Editor’s Note: This series was first posted on this blog at the end of 2010. We are running it again like one of those old favourites that gets rerun on TV around Christmas time.
Frédéric Mégret is an Associate Professor of Law, the Canada Research Chair on the Law of Human Rights and Legal Pluralism, and the Director of the McGill Clinic for the Sierra Leone Special Court, McGill University. Alexandra Harrington is currently a Doctor of Civil Law candidate at McGill University
It had been a masterfully planned operation from start to finish. When Grigory Savros heard the news that, following a massive volcanic eruption in the South Pacific, a new island, roughly six by eight miles, had emerged, he at first paid little attention. The incident had of course generated considerable popular interest and, as the only known island of its kind in several millennia, was the buzz of geologists. But the volcanic fumes arose hundreds of miles away from the nearest flight path, and the island was first reported as barely habitable. Savros had other things to think about. One of the world’s richest men, he had made his fortune betting against the financial stability of emerging economies through complex derivative products that only a few insiders – if any – could fathom. He had since reinvented himself as, to use the Times’ cover’s expression, ‘The World’s Biggest Philanthropist,’ one involved in everything from art to human rights, fighting global diseases to reducing global warming. Besides, he was already the proud owner of no less than two islands (one in the Caribbean, and one in the Mediterranean) in which he hardly ever spent any time.
But one detail had caught Savros’ attention and vaguely stirred up recollections from his international law days, before he became a wealthy investor, when he was still what he sometimes described in interviews as an ‘idealistic law student’ (he had quickly abandoned his initial idea of working in international law, a discipline he had found to be largely irrelevant to the ways of the world). The island was beyond the territorial waters or even the exclusive economic zone of any state. As such, it was no less than the first bit of prime terra nullius real estate to emerge in at least 200 years (with the exception of ‘fake’ terra nullius of colonization). Of course, this fact had not escaped several foreign ministries, but of the few states with any presence in the region, most concluded that it would be far too expensive to maintain a base on the island, and quickly gave up the notion. The land and the surrounding waters were devoid of any particular resource, at least the sort that could be exploited profitably. These were hard financial times globally, and no state had the appetite for an extra piece of rock in the mid-Pacific, with no economic or geopolitical value. One landlocked state in Central Asia expressed some interest in acquiring the island so that its Great Leader could claim to have ‘brought the sea’ to his country, but the plan quickly foundered. There was some vague talk at the UN General Assembly of ‘internationalizing’ the rock (which still had no name), but no one really knew what for, and the matter was deferred to a committee. A window of opportunity had been opened, but no one could quite suspect what use it would be put to.
Genesis and settlement
With no expressions of interest from states in the region, Savros summoned his inner circle of advisors to the privacy of his mountain getaway. What emerged from this evening is still a matter of speculation and what we know of it has been reconstructed from scattered archives and memoires of those who were in attendance. At first, Savros had apparently been characteristically enigmatic about the reasons for bringing them together at short notice. But after dinner and over glasses of (very good) cognac, he had flipped a switch in his parlor, turning on a spectacular holographic display of a paradisiacal island, rich with fields, roads and villages hovering just above the guests, and had made the following almost comically solemn announcement: ‘Ladies, and gentlemen, welcome to the soon-to-be state of Eunomia, the first state built by and for civil society, a state dedicated to the highest values of justice, solidarity and freedom!’ The guests had been flabbergasted and, were it not for Savros’s reputation for fits of anger, might have shared a piece of their mind that this all looked rather megalomaniac. Savros, however, had obviously given the idea considerable thought and over a night of passionate discussions had little by little convinced one after the other that this was not only a project worth trying, it could very well be the defining project of the age.
