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Sealand and HavenCo Part IV: International Law and Sealand Law

By James Grimmelmann, guest-blogging

(James Grimmelmann, guest-blogging)

Last time, I looked at HavenCo in terms of its losing battle with others nations? laws. I closed by pointing out that HavenCo wasn?t anti-legal, just selectively legal. HavenCo needed Sealand to be an independent state under international law, and it needed Sealand law to permit its activities. Today, I?ll explain how these other bodies of law point us toward the deep contradiction at the heart of HavenCo.

International Law

On Monday, I mentioned Roy and Michael Bates?s 1967 acquittal on Englsih firearms charges. The decision, though, doesn?t say very much about Sealand?s legal status, because it turns on the historical quirks of British jurisdiction in coastal waters, quirks now rendered moot by the United Kingdom?s 1987 extension of its territorial waters to 12 miles, far enough to sweep in Sealand. (Of course, if Sealand was independent by 1987, the extension wouldn?t have changed its status ? but saying that it was independent then is begging the question.)

But this is not the only time that a court has weighed in on Sealand. In 1975, Alexander Achenbach (who would later instigate the failed coup attempt) was named a citizen of Sealand, and promptly tried to resign his German citizenship. The Administrative Court of Cologne refused his request, on the grounds that Sealand was not a state, and thus could have no citizens.

The opinion, In re Duchy of Sealand, 80 I.L.R 683 (1978), is fascinating, particularly when compared with the expert opinion Achenbach offered from Dr. Dr. Dr. Walter Leisner of the University of Erlangen-Nuremberg. The couurt applied the three-part test for statehood from the Montevideo Convention ? a state must have territory, population, and an effective government ? and concluded that all three were lacking.

The court?s reasoning as to territory is unpersuasive. Sealand may not itself be a ?fixed part of the earth?s surface, but it does have recognizable boundaries, people can meet and live there, and it?s not going anywhere. When it comes to population and government, though, the position advanced at various times by Sealand, Achenbach, Leisner, and HavenCo essentially reads these elements out of the test.

On the pro-Sealand view, one person could be both the relevant ?population? and ?government.? Leisner tactfully says that the ?very marginal? number of Sealanders suffices, because ?jus gentium does not provide for a minimum number of citizens.? Robert Nozick would approve, but if one person is a state, then there goes international law?s traditional focus on states, rather than on persons. Ryan Lackey called the Montevideo criteria the ?technical requirements? for statehood, a phrase that nicely captures how formalistic they are on the pro-Sealand view of the world.

Over the years, Sealand and its allies have also advanced a theory of de facto recognition, under which other governments have recognized Sealand by doing things like stamping Sealand passports, cancelling Sealand stamps, and sending a ?diplomat? to ?negotiate? with Sealand during the 1978 hostage crisis. Given that the relevant governments generally say they meant to do no such thing, this is more of an argument from estoppel: call it ?gotcha? recognition. Again, this is a formalistic view of how law works.

Sealand Law

Any business depends on the rule of law where it operates: your property and your prospects are never secure if the government changes the laws out from under you. HavenCo?s founders understood this: one of the reasons they left Anguilla was a concern over local corruption. And yet, when they decamped for HavenCo, they promised their customers ?third-world regulation? as though this were a good thing.

In the end, one of those same founders would say that HavenCo was ?probably effectively ?nationalized?? by Sealand. According to Ryan Lackey?s post-mortem, Prince Michael?s advisors behaved just like you?d expect from courtiers, using their influence to siphon off money and interfere in business operations. As soon as Lackey left the platform, the expropriation began in earnest.

HavenCo didn?t have any good options at this point. It was, after all, doing business in an old-school monarchy. Suing in a Sealand court would have been pointless given that the monarch was also the head of the judicary. HavenCo couldn?t seek legal redress anywhere else in the world without utterly destroying its business model by conceding that other countries could control what happened on Sealand.

Sealand is not a nation in which one would expct the rule of law to have a particularly thick hold. Its population has always been in the single digits, probably the low single digits. It has an extensive history of violence, but it doesn?t have a political parties, an independent press, a professional judiciary, or law-talking guys.

The Rule of Law

HavenCo?s relationships to national law, international law, and Sealand law reflect three different views of the rule of law:

• By helping people evade the Internet laws of their countries, HavenCo set itself against the tradition of the rule of law as self-governance. This view sees law an expression of a political community?s shared values. HavenCo?s mission claimed either that national Internet laws didn?t truly reflect the will of the people, or if they did, that will itself was immoral and invalid

• By making a play based on Sealand?s sovereignty, HavenCo depended on international law?s willingness to recognize that sovereignty. This is a vision of the rule of law based in formal legality. These are the rules: they apply to Sealand just as they would to any other nation. The law is the law: no backsies.

• By locating itself on Sealand, HavenCo put its head in the mouth of a lion. It depended on the rule of law as a restraint on government. Unless individuals are protected against expropriation, retroactive lawmaking, and plain old lawlessness, nothing and no one is ever secure.

The problem is that these three relationships to law do not sit well together. The first two drive a wedge between law and human institutions. They say that (national) law, as made around the world today, is not a reflection of legitimate democratic principles; instead, (international) law should be an autonomous system that derives its legitimacy from its formal evenhandedness. But the third shows why (Sealand) law doesn?t work without those same human institutions. In this sense, HavenCo failed not from too much law, but from too little.

Next time: learning from HavenCo.

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Previous entries in this series on Sealand, HavenCo, and the Rule of Law:

• Part I: The History of Sealand
• Part II: The Rise and Fall of HavenCo
• Part III: Why Did HavenCo Fail?

Full post as published by The Volokh Conspiracy on February 17, 2011 (boomark / email).