Tag Archives: UNCLOS

Sea-Based Nations and Sovereignty: What Makes a Nation-state?

Not your typical pirate mothership

To me, one of the more interesting assertions made by Randy Henrickson in his CIMSEC interview was this: “To avoid legally being a pirate, seasteads will have to flag themselves with the flag of an existing nation and partner up. As seasteading matures and grows, we foresee seasteads eventually breaking off when they have enough of their own economic power and population to no longer need to be binded to existing governments, when they’re at a point where they can be recognized by others as a micro-nation.”

 

There are a couple of interesting elements here: first, the notion that activities which are legal and even encouraged when done under the aegis of a flag might be considered illegal if done without such protection (although, depending on the specific activities Henrickson contemplates, piracy might not be the specific crime); second why would a nation be willing to “spin-off” an economically fruitful “micro-nation” whether at sea or on land?

 

This second question underscores the ambition of the seasteading project.  Up to this point in human history, every time a new nation-state has emerged, it has been tied with a specific piece of territory.  And, unfortunately, most newly sovereign states have experienced some degree of violence in achieving their independence.  Whether independence was achieved by revolution, decolonization, or partition, a greater or lesser degree of political violence has frequently accompanied it, either before or shortly after independence.  Partly, this stems from the physical, historical, and emotional attachment that human beings have to territory.  Partly it stems from the challenges of identity in forming both a nation and a state.[1]  But it also stems from the economic benefit that the larger nation derives from activity within the smaller territory.   To suppose that a flag state would willingly give up the economic benefit they derive from a productive seastead may be a bit optimistic.

 

Of course, the flag nation willingly letting go is only half the problem facing a seastead as it tries to make the transition to micro-nation.  If the emerging nation is not recognized by the international community, either broadly, or at least by a champion powerful enough to coerce non-interference, the seastead is left for all practical purposes as a ship without a flag (which may be what Mr. Hencken meant by a pirate vessel).  Established U.S. statutory and case law, as well as some international law, suggests that such a vessel enjoys no protection against any state which seeks to exercise jurisdiction over it.  A flagged vessel enjoys the sovereign protection of the flag state; an unflagged vessel or a vessel flagged to a nation not recognized as sovereign has no such protection.

 

That sovereignty is really the heart of the question.  A seastead seeking to transition to a sea-based nation is trying to manufacture sovereignty where there previously was none.  On the day before transition, the seastead is effectively a ship—a little shard of another nation’s sovereignty acting on a global commons.  On the day after, the ship has ceased to be a shard of another nation and has become a nation in its own right—a small one, to be sure—but a nation with all the same rights, responsibilities, and sovereignty of any other nation.

 

Michael Walzer, an influential thinker on just war theory and international relations, offers a view on morality in the international system, centered on the concept of sovereignty.  Drastically simplified, Walzer offers the view that the only crime in the international system that justifies the use of force is aggression, which he defines as the violation of a nation’s sovereignty and territorial integrity.  While some aspects Walzer’s theory are not universally accepted, he neatly encapsulate a powerful school of thinking which highlights a couple of challenges that the aspiring seasteader, especially of the mobile variety, must overcome.

 

First, sovereignty has traditionally been closely aligned with territorial integrity.  Inherent in the notion of territorial integrity is, well, territory.  How do you define sovereignty and territorial integrity in the case of a platform that is inherently mobile and not tied to any territory at all?  Whatever other challenges may attend the new nation of South Sudan, no one in the international community is worried that the nation will decide to pick up the country and move because they like the climate, resources, or economic opportunities better in Morocco.  If a seastead were to maneuver into the EEZ of a coastal nation, whose sovereignty would have precedence?  Outside of an EEZ, why should other sea-faring nations accede to a new entity exerting sovereignty over a portion of the sea that was previously open to everyone?  If the sea based nation wanted to move elsewhere on the high seas, would they exert sovereignty over that new location, too?

