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acquisition of new territory

Along with reconstruction of available islands and a construction artificial the disappearing states also have a possibility to get or lease new territory. Such measure is possible as at full disappearance of the state territory of the disappearing states, and at partial - with a view of maintenance of ability to live of the population and the state as a whole and completions of the lost resources as a result of immersing of available territory under water.

Such full or incomplete immersing of territory under water causes also a way of acquisition of new territory in a context of preservation of statehood of the disappearing states. Such way of registration of relations on transfer of a part of the state territory at which territorial supremacy transition (sovereign possession) will be carried out will be the best decision with a view of preservation of statehood of the disappearing states. Thereupon we will analyse further a parity of such kinds of acquisition of the state territory in international law as rent and cession.

(1) International legal basis of cession of the state territory

«On the basis of the contract of cession a title from the state-tsedenta on a part of its territory

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Completely passes to the state-tsessionariju », that is there is a transient

Territorial supremacy transfer, the state-tsessionary extends the sovereignty to the given part of territory. So, for example, has occurred in 1803 when the USA have got Louisiana at France, in 1867 - Alaska at Russia, to 1898 Philippines at Spain, in 2000 of the Russian Federation has transferred the Peoples Republic of China a small part of the territory around the river Foggy, in 2005 the similar fate has comprehended also island Tarabarov on the river the Cupid.

Hence, the given way of registration of relations on territory transfers is optimum at statement of the purpose of preservation of statehood of the disappearing states in case of full immersing of their territory under water. And the same position is reflected

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And in the international law doctrine. [847 [848] [849]

However the states, wishing to concede a part of the territory to the "sinking" states, not so it is a lot of. As it was marked earlier, Fidji has sold a small part of the territory of Kiribati and Tuvalu, and now carries on negotiations for sale bolshej parts of the earth from Kiribati. Some representatives of the international legal doctrine notice, that «in practice it will be difficult to find the state, ready to concede a part of the territory, except as in case it is uninhabited, unsuitable for residing, there is no in someone's a property and is deprived any natural resources important for the conceding

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The states ».

Australia in 2001 has given up in the given question of Tuvalu [850 [851] [852] [853], and New Zealand prefers not to sell territory, and gradually to receive the population of the disappearing states, but with certain requirements. We will remind, she has established a quota of entrance of 75 citizens from Tuvalu and Kiribati in a year, and they should meet certain requirements: age 18 - 45 years, have the work permit in New Zealand, well

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Know English.

After earthquake in 2010 to Haiti the African Union has suggested to allocate for territories of Africa the earth for the separate state Haiti as the population of Haiti has

L, 860 gg

The African origin, but it and has not occurred, Haitians have been assimilated in the various African countries [854].

In case of resettlement of citizens of the disappearing states on the territory got by the state on the basis of the contract of cession if the small part of a land all the same remains above sea level, such state not only will keep the statehood, but also will continue to carry out the sovereignty concerning the given part of the left territory, and also will keep the sovereign rights and powers in sea zones round this part of a land. Nevertheless, with disappearance of "old" territory as it has been noted earlier, their jurisdiction concerning the sea spaces counted from existing initial lines will disappear also, and they will not keep the sovereignty concerning waters over the flooded territory.

Possibly, as stimulus for the states to give the to territory on the basis of the rent contract or cession the offer of the disappearing states could act to give them territory in exchange for sea resources in borders of sea spaces of the disappearing states if, not all territory of the disappearing states as a result appears under water. In this case the disappearing states will keep the sovereignty over it, territorial sea round it, jurisdiction over a contiguous zone and the exclusive economic area, and, accordingly, can give reciprocative performance.

Thus, state territory cession is successful way of reception of territory in case of full immersing of the state territory under water as solves a considerable quantity of the problems connected with flooding of territory: a question of preservation of statehood of the disappearing states, preservations of the sovereignty and jurisdiction concerning sea spaces till the moment of full immersing under water of "old" territory, a question of the status of the population of the disappearing states.

