STATUS OF DETERRITORIALIZED STATES IN PUBLIC

INTERNATIONAL LAW

ABSTRACT

one of the most important consequences of climate change is the rise in sea levels, which leads to
the drowning of some low-lying island states, which leads to them losing the elements of statehood
and thus affecting their status as a state, this resulted in several proposals made by the
jurisprudence of international law to solve this issue, perhaps the most important of which is the
idea of the government in exile, and the proposal to continue recognition of submerged countries,
in a way that makes it possible to talk about a new concept of states represented by
deterritorialized states, all of which are ultimately proposals that contain great difficulties that
hinder their implementation in reality.

KEY WORDS: Climate change, Submerged states, The government in exile, Continuing
recognition

INTRODUCTION

In a world characterized by continuous development, countries are constantly exposed to new

Thus, since the territory is one of the most important constituent elements of the State as a subject
of public international law, this future scenario raises many issues, since the modern world has not
experienced the complete physical disappearance of the territory of the entire State, and one of the
most prominent problems raised by climate change is that of the situation of submerged States,
which lose their territory or other elements necessary for their establishment. Is it possible to
continue talking about the existence of a state? If so, in what form? This is what we will try to
highlight in this research, by dividing it into two sections, the first of which deals with the concept
of deterritorialized states by exposure to the traditional concept of the state as a necessary
introduction to talk about the possibility of the disappearance of the state. , and then we address
recognition as an additional element through which the submerged state can continue to exist as an
international legal person, in an attempt to talk about the possibility of reaching a modern concept
of the state within the framework of public international law, which will be the subject of the
second section of this research, and therefore this study aims to analyze the impact of climate
change on the situation of island states, and to analyze and discuss possible legal ways to ensure
that these states can continue, In order to achieve this goal, the following questions should be
answered: Does the loss of elements of the State due to climate change lead to the termination of
their existence as a subject of public international law? What are the possible solutions to preserve
the state of these entities in the traditional sense and in a new, non-regional sense?

THE CONCEPT OF DETERRITORIALIZED STATES

The state may undergo changes that have consequences for the state, both internally and
internationally, and these changes may include one of the elements of statehood leading to its
demise, as in the case of climate change factors that have contributed to environmental changes
that have resulted in significant impacts on island and low-lying countries, and whose rise in sea
level has led to their complete submerger underwater. Therefore, we will try to shed light on the
concept of these states, by addressing the traditional criteria for the establishment of a state in
accordance with public international law, because of their importance as a prelude to any talk of
the demise of the state, and then we address recognition as an additional criterion by which the
existence of non-regional states can continue.

TRADITIONAL STATE STANDARDS

As a subject of public international law, a State is based on several criteria that must be met to
characterize an entity as a State, and therefore it is necessary to identify from the beginning the
definition of the term "State", which raises many theoretical controversies among scholars of
public international law, and the basis of these differences is due to the complex nature of the State,
which is in fact a very ambiguous phenomenon both with regard to its genesis and the complex
elements that interact within its entity. This makes it difficult to establish an accurate and clear
definition of a state and in the words of some jurisprudence "the state is not a fact in the sense that
the chair is a fact, it is a fact in the sense that a treaty is a fact: any legal situation linked to a
particular situation under certain rules or practices"

Despite the importance of the State as the original subject of public international law, there is no
reliable legal definition of it, and on the other hand, the Montevideo Convention of 1933 defined in
its first article the constituent elements of the State as a subject of international law: permanent
population; a specific territory; a Government; and the ability to enter into relations with other
States.

It should be noted that despite the fact that Montevideo standards are necessary for the
establishment of the state and not for its continuation, since modern international law is
characterized by a strong tendency in favor of the continuation of the effective existence of the
state despite the fundamental changes that affect one of its criteria that do not lead to the end of the
existence of the state, the study of these standards is indispensable for any beginning of the study
of the demise of the state.

PERMANENT POPULATION

Some jurisprudence argues that the relationship of the population with their State is not a
relationship of residence in a particular place and subject to a certain sovereignty, but rather a
relationship of loyalty and belonging to the sovereign entity of which the population and territory
are one of the elements, and this relationship between the State and its inhabitants is expressed in
the term "nationality" as a political and legal bond between the individual and the State that entails
mutual rights and obligations. Although this criterion is of great importance, there is no minimum
population required, and some small island States at risk of disappearing due to climate change
such as Tuvalu and Nauru are among the least populous.