 

In search of a better deal

The Second—and by my view the more difficult challenge—is explaining the incentive for the international community to accept the sovereignty of a newly formed sea-based nation at all.  While the threat may be small, the aspiring nation offers a potential challenger for resources, ranging from seabed minerals to the tax revenues brought in by businesses.  With sovereignty comes the right to defend that sovereignty—what incentive does a coastal state have to welcome the introduction of another armed power into their region?  It would also be surprising if Palestinians, Kurds, or others national groups who lack both territory and sovereignty do not raise some objection to the justice of granting sovereignty to a seastead with little of the cultural, political, and social identity that marks a nation, while they themselves remain disenfranchised.   If a seastead wants admission to the club of nation-states, they will likely need to explain how the club will benefit by their membership.  While not insuperable, this will be a high bar to reach.

 

CDR Doyle Hodges is a Surface Warfare Officer in the U.S. Navy. He has commanded a rescue and salvage ship in the Pacific and a destroyer in the Atlantic, Mediterranean, and Middle East.  He is the Chairman of the U.S. Naval Academy’s Seamanship and Navigation Department. The opinions and views expressed in this post are his alone and are presented in his personal capacity. They do not necessarily represent the views of U.S. Department of Defense, the U.S. Navy, or the U.S. Naval Academy.

 


[1] For a good discussion of the challenges of statehood without nationhood, see Lemay-Hébert, N., 2009, ‘Statebuilding without Nation-building? Legitimacy, State Failure and the Limits of the Institutionalist Approach’, Journal of Intervention and Statebuilding’, vol. 3, no. 1, pp. 21-45.  For a good discussion of the necessary components of nationhood see Anderson, Benedict Imagined Communities.  New York: Verso. 2006.

Who Would Benefit Most from Seasteading?

 

Would you trade this…

At its core, seasteading is designed as an alternative to existing nation-states. Its proponents understand, however, that for the foreseeable future seasteading must operate within existing legal and political structures.[1]  Early seasteads are likely to be simply converted ships, and a 2012 report by The Seasteading Institute (TSI) notes that under international law every ocean-going vessel must fly the flag of an existing state in order to operate legally and without undue interference.[2] Given concerns about avoiding external intrusion in the affairs of seasteads, this generates an inevitable connection between seasteads and the state system they are meant to escape as seasteads are flagged. Because of this connection, it is possible that states themselves might stand to benefit from exploiting the idea.

 

Seasteading could offer several benefits to states. Much as oil platforms allow the exploitation of undersea resources, seasteading could be used as a platform for aquaculture or fishing. This might be attractive to land-locked countries like Afghanistan or Switzerland, or to countries with poor agricultural productivity. Seasteads could also be used to address overcrowding in the likes of Singapore, Macau, or Hong Kong. These may be productive roles for seasteading, but the most compelling case for their use comes from the effects of climate change.

 

Estimates for the potential rise in sea level as a result of climate change vary widely, from a low of perhaps 13cm by 2100 to a high of 95cm.[3] Kiribati, the Maldives, Tuvalu, and the Marshall Islands all consist entirely of atoll islands, averaging a mere two meters above sea level.[4] If rising sea levels approach the higher estimates, all of these island states could be inundated or uninhabitable.[5] This would effectively end their national existence. The technology used for seasteading could offer a way for these states to escape their destruction.

 

…for this?

There are problems, however. First, there are legal issues. The UN Convention on the Law of the Sea (UNCLOS) does not recognize man-made ocean structures or extensions of islands as having territorial waters or Exclusive Economic Zones. This prohibits states from using offshore platforms to game the system to their advantage. It would also prevent seasteads from having any legal control over sea resources or the waters surrounding them. Additionally, UNCLOS does not acknowledge uninhabitable islands as exercising any control over the surrounding sea. This is especially concerning from the perspective of island states attempting circumvent their destruction through seasteading. If, for example, the islands of Kiribati ceased to become inhabitable, its territorial waters and EEZ would disappear, even if Kiribati continued to exist as a state contained within a seastead. It is not at all clear that UNCLOS would protect the rights of formerly habitable or completely submerged islands.[6]

 

