26 April 2021

Pseudostates

'Micronations: A lacuna in the law' by Harry Hobbs and George Williams in (2021) International Journal of Constitutional Law, comments 

Around 100 active micronations exist across the globe. Led by committed and eccentric individuals, these aspirant or wannabe states assert their claims to sovereignty in myriad ways. In dressing in the language of statehood, they challenge understandings of, and approaches to, international legal personality. In this article we provide the first legal survey of micronations. We develop a conceptual framework to understand what it means to be a micronation, explore their various forms, and analyze key public law issues. Our survey reveals that, although public law has not engaged with this phenomenon, states respond to the assertion of sovereignty by micronations in both benign and violent ways.

The authors argue 

On December 2, 1977, Prince Leonard Casley of the Hutt River Province cabled a telegram to the Governor-General of Australia, declaring war. With a permanent population of fewer than twenty residents, no standing army, and the Province’s 75 km2 territory entirely enclosed by the state of Western Australia, Prince Leonard was unprepared for war. Two days later, on December 4, 1977, he cabled a second telegram announcing the cessation of hostilities. The Australian government responded to neither correspondence, but Prince Leonard nonetheless claimed victory. According to his reading of the Geneva Conventions of 1949, a state should show full respect to a nation undefeated in war. As the Hutt River Province was undefeated, Australia must recognize its sovereignty. 

Australia never recognized the sovereignty of what subsequently renamed itself the Principality of Hutt River, but Prince Leonard is not the only person who has claimed to secede and create his or her own state. Although a new state is, of course, the goal of secessionist movements across the globe, including in South Sudan, Kosovo, Scotland, Catalonia, Quebec, and elsewhere, Prince Leonard’s Principality differs from these efforts. Built around a committed and eccentric individual, possessing only a very small resident population and unrecognized by sovereign states, the Principality was an “aspirant” or “wannabe” state. More commonly, it was known as a micronation. 

In contrast to true secessionist movements, micronations are generally considered trivial and are often ignored by the state. This may be because a micronation poses no security threat to the state and lacks a foundation in domestic and international law for its claim to independence. They are also not recognized in domestic or international forums as nations. Despite this, micronations dress themselves in the language of statehood and perform acts of sovereignty. In doing so, they critique and challenge understandings of and approaches to international legal personality. 

Micronations are an oddity that sits outside conventional understandings of the law. Perhaps for this reason, no significant legal study of micronations exists. In this article, we rectify this by providing the first legal survey of micronations. We define what it means to be a micronation, explore their various forms, and analyze key public law issues relating to their establishment and existence. This provides a rich body of material from which to assess and understand these unique attempts to assert statehood. 

Micronations are diverse in form and function. In Section 2 we develop a conceptual framework for micronations to better understand and interrogate their common features and considerable diversity. We do so by first establishing a definition of what it means to be a micronation, and then situating that definition within understandings of statehood. This enables us to define and better understand micronations before exploring whether and how traditional frameworks of international legal personality relate to or comprehend this phenomenon. 

In Section 3 we explore that diversity in more detail. Drawing on our conceptual framework we survey a wide cross-section of micronations, focusing on the varied motivations for their creation. Owing to the general paucity of scholarly engagement, in many cases we rely on statements from founders and individuals connected to particular micronations. Such stories are part of a micronation’s self-created history and narrative, and are therefore valuable in understanding the reasons why a person chooses to found their own country. Our survey reveals that individuals and small groups from all over the globe purport to secede and establish their own countries for a wide variety of reasons. 

Documenting the sheer prevalence of micronations is valuable in itself. However, uncovering the multiplicity of motivations that underlie the reasons for their formation illuminates our understanding of the legal disputes they provoke. In Section 4 we discuss several key public law issues that pertain to micronations. We examine how micronations seek to assert their sovereignty and independence, as well as how recognized nations respond to such claims. As we note, while state responses range from the benign to the violent, all responses share a commitment to the full enforcement of their laws. ... 

Micronations have escaped sustained attention in the legal literature. There is no legal account that identifies and comprehensively outlines the common features and outer bounds of this phenomenon. In fact, very few non-legal efforts that offer an explanatory account of micronationalism exist. In this section, we examine three non-legal attempts to develop a typology aimed at understanding and explaining micronationalism. In doing so, we explore classificatory accounts that identify commonalities and distinctions among and between micronations with the goal of discerning a legal definition to guide our discussion throughout this article. 

