Late in 2009, Francesca Galea wrote us to declare the completion of her doctoral thesis entitled Artificial Islands in the Law of the Sea. With her blessing, we posted the PDF of her significant and clarifying inquiries on our Research page, but it is more appropriate that we give her research the highlight it deserves. From the paper:
This thesis presents the study of Artificial Islands in The Law of the Sea with the evolution of the topic dating from The 1930 Hague Codification Conference, to the 1982 United Nations Conference on The Law of the Sea. The study follows with an examination of the status of ‘natural islands,’ as well as that of ‘ships and vessels’ in relation to artificial islands. This is of importance in order to discern those elements which are common to the particular nature of artificial islands. The process of assimilation, however, leaves much to be desired and an attempt is made to take advantage of this investigation as well as the study of the 1982 Law of the Sea Convention so as to recommend the creation of a separate legal category for artificial islands.
With this thesis, Galea completed her doctorate in international law through the University of Malta, and contributed greatly to global understanding of the legal status of man-made structures on the high seas — a subject near and dear to seasteading.
In fact, writes Galea, The Seasteading Institute was “one of the very first organizations which influenced me when writing my thesis.” Her paper manages to shed light on many of the areas pertaining to the Law of the Sea touched on in the seasteading book which have not been possible to elucidate, to date, due to incomplete or confusing information. (For an overview of the Law of the Sea and the last 50 years of political and legal challenges to this problematic treaty, watch Jorge Schmidt’s presentation on Legal Aspects of Seasteading from the 2009 Seasteading Conference.)
Having dived deep into such murky realms, Galea emerges optimistic about prospects for the legal standing of seasteading:
It is also worth noting that in view of the fact that the Law of the Sea is being regarded as outdated when faced with modern concepts which were not as yet contemplated in the 70’s there are discussions on amending the law of the sea. It will be significant to make one’s voice heard at an international level if this is to occur. The strength of international law is that there is no strict law where no treaty contemplates for a specific subject matter, and that if no one objects to a practice it is deemed to be accepted, so that is very much in [seasteading’s] favour. In fact customary law is deemed the number one source in international law, especially in areas which are not legally developed. This is known as ‘instant custom’: where a custom takes over to fill up a void in the law.”
Presently, Galea is continuing her research and education by pursuing an LL.M. offered by the International Maritime Law Institute, where, she says, “I am in the process of writing a dissertation in furtherance on the subject, with specific consideration of the subject of offshore renewable energy.”
By request, this paper has been removed until further notice.
This sounds like research very relevant to seasteading. Unfortunately the usual reaction by existing powers to new customs is to try to prevent them from becoming customary, that is, to destroy them as quickly as possible. They have an incentive to not allow new precedents since any new nations would be in competiton with them, i.e., upset their monopoly. This is exactly what happened with prior new nation ventures Minerva Reefs and Werner Stiefel’s Operation Atlantis which were both destroyed by their local governments (Tonga and Haiti respectively) at the urging of the United States. Both used military or police force.
This is a reason why Seasteads should probably initially be ships/vessels with Panamanian or Liberian flags. Artificial islands also may require more capital expenses than ships.