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

Abstract

Sinking island States have become allegories of the Anthropocene and a symbol of the radical violence of climate change. Various theories have been advanced supporting the continued existence of sunken islands as deterritorialized States. A common view 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.