Legal status of Sealand

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Map of Sealand and the United Kingdom, with territorial water claims of 3 NM and 12 NM shown.
Map of Sealand and the United Kingdom, with territorial water claims of 3 NM and 12 NM shown.

It is claimed by the proponents of the Principality of Sealand that its independence is based on the following propositions:

  1. That when Paddy Roy Bates and his associates occupied Roughs Tower/HM Fort Roughs in 1967 it was located in international waters, outside the jurisdiction of the United Kingdom and all other sovereign states, thus constituting terra nullius which could be settled and claimed by a new State. (This is the basis of the claim for de jure legitimacy).
  2. That interactions by the UK and the German Governments and the occupants of Sealand/Roughs Tower constitute de facto recognition of the territory's sovereignty; a proposition denied by the States concerned. (This is the basis of the claim for de facto legitimacy).
  3. That a 1968 decision of an English court, in which it was held that Roughs Tower was in international waters and thus outside the jurisdiction of the domestic courts, is a further de facto recognition of Sealand's sovereignty.[1]

In international law, the two most common schools of thought for the creation of statehood are the constitutive and declaratory theories of state creation. The constitutive theory was the standard nineteenth century model of statehood, and the declaratory theory was developed in the twentieth century to address shortcomings of the constitutive theory. In the constitutive theory, a state exists exclusively via recognition by other states. The theory splits on whether this recognition requires "diplomatic recognition" or merely "recognition of existence". It is clear that no other state grants Sealand diplomatic recognition, but it has been argued by Bates that negotiations carried out by Germany constituted "recognition of existence". In the declaratory theory of statehood, an entity becomes a state as soon as it meets the minimal criteria for statehood. Recognition by other states is purely "declaratory".

In respect of the constitutive theory, opinion splits as to whether this recognition requires "diplomatic recognition" or merely "recognition of existence". Nevertheless, it is clear that no State has officially recognised Sealand's existence, although it is claimed that negotiations carried out by Germany for the release of a person in Bates' custody constituted de facto recognition of Sealand's existence, satisfying the second limb of the constitutive theory.

In respect of the declaratory theory, which appears to be the dominant theory among European states, an entity becomes a state as soon as it meets the minimal criteria for statehood, for which the most commonly accepted criteria are those in the Montevideo Convention, which asserts that a State requires:

  • A defined territory;
  • Permanent population;
  • Government; and
  • The capacity to enter into relationships with other Sovereign States.

A similar set of criteria was accepted by the European Community's Opinions of the Badinter Arbitration Committee, established to determine the legal effects of the breakup of the former state of Yugoslavia, in which a State was defined as having "a territory, a population and a political authority"; criteria which were a question of fact irrespective of whether or not States had officially recognised a state's existence, endorsing the declaratory theory.

Nevertheless, despite claims by "Sealand" to the contrary, a German Court in 1978[2] held that Sealand was not a sovereign State under the declaratory theory, holding that the requirements for a State to have "a territory, a people and a government" had not been met.

Thus, in addition to holding that an artificial island such as Roughs Tower which did not "consist [of] a natural segment of the Earth's surface" was not capable of forming the "territory" of a State, it was held that the alleged "people" of Sealand did not share sufficiently cohesive bonds of community to be recognised as a "people" under international law.

In particular, it was held that:

... in the case of the “Duchy of Sealand” it cannot be accepted that there is a “people” within the meaning of international law since the life of a community is lacking. ... [The duty of a State] does not merely consist of the promotion of a loose association aimed at the furtherance of common hobbies and interests. Rather it must be aimed at the maintenance of an essentially permanent form of communal life in the sense of sharing a common destiny.
... These “nationals” [of Sealand] have not acquired their “nationality” in order to live with one another and handle all aspects of their lives on a collective basis, but on the contrary they continue to pursue their individual interests outside the “Duchy”. The common purpose of their association is limited to a small part of their lives, namely their commercial and tax affairs. This degree of common interest cannot be regarded as sufficient for the recognition of a “people” within the meaning of international law.
In Re Duchy of Sealand (1978) 80 ILR 683, at 687-9 (Adminstrative Court of Cologne)

In 1987, after this decision, the United Kingdom brought into force an Act of Parliament to extend its territoral sea to 12 nautical miles (22 km), which had been permitted under international law since 1958, bringing Roughs Tower within the scope of the British territorial claim. Despite a claim from Sealand to have extended its claim of territorial waters to 12 nautical miles a day earlier than the UK, English law doctrines of act of state and parliamentary sovereignty mean that, in contrast to the decision of a 1967 English court, the platform will now be considered by British courts to be part of the English county of Essex.

According to the 1982 United Nations Convention on the Law of the Sea, there is no transitional law and no possibility to consent to the existence of a construction which was previously approved or built by a neighbouring state. This means that artificial islands may no longer be constructed and then claimed as sovereign states, or as state territories, for the purposes of extension of an exclusive economic zone or of territorial waters. However, since Roughs Tower is not an artificial island but a sunken ship, it would be necessary for Her Majesty's Crown Estate (which owns the land itself under the tower) to act as the complainant landlord in order to get the wreck removed from its property. If Sealand is a sunken ship rather than an artificial island then no claim to statehood can be made, as a ship cannot constitute the "permanent" territory required for statehood to be established.

The only prospect for successful assertion of sovereignty would be to show that there was de facto sovereignty prior to 1982.

Although the UK has publicly asserted its authority over Roughs Tower,[1] it appears to be government policy to refrain from comment or action except when forced. British Government documents, now available to the public under the 30 year expiry of confidentiality, show that the UK drafted plans to take the tower by force, but such plans were not implemented by the then Prime Minister due to the potential for loss of life, and the creation of a legal and public relations disaster.[citation needed]

In 1990 a US Administrative Court also ruled that Sealand was not a valid sovereign nation, following evidence from James Murphy of the Department of Trade and Industry. On appeal in 1991 the decision that the state called Sealand does not exist, and has not ever existed, was upheld by a US Federal Court.

On December 6, 2005, The Times claimed that the British government and courts had finally admitted that Sealand "is outside British national territory [...] and not part of the United Kingdom"; however The Times did not elaborate and there has been no confirmation by other sources.[3]

[edit] References

  1. ^ Official History of Sealand. Principality of Sealand. Retrieved on 12 January, 2007.
  2. ^ In Re Duchy of Sealand (Adminstrative Court of Cologne). International Law Reports. Retrieved on 12 January, 2007.
  3. ^ Country’s passports are for sale. Times Online (2005-12-06). Retrieved on 16 July, 2006.


Principality of Sealand

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