Jorge Schmidt – Legal Aspects of Seasteading

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Jorge Schmidt’s presentation of research on the legal aspects of seasteading is now available online:

Jorge Schmidt set out to discover the freedom of the seas, researching the extents to which the law of the sea could help define an existence on the ocean as a ship or platform free of another nation’s influence, and came to the 2009 Seasteading Conference to report his findings.

“There is no such thing as the freedom of the seas, at least as I used to imagine that it existed,” says Schmidt.

In other words, under international law as it exists today, to break away from one’s nation into the ocean presently means only one of two things: flying the flag of some state, under whose jurisdiction you agree to become, or becoming subject to the real freedom of the seas — the reality that a warship of any state may board you. “That is the main consequence of not having a flag,” a consequence that presently extends to all structures: ships, platforms, and artificial islands.

But distinctions between various types of structures affect other freedoms. “Being a ship is very important”, says Schmidt, because the law of the sea was developed to deal with vessels that serve as transport, flying the flag of their jurisdictional state. “Ships” are generally afforded right of passage to waterways even within the EEZ, whereas platforms (such as oil rigs and research stations) cannot claim this right by default.

Yet few international legal precedents exist to regulate not just how to proceed in situations involving platforms, but also the very foundations of what constitutes a “platform” in the first place.

Schmidt refers to one landmark case, a dispute over a bridge set to be built by Denmark which blocked a vital throughway for Finland’s oil platforms, which came before the International Court of Justice and had the potential to set a useful precedent as to the status of platforms as ships in their own right.

“The effect of this project, and in particular of the planned high-level suspension bridge over the East Channel, would be permanently to close the Baltic for deep draught vessels of over 65 metres’ height, thus preventing the passage of such drill ships and oil rigs manufactured in Finland as require more than that clearance.” –ICJ, 29 July 1991, CASE CONCERNING PASSAGE THROUGH THE GREAT BELT

Says Schmidt of the outcome, “Unfortunately for us — for me as a lawyer, because I like to know the answer to things — they settled the case, and the court never pronounced itself on whether these very large oil platforms would be considered ships.”

Thus, seasteading stands not just at physical frontiers of lifestyle and engineering, but also at legal frontiers. The rules of the nationhood game have been more or less well-defined for land that has stood well before human history. For man-made structures physically and declaratively unattached to any existing land-based state, however, the field is an open one.

If a volcano emerged from the ocean, creating a habitable caldera, the conventions of this world are relatively clear on what may happen: any one of us with the means to bring a permanent settlement to that new scrap of land, defending it as necessary, could conceivably declare nationhood in the global community.

The same affordances are by no means granted to “artificial islands”, however. The UN law of the seas specifically denies the affordance of an EEZ, or any other consideration beyond a small safety buffer, to artificial islands on the high seas. With a goal of independent sovereignty, should the seasteading movement adopt artificial islands as a strategy for habitation, an uphill battle awaits.

All this is not to discount, of course, the challenges of engineering, which will need to navigate the rough waters of international law with finesse. The more areas denied to a potential seastead, the greater the constraints that a potential habitation must be able to accomodate, and the constraints that Schmidt believes a successful seastead must operate under increase the baseline difficulties in many ways.

We’ll be exploring more of the latest seasteading engineering thinking in upcoming video blog posts. Stay tuned!

7 comments

  1. Gentry 5:58 pm

     While I’m not overly surprised by these findings, I do wonder how rigorous their legal enforcement is. International laws are often flouted deliberately by nation states with impunity (see Israel). And their breakage are seemingly taken as a laissez faire approach or used merely as political pretext from rival states.

    It makes me wonder of the consequences that would bestowed upon a Seastead if it decided to bend, break, or completely ignore any form of local or international law. I for one, won’t have the confidence to be the first to find out :P

  2. nthmost 12:04 am

    Point well taken, Gentry.

    As Erwin Strauss points out in discussion in this video:

    “Don’t stand on ceremony. It’s nice to have international law on your side, but always remember, there’s the final argument of Kings.”

    Naomi Most, Development Manager
    The Seasteading Institute
    http://www.seasteading.org

  3. i_is_j_smith 7:57 pm

    "…there’s the final argument of Kings."

    Actually, there’s the final argument of bullets.  If a U.S. Navy warship demands to board your seastead, which you believe is a sovereign nation, all the arguments your King tries aren’t going to be worth anything.

    My question is:  what are the situations in which an existing nation can remove its flag if you are flying a flag of convenience?  Does that have to happen in port?  Can you just get a phone call on the open ocean that says "Sorry, you can no longer fly our flag".  Does a registered military agent of the nation have to board you and remove the flag?

    I’m sure this is different from country to country, but can anyone cite any examples?

  4. Melllvar 2:15 am

    I saw part of an episode of Whale Wars where the country whose flag they were flying (think it was Holland) called them while out at sea and told them to change their tactics towards the whalers (they had some specific demands about what they shouldn’t be doing). The consequences for refusing would have been loss of their flag. Not sure how revoking your right to fly the flag works, but the nation can definitely change the rules on you on the fly and revoke your flag if you don’t comply.

  5. i_is_j_smith 6:21 pm

    It looks like it is very easy for a country to deregister a vessel that is flying it’s flag.  Turns out several of the ships used by the Sea Shepherd fleet have been removed from the registers of Belize and the UK.  In the UK example the Japanese embassy complained to the British Foreign Office that the ship was not being used properly.  The British Foreign Office mentioned this to the British Registrar General of Shipping and Seamen who made the decision to remove it from the registry.  All they gave them was 30 days notice, that’s it.  So it is very easy to have your flag taken away if the country you are registered in dislikes your activities.  Here are some links:

    The UK deregistration story

    Information on getting a Belize flag

    The Dutch want an easier reregistration process

  6. Adam 3:03 pm

    Being a maritime lawyer myself, I have agree with the concept that to date, under current international law, it almost impossible to create a new international entity upon the sea solely by possesing a platform or ship.

    Exceptions could be made if for example a "new" piece of land came into creation. The question that arises here however is whether this means islands being solely created as a result of natural events or as a result of human internvention as well…??

    Of course international law is effective only when properly enforced, hence it is possible to comprehend a situation where states could tolerate the existence of a exterritorial seasteading city. But essentially its a question of whether they have an "interest" in doing that…

    Finally, provided such a Seasteading Entity would in time become powerful enough (for example, if it possesed state attributes – e.g. its own government, police, or navy even…) – then it would be able to function on the international stage on its own terms… But this again is only possible if other states would "allow" such a seasteading enitity to develop so far…………………….

    Adam

  7. ClaytonB 12:46 am

    Remember that the greatest constraint on State power in the world of modern media is always public opinion. I think that is the uniquely powerful weapon held by TSI’s approach. It’s easy to smear crazies who have planted a flag in some god-forsaken sandbar in the middle of the ocean but you have to respect anyone willing to go through the risk and pain of living, permanently, at sea. Shooting at seasteaders, even if they do "bad" things like smoke pot and live without paying taxes to any established government, is almost certainly going to be very bad PR for the government holding the gun. As Strauss says, there are limits to what you can do on a seastead. But as long as you stay within those broad limits, it’s very unlikely that any Navy is going to use force against you. What is "legal" in international law only matters if you come into dispute with someone else. Playing nice will go a long ways towards securing the freedom to do whatever you like. I think the two biggest safety risks to seasteads will be anyone trying to run a bank off one (high value target, susceptible to the "tax haven" and "money laundering" monikers) or anything related to minors and sex. Smart seasteads will mark off large safety zones, via bylaws or whatever, around those activities.

    Clayton -

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