Is seasteading the high seas a legal possibility? Filling the gaps in international sovereignty law and the law of the seas.

• Author: Fateh, Ryan H.

ABSTRACT

Seasteading--homesteading of the modern era--is a desire to develop above-water settlements in international waters known as seasteads. Once a fleeting dream, seasteading has entered the realm of possibility with the technological advancements and financial contributions of The Seasteading Institute (TSI). TSI's ultimate goal is ambitious: to establish permanent seasteads as sovereign states recognized by the United States and eventually by other members of the United Nations. Because international law promulgated by the United Nations addresses only state actors and TSI is a nonstate actor, this Note argues that international law does not prohibit the seastead communities from merely existing in international waters before they pursue their ambitions for international recognition. Whether a community is recognized as a sovereignty depends in large part on sociopolitical decisions of current nations. As such, the laws governing state sovereignty are secondary to the public policies of various nations. Considering historical practice and what guidance international law does provide, this Note concludes that the United States will recognize seasteads as envisioned by TSI in their ultimate state.

TABLE OF CONTENTS I. INTRODUCTION II. THE SEASTEADING INSTITUTE (TSI) AND THE CONCEPT OF SEASTEADING A. Seasteading as a Historical Concept, Giving Birth to TSI B. Motivations and Goals of TSI Seasteading 1. Goal 1: Experimenting with New Forms of Government 2. Goal 2: Gaining Recognition as an Independent Nation by the International Community III. ARTIFICIAL ISLANDS IN INTERNATIONAL WATERS CREATED BY NONSTATE ACTORS A. The Law of the Seas 1. International Treaty Law i. The Territorial Sea, the Contiguous Zone, and the Exclusive Economic Zone ii. International Waters 2. Cases of Artificial Islands 3. Analysis IV. SELF-DETERMINATION AND SOVEREIGNTY A. The United Nations and Self-Determination B. The Right of Self-Determination and Secession C. Sovereignty D. Analysis V. RECOGNITION BY THE UNITED STATES AND THE UNITED NATIONS A. The United States and Recognition of Kosovo B. The International Court of Justice's Commitment to Recognizing Kosovo C. Analysis VI. CONCLUSION I. INTRODUCTION

The United Nations champions the notions of self-determination and sovereignty: the international organization operates with "respect for the principle of equal rights and self-determination of peoples." (1) Since the inception of the United Nations, communities on multiple occasions have asserted their right to self-determination primarily by emerging as sovereign, independent states. (2) Even as recently as 2011, groups of people have declared their independence (3) and have succeeded in becoming members of the United Nations. (4) The League of Nations determined that having a defined territory is an essential element of a sovereign nation. (5) Because land is a finite resource, sovereignty has traditionally and typically manifested itself in secession from an already existing country. (6)

The Seasteading Institute (TSI) and its members, (7) in recognizing that land is limited, (8) believe that they have no other option but to explore the final frontier: the international waters. (9) With founder and entrepreneur Patri Friedman at its helm, TSI plans to build seasteads--structures that operate analogously to artificial islands-in international waters, with the eventual hope that the United Nations recognize them as independent sovereignties. (10) TSI defines its communities as floating cities that will "allow the next generation of pioneers to peacefully test new ideas for government." (11) In the wake of PayPal co-founder Peter Thiel's continuous and generous financial contributions, TSI's envisioned dream of international recognition is approaching a viable reality. (12)

There are certain characteristics that a community must possess in order to become a sovereign and independent nation. (13) These factors can be distilled into two certifying criteria: (1) having governance over a territory in which people permanently reside and (2) being recognized as sovereign by already existing nations. (14) This Note addresses the second factor: namely, whether the United States and, ultimately, the United Nations, would recognize TSI's seasteads. (15)

This Note subdivides this issue into three distinct questions: (1) where and under what circumstances would TSI's seasteads be able to operate free of intervention from the United States, notwithstanding their ambition for sovereignty; (16) (2) whether the United States would recognize the communities; and lastly, (3) whether the United Nations would come to recognize them. Recognition by the United States is a prerequisite for recognition by the United Nations. (17) However, as this Note explains, being recognized as sovereign by current nation-states is mostly a sociopolitical decision and less a legal one. Accordingly, separating questions (2) and (3) offers a comparison between the American perspective and the non-American perspective. (18) The combination of international law, historical cases, and recent examples of state practice can provide an answer as to the legal obstacles TSI's seasteads would face, if any. (19)

