Luis McDonough Monroy is a doctoral fellow at the Maritime Institute of Ghent University in Belgium. His research centers around the added value of new instruments of international fisheries law.

On the 31st of October 2023, the American tech corporation Del Complex announced its plans to construct its first of many ‘cluster platforms’ in the high seas citing its desire to escape the ‘arcane’ artificial intelligence (hereafter ‘AI’) regulations of States like the United States (2023 AI Executive Order) or supranational authorities such as the European Union (AI Act). In order to do so, Del Complex aims to construct what it calls ‘BlueSea Frontier Compute Clusters’ (hereafter ‘BSFCCs’), a series of ‘barge-based compute platforms’ from which its employees would conduct their research and operations. According to the company, each BSFCC will be equipped with cutting-edge technology, including cooling turbines and solar panels, in what the company calls ‘[t]he pinnacle of compute and autonomy’. However, Del Complex’s pretensions do not stop here. The company aims for BSFCCs to become and ‘operate as sovereign nation States’ – essentially a colony of sovereign floating artificial islands in the high seas. Interestingly, Del Complex cites the United Nations Convention of the Law of the Sea (hereafter ‘UNCLOS’), as well as the four customary criteria for statehood under the 1933 Montevideo Convention on the Rights and Duties of States as the legal basis for the establishment of BSFCCs in the high seas. Beyond questions of feasibility, Del Complex’s innovative pretentions raise ever more important queries pertaining to the legal framework of floating artificial islands. Is there a legal basis for the establishment of BSFCCs in the high seas? What jurisdictional framework would be applicable to BSFCCs? And lastly, could BSFCCs fulfill the requirements to become sovereign States under international law?

In order to delve into a discussion of the legality of the establishment of BSFCCs in the high seas, it is first important to define or categorize them under the terms of UNCLOS. A logical point of departure would be to consider them artificial islands. In this respect, articles 11, 56, 80 and particularly article 60 refer to the construction of artificial islands in the territorial sea, exclusive economic zone (or ‘EEZ’) as well as to installations built upon the continental shelf of a coastal State. Generally, UNCLOS recognizes the exclusive right of coastal States to establish artificial islands in areas under their jurisdiction, subject only to a handful of constraints. While in the territorial sea, coastal States enjoy a wide marge of maneuver to build such features (excepting, conceivably, of impairing routes used for maritime transit), in the EEZ Article 60 UNCLOS establishes certain obligations for the construction, maintenance, security and decommissioning of artificial islands. However, what about the establishment of artificial islands in areas beyond national jurisdiction? Article 87 UNCLOS recognizes the the freedom of all States ‘to construct artificial islands and other installations permitted under international law’ in the high seas. This right is subject only to the general exercise of ‘due regard’ for the rights and duties of other States in the high seas and contingent only on the installation not being built on the extended continental shelf of a coastal State, which naturally protrudes into the seabed and subsoil under the high seas (a non-issue for floating islands). Furthermore, it is well established that UNCLOS presumes that artificial islands, installations and structures in the high seas remain under the jurisdiction of the State that designates them. This can be inferred from the provisions of articles 208 and 214, which establish exclusive prescriptive and enforcement jurisdiction (respectively) in relation to the regulation of pollution from seabed activities linked to such installations.

There are reasons, however, to question whether the regime of artificial islands would be applicable in relation to BSFCCs. This is because, although Del Complex has not offered any specificities as to the construction and composition of these barges, the company’s allusions to their ‘autonomy’, as well as the particular sketches and designs provided by (see here) create reasons to believe they could be self-propelled. While this might appear a minor consideration, the self-propulsion of these artificial barges might merit their reclassification under the international law of the sea, which would raise a set of slightly different considerations. Indeed, if BSFCCs have the capacity to navigate (whether alone or with the aid of other vessels), they might arguably be considered ‘ships’ in the same manner as aircraft carriers. However, what would the recategorization of BSFCCs from ‘artificial islands’ to ‘ships’ entail for the purposes of the legality of their deployment on the high seas? Classifying BSFCCs as ships would subject them to the jurisdiction of the State that registers them, albeit under the (much more widely elucidated) regime of exclusive flag State jurisdiction. Pursuant to Article 91 UNCLOS, ‘[s]hips shall sail under the flag of one State only’, which grants the so-called ‘flag State’ ‘exclusive jurisdiction and control in administrative, technical and social matters over ships flying its flag’ (Article 94; emphasis added). Failure to fly the flag of a State (or flying more than one flag) would render the ship stateless and become therefore susceptible to the enforcement jurisdiction of all States under the right of visit (Article 110 UNCLOS). Therefore, notwithstanding their classification as artificial islands or ships, BSFCCs might find themselves under the exclusive jurisdiction of the State that deploys them. In this aspect, it is important to note that while UNCLOS does consider instances where ships may not be under exclusive flag State jurisdiction (i.e., stateless vessels), it does not consider instances in which artificial islands in the high seas may not be under the exclusive jurisdiction of the State that constructs or deploys them. However, it is admittedly possible for a State to be prevented from exercising jurisdiction not only over ships flying its flag, but also over its artificial installations, which adds to the importance of this discussion.

This leads us to perhaps the most ambitious of Del Complex’s pretensions: that BSFCCs operate as sovereign States on the high seas. UNCLOS would appear to discard this scenario completely, as artificial islands or ships are only conceived to be under the jurisdiction of their flag or deploying State. However one may argue that this is altogether natural, as State creation is an issue that supersedes the law of the sea and rather pertains to general international law. In this respect, Del Complex refers to the customary ‘Montevideo criteria’, which lists the four requirements of statehood: (1) a permanent population, (2) a defined territory, (3) a government and (4) the capacity to enter into relations with other States. However, in spite of Del Complex’s confidence that BSFCCs would be capable of meeting these requirements, State practice points overwhelmingly against their recognition as sovereign States. One has to look no further than the case of Sealand, an artificial installation (in this case a decommissioned offshore oil platform) established by the UK in the (then) high seas areas of the North Sea and subsequently occupied and declared a sovereign State by British civilians. To this day no State in the world has extended its recognition to Sealand and there are no indications that this will change. The marked reluctance of States to recognize (any) sovereign claims in the high seas stems from the recognition that such areas are common to all States, the spirit of which is conveyed in Article 89 UNCLOS.

            In conclusion, Del Complex’s ambitious plan to deploy a colony of floating ‘sovereign’ artificial island States appears awfully short-sighted from an international legal perspective. Irrespective of their categorization as ‘artificial islands’, ‘installations’ or ‘ships’ (which will depend on their propulsion capabilities), BSFCCs will either fall under the exclusive jurisdiction of the State from which Del Complex operates (or registers) them or, alternatively, will be considered stateless. The latter scenario would undoubtedly trigger a situation of universal jurisdiction, where all States may be allowed to enforce their laws and regulations on these floating islands, even in the high seas. On the question of whether BSFCCs could give birth to micro-States in areas beyond national jurisdiction, both treaty law (Article 89 UNCLOS) and State practice appear to offer a resounding no, principally because of the common nature of the high seas. Interestingly, Del Complex may be better off registering or operating BSFCCs from a jurisdiction that is more sympathetic to its ethos. However, the company has so far not indicated any desire to do so.

As technological advancements percolate to all sectors of civil society non-State actors, including smaller private corporations seeking for comparative advantages in the global market, are likely to play an ever more visible role in international law. The author hopes that this text provides a firm starting point for discussions concerning (some of) the most inventive or unorthodox pretensions of smaller non-State actors, particularly from the private sector, in the 21st Century.

Photo by Tanner Boriack on Unsplash