In March 2024, the Ministry of Foreign Affairs of the Netherlands submitted a Note Verbale (Ref: Min-BuZa.2O242O479-12) (14 March 2024) to the International Seabed Authority (ISA) concerning the previously reported Nauru Ocean Resources Inc Incident of 2023 (see previously, here, here and here). Enclosed therein was a report of the “investigation by the Human Environment and Transport inspectorate [ILT] into the events related to the actions by Greenpeace International carried out from the Dutch flagged vessel MV Arctic Sunrise in the vicinity and on board the Danish flagged vessel MV Coco, operated by Nauru Ocean Resources Inc (NORI), from 22 November to 4 December 2023” [Note Verbale (Ref: Min-BuZa.2O242O479-12), p. 1].
The investigation was conducted following, among other reasons, a notification from Nauru to the Netherlands under Article 94(6) of UNCLOS, requesting “an immediate investigation by the Netherlands of the conduct of the MV Arctic Sunrise and for all necessary action to be taken by the Netherlands to ensure compliance by the MV Arctic Sunrise with the immediate measures and any future measures issued by the Authority” [ILT, Investigation M.V. Arctic Sunrise, para. 2]. The investigation concerned the safety aspects of the actions of MV Arctic Sunrise and kayaks launched from thereon, but not the safety aspects of the presence of Greenpeace International protesters onboard the MV Coco [ILT, Investigation M.V. Arctic Sunrise, para. 10].
Of interest in the context of the previously reported immediate measures of a temporary nature under Regulation 33(3) of the Regulations on Prospecting and Exploration for Polymetallic Nodules, two findings of the investigation are noteworthy:
11. The Inspectorate has not been made aware of any danger of oil spills originating from the kayaks or other dangers to the marine life. In any event, it is very unlikely that an event could have unfolded as a result of these hazards, that would have had the severity or magnitude to cause a serious impact on the marine environment. Therefore, the Inspectorate will not include the danger to marine life or the environment in this investigation.
[ILT, Investigation M.V. Arctic Sunrise, paras. 11 and 17]
[…]
17. With respect to the purported requirement of maintaining a safety or operating zone of 500 meters around the MV Coco, the Inspectorate found no (legal) basis, whether under the (provisions of the) 1972 Convention on the International Regulations for Preventing Collisions at Sea (COLREGS) or otherwise, for prescribing and maintaining a safety or operating zone of 500 meter around the MV Coco. It refers to the position of the Government of the Netherlands as expressed in its Note verbale to the Secretariat of the International Seabed Authority, MinBuZa.2023.20081-42 dated 15 December 2023.
Based on the results of the investigation and taking into account the previously reported Dutch court proceedings, the Ministry of Infrastructure and Water Management of the Netherlands reaffirmed the right to peaceful protect at sea, but will continue discussions with Greenpeace International to observe relevant international safety standards, including Resolution MSC.303(87) (2010) of the IMO Maritime Safety Committee [Note Verbale (Ref: Min-BuZa.2O242O479-12), p. 2]. In particular, the manoeuvres of the MV Arctic Sunrise were not dangerous or unlawful, nor did they compromise the safety of navigation. However, the positioning of “Greenpeace activists in kayaks at the stern of the MV Coco created [avoidable] safety hazards towards these activists” [ILT, Investigation M.V. Arctic Sunrise, paras. 13 & 16].
De Maribus 