by Ahmed Saeed
On 22 July 2015, former President of the Maldives, Maumoon Abdul Gayoom, sent an emotive and poignant letter to President Abdulla Yameen asking him to hold a public referendum on the then newly passed constitutional change enabling foreigners to acquire land in the Maldives for 99 years. Writing as a concerned citizen, he urged that President Yameen was duty-bound to all Maldivians to seek public consultation before ratification, under Article 115, of the Maldives constitution’s Powers and Responsibilities of the President: the duty “to hold public referendums on issues of national importance”. However, without any heed to the former president’s letter, Yameen ratified the amendment within 48 hours of Parliament passing the bill.
President Gayoom’s landmark letter will no doubt go into the Maldives’ history books as a compassionate but persuasive admonishment from a former President to a current President, at times couched in a brotherly and advisory tone - “such an act [as seeking the public’s opinion] will elevate the President’s esteem in the eyes of the people and future generations of Maldivians will thank and praise you if you acted on a public vote”. Compassionate as the letter was, the possible legal issues surrounding how any sale of land to foreigners would affect the law of the sea if a buyer acquired an entire atoll or a part thereof, for example, was not elaborated in detail by Gayoom, simply referring to the possible predicament and impact on the country’s sovereignty in enabling others to influence the very independence of Maldivians as a consequence.
Referring to Maldivian Members of Parliament who voted against the Bill, The Diplomat publication cautioned the legislative change as paving the way for a Chinese presence in the Maldives. Of course the world has seen how the Chinese government’s involvement in the South China Sea has led to the Permanent Court of Arbitration’s recent ruling – that the rights of neighbouring countries and their entitlements granted by the Law of the Sea have been violated. The Maldives islands are a continuation of the Laccadive-Chagos ridge and the atolls are widely scattered traversing the Indian Ocean with vast tracks of sea lending easily to a possible detachment, if a buyer so desired. If a buyer wished to reclaim and expand upon the land so acquired, then the international law entitlements of the Maldives and its Exclusive Economic Zone will be encroached upon as has happened to those of Philippines and Indonesia as a result of China’s reclamation exercise.
Historically, what comes to mind, of course, is the case of the detachment of the Chagos archipelago from the state of Mauritius by the government of the United Kingdom (UK) in 1965. A sum of GBP 3 million was said to have been paid to Mauritius in exchange for the transaction and therefore UK considers sovereign rights over the islands as vesting with them. However, Mauritius is now claiming that the detachment was improper (despite the land acquisition was financially compensated). In an attempt to subvert Mauritius’s claims, the UK government declared a Marine Protected Area, MPA, around the Chagos archipelago. Matters came to a head when Mauritius brought proceedings in the Hague and the International Court ruled that the declaration of the Chagos MPA was indeed incompatible with the UK’s substantive and procedural obligations to Mauritius under the Law of the Sea as well as the UN Fish Stock Agreement. Regardless, UK still hangs onto the notion that sovereignty over the islands is not under Mauritius but with the UK government. On this basis it has leased the largest island Diego Garcia to the United States, and a military base worth billions is now on it, the US using it as a strategic location in their armed attacks during the liberation of Kuwait in 1991 and the invasion of Afghanistan in 2001 and Iraq in 2003.
The geographical nature of the Maldives islands lends itself easily to such a detachment, if the Chinese (or any other party) so requires it. The very northern tip of the Maldives, Ihavandhippolhu is a strategic gateway through the West to the East so is the southern tip, islands of Fuvahmulak and Addu Atoll easily separated (like the Chagos archipelago) by large tracts of the Indian Ocean. Interestingly, the southernmost atoll Addu is approximately 500km directly north of the Chagos archipelago and at one point in history, the UK had a lease on the largest island, Gan in Addu atoll of Maldives. It is rumoured that the British lost interest in Gan because they found Diego Garcia to be more suitable. If not, perhaps, history would have been different to the Maldivians of Gan island.
Mauritius is yet to bring proceedings in an international court for an asserting of its sovereign rights over the islands but the UK has changed its optional jurisdiction clause under the International Court of Justice Statute, ICJ, that matters exclude “pre 1974 disputes with current or former Commonwealth member states” – in effect, Mauritius will have to leave the Commonwealth if they wish to take on the UK. A similar predicament would have faced the people of Gan in the Maldives if a military base the size and scale of Diego Garcia was made on it. Echoing similar sentiments, Gayoom’s letter had cautioned that foreign powers will be enabled to affect the country’s very independence if sale of land to foreigners was permitted. The legislative change has created a raw nerve that touches the heart of every Maldivian, and citizens from all political parties have voiced their concern, albeit to no avail.
Those opposing the Bill say that interest may be shown in the Maldives’ easily detachable islands by the emerging powers of India or China. Investors from both countries have made sizeable investments in separate islands in various parts of the Maldives for the purposes of tourism, as the islands are tiny; but the southern atoll Addu, the larger land masses in Ihanvandhippolhu in the north and Laamu Atoll, right in the middle of the archipelago are suitable for purposes other than tourism. During 2013 the Maldives government was said to have entered into negotiations with Malta for a possible location for an armoury in the north and in 2014, islands in Laamu atoll were said to have been in negotiation for a lease to the Saudi government. Now, the consequence such leases would ensue is anybody’s guess.
The ease with which the Maldivian constitution can be changed is alarming, requiring only a two third majority, which can leave the process open to the whims of a powerful ruler. Only changes to provisions within the Chapter on fundamental rights and freedoms (Chapter 2) require public approval by a referendum. The changes to the clause on territorial waters of the Maldives need not be returned by a public confirmation. Maumoon’s letter has asked for a referendum given the importance of the issue to present and future Maldivians, and because it is with relative ease that land boundaries can be changed. In a country that is sea more than land, any change to its territory should require every citizen’s approval, especially given that Article 22, which indeed falls within Chapter 2, reads that “the state has a fundamental duty to protect and preserve the natural environment, bio-diversity, resources and beauty of the country for the benefit of present and future generations.” In a country where 99% of its territory is sea, the importance given to the sea that applies to the law is paramount when considering law related to land.