As previously noted, on 30 November 2023 the Court of Amsterdam issued a preliminary relief order in summary proceedings, Nauru Ocean Resources Inc (NORI) v. Stichting Greenpeace Council and Stichting Phoenix (ECLI:NL:RBAMS:2023:7600). The court noted that NORI was conducting a post-disturbance monitoring campaign in the NORI-D Contract Area and NORI requested Greenpeace “maintain a safe distance of at least 500 meters from our research vessel to ensure the safety and well-being of all personnel at sea” (paras 2.2, 2.7, 2.10). Greenpeace informed NORI it was “undertaking a peaceful protest at sea” and established direct communication channels (paras 2.6, 2.8).
Greenpeace kayaks, dispatched from the Arctic Sunrise (Netherlands flag) mothership, regularly sailed around the Coco (Denmark flag), attaching a banner to a cable and hindering the loading and unloading of research material from the Coco. Subsequently, four persons from the Arctic Sunrise boarded the Coco without authorization and without intent to leave the vessel in the short term, establishing themselves on the A-frame used to launch/return submersibles, disrupting NORI activities. Having pressed an emergency button, the vessel could not safely move.
The court made a number of observations:
- The court affirmed Articles 10 and 11 of the European Convention on Human Rights affirms Greenpeace’s right to take action and make its opinion known to the public, subject to restrictions provided for by law which are necessary in a democratic society in the interests of inter alia national security, public safety, the prevention of disorder and criminal offences, the protection of health or morals and the protection of the rights of others. However, the Coco is not a public space, but private property, so NORI does not in principle have to tolerate the presence of the activists there, unless Greenpeace has compelling interests in doing so.
- Greenpeace is primarily concerned with publicity about its actions. After a week, Greenpeace’s interest in continuing this occupation is limited as plenty of publicity opportunities arose, while NORI’s interest in its responsibilities concerning the safety of all those present on the Coco remain pertinent. The interest in preventing a serious accident outweighs Greenpeace’s interest in continuing the action on the Coco…in addition, the presence of the activists slows down the progress of the investigation.
- Serious damage to the ship by Greenpeace activists has not occurred and an order for Greenpeace persons to leave the Coco will reduce the nuisance. A certain degree of inconvenience when conducting protest actions is inevitable. Therefore, a claim seeking an injunction to prevent Greenpeace defacing, damaging, impeding or hindering in any way the conduct of NORI’s investigations and Coco’s navigation was rejected.
- The requested order to cease all possible actions with regard to the Coco goes much further than is necessary for the purpose to be achieved and is therefore rejected.
- NORI‘s demand that Greenpeace be prohibited from being within a radius of 500 meters around the Coco for a period of six months and from taking or facilitating unlawful or nuisance actions therein as long as the Coco is in the Clarion Clipperton Zone would ban future actions by Greenpeace, which cannot be assumed in advance to be unlawful. Actions on the open sea within a radius of 500 meters around the Coco are not unlawful in advance.
- The immediate measures of a temporary nature issued by the Secretary-General of ISA, included a call to maintain a safety distance of at least 500 meters from the Coco, but this is not an enforceable measure, and it is unclear to what extent this authority is authorized to actually impose the aforementioned measures on (in this case) Greenpeace.
- Regulation 6 of the Convention on International Regulations for the Prevention of Collisions at Sea (COLREGS) provides no basis that Greenpeace should maintain a distance of 500 meters around the Coco.
- While Greenpeace must comply with applicable law and regulations, including COLREGS, imposing a ban on Greenpeace from being located within a radius of 500 meters around the Coco, without there being concrete indications of the necessity, is too great an infringement of Greenpeace’s right to take action.
- The operative part of the decision provides:
- 5.1 Orders Greenpeace with immediate effect to order its people to disembark from the Coco;
- 5.2 Orders Greenpeace to pay NORI a penalty of €50,000.00 for each day that it fails to comply with the requirements referred to in 5.1, up to a maximum of €500,000.00.
As previously reported, Greenpeace complied with the order.
De Maribus 