I. The establishment of a State in general 4
II. The problem of the establishment of a State on an artificial installation on the high seas6
1. The notion of State territory in international law.. 6
2. The rights of the coastal State to the continental shelf7
3. Cases of the exercise of jurisdiction by the coastal State on artificial islands on the high seas 11
III. The specific legal status of the territory of the Principality of Sealand
1. The legal status of the platform Roughs Tower before the occupation16
2. The conditions of occupation of territory under international law17
3. The occupation of a territory without a master by individuals20
4. The significance of acquiescence in the present case22
IV. International recognition of a new State. 26
1. Views on the legal character of recognition. 26
2. The conditions for recognition. 28
3. The forms of recognition of a new State. 31
I. The establishment of a State in general
The doctrine of international law requires the presence of three elements for a State to be established. According to the formulation of Professor Reuter:
«D'une manière générale on admet qu'un Etat existe dès que se trouvent réunis trois éléments: des pouvoirs stables et efficaces s'applicant à une population et à un territoire.»
International practice confirms this thesis. The mixed German-Polish Arbitral Tribunal declared in the case of the Deutsche Kontinental Gasgesellschaft (1929):
«Un Etat nexiste qu'à condition de posséder un territoire, une population habitant à ce territoire et une puissance publique qui s'exerce sur la population et sur le territoire.»
One may also recall the definition contained in Article 1 of the Convention on Rights and Duties of States of 26 December 1933, adopted at the VIIth International Conference of American States held at Montevideo:
«The State as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other States.»
De Louter has therefore correctly stated:
«Le droit international ne cède pas, mais trouve des sujets comme personnes juridiques, de même que le droit privé trouve les siens sous forme des personnes naturelles.»
Indeed, internal law only determines the legal status of the physical person, his capacity to act, the legal sphere in which he lives. In the same way, in international law States are persons by their nature itself. No doubt, when it has to be ascertained whether a community which claims to have this capacity really presents the elements necessary in a State, this cannot be judged with the same degree of obviousness and the same ease with which the birth of a physical person would have been ascertained.
In every State there exists a power which has been entrusted to certain organs and is intended for governing the population. This is the political power which is often qualified as public authority and designated by the term sovereignty. Sovereignty presents itself first as original power, in the sense that it does not derive from any other power. On the other hand sovereignty signifies supreme power in the framework of a well defined territory (summa potestas); not only does it have no superior, but it is also exclusive, i.e. in its sphere of validity it does not admit of any equal or rival power (plenitudo potestatis).
Eminent writers on international law consider direct subjection to international law as the corollary of the capacity of a State. This is the view of Guggenheim:
«La soumission immédiate des Etats souverains au droit des gens est appelée indépendance, terme qui se rapporte à la prétention souvent élevée par l'Etat d'être considéré comme l'ordre juridique suprême.»
Verdross writes along the same lines:
«Ein souveräner Staat ist eine vollständige und dauerhafte menschliche Gemeinschaft mit voller Selbstregierung, die durch eine völkerrechtsunmittelbare, auf einem bestimmten Gebiete regelmäßig wirksame Rechtsordnung verbunden wird und so organisiert ist, daß sie am völkerrechtlichen Verkehr teilnehmen kann.»
The legal order of the Principality of Sealand does not originate from delegation by a superior authority. The head of state of Sealand is a Prince who, assisted by the Privy Council, exercises legislative power, a Government exercising the functions of the executive, and a High Court called upon to exercise judicial power. The powers of the organs of State as well as the rights of the citizens are regulated in the Constitution. This Constitution has the character of a charter granted by the Prince. Other laws relate to matters the regulation of which was found necessary. Sealand has laid down its Constitution and its other laws by the exercise of its full self-determination in its internal and external affairs, i.e. independently of any external power. The adoption of the British common law system took place by virtue of the sovereign will of Sealand. The adoption of a foreign legal system in some matters is not an unusual phenomenon in international life. In the twenties Turkey adopted Swiss civil law. The new states created after World War I, such as Poland, Czechoslovakia and Yugoslavia, kept the legal system of the States to which their respective territories belonged before they gained independence. Such a procedure is not contrary to the sovereignty of the state concerned, provided that the latter takes its decision of its own free will.
In the light of these facts we reach the conclusion that Sealand has an organized public authority exercising the ordinary functions of State power in internal as well as external respects which represents the supreme and exclusive power over its territory. The Principality is not subject to any foreign jurisdiction; its national legal order constitutes the supreme legal order in its territory. This amounts to saying that Sealand is directly subject to international law. Consequently, the sovereignty of Sealand cannot be contested; it is therefore to be considered a subject of international law.
On the basis of the analysis of international jurisprudence on this matter we must reach the conclusion that the taking of possession of the platform Roughs Tower in 1967 by the group directed by Mr. Roy Bates with the intention of establishing an independent community, along with the fact that this group installed itself there and organized a public authority which has henceforth exercised effectively and uninterruptedly the functions of a State, has fulfilled the conditions required in international law for the acquisition of sovereignty by title of occupation over a territory without a master.