Before commencing, it is important to note that all accounts agree that micronations are distinct from recognized states. While no unambiguously “accepted and satisfactory legal definition of statehood” exists, the Montevideo Convention definition is most commonly adopted. Under the Convention, an entity must meet certain conditions relating to territory, population, government, and a capacity for external relations, in order to be characterized as a state. Recognition by other states is not one of those conditions. Whether and how these conditions relate to micronations is explored in more detail in the following section. 

One of the few approaches to understanding micronations is provided by a geographer. Dallen Timothy offers a broad account that delineates between four distinct models, only two of which are properly characterized as micronations. At one end of Timothy’s spectrum sit internationally recognized, sovereign, non-state entities. These entities do not unequivocally meet the declarative criteria for statehood expressed in the Montevideo Convention, but are nonetheless formally recognized (by at least one other state) as de jure sovereign entities. For this reason, they are not strictly micronations but, usually, states with no control over physical territory. This category includes the Baltic states of Estonia, Latvia, and Lithuania during the Soviet annexation, as well as the Sovereign Military Order of Malta. Founded in 1048, the Order of Malta no longer exercises jurisdiction over any territory and is not strictly a state, but nonetheless retains a “certain international personality.” While the Order once ruled (at different times) Cyprus, Rhodes, and Malta, its physical territory is now limited to two buildings in Rome. Nonetheless, it maintains diplomatic relations with 107 states, has UN permanent observer status, and issues its own passports, stamps, and coins. 

Timothy identifies his second model of non-nations as “semi-legitimate places.” These entities have some historical foundation for claims of independence but, unlike the former category, have not been formally accepted or recognized by the international community. He suggests that the Principality of Seborga, situated in the hills of Liguria, Italy, falls within this category. As we discuss in more detail below, however, the Principality lacks any reasonable legal foundation for independence. A more obvious candidate is the Republic of Somaliland, a semi-autonomous region of Somalia that declared its independence in 1991, claiming to be the successor of the State of Somaliland. The State of Somaliland was the name assumed by the former British protectorate upon independence from the United Kingdom on June 26, 1960. It lasted only five days, joining with the Italian-administered Trust Territory of Somaliland to form the Federal Republic of Somalia on July 1, 1960. Despite arguably meeting international law conditions for statehood, the Republic of Somaliland is not recognized by any other state. Nonetheless, because its claim has some basis in law it is not a micronation. 

The last two models are more traditionally understood as micronations. In the third, Timothy identifies places with little or no claim to historical legitimacy, but which have nonetheless “earnestly attempted to lay claim to national independence.” This archetype includes the most prominent micronations, like the Principality of Hutt River in Western Australia, and the Principality of Sealand off the United Kingdom’s Suffolk coast, as well as lesser-known wannabe states like Liberland on the Danube River. We place the Principality of Seborga within this category.  

Timothy’s fourth example largely eschews control of significant physical territory. Increasingly prevalent, these are “countries” that assert independence “but are in fact little more than social clubs.” While they engage in performative acts of sovereignty, this is conducted primarily for amusement or to seek attention rather than to actively challenge state sovereignty. Typically, the jurisdiction claimed extends to the real property owned by its founder, whether that is an apartment in London, a flat in Sydney, or a house in Nevada. 

Timothy’s typology usefully articulates major distinctions among micronations, as well as between micronations and other “non-nations.” However, it does not clarify all variances between such entities. Finnish artists Tellervo Kalleinen and Oliver Kochta-Kalleinen offer a more pronounced classification, distinguishing between three models: microstates, model-states, and new country projects. According to Kalleinen and Kochta-Kalleinen, microstates are very small countries whose territory is typically less than 20,000 km2. Although they generally meet common international legal definitions of statehood, their sovereignty may or may not be recognized. For instance, while the Vatican City, Monaco, and San Marino are all recognized as sovereign states, the Principalities of Hutt River and of Seborga were and are not. 

