Legal status of Sealand

It is claimed by the proponents of the Principality of Sealand that its independence is based on the following propositions:
# 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).
# 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).
# 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. [cite web | url=http://www.sealandgov.org/history.html | title=Official History of Sealand | publisher=Principality of Sealand | accessmonthday=12 January | accessyear=2007]

International law

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.

Constitutive theory

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. As a counterargument to this, it is said that governments often negotiate with hostage takers and even terrorists and that out of this de facto recognition cannot be concluded.Fact|date=April 2007

Declaratory 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.

Laws and legal judgments affecting the statehood of Sealand

Despite claims by the Principality of Sealand to the contrary, a German Court in 1978 [cite web | url=http://www.uniset.ca/naty/80ILR683.htm | title="In Re" Duchy of Sealand (Administrative Court of Cologne) | publisher=International Law Reports | accessmonthday=12 January | accessyear=2007] 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 (Administrative Court of Cologne)

Territorial limits

The 1968 Firearms Act court hearing cite web | url=http://www.seanhastings.com/havenco/sealand/judgement.html | title = "(transcript)" acquitted Roy Bates on the grounds that Roughs Tower lay outside the territorial limits of the United Kingdom (at the time) and that the Firearms Act 1987 did not expressly state application to British Citizens outside British territory.

In 1987, after this decision, the United Kingdom brought into force an Act of Parliament ("Territorial sea act") 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 the land to which the platform is annex would as of then 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.

unken ship vs. artificial island

Some argument over the status of Sealand rests on whether it is an artificial island or a sunken ship (the original fort was floated to the site and then sunk by flooding its base). 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.

UK Government position

Although the UK has publicly asserted its authority over Roughs Tower, [http://news.bbc.co.uk/2/hi/uk_news/778267.stm] it appears to be government policy to refrain from comment or action as regards Sealand. 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. Fact|date=February 2007

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. [cite web | url=http://www.timesonline.co.uk/article/0,,2-1905641,00.html | title=Country’s passports are for sale | date=2005-12-06 | publisher=Times Online | accessmonthday=16 July | accessyear=2006]

Other States

In 1990 a US Administrative Court also ruled "as a matter of United States law" that Sealand was not a valid sovereign nation, following evidence from James Murphy of the Department of Trade and Industry.Fact|date=August 2008 On appeal in 1991 the decision that the state called "Sealand" does not exist, and has not ever existed, was upheld by a U.S. Federal Court.Fact|date=August 2008

De Facto recognition as a state

According to [http://www.seanhastings.com/havenco/sealand/recognition.html this] ; de facto recognition includes "diplomatic activities by representatives of the states involved in connection with tasks between states, relationships etc.;", for example when Germany sent a diplomat from its London embassy to Sealand. Roy Bates relented after several weeks of negotiations and subsequently claimed that the diplomat's visit constituted de facto recognition of Sealand by Germany. De facto recognition also includes: "recognition and official endorsement with a visa of passports issued by the other state as travelling documents." Passports issued by Sealand have received visas and other markings from third-party states.

References