(2) International legal basis of rent of the state territory

The maintenance of the international rent of the state territory consists in

«Granting on a contractual basis one state to another a part of the territory in

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Using for certain term, in definite purposes and on certain conditions ».

The institute of rent of the state territory includes two components:

• granting of the ground areas and the real estate for placing of authorities and the population of the leasing state;

• granting of a special legal regime to these authorities and the population.

Feature of rent of the state territory in a territorial supremacy context is that the leased territory continues to remain under the state-lessor sovereignty, and on it its territorial supremacy extends. Besides, international treaties about territory rent mean the denouncement right to the party of the state-lessor [855 [856]. Hence, state-tenant position, not absolute and on volume of the rights, cannot have and infinite character on time, from the legal point of view. Known in practice of the states dogovory state territory rent, such as tenancy of Russia by China of Port Arthur, Kiao-Chao - Germany, Kvan-Chao - France which upon were the veiled concession of territory as provided territorial supremacy transition, have been cancelled by the state-lessor. Panama canal after its rent at Panama the USA and Hong Kong after rent at China the Great Britain - have been returned suverenam [857 [858], that, by the way, while it is impossible to tell about Guantanamo, leased by the USA at Cuba. Anyway, the international law will not protect the tenant in case of denouncement of the contract by the lessor, the sovereignty remains at the lessor though the tenant and will receive some sovereign powers. The volume of powers can be various as there are no obligatory international legal norms on rent of the state territory and all will be

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To depend on the contract regulating rent.

So, for example, the history knows an example in 1870 when the part of the population of Iceland as a result of eruptions of volcanoes has been forced to move on territory of Canada. The government of Canada has concluded with new poselentsami the contract according to which it gave an earth site, they could have a dual citizenship as Canada, and Iceland. Management was carried out by elective representatives from poselentsev. Nevertheless, subsequently these poselentsy completely assimilated with the Canadian province Manitoba [859].

Heads of the disappearing states consider rent of territory at other states as one of ways of the decision of the problem. The minister of a marine sea fleet of Indonesia has informed, that «Indonesia considers a question on tenancy of 17 500 islands Maldives some of it» [860]. Kiribati and Tuvalu consider such possibility concerning Australia and New Zealand [861]. President Maldiv also has declared that considers possibility of acquisition of a part of territory at Australia for resettlement of population Maldiv [862].

In practice actual realisation of the sovereignty over territory can not involve legal effects, and the territorial sovereignty over this territory the state-lessor will possess. So, the Turkish island Cyprus in 1878 - was 1914 under control of the Great Britain. The mixed English-Turkish arbitration in 1929 on business Parounak against Turkey (v. Turkish Government) has enacted, that Cyprus is under protectorate in that sense in what concept «the country which is under protectorate of the Great Britain», is defined item 64 of the Lozannsky contract. However in business «About beacons on islands Cretes and Samos» the Constant chamber of the international justice in 1937 has enacted, that, despite rather wide autonomy given by Turkey to these islands, their territories should be considered consisting in 1913 Under the Turkish sovereignty, that Turkey had the right to give or renew concessions on these islands [863 [864] [865]. Though in the separate opinion in 1937 the judge of Constant chamber of the international justice M.O.Hudson has expressed, that «the legal concept should not be lead up to a limit, and it is impossible to admit, that the phantom of the deprived maintenance of the sovereignty blacked out the actual

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State of affairs ».

In the doctrine of international law rent does not concern ways of acquisition of territory among which is: occupation of neutral territory; the prescriptive right (the open and not broken possession of territory during long time); cession (sovereignty transfer under the agreement); akkretsija (joining of territories again formed naturally); a gain [866].

