On 19 March 2024 an advanced unedited report of the Secretary-General of the ISA was released, entitled, Incidents in the NORI-D contract area of the Clarion-Clipperton Zone, 23 November to 4 December 2023 (ISBA/29/C/4/Rev.1). The 2024 Secretary-General Report seeks to provide additional information so as to facilitate the invitation to the ISA Council to address the incidents in the NORI-D Contract Area during Part I of the 29th Session (18-29 March 2024), including if further actions under Article 162 of UNCLOS are warranted (see, Statement by the President and Vice-Presidents of the Council on recent incidents in the NORI-D Contract Area (15 December 2023), para. 5). The report refers to the responsibilities of the Council to supervise ‘activities’ in the Area (UNCLOS, Article 162) as well as the responsibilities of the Secretary-General to assist the Council and to “act promptly and efficiently in the interests of the Authority and to protect the Authority’s rights” (referencing implied competencies) (2024 Secretary-General Report, para. 2).
Furthermore, the 2024 Secretary-General Report states:
The Secretary-General recalls that the immediate measures were intended to call for and facilitate the swift and efficient resolution of the situation unfolding in the NORI-D contract area, and their purpose was not to impose “orders” on any party. The Secretary-General, as the chief administrative officer of the Authority, is fully entitled to call upon any party causing interference with contractual rights granted by the Authority to cease such interference.
2024 Secretary-General Report, para. 9.
Concerning the adjudicative jurisdiction of the Netherlands, the Secretary-General argues:
The [previously reported preliminary relief judgment] finding rests on the implied premise that the Amsterdam District Court has jurisdiction over alleged protests interfering with activities in the Area. While the application by NORI to the Amsterdam District Court, subject to the relevant rules of Dutch law, may be regarded as consent to such jurisdiction, it is concerning that the Amsterdam District Court did not address the issue of the Authority’s competence over the matter at length. To the extent that the Court’s decision touches upon the role of the Authority, its position appears to be thinly reasoned and vague. The Secretary-General invites the Council to consider the implications of the decision, in the light of the relevant provisions of the United Nations Convention on the Law of the Sea conferring upon the Authority the competence to control activities in the Area;
2024 Secretary-General Report, paras. 11(c) and 18.
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The Court’s decision disposed of the matter as between NORI and Greenpeace, upon the application and submission by NORI to the jurisdiction of the Court, but the Authority was not party to the proceedings culminating in the Court’s decision. Consequently, the measures of the Authority could not have formed, and did not form, the subject matter of the proceedings before the Amsterdam District Court. In any event, the courts of Member States do not have jurisdiction to adjudicate on the measures of the Authority or its organs (let alone in circumstances where the Authority or its organs do not even participate in any capacity in the court proceedings), or to sanction conduct that interferes with the rights and interests of the Authority. Consequently, the Amsterdam District Court had no jurisdiction to make any pronouncement as to whether the immediate measures had legal basis or carried legal effects.
Concerning the scope of actors subject to immediate measures, the position of the Secretary-General is:
The Secretary-General notes that the regulations on prospecting and exploration for polymetallic nodules in the Area do not impose any a priori constraint on the categories of immediate measures which the Secretary-General may promulgate, or on the legal effect of such immediate measures. Contrary, therefore, to the suggestions of Greenpeace, the Secretary-General had the authority to promulgate the immediate measures and to address certain provisions of the immediate measures specifically to Greenpeace considering the interference caused to the rights and obligations pertaining to the contract signed between the Authority and NORI.
2024 Secretary-General Report, para. 19.
The position of the Secretary-General concerning the rationale and basis for the promulgation of immediate measures of a temporary nature are addressed in the Interim Report on the Immediate Measures of the Secretary-General of the Authority dated 27 November 2023 (4 December 2023) and Second Report on the Immediate Measures of the Secretary-General of the Authority dated 27 November 2023 (12 January 2024). The 2023 Interim Report suggests the Greenpeace activities prevented NORI and TOML activities as well as “preventing the Authority from accessing critical environmental data as to the post-disturbance impacts of the collection system one year after the test of the system” (paras. 3, 17). In particular, on promulgating immediate measures:
[G]iven the reported refusal of the Arctic Sunrise to maintain a safe distance from the MV Coco, I noted that the contingency measures in place to prevent a threat of serious harm to the environment and avoid the collision of an exploration vessel with other vessels (in accordance with Section 6 of Appendix II of the Contract) were constrained by a series of factors pertaining to the refusal of Greenpeace to follow the call of NORI addressed to them.
