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The American tech company Del Complex announced on October 31, 2023, that it would be building the first of many “cluster platforms” in the ocean. The company stated that this move would allow it to avoid being subject to “arcane” artificial intelligence (AI) regulations from supranational organizations like the European Union (AI Act) or states like the United States (2023 AI Executive Order). Del Complex wants to achieve this by building a network of “barge-based compute platforms” known as “BlueSea Frontier Compute Clusters” (or “BSFCCs”), from which its staff would carry out operations and research. Each BSFCC will have state-of-the-art features, such as solar panels and cooling turbines, in what the business refers to as “[t]he pinnacle of compute and autonomy. “Del Complex’s aspirations don’t end here, though. In essence, the business wants BSFCCs to function as independent floating artificial islands in the high seas, and to “operate as sovereign nation States.” Curiously, Del Complex cites the 1933 Montevideo Convention on the Rights and Duties of States’ four customary statehood requirements as well as the United Nations Convention on the Law of the Sea (UNCLOS) as the legal foundation for the creation of BSFCCs on the high seas. Innovative methods generate increasingly significant problems with the legal framework surrounding floating artificial islands, going beyond matters of feasibility. Is there a legal foundation for the creation of BSFCCs offshore?

Which legal framework would be relevant to BSFCCs? Finally, may BSFCCs meet the conditions set forth by international law to become sovereign States?

It is necessary to define or classify BSFCCs by UNCLOS before delving into the legality of their establishment in the high seas. It would make sense to start thinking of them as manufactured islands. In this regard, the creation of artificial islands in territorial seas, exclusive economic zones, or “EEZs,” as well as installations erected on a coastal state’s continental shelf, are covered by articles 11, 56, 80, and especially Article 60. UNCLOS generally acknowledges coastal States’ sole authority to create artificial islands in regions within their jurisdiction, with minimal restrictions. While coastal states have considerable latitude to construct such features in their territorial sea (with the possible exception of obstructing maritime transit routes), Article 60 of UNCLOS lays out specific requirements for creating, upkeep, security, and dismantling artificial islands in the EEZ. But what about the creation of man-made islands in regions outside of national borders? All States are free “to construct artificial islands and other installations permitted under international law” on the high seas, according to UNCLOS Article 87. This right is reliant only on the installation not being built and is subject to the general exercise of “due regard” for the rights and duties of other States in the high seas. naturally extends into the seabed and subsoil beneath the high seas on the expanded continental shelf of a coastal state (a non-issue for floating islands). It is also commonly known that UNCLOS assumes that man-made islands, installations, and buildings on the high seas continue to fall under the authority of the State that designated them. Articles 208 and 214, which set exclusive prescriptive and enforcement power, respectively, over the management of pollution from seabed activities associated with these facilities, suggest this. Nonetheless, there are grounds for doubting whether the artificial island regime would apply to BSFCCs. This is due to the company’s references to the barges’ “autonomy” and the precise drawings and designs provided by (see here), which give rise to the possibility that they could be self-propelled even if Del Complex has not released any details regarding the construction and makeup of these barges. Though this may seem like a small point, these man-made barges’ ability to propel themselves could justify a reclassification under international law of the sea, which would bring up some slightly different issues.

Moreover, BSFCCs could legitimately be regarded as “ships” in the same sense if they are capable of navigating (either on their own or with the assistance of other vessels).as carriers of aircraft. But what would it mean to reclassify BSFCCs as “ships” instead than “artificial islands” in order to ensure that their use on the high seas is lawful? If BSFCCs are classified as ships, they will fall under the exclusive flag State jurisdiction regime, which is governed by the State in which they are registered, but with much more elucidation. “Ships shall sail under the flag of one State only,” according to Article 91 UNCLOS, which gives the so-called “flag State” “exclusive jurisdiction and control in administrative, technical, and social matters over ships flying its flag” (Article 94; emphasis added). If a ship is not flying a flag of a state, or if it is flying more than one flag, it loses its state and becomes subject to enforcement authorities.
under the right of visitation of all States (Article 110 UNCLOS). Therefore, BSFCCs may come under the exclusive authority of the State that deploys them, regardless of whether they are classified as artificial islands or ships. In this regard, it is noteworthy that although UNCLOS takes into account situations in which ships might not fall under the exclusive jurisdiction of a flag state (such as stateless vessels), it does not take into account situations in which man-made islands in the high seas might not fall under the exclusive jurisdiction of the State that builds or places them. Nonetheless, it is true that a State may be barred from exerting jurisdiction over both manmade facilities and ships wearing its flag, which emphasizes the significance of this conversation.

This brings us to what is arguably Del Complex’s most audacious claim: that BSFCCs function as independent states at sea. Since artificial islands and ships are only intended to be under the jurisdiction of their flag or deploying State, UNCLOS would seem to utterly disregard this circumstance. One could counter that this is very understandable, given that the establishment of states is a matter of general international law rather than maritime law. Del Complex makes reference here to the traditional “Montevideo criteria,” which enumerates the four prerequisites for statehood: (1) a population that remains constant, (2) a defined area, (3) a government, and (4) the ability to interact with other States. Still,

Del Complex is confident BSFCCs could achieve these conditions, but State practice strongly opposes BSFCCs being recognized as sovereign States. All one needs to do is consider the instance of Sealand, an artificial installation (in this case, a disused offshore oil platform) created by the United Kingdom in the (then) high seas regions of the North Sea, which British people later occupied and proclaimed a sovereign state. There are now no states in the world that have recognized Sealand, and there are no signs that this will change. States know that high seas areas are common to all States, and this understanding is reflected in their strong unwillingness to accept (any) sovereign claims there.in UNCLOS Article 89.

In conclusion, from the standpoint of international law, Del Complex’s audacious ambition to establish a colony of floating “sovereign” artificial island States seems incredibly naive. Depending on whether they are classified as “artificial islands,” “installations,” or “ships” (based on how they are propelled), BSFCCs will either be under the sole authority of the State in which Del Complex operates (or registers) them, or else they will be regarded as stateless. In the latter case, there is no doubt that universal jurisdiction would arise, allowing any State to impose its rules and regulations—even those pertaining to the high seas—on these floating islands. Regarding the possibility that BSFCCs could give rise to micro-States in regions outside of national borders,

The common nature of the high seas seems to offer a resounding nay according to both treaty law (Article 89 UNCLOS) and State practice. It’s interesting to note that Del Complex might do better to register or run BSFCCs out of a jurisdiction that shares its values. The business hasn’t, however, expressed a desire to do so thus far.

As technology penetrates every sphere of civil society, non-state actors—including smaller private companies looking for a competitive edge in the global marketplace—are probably going to play an increasingly prominent role in international law. The author hopes that this work will serve as a solid jumping off point for conversations about some of the most creative or unconventional claims made by smaller non-state players in the 21st century, especially those from the commercial sector.

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Ghazala Siddique