Moreover, Sealand once made use, in 1968, of the right of self-defence to pave the way for the unlawful action of an English merchant vessel. In consequence of the denunciation of the captain of the vessel concerned, penal proceedings were started against some inhabitants of Sealand before the British judicial authorities (Essex Assizes). Mr. Justice Chapman held in his judgment of 25 October 1968:
«Roughs Tower is one of a number of steel concrete erections built during the war as emplacements for anti-aircraft guns. It seems to have been abandoned by the Ministry of Defence after the war, and in 1967 Mr. Bates took occupation of it.» «English Courts only have jurisdiction in territory over which British sovereignty prevails, i.e. the soil of Great Britain and its adjacent islands and territorial waters up to the three-mile limit.»
The learned Judge referred to the judgment of Mr. Justice Lindley in the case «The Queen against Keyn», which, in his opinion, is a classic exposition of the basic principles applicable in the Sealand case.
«Every State has full power to enact and enforce what laws it thinks proper for the preservation of place and the protection of its own interests, over those parts of the high seas which adjoin its own coasts and within three miles thereof. But that beyond this limit ... no State has any power to legislate save over its own subjects and over persons an board ships carrying its flag.»
«It is said, indeed, that in the absence of clear evidence of intention to the contrary a general statute is not to be construed to extend to foreigners; and this is quite true of foreigners out of the limits to which the statute is geographically applicable, but it is not true of foreigners within those limits. In fact, this rule of construction is another mode of expressing the more general rule that statutes are to be construed so as to apply only to those persons and places which are within the dominion of the legislative power.»
In stating that Sealand is not subject to the sovereignty of Great Britain and that the force of the British laws does not extend to Sealand, Mr. Justice Chapman declared himself incompetent to judge the actions which took place in Sealand, because this territory does not come under British jurisdiction. The attitude of Great Britain towards Sealand was all the more important because the British authorities did not hesitate to bring an action against occupants of abandoned artificial installations situated on the continental shelf if it appeared to them based on law to a certain extent.
In the case of Regina v. Kent Justices ex parte Lylea British corporation was convicted of violating the Wireless Telegraphy Act of 1949by operating a commercial radio station on an abandoned World War II anti-aircraft structure located in the Thames estuary. The structure is fixed to the seabed almost five miles from the nearest low-water mark on the coast and less than three miles from a sand-bar which is above water at low tide. The act by its own terms is applicable within the limits of territorial waters. The Court held that it had jurisdiction because of 1964 legislation implementing the articles of the Geneva Convention on the Territorial Sea, which made the sand-bar the baseline for measuring territorial waters. The defendants argued the act was subject to the XIXth-century definition of territorial waters as measured from the low-water mark on the coast. The Court rejected this contention because international law changes from time to time and municipal acts may be modified accordingly to conform to such changes without being bound by previously accepted definitions.
The prolonged inactivity of the British authorities could hardly be interpreted otherwise than as the proof of their acquiescence in the situation created by the occupation of the platform Roughs Tower. Their abstention from any kind of action against Sealand, a fortiori the express recognition in the judgment of Mr. Justice Chapman of the fact that Sealand is situated outside the limits of Great Britain's sovereignty and is not subject to British jurisdiction, expresses the conviction that the occupation effected in 1967 by Mr. Roy Bates is valid under international law and has produced all the effects which international law attaches to the occupation of a territory without a master; from that moment Great Britain did not have any legal title to an action against Sealand. In other words, the British authorities have tacitly taken cognisance of the existence of the Principality of Sealand.
It follows from the above that the Principality of Sealand thus satisfies the conditions for international recognition as a new State. Nevertheless, according to international law, the political existence of Sealand is independent of recognition by other States. This existence is not affected by a refusal of recognition.
3. The forms of recognition of a new State
International practice makes a distinction in respect of the degree of consolidation of the organization of the new State as well as in respect of the perspectives of stability of the legal order of the new State between de jure recognition and de facto recognition. If there is doubt as to the stability of the new State, which exercises factual authority in a given territory at a given moment, the existing States may confine themselves to recognizing the new State de facto, i.e. they recognize the legal order of the new State as a factually existing authority. De facto recognition is essentially a provisional recognition. If the new State shows its stability, the States recognizing it de facto proceed to recognize it de jure in due time. If not, de facto recognition is repealed. De jure recognition shows confidence in the stability of the new State. This recognition has a definitive character and retroactive effect. This means that the de jure recognition, even if granted many years after the formation of a new State, retroacts to the moment at which the new State began to have factual authority.
With respect to recognition international law does not provide for obligatory formalities. The recognition can be expressed in a direct way, e.g. through the conclusion of an agreement concerning recognition or through an exchange of diplomatic notes, and can also take place tacitly by means of facta concludentia. The following facts are to be considered as such: entering into diplomatic or consular relations, or conclusion of a bilateral convention with the new State on any desired subject.
On the other hand it is an established fact in international practice that joint participation in a multilateral international conference or joint participation in a multilateral international convention does not involve recognition. A simple contact for practical reasons, too, does not imply recognition. Even de jure recognition of a new State does not result automatically in entering into diplomatic relations. International law recognizes no such obligation. Every State has the right to decide for itself with what other States it wishes to maintain diplomatic relations. The rule of customary international law relating to this is laid down in Article 2 of the Vienna Convention on Diplomatic Relations, dated 18 April 1961
«The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.»