The fight of Small Island Developing States (SIDS) to maintain control of their destiny and retain their statehood needs no introduction. Threatened by the sea level rise caused by centuries of greenhouse gases, SIDSs are both among the most affected (due to their low elevation above sea levels) and the smallest contributors to climate change.
In the absence of a solid body of state practice on whether a state can exist without a territory, scholars and analysts have invoked various precedents and strains of state practice. One of these is the Sovereign Military Order of Malta or SMOM (also sometimes called “Order of Malta”), due to its peculiar international legal personality (ILP). The SMOM was founded in 1048 as a religious order of the Catholic Church, and has a storied history as a geopolitical actor. The Order previously controlled territories, though these were seized by the Ottoman Empire leaving it with only the territory of Malta. However, in 1798, the SMOM lost control of the island to Napoleon and now recognises Malta’s sovereignty over the island. Since then, the SMOM focuses on its humanitarian mission.
Despite now lacking any claim to statehood, the SMOM’s specific type of ILP is of particular interest to SIDSs due its existence being removed from any constitutive treaty, in contrast to that of International Organisations, for example, but also independently from a territorial claim. However, as the SMOM is a religious order, the degree of control exerted by the Holy See (the Pope’s office, to whom it is formally subordinated) has long cast a shadow on the actual extent of its ILP. This dimension of the SMOM’s ILP was further highlighted in 2022 when the Holy See promulgated a new Constitution to the Order.
In this blog I will shortly introduce the SMOM, discuss how the Order’s constitutional changes affect its ILP, as well as expand on how these changes impact the relevance of the Order for SIDSs.
The SMOM’s International Legal Personality
More than just a relic, the SMOM’s unusual status (variously described as a Non-State Sovereign Entity of International Law, a non-State “primary subject” of international law, or simply a sui generis entity) is not just an oddity but also a potent example of what exists at the margins of Westphalian statehood. Indeed, the SMOM displays a number of state-like characteristics that clearly shows it is contextually considered as an equal by numerous members of the international community. Its members are granted diplomatic immunity, it is able to conclude international agreements, and it is generally accepted that the SMOM acts as a sovereign actor and is recognised as such by States, at least within the scope of its humanitarian activities.
The Order’s peculiar ILP has made it an interesting reference point for several scholars discussing how SIDSs could approach de-territorialised statehood. Proposals such as Burkett’s nation ex-situ rely at least in part on the Order’s rich history and liminal qualities, showcasing an example of de-territorialised international personhood (albeit falling short of full statehood). I have previously written on this possibility, highlighting the advantages but also the shortcomings of this potential path for SIDS, adding to a small but growing body of scholarship on the topic (see for instance, Costi & Ross or Allen & Prost).
Beyond this discussion however, there is still some uncertainty as to what kind of “creature” is the SMOM, particularly because of its complex relationship with the Holy See. Indeed, the nature of this relationship is at the crux of the Order’s international legal personality (ILP). Being a religious order of the Catholic Church, formally subordinated to the Holy See, means that the degree of unilateral authority exercised by the Holy See on the SMOM affects whether it can be assessed to be sovereign in substance or simply in appearance (with the various privileges it enjoys being conferred onto it out of courtesy rather than out of legal obligation).
The SMOM’s New Constitution
The relationship between the SMOM and the Holy See was upended when a new constitution to the Order was adopted on the 3rd of September 2022. The manner in which the Constitution was adopted was particularly striking, as the Holy See, seemingly unilaterally, imposed it on the Order. At first glance, this seemed to vindicate the scholars arguing against the SMOM’s ILP. Already in 1953, a Cardinalitial Tribunal proceeding (appointed unilaterally by the Holy See) had weakened the Order’s separate ILP in the eyes of some. However, the contents of 2022 Constitution need to be factored in.
Here, I am indebted to Frederico Marti for his short note on the effects of the SMOM’s new constitution on the Order’s ILP. Harnessing the literature on the Order that is unfortunately out of bounds for non-Italian speaking scholars, Marti makes a convincing argument that the SMOM’s ILP has not only not been affected negatively, but in fact been strengthened by this change.
Correctly noting that the SMOM is not a State, Marti analyses the effects of the new constitution on the Order’s international status. There, Marti argues that the Holy See’s promulgation of a new constitution:
“has the opposite meaning from-what might appear at first glance. Instead of an undue interference infringing upon the autonomy of the Order of Malta and its right to be a member of the international community, the papal ruling is strictly aimed at safeguarding the SMOM’s special status within the canonical legal system and thus its international status.” (p. 84)
Marti disentangles the relationship between the SMOM and the Holy See by showing how the latter recognises and safeguard’s the SMOM’s unique ILP by clarifying its status with the 2022 Constitution primarily from the perspective of canon law rather than in direct relation to the SMOM’s ILP. To explain the nuances of the Holy See’s promulgation, Marti discusses the dual existence of the Order as both an international actor (acknowledged as such by the Holy See) and its simultaneous existence as one of many religious orders that exist within the auspices of the Catholic church.