During the next weeks the decision was made to launch a secret operation, codenamed ‘Tiger Lily,’ that would begin to turn the project into reality. It was to involve, at first, six cargo ships (including two mega-container carriers, one supertanker, two large ferries and one commanding ship). The plan was for these ships to set sail from several points around the globe with shipping orders indicating routine trading routes. Seven days later, they would meet at a secret location in the mid-Pacific. At 0200 hours, the passengers would disembark and bring ashore the contents of the container ships: generators, desalination equipment, cement, various construction vehicles, and much more. A leading conservationist had advised on how to engineer a rapidly expanding ecosystem through an assortment of bees and bugs. Enough material was brought on that first trip not only to construct a small self-sufficient village, but also to lay the seeds for greater things to come: the expansion of the village into a city; the transformation of that barren land into a fully sustainable, eco-friendly, autonomous site of life.
The project was executed with almost military precision and was a logistical feat of unprecedented proportions. The first settlers planted a flag (a superimposed globe and scale against a white background) at the highest point of the island, where it would be visible to all ships passing nearby. The settlers were under strict orders that, even in an emergency, a core group would be required to stay on the island and continue to stake its claim to the territory. Soon after, Eunomia started printing temporary passports establishing Eunomian citizenship. What lay behind that initial land capture, however, was even more extraordinary than the capture itself, and was meant to forever shape the face of international relations and international law to come. In his youth, Savros had been influenced by the Ayn Rand-inspired notions of a ‘free state project.’ Although he had since parted ways with his earlier libertarian impulses, he had been deeply impressed by the idea of state creation as a possible private enterprise. He was, in a sense, in good company. ‘Micronations,’ as they were known, had long been a bit of a booming – if not very serious – industry. Unlike the Barony of Caux, Seborga or Redonda, Eunomia could not claim some (even dubious) ancient or medieval title. Moreover, Savros wanted to distance himself from the eccentric or the merely symbolic. The (in)famous ‘Principality of Sealand’ (or ‘Rose Island’) had perhaps come the closest to forming a successful micronation, but it had compromised any chance of international respectability by engaging in dubious activity.
But Eunomia had the advantage of a clean slate, one unencumbered by existing titles, imperial rivalries, or potentially aggrieved populations. Savros’s main intuition was that these earlier attempts had failed because they never gave themselves the means to succeed. To build the foundations for a real state, Savros thought, what was first needed was for Eunomia to behave like one internally, indeed to be something of a model state. On the 1st of January, the State of Eunomia was unilaterally proclaimed following a constitutive assembly and referendum in which 99% of the island’s original population of 400 (who ironically described themselves as the ‘founding pilgrims’) decided to constitute themselves as a state. No effort had been spared to reduce violence as an ingredient of state creation, with even Savros willing to take second place in what was a lengthy process of egalitarian negotiations (historians have since shown that there was nonetheless some backroom maneuvering to prevent the process from derailing entirely). As Eunomians would later boast, no one was killed or excluded to make way for Eunomia, a state that took nothing away from anyone to come into existence.
The name ‘Eunomia’ (rather than ‘Crab Cay,’ ‘Paradise Island’ or ‘New Atlantis’) had been chosen in honor of a brilliant Cambridge don who had taught Savros in his early years (although Allott is supposed to have muttered from his retirement that he thought the whole thing was ‘preposterous’). The motto of Eunomia was taken from the book by the same name: ‘Humanity must take command of its future.’ Eunomia, its constitution proclaimed, would be a democratic and sustainable republic, dedicated to promoting the human rights of all, a haven for the arts and a technological, ecological and social laboratory. Rex Fuller, a Nobel peace prize winner dedicated to global justice, was elected as its first President.
A state in search of statehood
Although some of the more idealist and less worldly participants in the project had perhaps thought that they could simply busy themselves creating their utopia at home, it soon emerged that it would at the very least be inconvenient, and indeed dangerous, not to have Eunomia’s status as a self-proclaimed state recognized. This recognition, however, turned out to be an uphill struggle, as it emerged that the international community was not particularly intent on having Eunomia assert its statehood. In the process, the Eunomians were to learn the hard way the difference between the constitutive and declarative theories of state formation.