DEFINED TERRITORY

It means an area of land on which the State exercises certain powers, and the territory is the basic
element of the existence of States, as some jurisprudence considers that "it is clear that States are
territorial entities", yet a certain area is not required in the territory, so there are large States in the
world such as Canada and Russia and small States such as Liechtenstein and San Marino, and at
the same time the determination of the boundaries of the territory of the State does not affect its
fulfillment of the criterion of the specified territory, Even border disputes do not affect the
existence of a State, as confirmed by the International Court of Justice in the 1969 North Sea
Continental Shelf case by stating that "there is no rule that the land boundary of a State must be
fully demarcated and defined, and it has not often been determined in different places and for long
periods.

Based on the foregoing, it seems that there is a close correlation between the elements of
population and territory, and according to some jurisprudence that the element of population must
be viewed in conjunction with the element of territory, and on the other hand that the loss of
territory makes the individuals who make up the element of population lose the only criterion that
defines them as such, and therefore besides the existence of the territory is required to be habitable,
The criterion of permanent population within a given territory requires that the territory retain the
population on a permanent basis, nor does it appear that there is a need for the entire population to
live on State territory, the criterion has been met even in cases where a large proportion or even the
largest proportion of the population lives outside the territory of the State.

It can be said that since the territory is the material basis that guarantees people to live together as
organized societies, it is clear that in the absence of the material basis of an organized society, it
will be difficult to prove the existence of a state, and this close interdependence between the norms
of population and territory according to their traditional concept, leads us to wonder to what extent
this concept can be modified in the context of the challenges facing the existence of the state due to
climate change?

GOVERNMENT

The existence of a permanent population and a specific territory is not sufficient for the formation
of a State, as a third criterion should be met, namely the existence of an independent and effective
Government capable of exercising its competences and powers over the population and the
territory, and the emphasis on the elements of independence and effectiveness in establishing the
criterion of government is due to the decentralized nature of public international law, since the
absence of a central international executive body with the authority to enforce international
obligations within States, It makes it necessary for the state itself to take over this, so the state must
be able to exercise its authority effectively and independently within its borders.

With regard to the effectiveness of government, jurists agree that these powers must be exercised
within a certain territorial and personal scope, as Crawford explains this by saying that government
power must be "exercised, or can be exercised in relation to certain lands and populations", as he
considers government the most important criterion in the formation of the state because all other
criteria depend on it. Thus, the existence of the population and the territory is required not only to
achieve those initial criteria but also to have a Government that meets the requirement of
effectiveness.

From this it is possible to say that the loss of any territory or population is the first indicator of the
loss of the state, which means that there will be a prelude until the complete disappearance of the
state, but the close link between all the criteria and the general quest of the population to stay in
their state as long as possible invites us to say that all the criteria discussed will be lost at the same
time, That is, when the land becomes uninhabitable, then there will be no territory capable of
retaining permanent inhabitants and no government capable of exercising its governmental
authority effectively.
CAPACITY TO ENTER INTO RELATIONSHIP WITH OTHER NATIONS

This criterion is also called "independence", some jurisprudence holds that this ability to enter into
relations with other states is not limited to states only, but includes international organizations,
non-independent states and other bodies, and therefore is not a characteristic of the state.
The entry of a State into relations with other States is subject to two conditions, the first being that
there must be a Government capable of exercising its authority over a specific territory and its
inhabitants, and capable of entering into legal obligations with other States and the second being
that such a Government must be independent of the other legal systems of the State and not subject
to any other sovereignty. Constitutively for its existence. It is worth mentioning that the jurist
Kelsen was a staunch supporter of the view that it is the governmental authority that determines the
establishment of the state in the first place, as he developed the legal concept of the state, as he put
it, "The coercive system that makes up the political society that we call a state, is a legal system.
What is commonly called the legal system of the State, or the legal system established by the State,
is the State itself".

It is clear from this phrase that "Kelsen" underestimates the importance of the territory as a key
criterion for the establishment of the state, by equating it with the legal order established by the
state, the concept of the state in "Kelsen" is the ability to establish a legal system that regulates the
relations between the individuals to whom it applies, saying "If an authority is established
anywhere and in any way, it is able to ensure permanent obedience to its coercive system among
the individuals whose conduct is regulated by this system, The society formed by this coercive
regime is a state in the sense of international law" In conclusion, it should be emphasized that these
criteria are necessary for the establishment of the State and not for its continuation, and that
international law assumes the continuation of the existence of the State despite the changes in its
elements. Is it possible to talk about an additional criterion besides traditional criteria by which this
problem can be addressed?