2023 Interim Report, paras 4,7; see further Second Report, para. 17.
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I was compelled to conclude, on a prima facie basis, that the circumstances unfolding in the NORI-D Contract Area presented a serious threat to the safety of life at sea and potential threat to the marine environment. Since Greenpeace did not deny that it had disregarded the warnings of the MV Coco concerning a minimum safe distance between vessels, and considering the fact that the MV Coco deploys equipment on the seabed, I further concluded that the issuance of immediate measures was necessary to prevent a threat of serious harm to the marine environment from materializing. The standard clauses in Annex IV of the Regulations (Section 6) provide that warnings issued to avoid a situation where another vessel is about to enter the immediate vicinity of the contractor’s vessel are measures aimed precisely at the prevention of environmental harm. Consequently, the fact that such warnings, provided for in the Regulations, were not complied with, means that a key measure devised to avoid environmental harm was ignored by the crew of the Artic Sunrise.
The report proceeds to state immediate measures of a temporary nature are taken on an “assessment of the facts alleged proceeded on a prima facie basis” and with due regard to the precautionary approach (2023 Interim Report, paras 8-9). The Secretary-General invites the Council to consider Articles 87, 138-139, 146, and 157 of UNCLOS in addressing the events and the rights and responsibilities of various actors (2023 Interim Report, para. 37).
Annex IV of the Second Report includes a previously unpublished Note Verbale from the Netherlands of 15 December 2023 (Ref: Min-BuZa.2023.20081-42), suggesting a difference of opinion between the Netherlands and the Secretary-General of the ISA concerning the interpretation and application of the UNCLOS framework.
First, on the promulgation of immediate measures of a temporary nature under Regulation 33(3) of the Regulations on Prospecting and Exploration for Polymetallic Nodules, the Netherlands “expresses its concern to the approach of the Secretary-General that is not in conformity with Regulation 33” (Ref: Min-BuZa.2023.20081-42, p. 6). This is on the basis that (a) the facts and circumstances do not qualify as a situation envisaged under that provision and (b) immediate measures of a temporary nature are limited to prevent, contain and minimize serious harm or threat of serious harm to the marine environment. In response, the observations of the Secretary-General of the ISA notes the “intrinsic link between the safety of navigation and the prevention of threats of serious harm to the marine environment” and the possibility that a breach of certain obligations of the Authority towards contractors may expose the Authority to liability (Second Report, para. 17).
Second, on the right of protest at sea, the Netherlands refers to the affirmation in The Arctic Sunrise Arbitration (Netherlands v. Russia) and the balance between having due regard to activities in the Area with the tolerance of some level of nuisance through civilian protest (Ref: Min-BuZa.2023.20081-42, p. 5). The lawfulness of protest actions at sea must be considered on a case-by-case basis, with any restrictions taking account of international human rights law and the law of the sea. The flag state jurisdiction of the Netherlands includes adjudicatory jurisdiction to determine the limits of the right to protest at sea, including in the vicinity of and aboard foreign vessels. The view of the Secretary-General of the ISA, however, differs:
“While the Kingdom of the Netherlands has jurisdiction over the Arctic Sunrise, it is not within the jurisdiction of the Kingdom of the Netherlands to authorize any interference with exploration activities of Contractors, let alone to define the circumstances in which any interference with contractors’ rights is permissible (whether on the basis of a “right to protest” or otherwise). These matters are squarely within the competence of the Authority, consistent with Article 153(4) of UNCLOS. As such, I consider that a unilateral endorsement of interferences with activities under the control of the Authority, such as the scientific campaign of NORI, encroaches upon the competences conferred on the Authority”.
Second Report, para. 17
Third, the Secretary-General supports the application of a 500m safety zone to the M/V Coco, a vessel, on the basis “the deployment of scientific equipment in support of scientific activities, conducted pursuant to an exploration contract granted by the Authority, is fully consistent with the objectives of Article 260 and UNCLOS” (2023 Interim Report, para. 22). The Second Report further points to IMO practice concerning safety zones around offshore installations and structures, some state practice on vessels, and an apparently unlimited discretion of the Secretary-General in determining the scope of ‘appropriate measures’ under Regulation 33 (Second Report, para. 17). By contrast, the Netherlands considers the M/V Coco a vessel operating as a ship, not an installation covered by the aformentioned Article 260 of UNCLOS. As the Netherlands is not aware of any generally accepted international standards authorising 500m safety or operating zones for ships, the requirement is a request not a mandatory requirement. In any event, as a possible limitation on the right to peaceful protest at sea, such a requirement must fulfil the tests of reasonableness, necessity, and proportionality (Ref: Min-BuZa.2023.20081-42, p. 7).
De Maribus 