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The Last Free Place on Earth
So, You Want Sovereignity . . .Suppose that you want to start a sovereign territory. You want a little corner of the Earth where you and your friends can build a society based on real consent. You don't plan on being shy about it, either. You want to stand tall, proclaim your independence, and tell statists to KEEP OUT! It's a great idea.[n.1] But where are you going to go? Forget terra firma. Statists have claimed all of the Earth's real estate as their own--from entire continents down to rocks that barely rise above the waves. Only one place on Earth remains free of statism: the high seas. Should you therefore set sail under your own flag? That may serve as an important step in the right direction, but statists (much less investors and settlers) won't take you seriously until you can claim a fixed site as your own.[n.2] That leaves just one option for openly establishing a new sovereign territory on Earth: building an artificial island on the high seas. To keep things practical you'll want to build where the ocean's floor comes relatively close to its surface, such as on a bank or seamount.[n.3] Fortunately, the Earth's oceans contain plenty such shallow spots. Unfortunately, many of them fall within areas claimed by statists. To find shallow areas beyond statists' territorial claims, we must consult the international law of the sea. Applying the International Law of the SeaLet us take as our standard the United Nations Convention on the Law of the Sea of December 10, 1982.[n.4] Although not yet officially in force, the '82 Convention codifies many widely recognized customary legal principles and has already begun to shape statists' claims to ocean territory.[n.5] The '82 Convention grants every coastal State an exclusive economic zone (EEZ) reaching up to 200 nautical miles (nmi)--or about 370.4 km--offshore.[n.6] A State has an exclusive right to construct artificial islands and other installations within its EEZ.[n.7] This alone rules out many of the best sites for a new sovereign territory. But the '82 Convention also grants coastal States rights over their continental shelves for at least 200 nmi offshore, and sometimes up to 350 nmi (648.2 km).[n.8] Essentially, then, the '82 Convention puts every shallow coastal area out-of-bounds.[n.9] Fortunately, seamounts offer many relatively shallow building sites on the high seas. Some 10,000 seamounts appear in the Pacific alone; others appear in the Indian Ocean, the Caribbean, the South China Sea, and the Gulf of Alaska.[n.10] Of course, many of these sit too deep for present technology to put to good use. But estimates put over 70 seamounts within 185 m of the ocean's surface--and well outside of any statist's territorial claims.[n.11] An appreciable number of these come within 60 m of surface, and several come within 9 m.[n.12] Consider, for example, Vema seamount (63 m deep, at 31°38'S, 08°20'E) and Walters Shoal (42 m deep, at 33°13'S, 43°51'E).[n.13] Sounds easy, doesn't it? Just find a seamount on the high seas and start building! But it's not that easy, of course. Although free from statists' territorial claims, the high seas cannot escape the jurisdiction of the international law of the sea. That law sets up various barriers, some merely nettlesome and others potentially crippling, to founding a sovereign artificial island. Let us first deal with the lower hurdle. The international law of the sea denies artificial islands all maritime territorial claims except for narrow safety zones (usually of 500 m). This would put a sovereign artificial island at a distinct disadvantage relative to land- based statists. But there may be a loophole in this territorial restriction whereby alluvions, such as those deposited in the lee of an ocean current, can form natural islands even if provoked or guided by human works.[n.14] This suggests that you might grow a natural island next to your artificial one, and thus claim rights to a territorial sea, an EEZ, and a continental shelf.[n.15] Now we charge the higher hurdle. International law has traditionally demanded that the high seas remain free for all to use. The authority of even statists to build artificial islands on the high seas--much less claim those islands as extensions of their territories- -rests on shaky legal foundations.[n.16] Commentators thus dismiss the possibility that international law would permit a new sovereign territory to claim an artificial island on the high seas.[n.17] Diplomatic ConcernsNo one has writ the international law of the sea in stone, however. It remains largely customary, widely untested, and susceptible to diplomatic and military pressures. This holds doubly true with regard to the establishment of sovereign territories on artificial islands. Though they face formidable technical and legal barriers, they still "may be legitimized through general recognition by the existing subjects of international law."[n.18] Earning such recognition will surely require that newcomers to the international community meet the generally accepted criteria for sovereign status: 1) permanent population; 2) defined territory; 3) mode of governance; and 4) capacity to enter into relations with other sovereigns.[n.19] Add to this a fifth criterion, absolutely essential but hard to define: respect. Earn enough of it, and all the other barriers to founding a new sovereign territory on the high seas will wash away. NOTES[1] For a more thorough discussion of the benefits of founding an Extropian sovereign territory, see T.0. Morrow, Extropia, 8 Extropy 35 (Winter 1991-92). [2] A defined territory is among the standard criteria for sovereign status. N. Papadakis, The International Legal Regime of Artificial Islands 114- 15 (Sijthoff 1977). For further discussion of these criteria, see below. [3] Herein I use "seamount" to refer both to seamounts and guyots, though technically the latter is a flat-topped version of the former. [4] UN Doc. A/CONF. 62/111, with corr. [5] Renate Platzöder, Conferences on the Law of the Sea, in 11 Encyclopedia of Public International Law 69, 75 (North-Holland 1989). [6] Arts. 55-75. [7] Arts. 60, 80. [8] Art. 75. What prevents legal continental shelves from always reaching the 350 nmi limit? Art. 76(5) also limits them to within 100 nmi of the 2,500 meter isobath. [9] There appears to be a notable exception to this rule, however: a roughly 2750 km² (1700 mi²) portion of the Saya de Malha bank, shaped somewhat like a slice of pie pointed east-by-southeast and centered at 10°00'S, 61°75'E. For excellent charts and descriptions of this area, see R.L. Fisher, G.L. Johnson, & B.C. Heezen, Mascarene Plateau, Western Indian Ocean, 78 Geologic Society of America Bulletin 1247 (October 1967). [10] S.K. Keaton & J. Judy, Note, Seamounts and Guyots: A Unique Resource, 10 San Diego L. R. 599, 601 (1973). [11] [12] Id. [13] Raymond R.Wilson, Jr. & Ronald S. Kaufman, Seamount Biota and Biogeography, in Seamounts, Islands, and Atolls 355, 358-59 (Barbara H. Keating, Patricia Fryer, Rodney Batiza & George W. Boehlert, eds., America Geophysical Union 1987). [14] Fritz Münch, Artificial Islands and Installations, in 11 Encyclopedia of Public International Law 38, 38 (North-Holland 1989). Article 121(1) of the '82 Convention defines "island" as "a naturally formed area of land, surrounded by water, which is above water at high tide." For a contrary view based on law prior to the '82 Convention (which readers will recall is still not in force) see Papadakis, The International Legal Regime of Artificial Islands, at 89-97 (cited in note 2). [15] Article 121(2-3) of the '82 Convention grants islands the same status as any other land form unless they are incapable of sustaining human life or economic activities. [16] Papadakis, The International Legal Regime of Artificial Islands, at 55- 79 (cited in note 2); Craig W. Walker, Note, Jurisdictional Problems Created by Artificial Islands, 10 San Diego Law Rev 638, 649-652 (1973); Alfred H.A. Soons, Artificial Islands and Installations in International Law, in 22 Occasional Paper Series 7-12 (Law of the Sea Institute at Univ. of RI 1974). [17] Papadakis, The International Legal Regime of Artificial Islands at 113-14 (cited in note 2); Walker, Note, Jurisdictional Problems Created by Artificial Islands at 648-49 (cited in note 16). [18] Papadakis, The International Legal Regime of Artificial Islands at 114 (cited in note 2). [19] Id. at 114- 15. |
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