencies, the funding mechanisms for humanitarian action, development banks, the Green Climate Fund, and so on) could maintain the status quo and probably be the best solution. Moreover, it would be in accordance with the declared readiness of the parties to the UNFCCC and the Green Climate Fund, the Cancún Adaptation Framework,Footnote 169 or the Sendai Framework on Disaster Risk Reduction 2015–2030,Footnote 170 to help the victims of climate change.Footnote 171
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(2) The extinction of the statehood of inundated states: this will (even before the event) raise the question of the international legal status of their populations as soon as their last islands become uninhabitable. International law could respond with the recognition of CDNs as new entities — that is, new subjects of international law that could retain or succeed to the entitlements/rights of their disappeared states, thus preserving their right to self-determination and regulating their status with host states. In this context, the above-mentioned assistance from the UN and other international organizations would be extremely useful.
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(3) Lastly, the extinction of the statehood of inundated states without recognition of successor collective legal entities as such: probably the most unfair and unfavourable scenario for both the populations of inundated states and their host states. This scenario would likely confront international law with a new category of stateless persons — that is, “climate refugees/migrants,” which would face the international community and its law with the challenge of revising international refugee/migration law.
Without doubt, international law has to follow the development and needs of the international community since it has never been an isolated normative artefact but, rather, a means of regulating the social relations therein. Consequently, it is worth noting here that, unlike a mere codification of international law, its “progressive development” is supposed to take into account the social and ethical determinants that the international community is facing in every epoch.Footnote 172 However, the “progressive development of international law” need not be understood as dissolution of existing theoretical concepts, including the Westphalian foundation of international law and its concept of statehood. Non-territorial subjects of international law existed long before 1648 — that is, before the “Westphalian system” of international law. The international community then, as now, was composed of states as well as other non-territorial, and sometimes quite peculiar, participants in international relations. Examples include not only the Sovereign Order of Malta and the Holy See but also similar non-territorial entities (for example, the Teutonic Order, Mercedarian Order, and Trinitarian Order) whose international legal personality ceased to exist over time. Subjects of international law appear, exist, and disappear continuously in the extremely dynamic evolutionary processes of the international community and international relations.
Therefore, it seems that nowadays the acceptance of new, non-territorial international legal persons such as CDNs (just like IGOs almost a hundred years ago) should be a much easier choice for international law than to accept the dilution of one of its classical concepts — statehood. The concept of international legal personality, as well as international law in general, is subject to the development of international relations since the law is never an aim in itself. To develop in such a way, however, does not mean to abandon the existing concepts of the system but, on the contrary, to fill them with new substance.
