In this article, Siddhant Sarangi of School of Law, KIIT discusses the Maldives crisis.

Factors which paved way for the Maldives crisis

The Maldives is an archipelago located south-west from the Indian coastline, it comprises of over 1200 coral islands and lies next to key shipping lanes which are of equal importance to India, Japan and China for their energy.

President Yameen came to power in 2013 in an election which his opponents say was rigged. Following his elections, he has been accused eroding democracy and the arrest and crackdown on the opposition leaders.

In 2016, Maldives withdrew from the British Commonwealth of Nations was threatened of being suspended for the eroding away the various democratic institutions.

Just after the elections, he imprisoned Mohammed Nasheed, the country’s first democratically elected president on trumped up terrorism charges, later he was released on medical grounds and was granted asylum by Great Britain.

Following the recent turn of events in the Maldives when the Supreme Court of Maldives, ruled against the government and ordered the release of 12 Members of the legislators who were arrested after leaving Yameen’s party.

Security forces blockaded and locked the Supreme Court leaving the people inside with no access to food. He did this following the imposition of a nationwide emergency. Following the arrest of the Chief Justice, also a former president of Maldives, the remaining 3 judges overturned the earlier judgement.

He also ordered for the arrest of his half-brother and former president Maumoon Abdul Gayoom who was the president for almost 30 years until its transition to democracy.

According to Nasheed, the emergency was declared to prevent a coup.

Why is India concerned about the Maldives crisis?

Map courtesy:https://nomadicboys.com/wp-content/uploads/2015/01/Maldives-map.jpg

• Located in the south-southwest direction from the Indian mainland, Maldives lies in a very strategic position for India, China and Japan as most of their shipping traffic passing through the Indian Ocean to Africa and other countries in the middle west.
• It’s geo-political presence became important in the last decade or so since China started anti-piracy operations in the Gulf of Aden.
• It is a member of the South Asian Association for Regional Cooperation which was also resistant to India’s call for the boycott of the last conference in Pakistan and also a member of the SAARC pulling out of the body may lead to instability within the organisation.
• The location of the Maldives is such that it provides a wonderful vantage point for warships, necessary for counter-piracy operations undertaken by the Indian Navy and also for the security and defence purposes.
• Considering the growing influence of the People’s Republic of China over Male, and if reports are to be believed, it took 70% of its external aid from Beijing.
• The Maldives saw one of the largest radicalisation of foreign fighters in Syria under the Yameen Regime, and India really cannot stand by and watch when another of its neighbours starts breeding terrorists.
• There are 25,000 Indian nationals living in the Maldives (second largest expatriate community). Indian tourists also account for close to 6% of tourists Maldives receives every year.
• India and Maldives share a common heritage, having had similar struggles for Independence and sharing a common linguistic, cultural base. India was also one of the first countries to recognise it.

Applicable principle of International Law

The principle of Sovereignty

Article 2(4) of the UN charter states that all members shall refrain in their international relations from the use of force against the territorial integrity or political independence of any state in any other manner inconsistent with the purposes of the Charter of the United Nations”. This as a principle has since attained the status of Customary International Law and therefore binding on all. This was elaborated in the 1970 declaration on the principles of International Law and systematically lays down as explained in the paragraph below.

1. Wars
2. Threaten or use force  to violate existing borders or resolve disputes
3. Duty to refrain from acts of reprisals involving the use of force
4. States must not use force to deprive peoples of their right to self-determination.
5. And states must refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts in other states including encouraging the formation of armed bands for an incursion into another states territories.

The exceptions that are provided are

1. Collective measures were taken by the United Nations
2. And with regard to self-defence
3. Humanitarian intervention

However the question whether Humanitarian Intervention in light of Responsibility to protect could be considered as an exception to this principle.

Use of Force

The 1970 declaration on the principles of International law recalls the duty of states to refrain from the use of military, political economic or any other form of coercion against the political independence and territorial integrity of any state” and the International Covenant on Human Rights adopted in 1966, emphasized the right of all peoples to freely pursue their economic, social and cultural development.

