Small Sovereign Archipelago Seeks New, Elevated Homeland

Malé, Maldives

This week’s news out of the Maldives is the sort of story that makes international lawyers salivate. It has something for everyone, bringing together issues of democracy, transitional justice, climate change, the law of the sea, not to mention good, old-fashioned sovereignty.  On Tuesday, Mohamed Nasheed was sworn in as the archipelago’s new President, ending the thirty-year rule of Maumoon Abdul Gayoom.  In doing so, the Maldives is now being cited as an example for how a predominantly Muslim nation can make the transition from autocracy to democracy, albeit with a few bumps along the way (Violent protests in 2003 precipitated Gayoom’s willingness to develop democratic institutions, including the legalization of political parties in 2005, but Gayoom only conceded defeat after losing a highly-contested October run-off election against Nasheed.).

Nasheed’s ascension to the presidency, moreover, provides a new datapoint for those who study transitional justice.  Nasheed had been a political dissident, jailed dozens of times, and allegedly beaten and tortured in the process.  But Nasheed’s administration appears to favor peace over justice going forward.  He’s asked Maldivians to avoid retribution, saying, “We have the latitude to remove anyone from government and prosecute them. But I have forgiven my jailers, the torturers. They were following orders … I ask people to follow my example and leave Gayoom to grow old here.”  Thus, at a time when other amnestys are fraying and a justice-model for redressing political crimes holds sway in the international context, the Maldives marks a different direction for dealing with past atrocities and repression.

Remarkably, rather than focus on these implications of the political shift in power, Nasheed used the platform of his inauguration to draw attention to a very different threat to his nation — climate change.  The Maldives is made up of more than 1100 coral islands in some 26 atolls, most of which lie only just above sea-level (1.5 meters on average, with its highest point only 2.4 meters above sea level).  Thus, if sea levels continue to rise over the next century as a result of climate change, the Maldives’ 380,000 inhabitants may be at risk of finding their homes under water, including residents of Malé, the world’s most densely populated town where more than 100,000 people cram into 2 square kilometers (see the photo above).  Nasheed’s solution?  Find new land to relocate the population:

“We can do nothing to stop climate change on our own and so we have to buy land elsewhere. It’s an insurance policy for the worst possible outcome. After all, the Israelis [began by buying] land in Palestine,” said Nasheed . . . The president, a human rights activist who swept to power in elections last month after ousting Maumoon Abdul Gayoom, the man who once imprisoned him, said he had already broached the idea with a number of countries and found them to be “receptive”.

He said Sri Lanka and India were targets because they had similar cultures, cuisines and climates. Australia was also being considered because of the amount of unoccupied land available. “We do not want to leave the Maldives, but we also do not want to be climate refugees living in tents for decades,” he said. . . . Nasheed said he intended to create a “sovereign wealth fund” from the dollars generated by “importing tourists”, in the way that Arab states have done by “exporting oil”. “Kuwait might invest in companies; we will invest in land.”

International environmental lawyers and activists will likely use the Maldives’ move as a further rallying cry for post-Kyoto international regulation of greenhouse gases.  It is not the first country to face the problem of rising sea-levels, just ask the residents of Bhola Island in Bangladesh.  Nor would it be the first example of climate-induced evacuations, a claim staked by some hundred islanders in Vanuatu (and, of course, there are earlier examples of relocating entire island populations such as the U.S. move of Bikini islanders to make room for nuclear testing).  Still, the idea that an entire country might be relocated due to climate change has significant symbolic value.

Obviously, the practical problems facing the Maldives are real and significant.  But, I wonder what legal problems their situation will create and how their proposed solution of buying new land would actually work.  For starters, what happens to the Maldives’ sovereignty and sovereign rights when its existing territory falls below sea level?  Would islands cease to be islands under the law of the sea (see article 121 of UNCLOS)?  That’s an important question regardless of their habitability since the existence of land territory dictates the scope of a state’s sovereignty over its territorial sea as well as its sovereign rights in an exclusive economic zone and the continental shelf, all of which may still contain valuable natural resources.  UNCLOS Articles 60 and 80 allow for a state to construct artificial islands and installations within its exclusive economic zone, but that presumes that it still has an exclusive economic zone within which to build.  Artificial islands and installations do not get the benefits of island status themselves.  I assume that since the Maldives currently have an undisputed status as a sovereign state, they would not face the plight of sovereign-wannabees like Sealand.  Still, the scope of their territorial sovereignty and sovereign rights would certainly warrant more careful study.

What about buying new land to replace land lost to rising seas?  International law does not limit the ability of states to buy or own land in the territory of another sovereign state.  One of my first jobs as an attorney-adviser at the State Department was to sell some $30 million in property the United States Government owned in Bonn, Germany as part of moving the U.S. Embassy to Berlin.  Similarly, most diplomatic missions in Washington, D.C., are actually owned by the state they represent.  But, contrary to popular conceptions of these properties as extensions of the territory of the sending state, they remain under U.S. sovereignty (albeit subject to certain privileges and immunities).  So, I don’t see a problem with the Maldives’ government buying land in other countries where its residents could live if they lose their homes on their existing islands.

But what if the Maldives wants more than mere property ownership?  What if they actually want to make the land part of the Maldives, i.e., an extension or even a wholesale replacement of its existing territorial sovereignty?  That may prove a much more complicated task.

International law has long recognized various ways for states to acquire territorial sovereignty: conquest, discovery, occupation, accretion, cession, or prescription.  Of these, the Maldives’ adherence to the UN Charter (not to mention international law more generally) takes conquest off the table.  Discovery alone or combined with occupation are still technically available options, but good luck finding terra nullius that you can claim as your own.  And accretion–the expansion of existing land masses through geological changes–appears to be the opposite of what’s actually happening to the Maldives.  That leaves prescription or cession as possibilities.  Cession would require the consent of the state that currently has territorial sovereignty over the purchased land to cede that sovereignty to the Maldives along with ownership of the purchased property.  Treaties of cession used to occur with some frequency (see, for example, the Louisiana Purchase or Seward’s Folly), but they are relatively rare today.  Cession now occurs most often where one of two states disputing sovereignty over some territory cedes its claim to the other disputant.  A cession to the Maldives would be of the old-fashioned variety, and it would be interesting to see whether and on what terms Sri Lanka, India or even Australia would agree to such a proposition.  Finally, there is the possibility of prescription–holding control over some territory peacefully for a sufficient period of time that territorial sovereignty gets recognized, even if there was no otherwise legal foundation for doing so.  Can the Maldives do that here?  Time would literally tell, but it could prove problematic if the state in whose territory the land is purchased remains vigilant about taxes, government services, etc.

The bottom line is that any Maldives’ relocation could prove difficult not just logistically, but legally as well.  They will need, I suspect, one or more good public international lawyers to advise them on the sovereignty issues concerning their existing territory and any new land that they chose to purchase.  Of course, no one is asking me, but just in case anyone reading this works for President Nasheed, my calendar is actually pretty wide open for this sort of work.