In 1987, while addressing UN General Assembly, the then Maldivian President Abdul Gayoom stated that the continued rise of sea level will only lead to death of the nation. He pleaded before the international community to take decisive action to control the unprecedented rise in global emission levels.
More than two decades later, the Maldivian Cabinet led by former President Mohammed Nasheed took a unique route to register its protest against the reluctance of international community. The small nation held his cabinet meeting thirteen feet underwater to highlight the danger of global warming that Maldives is being made to confront.
The situation has deteriorated since then. The National Academy of Sciences predictions from 2009 suggest that by 2100, sea level could ‘increase by anywhere from 16 inches to 56 inches, depending how the Earth responds to changing climate.’ For Maldives, this news is alarming. Even a 0.49 meter rise in the sea level would mean substantial loss of land by Maldives. In fact, by 2100, significant portions of the state would be ruthlessly inundated. Because of such a high rate of sea level rise, 15 percent of the Maldives’ capital island of Male, which has one-third of Maldives’ entire population, would be submerged by 2025, with fifty percent submerged by 2100.
While complete submergence of an island state is yet unseen, significant instances of partial submergence such as the Kiribati in 1999 have sent signals of alarm to the international community. However, what will happen when a nation loses its entire landmass to submergence? Territory is an important criterion for a state to attain statehood, and with complete submergence of the natural islands, Maldives may find itself in a difficult situation. This raises complex legal questions with regard to the status of the population and the validity of Maldives’ statehood under international law.
Additionally, in an attempt to safeguard against the submergence of its natural territory, Maldives’ has already constructed the artificial island of Hulhumale for population rehabilitation. However, the international legal community is not yet equipped to deal with the status of artificial islands which Maldives hopes to rely on in order to save its statehood.
The battle for statehood
International law recognizes two theories of statehood: declaratory and constitutive. The former allows for automatic conferring of statehood once certain conditions are met, while the latter requires other states to recognize the new state. The declaratory theory has achieved the status of customary international law and is characterized by Article 1 of the Montevideo Convention which defines that statehood consists of four criteria: a) a permanent population; b) a defined territory; c)government; and d) capacity to enter into relations with other states.
The issue that troubles Maldives is that of territory. The territory must be controlled consistently and must be adequately recognized in order to qualify for statehood. UNHCR has also stated that if the submergence of territory is permanent, it would be difficult to retain statehood. There would be no permanent population or government control. However, there are precedents that confer statehood on a nation without any territory.
Royal order of Malta only occupies few buildings in Rome but continues to be a state despite losing its sovereignty over Maltese islands. The Maltese sovereignty is because of recognition by 60 states. However, Maldives, without a permanent territory, can only be a state as long as other states recognize it. But, as mentioned above, there has not been any incident of complete submergence of a nation state, and thus we can only presume that Maldives is looking at a real threat to its statehood.
Can artificial islands save Maldives?
Maldives is planning to bank heavily on a chain of artificial islands to save itself and its population. The states can construct and exercise sovereignty over their artificial islands within their maritime zones. However, Article 60(8) of Law of Seas Convention read with Article 80 categorically denies conferring the status of islands to artificial islands. Also, artificial islands cannot have their own maritime zones. This shows that, while construction of islands may succeed in saving Maldives’ de facto existence, it may not offer a helping hand to Maldives to retain its statehood. The reason: since an artificial island cannot be considered an island under the international law, it cannot be termed as territory. Thus, artificial islands do not offer any solution or hope of retaining statehood to Maldives once its natural islands are submerged permanently.
What about the displaced population?
While the threat to island states is unprecedented, the international legal framework is not ready to deal with such massive displacements. The biggest question is: what will be the status of the displaced populations? They would be stateless, to say the least. But the more important issue lies in their acceptance as “refugees”. The definition of “refugee” under international law fails to recognise “environmentally displaced persons” or “climate refugees”. While there have been calls by nations like Bangladesh and Maldives to expand the definition to include climate refugees, the international legal community has failed to respond. Thus, the status of the environmentally displaced pollution is still unclear under international law. This continues to be an issue for Maldives.
What can Maldives do?
There aren’t many options before Maldives. It must shift its focus from political turmoil in the country to the much-needed international activism. There is a need to revisit Law of the Seas as they exist in order to provide special considerations for “environmentally threatened or vulnerable” island states. Maldives must ask for recognition of artificial islands constructed within the maritime zone as territory under the convention. The biggest roadblock is the expansion of maritime zones if artificial islands are recognized. However, a solution to this can be the development of safety zones which will have limited rights as compared to maritime zones.
The international refugee law must also understand the catastrophic nature of the potential displacement and evolve to accommodate “environmentally displaced persons.” The international legal community must understand the grave threat faced by these small island nations and respond with humanity as the soul of its agenda. India must not only lend its full support to Maldives, but also lead the movement from front. If India has to secure Indian Ocean against Chinese maneuvers, protecting or at least trying to protect Maldives from the unfairness of international law can be the perfect start.
However, Maldives must be ready for a desperate last minute battle to save its population. It must continue to buy lands in other countries. It might have to trade its sovereignty in exchange for rehabilitation of its population. It should also train its population in specific skills so that they can be rehabilitated.
There is no doubt that this crisis for Maldives will surely lead to a prolonged battle. But the country is only wasting its valuable time with its internal political squabbles. One can only hope that Maldives will recover from its quarrels soon enough to save its sovereignty, statehood and population.
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