At first, only the two closest micro-states extended recognition. Taiwan then obliged in exchange for reciprocal recognition. Burkina Faso, which in the past had been known to recognize the Barony of Caux in exchange for financial help, was happy to oblige again, as was Paraguay. Negotiations were under way with Transdniestria, Karabakh, Abkhazia and Kosovo. And there were many, worldwide, who cheered the underdog, the team of idealists ‘who wanted to become a state.’
Several factors, furthermore, gradually increased Eunomia’s profile and buttressed its claim to statehood. After Eunomia built its first harbor, some shipping companies alerted their states to the benefits of using the island as an occasional repair station. Eunomia’s Ministry of the Seas then touted its role as an essential element in enabling freedom of the seas in the Pacific, suggesting that Eunomia should be allowed to become a party to UN Convention on the Law of the Sea (UNCLOS). Eunomia was also fast emerging as a significant high-end tourist destination, raising the interest of several big hospitality groups, which argued that their investments required the protection of international treaties. Additionally, some states became concerned, especially given the significant numbers of their nationals residing in Eunomia, that they had no possibility of exercising normal consular services. Although the addition of ‘functional’ manifestations of sovereignty might not make a state, they certainly reinforced the case that this was not as outlandish a claim as some made it to be.
Eunomia was also emerging as the darling of at least some international organizations. When a boat landed on Eunomia’s shores releasing it’s cargo of Afghan refugees screaming ‘Eunomia! Eunomia!’ all were granted asylum status under Eunomia’s super-fast track refugee law. Given the inaccessibility of Eunomia, some pointed out that it was not hard to be generous with refugees, but the government nonetheless reaped the benefits of its decisions (especially after it emerged that the ship had been prevented from even resupplying with water off Australia’s 400 mile Refugee Exclusion Zone). This endeared Eunomia to much of civil society and earned it the praise of the UNHCR. All in all, the Eunomians began to feel as if they were starting to garner significant implicit recognition for statehood through interaction.
Still, several states categorically refused to enter in relations with Eunomia and there were many in the diplomatic community for whom Eunomia was the butt of jokes. A derogatory term was even invented, a sort of reverse analog to the ‘Gongos:’ the ‘Privstate.’ Although Eunomia sought to accede to the Geneva Conventions in an effort to buttress its basic internationalist credentials, the Swiss government characteristically declined in view of the contentiousness of the matter, and accepted Eunomia’s “instrument of ratification” only as a unilateral declaration.
Eunomia gets its day in Court
But Savros was convinced that he could, as he liked to put it, ‘beat the international legal world at its own game.’ A team of some of the best international lawyers in the world had been assembled, including veterans of pleadings before the ICJ. They were supported by a major New York law firm’s pro-bono program, which channeled dozens of interns from the best international law schools to work for a pittance. Eunomia would have loved to bring a case before the ICJ challenging recalcitrant states to recognize its statehood, but its lawyers knew there was a Catch 22: to do so they would need to establish what the case would presumptively seek to validate, namely that Eunomia was already a state (and therefore could have ‘disputes’ with equals). Moreover, not being party to the Charter, Eunomia could hardly be said to have standing before the international court.
The sense was that membership in the UN would be quite determinative of the issue, and so Eunomia lobbied the UN General Assembly to that effect. The dedicated team of Eunomian representatives in New York, advised by veterans of Baha’i and Falun Gong campaigns at the UN, pressed on, often bypassing state representatives altogether to address ‘the people of the world.’ In what was perhaps a forewarning of things to come, they engaged in a sophisticated game of ‘divide to rule’: to the third world they claimed that Eunomia’s statehood would show that the West was no longer the sole anointer of sovereignty; to the North they argued that Eunomia would serve to showcase the best international standards of domestic governance and might provide a modern blueprint for state construction. It was also rumored that a number of leaders were ‘convinced’ to support Eunomia after being treated to lavish trips to Eunomia and receiving promises to educate their children in its new ‘global campus’ (although some claimed this was just part of a smear campaign to make Eunomia look like a banana republic).