Part II expands on TSI: in particular, the concept of seasteading as engendered by TSI, the goals of TSI, and the structural and functional implications of creating seasteads. These details illustrate which legal, social, and political issues are triggered. Part III analyzes the body of international law of the seas as established by the United Nations, with respect to the actions of a nonstate actor. Specifically, Part III discusses in which circumstances and under what assumptions current nations can interfere, if at all, with the operations of seasteads acting as nonstate actors. Part IV explains the United Nations' perspectives on state sovereignty and self-determination, and concludes that the TSI seasteads will meet the preliminary requirements of becoming a nation--having governance over a territory in which people reside. Part V discusses the ultimate and dispositive criterion: whether current nations will recognize the TSI seasteads as sovereignties. This Note extrapolates from historical and modern examples of nonstate actors acting independently from the United States and from members of the European community, concluding that the United States is most likely to recognize the seasteads as sovereign nations.

2. THE SEASTEADING INSTITUTE (TSI) AND THE CONCEPT OF SEASTEADING

   TSI has transformed seasteading from a lofty dream dating to the middle of the twentieth century into a realistic endeavor of current times. At the forefront of this progress, TSI envisions its ocean communities to be not only nexuses for political reform and governmental development, but also independent sovereigns recognized by the international community.

   1. Seasteading as a Historical Concept, Giving Birth to TSI

      Given the many failed attempts at seasteading in the second half of the twentieth century, it is difficult to accept that TSI's ocean communities are physically and financially possible. The 1960s saw Operation Atlantis, whose founder, Werner Steifel, was unsuccessful on numerous occasions. (20) In 1971, wealthy libertarian Michael Oliver created the Republic of Minerva by unloading barrels of sand on coral reefs; however, his short-lived Republic eroded into the ocean. (21) More recently in 1993, the Oceania City project developed but was shortly abandoned due to inadequate funds and lack of interest. (22)

      Upon discovering the Oceania City website, software engineer Wayne Gramlich wrote a "modest proposal": the 1998 treatise SeaSteading--Homestead on the High Seas. (23) Gramlich writes that although he would be "delighted" if proven wrong, he believes that fanciful projects will never be realized because they are unrealistic and too extreme. (24) Instead, he posited a somewhat primitive and simplistic "floatation method." (25) Upon seeing this proposal, Patri Friedman--TSI's founder--contacted Gramlich, and the two collaborated in writing Seasteading: A Practical Guide to Homesteading the High Seas. (26) This became the foundational document of TSI. (27) As a response to those failed grandiose attempts, TSI retains a realistic attitude as it approaches this enigmatic final frontier. (28)

   2. Motivations and Goals of TSI Seasteading

      TSI's ultimate goal is two-fold: (1) to build artificial islands in international waters for the purposes of experimenting with new forms of government, regulation, and societal norms; (29) and (2) to have these islands recognized by the international community as sovereign states. (30) Friedman and his fellow "seasteaders" view the political system of the United States as irreparably damaged. (31) Rather than trying to effect change from the inside, TSI hopes to offer a better solution on the outside. (32)

      TSI cites the response of the United States to two events--the attacks of September 11th (9/11) and the financial crisis of 2008 (Financial Crisis)--as the driving impetus to create seastead communities. (33) TSI states that the tragedy greater than the actual 9/11 attacks and the Financial Crisis was ultimately how the United States responded. (34) According to TSI, in the post-9/11 era, overzealous right-wing patriotism dominated the political arena to the point of "exclud[ing]" dissent and taking away "freedoms and civil liberties ... in the name of protection." (35) These freedoms allow the United States to be "a better place to live," and TSI believes that the United States "lost [its] way as a nation" in the fight against terrorism. (36) Moreover, TSI posits that the stimulus plan, as a response to the Financial Crisis, is a "massive waste" that was "actually harmful to recovery"; specifically, "high taxes,... inflation, [and] capital controls" will make the country a far worse place in the eyes of Friedman. (37) TSI argues that...