The proposed “nation” of Asgardia has generated a lot of buzz in the media since its announcement and even more so with its spread through social media. The proposed scientific haven is the brainchild of several key figures in the scientific and academic community. There is plenty of information on the proposal online, so this blog post will not take up time explaining the concept. Rather, this post will get right heart of the matter and explain to its readers why, in the eyes of international law, it will not be considered a legitimate sovereign nation.
The fundamental question of whether Asgardia qualifies as a state revolves around what constitutes a “state” in the context of international law. While there are many traditional definitions as to what meets the requirements of a “state” there are four qualifications that generally resound:
- There must be a people;
- There must be a defined territory;
- There must be a government; and
- There must be capacity to enter into relations with other States of the world.
These are not just arbitrary components but factors that have been applied by courts internationally.
The first hurdle that has to be surpassed is whether or not there is a permanent population. This is problematic for Asgardia because while those who apply to become citizens likely have a common vision for Asgardia, they do not have a common destiny. This “common destiny” approach was an important consideration for the Administrative Court of Cologne when it was deciding whether a German national’s claim to be a citizen of the Principality of Sealand was a valid one in the seminal case In re The Duchy of Sealand. The Court in that case rationalized the “nationals” of Sealand may have a common vision, but they do not physically exist in a communal life and were scattered across the earth located in different countries. Similarly, any purported “common vision” falls short of being a “common destiny” as the citizens of Asgardia will be a blend of individuals scattered across the earth who are connected in a virtual world and whose undertaking is merely aimed at the furtherance of common hobbies and interests.
The second factor is even more problematic as Asgardia has no defined territory nor are there plans for a “territory” for its citizens to occupy. The only “territory” Asgardia is planning is a single unmanned satellite, which will not be occupied in the physical sense by Asgardia’s citizens. Article VIII of the Outer Space Treaty does not help Asgardia’s cause either. Consider where:
“A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.”
This means a recognized nation on Earth will have jurisdiction over the “territory” of Asgardia, which doesn’t complement the idea of an independent state. Other than the planned unmanned satellite, the only “territory” the citizens and government of Asgardia currently occupy together is the virtual world, which while sufficient for online gamers, is not adequate to meet the legal test for a state in the physical and legal world.
The next factor does not play in Asgardia’s favor either as it does not have a government independent of a sovereign nor is it likely to. The government of Asgardia, which plans on launching a single unmanned satellite as its territory, will remain on Earth subject to the government and laws of the country where it resides. It is improbable the government of the territory the Asgardian government will reside within will tolerate the presence or recognize a foreign government for an entity like Asgardia nor is it likely an embassy of Asgardia will be tolerated either. In other words, a future government of Asgardia will be subject to a sovereign and not govern independent of a sovereign, which means it fails this portion of the test for a state recognized under international law.
The final factor, which is the capacity to enter into relations with other States of the world, has been addressed as Asgardia intends to apply for recognition by the United Nations. This is the wildcard as it is unclear outside of political whim whether the United Nations would accept Asgardia as a state. Anything is possible, but because Asgardia cannot meet the other three fundamental factors of a state makes an acceptance unlikely, unless the international body wants to open its membership to other so-called nations in existence like the Principality of Sealand and others that inevitably pop up in the future and seek admission.
Consequently, it is improbable Asgardia will be recognized as a state and more probable it will be recognized as an international corporate entity subject to the jurisdiction and laws of terrestrial governments. The concern is how many other schemes Asgardia will inspire to further distract from legitimate private efforts to develop outer space.