Seasteading provides an illuminating look at interpretation of law on the high seas

There is a vast chasm between the reality of maritime law, formed by generations of treaties negotiated at the highest levels of government in the often inscrutably complex language of international diplomacy, and the common belief within civil society that areas beyond national jurisdiction are essentially lawless. Nowhere is this gulf more apparent than within the Seasteading movement – a loose aggregation of individuals and groups intent on developing floating communities on the High Seas. 

In early 2019, Seasteading made international headlines when two intrepid adventurers decided to put theory into practice by deploying a floating platform 12 miles off the coast of Thailand. Chad Elwartowski and his partner Nadia Summergirl teamed up with Ocean Builders to develop and test a habitable module that could lay the groundwork for future at-sea communities. 

One of the core themes within the Seasteading Movement is that, by building floating communities beyond territorial waters, in so-called international waters, they will be free of government control. In the most idealistic models, seasteaders want to experiment with new forms of economics and governance on the high seas, untethered to existing legal systems. On the cynical end of the spectrum, seasteaders want to create floating tax shelters and havens for criminal enterprise. Elwartowski and Summergirl were undoubtedly in the former camp. 

Things did not go quite as planned. 

Seasteaders tend to interpret the 12-mile limit for Territorial Seas as the baseline for where a nation’s jurisdiction ends. And for many cases, they’re not wrong. UNCLOS guarantees innocent passage through an Exclusive Economic Zone, so ships transiting through an EEZ may do so with a reasonable expectation of unimpeded travel. A coastal nation has absolute rights over the resources in their EEZ, but they cannot prohibit “passage or loitering” on or beneath the surface. 

But UNCLOS also extends sovereign rights to a coastal state’s EEZ and requires that vessels occupying an EEZ show due regard and “comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law”. Which, in addition to many other activities, means that attempting to establish a new government within an existing EEZ would violate a coastal state’s sovereign rights.

If Elwartowski and Summergirl were simply living on a houseboat, as they ultimately claimed in several interviews, there would likely have been no conflict. However, in a series of YouTube videos, they discussed their vision for a growing community, funded by BitCoin investment, and experimenting with new forms of governance. 

Thailand decided to enforce their sovereign rights over the seasteaders occupying their EEZ. 

After declaring that Elwartowski and Summergirl were violating Thai sovereignty by establishing their floating home, the Thai Navy was dispatched to remove the obstruction, and charges were levied against the two that could have resulted in the death penalty. Not willing to risk that outcome in court, the two fled the country. 

“We were caught in a Catch 22 scenario in Thailand,” Elwartowski says. “We had to talk to the highest level government to get any permissions, all the way up to their prime minister. But without demonstrating what we were planning to do, there was no way to get such an audience. The local harbor master and the few lawyers we spoke with told us that outside of the 12 nautical mile zone we were free to build our homes. Our plan was to have a pre-sale to get orders to show the Thai government that we had a viable business, then move as high up the chain as we could, demonstrating our capabilities along with the demand (and the money that would come with the demand). We were 3 days away from starting the pre-sale before they came after us.”

The extent to which jurisdiction beyond the 12-mile-limit is interpreted and enforced will increasingly create conflict between stakeholders as participation in the Blue Economy expands. “We understood in Thailand that we were not outside of Thailand’s maritime waters,” Elwartowski explains, “but by being more than 12nm out we were not under any territorial law (including the laws they accused us of breaking) while still being under the law of the sea within Thailand’s EEZ.” While a reasonable interpretation of legal regime, that may not be entirely true. Unfortunately, with little precedent, any clarity would have to emerge from a legal challenge, the consequences of which were beyond what Elwartowski and Summergirl were willing to risk. 

Seasteading as a movement occupies a weird niche in international law. A vision of building communities beyond national jurisdiction is coupled to the infrastructure and support demands of a major engineering project. Maintaining vessels are sea is a constant battle against entropy for even the best-funded and and most experienced vessel operators. And yet, for Seasteading to live up to its ideals, the movement has to move beyond the Exclusive Economic Zones of coastal nations. “Any type of living outside of the EEZ is likely many years away,” says Elwartowski, “and we would rather focus on the engineering aspects of living on the open ocean before attempting anything to do with sovereignty.”

For now, Elwartowski and Summergirl have launched a new venture, this time in Panama with the support of both the local and national government. “We started the venture by visiting as many government offices as possible at the highest level, including meetings with one of the president’s advisors, the ministry of tourism and several others. We got great responses from all of them and have an open line of communication as we move forward on the next steps.” Their goal is to build and test the platforms that will form the backbone of a future Seasteading community. “We are starting fairly simply by flagging our floating homes as houseboats and staying close to shore. This allows us to get the manufacturing process and design well developed before needing to worry about the open ocean and all the difficulties that come with it.”

The conflicts between seasteaders, nation states, and the UN Convention on the Law of the Seas illuminates how confusion and contradiction around ocean policy can arise even among highly engaged stakeholder groups. As the deep-sea mining industry approaches production, with mining regulations imminent and more and more nations committing to increased exploration and exploitation of the seafloor, regulators, contractors, and environmental organizations should expect increased scrutiny from the formal and informal media. The Seasteading Movement can serve as a prime example of how contradictory interpretations about high seas policy can spread and become entrenched in the public consciousness. 

Even now in the popular media, deep-sea mining is often portrayed as an unregulated gold-rush, belying the slow, stately, sometimes frustrating, 25 years-and-counting process of reaching production through deliberation and compromise. As the ISA moves towards finalizing the mining code, a cohesive public outreach campaign will be necessary to ensure that civil society understands both the scale and limitations of mineral exploitation on the high seas. 

Featured image: Elwartowski and Summergirl’s seastead. Photo courtesy Ocean Builders.