Beginning 23 November 2023, a reported incident involving an ISA contractor, Nauru Ocean Resources Inc (NORI) (Contract for Exploration for Polymetallic Nodules between the International Seabed Authority and Nauru Ocean Resources Inc (22 July 2011)), and Greenpeace International, has occurred in the NORI-D contract area (Clarion-Clipperton Zone), resulting in NORI reporting to the ISA the disruption of its exploration activities conducted by the MV Coco 25-26 November 2023.
“In its letters to the Authority, Nauru Ocean Resources Inc alleged that the conduct of Greenpeace International representatives had caused significant safety risk since 23 November 2023 in the NORI-D contract area […] According to Greenpeace International, it is engaged in a ‘safe and peaceful protest at sea’, in the exercise of its ‘right to peaceful protest at sea’ [see previously, The Arctic Sunrise Arbitration (Netherlands v. Russia)]. According to Greenpeace International, ‘there are [no] threats to the safety of individuals caused by the actions of Greenpeace International’.”
Notification of immediate measures of a temporary nature (27 November 2023), paras 5-6.
The Secretary-General of the ISA concluded “[t]he circumstances described by NORI prima facie pose a serious threat to the safety of individuals present in the Exploration Area and to the marine environment” (Notification of immediate measures of a temporary nature (27 November 2023), para 6). Therefore, on 27 November 2023 the Secretary-General of the ISA exercised his powers under Regulation 33(3) of the Regulations on Prospecting and Exploration for Polymetallic Nodules, to promulgate immediate measures of a temporary nature. Regulation 33 applies when “the Secretary-General has been notified by a contractor or otherwise becomes aware of an incident resulting from or caused by a contractor’s activities in the Area that has caused, is causing or poses a threat of serious harm to the marine environment” and provides:
“Pending any action by the Council, the Secretary-General shall take such immediate measures of a temporary nature as are practical and reasonable in the circumstances to prevent, contain and minimize serious harm or the threat of serious harm to the marine environment. Such temporary measures shall remain in effect for no longer than 90 days, or until the Council decides at its next regular session or a special session, what measures, if any, to take pursuant to paragraph 6 of this regulation.”
Regulations on Prospecting and Exploration for Polymetallic Nodules, Reg 33(3)
The Secretary-General took the following immediate measures of a temporary nature:
a. Calls upon all parties present in the vicinity of MV Coco as of 27 November 2023 (other than the crew of MV Coco) to maintain a safety distance from MV Coco of at least 500m (unless otherwise authorized by the captain of MV Coco);
b. Calls upon parties who have boarded MV Coco on or since 25 November 2023 without authorization from the captain of MV Coco to refrain from interfering with the operation of MV Coco;
c. Calls upon Nauru Ocean Resources Inc and Greenpeace International to cooperate with a view to ensuring that the parties who have boarded MV Coco on or since 25 November 2023 without authorization from the captain of MV Coco are safely disembarked from the MV Coco as soon as practicable;
d. Calls upon Nauru Ocean Resources Inc and Greenpeace International to report to the Authority on a daily basis as to the steps taken to ensure compliance with this immediate measure of temporary nature (unless no further updates are required by the Secretary-General);
e. Calls upon Nauru Ocean Resources Inc and Greenpeace International to relay the contents of these immediate measures of a temporary nature to their personnel on board or in the vicinity of MV Coco;
f. Calls upon Nauru Ocean Resources Inc to provide a detailed report on the assessment of the consequences of the disruption of the exploration activities Nauru Ocean Resources Inc alleges to have taken place since 23 November 2023;
g. Calls upon the Kingdom of the Netherlands to consider what measures, if any, are warranted pursuant to international law and the laws of the Netherlands concerning the conduct of Greenpeace International and the Arctic Sunrise in the present circumstances.Notification of immediate measures of a temporary nature (27 November 2023), para 8.
De Maribus 