The UN General Assembly dithered, as the General Assembly sometimes did, and a consensus emerged that before taking any bold steps to accept this most unusual of new entrants, it needed more legal advice. A key Eunomian negotiator, who had previously been involved in anti-nuclear litigation, suggested that the General Assembly ask the ICJ for an advisory opinion. The Solomon Islands, which received substantial support from the Savros Foundation, agreed to sponsor a resolution requesting such an opinion. In retrospect, this was perhaps the decisive moment: the Solomons and a few others, who perhaps knew better than any other what it was to be a very small state, provided the missing link between the non-state and the state world. The question was thus asked formally to the ICJ: ‘Can the island of Eunomia be considered a state under international law?’
There was apparently some embarrassment at the ICJ, but Eunomia had by then existed for five uninterrupted years, and showed all signs of being there to stay. Besides, there was no way the judges in the Hague were going to pass up the opportunity to revisit the international law of the conditions of statehood. Eunomia essentially argued that states could not have it both ways: on one hand, conclude investment ‘agreements’ with Eunomia that were treaties in all but name, and arbitrarily withhold recognition on the other. A professor appearing on behalf of Eunomia made an impression by invoking arguments from the much vaunted ‘informality’ of international law: what mattered, he underlined in essence, was not that it was called a state by others, but that it was effectively treated as one. A few states hostile to recognition intervened at the ICJ, arguing that any new territory emerging on the High Seas after 1982 should be considered to be part of the High Seas. Essentially, the argument was that the island, as an outgrowth of the High Seas, had been res communis rather than terra nullius from the point it emerged, thus invalidating the attempts of individuals or states to lay claim to it (a suggestion was even made that the territory of Eunomia should be considered part of the common heritage of mankind and administered internationally, but the proposal seemed to find few takers). Several states, on the other hand, made representations on behalf of Eunomia emphasizing that it complied with all the classic criteria of statehood. They pointed out that article three of the Montevideo Convention clearly stated that ‘the political existence of the state is independent of recognition by the other states.’ Eunomia could thus exist even in the shadow of non-recognition. Some even threw in a bit of self-determination for good measure, and went at lengths to emphasize that there was “nothing illegal” about proclaiming independence, even though they could not quite put their finger on how it might be opposable to third parties.
After two months of deliberation, the words fell from the ICJ: Eunomia had a defined territory, it had a permanent population, it was capable of governing itself, and it had the capacity to enter into relations with other sovereigns. In other words, it was a state, no matter the unusual conditions of its emergence. Moreover, Eunomia clearly belonged to Eunomians (no one had really argued otherwise) who combined both a title (“discovery”) and an impeccably effective occupation. Besides, the ICJ underlined that whilst recognition might certainly make participation in international life easier, the failure by other states to recognize Eunomia was not conclusive of its non-state status. No less than Hersch Lauterpacht was quoted in support: ‘To recognize a political community as a State is to declare that it fulfils the conditions of statehood as required by international law. If these conditions are present, the existing States are under the duty to grant recognition.’ The decision was adopted by a narrow majority and the dissent penned a joint opinion. The French judge in particular emphasized that this was a perversion (‘dévoiement’) of the notion of statehood, that Eunomia failed a new and mysterious test of ‘publicness,’ and that the majority decision would pave the way to the multiplication of pseudo-states and even endanger international law (privately, the judge described the whole project as a ‘neoliberal Anglo-Saxon conspiracy’).
But it seemed hard to escape the conclusion that, on this first leg of its journey, Eunomia had achieved what it had so ardently sought. Eunomian commentators were quick to point out that all state creation had once involved something akin to a private enterprise and that at least Eunomia had not privatized its public services like so many supposedly impeccably ‘public’ states. A famous Slovak Lacanian philosopher wrote a widely read editorial in which he suggested that the NGO world had always had a repressed sovereign wish, and that the rise of the private-state heralded a new opportunity for civil society to act on that wish for the advancement of their particular purposes and goals. The Eunomia Daily‘s front page was more to the point: ‘Habemus statum!’
End of episode 1. To be continued….