As a religious order, albeit the only one with laic or layperson membership, the SMOM exists within a very specific framework of canon law where it is categorised as one of many religious orders (all of which lack comparable ILP to that of the SMOM). Marti argues that the recent developments preserve the Order’s sui generis nature both as a religious order within canon law and as a sui generis member of the international community. The Holy See’s promulgation should consequently be understood as taking effect within the “religious order” dimension of the SMOM’s existence, not its (simultaneous) existence as a sovereign entity of international law (as clarified by Article 5§7). The 2022 Constitution should thus be seen as carving space for the SMOM to maintain its ILP within both PIL and canon law, clarifying its position and securing the SMOM’s status rather than undermining it.
Still relevant for SIDS?
As I mentioned earlier, one of the key sources of interest in the SMOM’s idiosyncratic position in international law is its relevance to SIDS. The question is thus whether the constitutional changes effected in 2022 affect in any way the potency of the SMOM’s case as a precedent or as a framework for continued international personhood in the absence of a territory.
Firstly, regardless of this development, the exact nature of the SMOM’s status has been and is likely to remain a subject of discussion. Scholars that have previously assessed the SMOM (or the Holy See itself, for that matter) as lacking ILP are likely to double-down since independence may hardly be reconciled with having a new constitution imposed upon it by an external actor. This also applies to scholarship that recognizes the SMOM’s ILP at least until new case-law emerges that clearly undermines the Order’s functional sovereignty (especially in Italian courts).
Secondly, the position of the SMOM in the discussion on the future of SIDS was already nuanced, and that is unlikely to change. Most importantly, the SMOM is not a State and so does not present a full 1:1 precedent for de-territorialised statehood. This should be taken into account when linking the SMOM and SIDSs since it implies a significant downgrade for the latter were they to transition to a similar sui generis status (ie, loss of statehood, narrowing of their sovereignty).
From a purely external perspective, it is notable that the SMOM has not suffered from the changes to its internal order. From 112 in 2022, the SMOM now maintains diplomatic relations with 114 States, as per the Order’s website, showing a slow but steady increase. At least superficially, this seems to indicate no particular changes in the Order’s international standing and thus continued relevance to SIDS where the parallel has been invoked. But is this all?
A sign of things to comes for SIDS?
Marti’s insights in the SMOM’s new constitutional arrangements simply bring us back to the status quo: the SMOM’s position and status were already the subject of debates, so nothing new under the sun.
However, I would argue that this specific situation is of particular relevance to the future of SIDSs. Setting aside the uncertainty relating to the future statehood of de-territorialised SIDS, the recent Falepili Union between Tuvalu and Australia has given us a glimpse of some of the difficulties to expect when one independent State puts its fate in the hands of another.
The Falepili Union aims to safeguard Tuvaluan statehood directly vis-à-vis Australia (and indirectly via state practice), but it also highlights how Australia sees the relationship, namely, through the inclusion of a “significant quid pro quo” in Article 4(4) of the agreement. The agreement has also been criticised for its lack of coverage of cultural rights, but its weaknesses highlight a deeper problem.
Where the SMOM’s position and that of a putative de-territorialised SIDS (maintaining its statehood) converge is that in both cases the sovereign entity/State in question would find/finds itself in a precarious position. Sovereignty is at least partly in the eye of the beholder, and SIDS will undoubtedly have to contend with the same kind of arguments aimed at the SMOM.
This is quite open-ended as far as arguments go, but it underlines the importance of resolving the key questions around the functioning and operations of statehood in such a setting before a SIDS’s existence ever hangs in the balance. Ideally, the exact jurisdictional boundaries should be spelled out in detail and enshrined in as strong vehicles as can be from both sides. Knowing full-well that this might be aspirational, one might go as far as suggesting that the host state crystallise via constitutional change the mutual recognition of sovereignty necessary for the co-existence of a sovereign entity within the territory of another.
Conclusion
Overall though, the parallels between the SMOM and SIDSs are circumstantial and have significant shortcomings. At best, the SMOM is one of the many pieces towards assembling de-territorialised statehood. SIDSs have shown that they are determined to take their fate into their own hands and little will stand in their way.
Despite its shortcomings, the Falepili union is a remarkable step in the right direction and it highlights how SIDSs have worked tirelessly to 1) hold historic and present polluters accountable for the effects of climate change and 2) to clarify their status and the corresponding duties of the international community. More than ever, narratives of impending doom should be avoided, and particular attention should remain on what SIDSs want for themselves.
