In the decades to come, many low-lying nations will start to look more like uninhabitable rocks. Wave “over-wash” will degrade the fragile lens of fresh groundwater, leaving residents dependent on rain or imported bottled water. The warming ocean will result in degradation and bleaching of reef ecosystems that protect the islands from erosion. The elevating sea level—rising as much as a meter by 2100, according to last year’s IPCC report—may inundate the lowest-lying islands of archipelagos such as the Maldives (average elevation 1.6 meters), Tuvalu (1.83 meters), Kiribati (1.98 meters), and the Marshall Islands (2.13 meters).
If these islands do become rocks, the question of their maritime holdings is complex, as they’re inhabited and have their own seats at the United Nations; they also draw a significant portion of their gross domestic product from those ocean rights. According to the UN’s International Covenant on Economic, Social, and Cultural Rights, “In no case may a people be deprived of its own means of subsistence.”
As long ago as 1990, a scattering of international law scholars began to imagine approaches to the problem, including ones that might even help threatened nations with their resettlement efforts.
One early proposal from Fred Soons of the Utrecht University School of Law is a solution that is part physical and part legal. Soons assumes that the islands’ adaptation efforts will include man-made barriers, and perhaps in the long run, even more ambitious efforts that amount to artificial islets. In that case, he suggests broadening the legal definition of “naturally formed” islands to include such land-preservation efforts. In other words, so long as an island was initially natural, Soons believes it ought to count as an island, even if it later becomes enhanced—and even potentially supplanted—by artificial components. (Soons points to the example of Okinotorishima, a remote atoll that Japan has spent more than $700 million to protect with steel blocks and concrete embankments, though its claim to islandhood—and the surrounding ocean—remains contested by neighbors.) Even Soons himself doesn’t see this as a permanent solution, however: Artificial barriers simply delay the inevitable, and the price tags for buttressed or artificial islands are, to use the IPCC’s words from 2007, “well beyond the financial means of most small island states.”
Other legal scholars have focused on ways that the maritime territory can be preserved as a national asset even if the people leave. Several, including UC Berkeley School of Law’s David Caron, have observed that changing sea boundaries aren’t just a problem for islands: The rising ocean promises to redraw every coastline on the map. Instead of constantly updating maps every time a beach is submerged, they suggest, why not freeze the boundaries in place? For low-lying islands, this would mean that the sea as currently measured around Kiribati would become the permanent patrimony of its people—and wherever in exile they end up, the population would continue to receive royalties from its former coastal waters.
Rosemary Rayfuse of the University of New South Wales in Australia takes a different route to a similar outcome. “An equitable and fair solution,” she writes in a 2013 anthology documenting a Columbia University conference on Threatened Island Nations, “would be the recognition in international law of a new category of State, ‘the deterritorialized state.’” Rayfuse argues that the creation of such a category would enable island nations—even if they lost their land—to keep both their nationhood and their maritime zones, despite not having a piece of land to call home. Remarkably, such a landless state does exist today. The Knights of Malta (not to be confused with the country of Malta) are a 900-year-old lay Catholic order who today have no land, but do have a nonvoting seat at the United Nations. Their example, Rayfuse suggests, provides a seamless way to incorporate submerged nations into the international community.
The main hitch to both of these plans—frozen baselines and deterritorialized states—is that they depend on international legislation, which is notoriously slow and unwieldy. The UN Law of the Sea’s amendment procedure, for instance, has never been used. Nor does it help that the island nations have little geopolitical clout. Rayfuse noted in 2013 that “freezing baselines does not appear to be high on the international agenda at the moment.”
There’s a final strategy for these island nations to be able to keep their maritime zones, a strategy that doesn’t depend on sea walls or international legislation. Rayfuse called it “the most straightforward and appealing solution” to the maritime zone dilemma. If each island nation can find a friendly neighboring nation willing to sell it some territory, it can move to that territory and continue to operate its preexisting maritime zones, so long as any part of the island is still above water. Kiribati’s president announced earlier this year that at Fiji’s invitation, his country had purchased land from the Anglican Church on Fiji’s second-largest island as part of an effort to migrate with dignity.
A major catch with this strategy is that few countries are willing to swallow whole another country, and those that are often want something for themselves out of the deal. In 2001, when Tuvalu approached Australia and New Zealand for some land, Australia rejected the deal out of hand. New Zealand agreed to host only those Tuvaluans who were under 45, spoke English, and had a job offer in New Zealand—requirements that excluded approximately 9,000 of the 11,000-person country. Even Kiribati’s recent land deal has come under suspicion; Atlantic reporter Christopher Pala visited the plot of Fijian land that Kiribati bought for $8.7 million, and found that the land was too small to feed or house Kiribati’s population, and that in fact, the land was already inhabited.
If they cannot find deals on better terms, these island nations may have to merge with neighboring nations, using their valuable maritime rights as a bargaining chip. In effect, it would be a flat-out trade: asylum for control of the maritime zones.
These strategies—redefining “natural,” freezing maritime zones, creating deterritorialized states—amounts to a kind of thought experiment, a radical tweak to our idea of how fixed nations are and should be.