RECOGNITION AS AN ESSENTIAL CRITERIA FOR THE EXISTENCE OF A STATE

We mentioned earlier that although the traditional criteria necessary for the establishment of the
state are important, they are necessary for the establishment of the state and not for its
continuation, and the changes that occur to these standards leading to their demise will not lead to
the termination of the existence of the state, and therefore the expected loss of the traditional
objective standards of the state due to climate change will not necessarily and automatically lead to
the loss of the state.

For the purpose of the continuation of the effective existence of the State, these criteria have been
supplemented in certain cases by the criterion of recognition, as it allows them to continue despite
their lack of constituent standards, knowing that recognition is not a condition for the
establishment of a State in international law, since an unrecognized entity that meets the
Montevideo standards is considered a State and has the rights of States under international law,
since the entity is not a State because it is recognized, It is recognized because it is a state, but at
the same time recognition may be of great importance for certain cases , as it is an important proof
of legal status, and modern international law is characterized by a strong assumption in favor of the
continuation of the effective existence of the state despite the fundamental changes affecting one of
its criteria.

Here it should be asked how important is the existence of this "assumption", which is not evidence
but a presumption required by law to reach the resolution of a particular issue in the absence of
other evidence, and can be refuted if there is evidence to the contrary? Can the assumption of state
continuity remain in the face of the reality of climate change? How can we oppose the fact that a
territory that once provided a territorial basis for a State had been completely submerged and no
longer existed? Recognition did not have a constitutive role in the emergence of states, as the
theory of revealing recognition was prevalent at the time of the conclusion of the Montevideo
Convention, the state was created by the realization of the elements contained in the first article of
the Convention, nor was recognition provided for as an element of the establishment of the state,
since it is considered an inn independent of the existence of the state.

Undoubtedly, the theory of revealing recognition does not fit the situation of lowisland States
facing the risk of losing their territories due to their complete submersion, because it excludes
entities that do not meet the criteria for statehood from being States, while at the same time
excluding the importance of recognition as an important element of recognition of special legal
status. In the law of treaties states have defined not only as an entity consisting of a people living
in a specific region under an organized system of government, and having the ability to enter into
binding international relations, but also included "entities recognized as states for special reasons"
hence it can be assumed that recognition is a constitutive element in some cases, addressing the
lack of elements of the state.

The Commission had also refrained from codifying the topic of recognition of States and
Governments, noting that "although it had legal consequences , it had raised many political
problems that were not regulated by law", and similarly, the Commission's 1949 draft Declaration
on the Rights and Duties of States did not contain a definition of the term "State", as the
Commission had concluded that no useful purpose would be achieved through such an effort. She
then decided to use the term in the generally accepted sense of international practice.

Thus, we can say that the lack of agreement on a specific definition of the term "State", which it
means that it is an ambiguous and indefinite idea because of the aspects it entails that bear the
political effects based on relations between States, especially with regard to the question of
recognition, because of the political aspects it entails that fall within the discretion of each State,
since there is no legal obligation on States to recognize an entity that meets Montevideo's criteria
as a State, Therefore, by analogy, there is nothing to prevent States from continuing to recognize a
State that has lost one of the elements of its existence, and therefore it should be asked here who
determines that submerged States no longer exist? Before that, was it permissible to withdraw the
recognition granted to the State?

EFFECT OF WITHDRAWAL OF RECOGNITION OF DISAPPEARED STATES

It is generally emphasized that a State is not entitled to withdraw the legal recognition previously
granted to another State as long as the substantive elements of the creation of the State are still
present, so under the doctrines of the constituent recognition and the revealing recognition, the
withdrawal of recognition becomes permissible as soon as the State becomes incomplete to one or
all of the elements of its existence, due to the fact that the recognition is not a political act subject
to the discretion of states but an application of international law, Based on the loss by the State of
the elements of its existence, which indicates the convergence of the theories of constituent and
revealing recognition, while others point out that under the theory of the recognition created the
withdrawal of recognition remains discretionary, once the State has effectively disappeared, other
States can withdraw its recognition, and can choose to continue to grant recognition, and
accordingly the international legal personality of the entities whose actual State has disappeared,
this trend then distinguishes between the recognition created and the revealer.

While it can be said that since the loss of the constituent elements of a State leads, according to
revealing recognition, to the automatic termination of international legal personality, the
withdrawal of recognition of a disappeared State is not merely a possibility but a logical necessity,
for just as recognition of the creation of a new State is only an acknowledgement of a pre-existing
fact, so too the withdrawal of previous recognition is nothing but recognition of a new status.
Therefore, although revealing recognition represents the preponderant theory of international law,
it is not strictly adhered to in international practice.