This principle was further deteriorated in the Charter of Economic Rights and duties of states in 1974 “no state may use or encourage the use of economic, political or any other type of measure”. Article 2(4) not only just covers the threat of use of force but also the actual use of force as held by the International Court of Justice in the Legality of the Threat or use of Nuclear Weapons. Here the court held that even a signalled intention to use force if certain events occur could constitute a threat under Article 2(4) of the United Nations Charter

Exception to use of Force

1. Article 51 states that “ Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security…” Breaking down the Article, it implies that if force is used against you, nothing shall prevent u from using force against the other.
2. The United Nations Security Council pursuant to the powers provided to it by the United Nations Charter to take collective measures in case of any breach of international peace and security, the Security Council can take any measure necessary. Preventive measures first and if they fail enforcement measures.
3. It is the responsibility of the home state to protect its citizens from persecution, crimes of humanity, genocide and crimes against humanity. More often or not its the home government behind these actions and therefore the responsibility to protect them comes to the International community. Known as Humanitarian Intervention, this international community felt, post the Genocide in Serbia-Croatia the need for protecting not only their own citizens but also of those who have failed to do so. Therefore, the international community in 2005 came up with the World Summit Document 2005 and under paragraphs 137 and 138 provided that in case of genocide, war crimes, crimes against humanity, the international community, may unilaterally intervene in the other to protect citizens. This was done post the Serbian genocide. Russian intervention in Georgia was done under this pretext of Humanitarian Intervention.

The possibility of an Indian Military Intervention

India having once intervened in the island country 30 years ago when the Government of India on receiving an invitation to intervene from President Gayoom dispatched the paratroopers who secured the government for President Gayoom and successfully prevented the coup against him.
The Maldives being of such geostrategic importance to India, India has put its military on standby. Any deterioration in the situation India might just be forced to send in its troops to take down the Yameen Government.

However, the debate between should and shouldn’t intervene is loud. Some argument for military Intervention would mean sending in the Army to take down the current government, but it would also mean rehabilitation and the entire rebuilding process. With the Maldivian political society so divided, the intervention if it is not backed by proper follow-up measures may end badly.

Legality of an Indian Intervention

The question of an Indian Intervention comes from its status as a regional power. Along the lines of the good neighbour principle, the arrest of all opposition leader in the Maldives, the Chief Justice and the declaration of emergency the situation in Male looks grim. The Former President of Maldives requested the Indian Government to send in troops to counter and topple the current government in the Maldives.

• However, whether this can be considered as intervention by invitation is debatable, as the former President and the opposition is not the government in power. Like in Syria where the Russian Military intervened on request by their legitimate President Assad, here the request comes from the opposition and hence does not qualify as an invitation.
• Secondly, India does not perceive any immediate threat of military activities against itself from the Maldives. Though the radicalisation of the Muslim population though is a worry for India, that reason is not enough to justify an intervention. This exhausts the question of pre-emptive self-defence.
• Thirdly the most legitimate reason for intervention would be Humanitarian Intervention, however, the International Law governing this stipulates that there must have been acts of genocide, war crime or crimes against humanity for invoking this. The justification for intervention on grounds that Human Rights are being violated are not enough, had that been ground enough the USA would already have invaded DPRK for its record of Human Rights Situation

Considering all facts and circumstances India has no legal basis to intervene in the Maldives.

Simply Put

India has a duty towards Maldivian people. Blatant Human rights violations cannot go on unanswered for long. India needs to establish its position in South Asia, but a military intervention would be totally unjustified considering Indian Policy of Rule of Law and non-intervention.

References

1. https://edition.cnn.com/2018/02/06/asia/maldives-political-unrest-explainer-intl/index.html
2. https://timesofindia.indiatimes.com/india/10-reasons-why-maldives-is-important-for-india/articleshow/62814970.cms
3. http://www.timesnownews.com/india/article/here-is-why-maldives-is-important-to-india/196372
4. UN CHARTER at http://www.un.org/en/sections/un-charter/chapter-vii/index.html
5. DECLARATION OF PRINCIPLES OF INTERNATIONAL LAW at http://www.un-documents.net/a25r2625.htm
6. MALCOLM N SHAW at http://jpkc.fudan.edu.cn/picture/article/460/05/56/944404884db8857880997b8500b1/694d8cb6-b013-42a3-837a-2298e170ed58.pdf
7. CHARTER OF ECONOMIC RIGHTS AND DUTIES OF STATES at http://www.un-documents.net/a29r3281.htm
8. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf
9. Advisory opinion of the International Court of Justice on the Threat or Use of Nuclear Weapons at http://www.icj-cij.org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf