A Question For International Lawyers to Ponder


As we noted earlier in the week, the small island state the Maldives is sinking. Or rather, rising sea levels threaten to literally wipe the Maldives off the map and the Maldive government is looking to purchase some terra firma should the worst happen. Over on Opinio Juris Duncan Hollis asks “what happens to the Maldives’ sovereignty and sovereign rights when its existing territory falls below sea level?” That’s a good question. Hollis continues.

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.

As other small island states –Vanuatu and Nauru come to mind — seek redress from climate change, I imagine these kinds of questions will become more commonplace. Frankly, it would only seem fair that the developed world, whose actions resulted in the disappearance of these islands, shoulder some of the responsibility for taking care of the resulting climate refugees.
(Photo from Flickr)