In a context of the disappearing states at population resettlement on leased territories, free from the state-lessor population, it is possible to say that there will be a territorial supremacy splitting between the state-tenant and the state-lessor, proceeding from rent treaty provisions. The state-tenant legal order will not follow directly from international law, and will occur from the state-lessor law and order. It is improbable, that the accepting state will allow the government of the disappearing state to carry out, for example, compulsion jurisdiction.

It means, that, unfortunately, such way of registration of relations is disputable at statement of the purpose of preservation of statehood of the disappearing states in case of full

Territory immersings under water. Besides, at a variant of erection of the artificial islands constructed within territorial sea, there is, nevertheless, a risk nereshennosti problems of the status of the population of the disappearing states as UVKB the United Nations approve, that «even if the international community will continue to recognise state existence, despite full absence at it signs

Statehood, its population can be considered as de facto persons without

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Citizenship ».

A number of scientists - representatives of the foreign doctrine of international law notice, that in case of rent of new territory at full immersing of their own territory under water «the disappearing states will be transformed to a new kind of the international subject - persona sui generis - gosudarstvopodobnoe formation, along with the Maltese award and the Sacred throne» [867 [868] [869] [870].

Other representatives of the international legal doctrine approve, that members of the international community can continue to recognise the international legal personality

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The states leaving under water in that case as the states while «their legal personality will proceed even in case of acquisition of territory by them on the basis of rent contracts in case of full immersing of their territory under water. Though the certificate of a recognition has no crucial importance in a question of an establishment of the legal personality of education as the state according to the declarative theory, nevertheless, the formation statehood really to some extent depends on a recognition its existing international subjects, as the state realizovyvaet international legal

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Essence as that, first of all, through relations with other states ». In other words, if the disappearing states take advantage of a variant of artificial erection of islands within territorial sea and will declare, that they have not lost statehood, their statehood will remain, if the international community continues to recognise it at them - konstitutivnaja the theory here serves as good help.

As the certificate of a proceeding recognition of the legal personality of the disappearing state can serve it neiskljuchenie from the United Nations as «the state can recognise other party through the Charter when last is accepted in members of the United Nations». For example, despite the fact that what

United Nations HECTARES in 1992 has declared, that Yugoslavia cannot continue the membership automatically in the United Nations [871 [872], it has been excluded from the United Nations only in 2000 [873 [874]

In a kind of that «in international law there are no criteria on which basis it is possible to recognise the state ceased the existence, such subjective factor as the statement of the most disappearing state about kontinuitete its statehood can be defining in the given situation».

The given way, certainly, solves a question on territorial placing of the population of the disappearing states, besides the contract can provide wide volume of competences of the state-tenant so to give considerable degree of independence and to keep so their cultural identity valuable to the disappearing states. However the given way at all does not remove a number of other problems in case of full immersing of territory under water: the sovereignty of the disappearing states does not remain, the control over sea space over the flooded territory is lost, there is a risk of the population to become stateless persons, besides, the international law will not protect the tenant in case of denouncement of the contract by the lessor. Such way can be used at incomplete immersing of the state territory - with a view of maintenance of ability to live of the population and the state as a whole and completions of the lost resources as a result of immersing of available territory under water.

Thus, registration of the given relations on the basis of the rent contract in view of absence of transition of the territorial supremacy to the disappearing states can not approach for preservation of their statehood in case of full immersing of territory under water. It is possible to assume, that in case of rent of territory or in a transition period of resettlement of the population on new the territories, got at other state, such disappearing states represent formations sui generis - gosudarstvopodobnye formations. However there is also other position about continuation of their international legal personality as the states in that case. For this reason the optimal variant for preservation of statehood in case of full immersing of territory under water is the cession contract.

3.3.

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A source: Vasileva Anastas Andreevna. INTERNATIONAL LEGAL CONSEQUENCES of DISAPPEARANCE of TERRITORY of the STATES. The DISSERTATION on competition of a scientific degree of the master of laws. 2018 Moscow. 2018

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