January 13, 2010

Jorge Schmidt – Legal Aspects of Seasteading

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!