On top of the legal problems, there are cost concerns. Seasteading promises to be very expensive. TSI estimates that an average platform will run $300-400 per square foot of usable space. Annual maintenance costs are anticipated to be between five and 25% of capital value.[7] While this is not inordinately expensive when compared to property values in the affluent cities of developed countries, it is well out of reach for the island states which could most directly benefit from seasteading. Kiribati had a GDP of approximately $600 million and a population of 103,500 in 2011. At the estimated prices, Kiribati could build a maximum of between 1,475,000 and 1,996,666 square feet of seastead. This is, unfortunately, nowhere near enough space to house its population, much less host productive industry. Even if built, maintenance costs could run between $30 million and $150 million per year. On top of this, electricity is expected to be approximately two and a half times as expensive as on land.[8] Furthermore, the costs of keeping a seastead on a fixed station are difficult to determine. Possibilities range from about $20 per household per month to $1600 per person per month.[9]

 

While seasteading offers a way for island states to escape the consequences of rising sea levels, it is too expensive for these states to exploit it. Seasteading may prove beneficial for states which can use it on a smaller scale – such as for establishing fishing or aquaculture communities – but as a means for counteracting the destruction of existing island states it is not feasible.

Ian Sundstrom is an MA student in War Studies at King’s College London.


[1] Philip Steinberg, Elizabeth Nyman, and Mauro Caraccioli (2012), ‘Atlas Swam: Freedom, Capital, and Floating Sovereignties in the Seasteading Vision’, Antipode, Vol. 44, No. 4, p. 1544.

[2] Sean Hickman (2012), Flagging Options for Seasteading Projects, (The Seasteading Institute), p. 3.

[3] Michael Edwards (1999), ‘The Security Implications of a Worst-Case Scenario of Climate Change in the Southwest Pacific’, Australian Geographer, Vol. 30, No. 3, p. 313.

[4] Joe Barnett and Neil Alger (2003), ‘Climate Dangers and Atoll Countries’, Climate Change, No. 61, p. 322.

[5] Edwards (1999), p. 313.

[6] Edwards (1999), p. 315.

[7] Brad Taylor (2010), Governing Seasteads: An Outline of the Options (The Seasteading Institute).

[8] Eelco Hoogendoorn (2012), Seasteading Engineering Report, Part I (The Seasteading Institute).

[9] Hoogendoorn (2012), pp. 22-23.

Scarborough Fair

Keeping tabs on the neighbors.

While no longer making regular headlines, the stand-off over the Scarborough Shoal/Panatag Shoal/Huangyan Island continues. Since April 10th both China and the Philippines have maintained a presence in the area, but one limited to civilian agencies – the Philippines Coast Guard on one side, and the Chinese Maritime Surveillance agency on the other.

Rather than trading literal broadsides, China and the Philippines have fought this dispute mostly through the figurative variety in the diplomatic and economic spheres. Philippines President Benigno Aquino suggested exploring joint ventures in the area and sent envoys to Beijing to attempt to resolve the crisis. China meanwhile issued travel advisories for the Philippines, halted tours, scaled back commercial flights, and quarantined incoming Philippine bananas on pest-control grounds.

Both nations have issued fishing bans on the Shoal area in the past week. The Chinese most likely issued the ban because their own fishermen will stay away until monsoon rains abate in the fall, and the stay-behind surveillance ship snow have a pretext in the ban for enforcement. The Philippines, meanwhile, supposedly issued their own ban in order to protect depleted fishing stocks, but this adversely affects the economies of local fishing communities that depend on fishing the Shoal grounds year-round to make their livelihoods.

Making their case.

With personal financial stability and pride at stake, it’s no surprise that civilians at times seem readier to push the situation towards a conflict than the two nations’ governments. In addition to the wide-spread nationalism (and minor protest rallies) whipped up on both sides and given voice in online forums, some 20 protestors and camera crew planned to make the case for the Philippines by setting up a protest on the shoal itself. They were persuaded by President Aquino to allow the government negotiators in Beijing a chance to achieve a constructive outcome.