Model-states differ fundamentally from microstates. While microstates exercise (or purport to exercise) sovereignty over a small territorial expanse, model-states do not seek to establish legitimacy on the basis of territorial claims. Rather, they are “experiments in forming a state with all of its political institutions” and symbols. Like “real” countries, model-states perform acts of sovereignty; they write constitutions, compose national anthems, design flags, issue stamps and currency, and conduct diplomatic relations with each other (and seek recognition from recognized nations). As the founder of the Principality of Nova Arcardia, Steven Scharff, has explained, model-states are a “diplomatic version of a model railroad.” 

New country projects are similar to model-states in that they also engage in performative acts of sovereignty. However, while model-states generally do not lay claim to substantial physical territory, new country projects involve attempts to actually establish a viable state by “acquiring or creating territory which does not belong to any existing state.” This can involve sea-steading initiatives in which floating structures are “arranged into atolls and archipelagos,” allowing individuals to settle on the high seas outside national jurisdiction, like the Republic of Minerva, and the Floating Island Project’s South Pacific city. It can also include emerging efforts to develop permanent habitation on satellites like the Space Kingdom of Asgardia. Many new country projects have been influenced by libertarian philosophies, and their founders have sought to develop and operate economic schemes prohibited in their homelands. More recent initiatives, like Waveland and Asgardia, may also be inspired by cosmopolitan ideals of an integrated global pan-humanity. Nonetheless, even in these cases, new country projects can carry colonial overlays and resonances. In 2014, for instance, a United States man planted a flag in the Bir Tawil desert, asserting authority over 2060 km2 of land claimed by neither Sudan nor Egypt in order to establish a kingdom and fulfill a promise to his daughter to make her a princess. 

The typologies by Timothy, and Kalleinen and Kochta-Kalleinen, are helpful in identifying distinctions between different forms of micronations. However, they also make clear that there are “incredible differences” and “no clear sense of unity” among this diverse practice. Acknowledging this, sociologist Judy Lattas adopts a simpler definition. Lattas defines micronations as “tiny countries declared by ordinary people in an act that repeats the establishment of sovereign nations, at least in some of its protocols.” Lattas’s approach is valuable as it more clearly identifies what makes micronations distinct from similar entities. Nonetheless, it still fails to capture what we understand by micronations within the context of our legal analysis. After all, some micronations are established by prominent political actors rather than ordinary people. Other micronations might have only a very small resident population but may claim authority over large areas of land, or even outer space. Furthermore, spurred by the growth of the internet, some micronations claim hundreds of thousands of citizens, significantly more than many recognized states. 

This demonstrates the need to adopt a different definition. We define micronations as self-declared nations that perform and mimic acts of sovereignty, and adopt many of the protocols of nations, but lack a foundation in domestic and international law for their existence and are not recognized as nations in domestic or international forums. Our definition simply and accurately encompasses the diversity of micronations; it includes libertarian sea-steading efforts, experimental states formed within college dorm rooms or conceptual art projects, as well as states established to publicize political agendas. It also excludes similar but distinct phenomena, such as secessionist movements, Indigenous nations, microstates, and intentional communities. 

In contrast to micronations, secessionist movements and Indigenous nations enjoy some historical foundation for their assertions of independence, whether or not that claim has been formally recognized by domestic law or the international community. Indigenous nations, for example, are distinct political communities composed of individuals united by identity that have a long history of operating as a distinct society, with a unique economic, religious, and spiritual relationship to their land. Even where the state does not recognize this claim, their legitimacy is based on this status. By contrast, perhaps reflecting the relative moral and political strength of their respective claims and legal foundations, micronations tend to be ephemeral. One of the oldest continuing micronations, the Kingdom of Elleore, was established on the Danish island of Elleore in 1944. Designed to parody the royal traditions and government structure of Denmark, the Kingdom is now only occupied for a week-long celebration each year. 

Our definition also excludes microstates and intentional communities. Like many micronations, microstates have a very small population and control a very small geographic area. However, as “modern protected states,” microstates are internationally recognized sovereign political entities; a status that distinguishes them from micronations. Intentional communities, or communes, are communities of people that live together in common and assert authority to manage their internal affairs autonomously of the state. Such communities can be spiritual, like the Mennonites, or secular, like Twin Oaks Community eco-village, in the United States. In this sense, they are similar to micronations. Importantly, however, intentional communities do not use the language of statehood, instead seeking to operate within the state, albeit on a distinct basis.