States therefore will not have to recognize the actual disappearance of a small island State, but can
continue to treat it as an international legal person, however, once the elements necessary for the
establishment of the State have been lost, other States will have the power to declare the
disappearance of the island State, but it can be said that since the withdrawal of recognition from
the State generally occurs implicitly through recognition of the successor State, The absence of a
successor State to the disappeared island State requires the express withdrawal of recognition from
it, and the result of the withdrawal of recognition by another State would be limited to bilateral
relations between the two States, i.e. the cessation of factual and legal relations between the
withdrawing State and the disappeared State, and thus could not lead to its loss of international
legal personality.

Based on the above, much of the jurisprudence argues that the withdrawal of recognition of island
States by the international community in general leads to the determination of the disappearance of
the State and the loss of its legal personality and not the individual acts of a few States. From this it
seems that the international reality imposes the recognition of a new type of state, namely non-
regional states, and this is neither new nor rejected in international law, and one of the most
prominent examples of these countries is the sovereign military system of the Knights of St. John
or the so-called Knights of Malta, a Catholic group based in the Italian capital Rome recognized by
international law as a sovereign entity, and has the right to issue its own passport, in addition to
postage stamps, and coins of moral value that are not used. As a currency, it also maintains
diplomatic relations with a number of countries and enjoys observer status at the United Nations
although it does not possess the element of territory after ceding its sovereignty over Rhodes and
Malta to Napoleon by the Treaty of 1798, Similarly, the Holy See was a landless entity in the
period leading up to the establishment of the Vatican State by the Treaty of Lattirane (from 1870 to
1929), as it represented a territoryless entity recognized by most States and with which diplomatic
relations had been established, which leads us to say that there is customary international law
resulting from the repeated acts of States that accepts recognition as a sovereign State of a
particular entity without territory, that is, without territorial authority. So we can say that a country
that is completely submerged in water can take the form of a unique international entity and
continue to exist as long as other countries choose to continue to recognize it.

We note that many proposals on how to address the issues raised by sea-level rise aim to maintain
a stable legal status in the face of an increasingly dynamic process of climate change, at a time
when such changes require a response to the requirements of the new situation, not the imposition
of fixed forms established in previous conditions and situations that are no longer valid under the
expected changes. At the same time, if the legal researcher can measure previous cases and
compare them with the case under study in an attempt to prove a particular legal position, then the
phenomenon discussed here is unprecedented and has not occurred within the framework of public
international law, since the sea has not yet completely submerged States, so the answers to the
situation of the submerged State remain uncertain.

However, the potential for States to disappear due to sea-level rise exists, and international law
should deal with their implications. In light of the above it can be said that recognition will have
the most prominent role in solving the problem of the existence of submerged states, it is important
that the island state ensures the continuation of its recognition or obtaining new recognition by
sovereign states, any solution that requires the preservation of the elements of its existence by the
island state, as if working to obtain a new territory, is likely to be useless, the infrastructure and
technological and administrative capabilities necessary to achieve these solutions are difficult to
provide in island States, so they will need the assistance of other States, which we can express
continuously in their recognition, as well as the social, economic and humanitarian impacts of
climate change affecting States on their peoples, and require the intervention of the international
community to find appropriate solutions.

CONCLUSION

At the end of the research on the subject of non-regional states, and after addressing several
aspects of it with explanation and analysis, we reached a set of conclusions and proposals, which
are as follows:

1. Climate change leads to sea-level rise, which can cause the complete disappearance of some
island States, affecting their status as an international legal person.

2. Modern international law is characterized by the assumption that submerged island States will
continue to be recognized by the international community.

3. The withdrawal of recognition of a submerged State produces its effect on its legal status only if
it is issued by a large group of States.

4. Submerged States need to adopt a modern concept of statehood of continued recognition, with
the consequent reconsideration of traditional state norms, but there is no duty on States to continue
recognition, and therefore it depends on the moral will of the international community.

5. Work to develop a mechanism of action through which the countries that emit greenhouse gases
contribute to finding appropriate solutions for the island countries that are threatened with
disappearance due to the activities of these countries.

6. This issue can be resolved by an international treaty dealing with the issue of climate change per
se and determining which countries are responsible for hosting the inhabitants of the offshore
countries, and the continuous recognition and approval of governments in exile can be regulated
through such a treaty.

Finally, it can be said that both ways of ensuring the continuity of the disappeared States and their
preservation of their international legal status involve great difficulties, especially with regard to
the new concept of the State, since it needs at a minimum to ensure the continued recognition of
them by the international community, since there is no duty on States to continue recognition, and
therefore it depends on the moral will of the international community, in the sense that there is no
legal duty on States to continue to recognize the submerged State, but rather to have a moral duty
to enable the State to Continue to have her status as an international legal person.