Following the previously reported incident and issuing of immediate measures by the ISA Secretary-General, on 15 December 2023 the President and Vice-Presidents of the Council for the 28th Session of the International Seabed Authority (ISA) issued a Join Statement offering further considerations and updates on the incident.
The factual background notes:
On 1 December 2023 the ISA Secretary-General invited the Netherlands, as flag state of the Arctic Sunrise, to consider “any necessary regulatory steps” under Articles 87(2) and 147(3) of UNCLOS and Paragraph 8(g) of the Notification of immediate measures. The Netherlands formally responded on 15 December 2023.
On 2 December 2023, Tonga Offshore Mining Limited (TOML) notified the Secretary-General that the conduct of Greenpeace International also amounts to an interference with its programme of work as the scientific campaign carried out by NORI was done in partnership with TOML under the activities agreed by the Contractor signed with ISA.
On 4 December 2023, the Secretary-General provided the Council with a report on the immediate measures taken on 27 November 2023 stressing that the “supervision over activities in the Area ultimately rests with the Council” pursuant to art.162(2)(a) and (l) of UNCLOS and that the Immediate Measures have been insufficient to remedy the situation and allow the Contractor to pursue its activities without undue interference.
On 4 December 2023, Greenpeace reportedly ceased its interference with the exploration activities of NORI.
ISA Council President and Vice-Presidents Join Statement
Note, according to the statements of Greenpeace and The Metals Co, the Greenpeace protestors complied with a dutch court order and descended from climbing the MV Coco on 30 November 2023. On 28 December 2023 NORI reported it had completed the exploration activities, and reiterated its expectation to submit an application to the ISA for a commercial exploitation contract following the July 2024 meeting of the ISA.
The 4 December 2023 Report of the Secretary-General is not currently accessible. However, the ISA Council President and Vice-Presidents Join Statement of 15 December 2023 may be interesting in several respects. First:
ISA Council President and Vice-Presidents Join Statement
- Notes with concern that the reported protest activities of Greenpeace International on board and in the vicinity of “MV Coco”, the exploration vessel operated by NORI, prevented the Contractor from carrying out its lawful exploration activities in the Area, involving a scientific task to collect environmental data in the NORI-D Contract Area on recommendation of the Legal and Technical Commission;
- Expresses its concern about the serious threat posed to the safety of the crew and other personnel on board the vessel;
The Joint Statement thus makes no explicit mention of “serious harm or the threat of serious harm to the marine environment” (Regulation 33(3) of the Regulations on Prospecting and Exploration for Polymetallic Nodules). Second:
ISA Council President and Vice-Presidents Join Statement
- Takes note that the Greenpeace vessel, Artic Sunrise, left the NORI-D contract area on 4 December 2023, and invites the Council to address the incidents in the NORI-D contract area during Part I of the 29th session of ISA;
- Informs that the President and Vice-Presidents of the Council remain attentive to different legal instruments and institutional mechanisms that may contribute, beside UNCLOS and ISA, to a solution in this matter;
- Calls upon Greenpeace International to refrain from future actions that could disrupt the contractual activities of NORI on board its vessels or in its contract area and further calls upon Greenpeace International to act with due and reasonable regard in conformity with Articles 87 (2) and 147 (3) of UNCLOS.
In referencing Articles 87(2) and 147(3) of UNCLOS, the Joint Statement implicitly recognise peaceful protests at sea as an internationally lawful use of the sea related to the freedom of navigation under Article 87(1) of UNCLOS (The Arctic Sunrise Arbitration (Netherlands v. Russia), para 227).
De Maribus 