Despite what my colleague believes about the benefits of the U.S. sitting on the sidelines of the U.N. Convention on the Law of the Sea, the Scarborough Shoal stand-off is an apt example of how not having ratified the treaty can hamstring the U.S.’ ability to bring pressure to bear on another country (China) for failing to live up to its treaty obligations in pursuance of a peaceful and diplomatic resolution. For while the Philippines is building a case for the International Tribunal for the Law of the Sea (ITLOS), one of the UNCLOS conflict-resolution mechanisms, China, another signatory, refuses to abide by any rulings of the tribunal.

With the stand-off as a backdrop, both sides are expanding their naval forces. The Philippine navy is set to take possession of another U.S. Coast Guard vessel Tuesday, the ex-USCGC Dallas, of the same type as its current flagship, the BRP Gregorio del Pilar. The Chinese Maritime Surveillance administration is also rapidly expanding in numbers (h/t Chuck Hill – CGBlog.org). This is the agency that intervened at the Shoal and prevented the Philippine navy from arresting the Chinese fisherman whose discovery began the current stand-off. While a nation with an expansive coastline and far-flung fishing interests has legitimate needs for a competent coast guard, the continuing Scarborough Shoal stand-off is just one more illustration that ships of this agency are enforcers of state policy, and Chinese maritime state policy has been rather uncompromising of late.

Law of the S.E.A.

With the recent statements from U.S. Secretary of Defense Panetta and the U.S. Chairman of the Joint Chiefs of Staff (CJCS) advocating the ratification of the three decade-old UN Law of the Sea Convention (UNCLOS), it is clear that U.S. policy will continue to support a cooperative approach to maritime security.  Besides Secretary Panetta’s detailed justification for UNCLOS in providing “economic jurisdiction” and a seat at the table (sans hypocrisy) for future international maritime dispute resolutions, UNCLOS supports freedom of navigation and access to the global commons (unless restricted by historical treaties such as the Montreux Convention).

Nations' Outer Continental Shelf boundaries and unilateral mining may not extend beyond "constraint lines" defined by UNCLOS.

UNCLOS ratification enshrines the principles of freedom of navigation and access, thereby strengthening the U.S. position in the pacific region and the U.S. pivot to South East Asia (S.E.A.). Ratification supports future S.E.A. diplomatic developments through its focus on the region’s most prominent domain.  Maritime territorial claims continue to inflict tension in S.E.A. and with UNCLOS as the primary legal guidance, the U.S. would be forced to stay on the diplomatic sidelines for a multilateral discussion without ratification.  Yet, U.S. accession and ratification would result in isolation and a decline in future cooperation with those remaining maritime countries that have maintained disputes over UNCLOS and chose not to accept or ratify it, namely:

Cambodia, Colombia, Democratic People’s Republic of Korea, Ecuador, El Salvador, Eritrea, Iran, Israel, Libya,  Peru, Syria, Timor-Leste, Turkey, United Arab Emirates, Venezuela [1] 

Despite the advantages Secretary Panetta and other U.S. advocates cite for the international maritime legal framework and global commons access rights (including the Arctic), the U.S. and other non-ratifying countries have long since acknowledged various negative aspects of the convention: increased non-local environmental policies, International Seabed Authority fees and taxes, international eminent domain grabs of intellectual property (to share new technology used in exploiting the economic opportunities of the expanded maritime domain), and the perception of a requirement to suspend all military-related actions while conducting innocent passage.

Claims submitted by the origina 2009 deadline.

In order to fully address the impact of UNCLOS ratification to S.E.A. regional stability, countries such as the U.S. must weigh the finer points of the treaty and second-order effects its ratification might bring.  As a new signatory, would U.S. diplomatic relations with Turkey and Israel now hinge on ignorance of Greece and Cyprus maritime boundary and Exclusive Economic Zone claims?  As U.S. businesses continue to explore deep sea beds, would the U.S. concede to limited exploitation and research of (traditionally unquestioned) U.S. bodies of water by an international consensus?  How would the U.S. discuss future fish stock trade with South American countries concerned with migratory fish locations beyond 200nm?  Perhaps the U.S. pursuance of UNCLOS to support the pivot to the Pacific truly outweighs these other non-vital diplomatic considerations, but I can’t stop wondering if by doing so, the U.S. may cause yet another pivot among its allies.