Category Archives: Non-State Actors

On 27 March 2025, The Metals Company (TMC) released a press release which included the announcement:

“that its subsidiary The Metals Company USA LLC (“TMC USA”) has formally initiated a process with NOAA under the U.S. Department of Commerce to apply for exploration licenses and commercial recovery permits under existing U.S. legislation, the Deep Seabed Hard Mineral Resources Act of 1980 (DSHMRA)”

On 28 March 2025, ISA Secretary-General Leticia Carvalho issued a statement that brought the matter and the ISA-SG’s concerns to the attention of the members of the Council as a matter which may be of interest to the Council. The Council decided to discuss the announcement under ‘other matters’. The USA is not a Party to UNCLOS. The opinion of the ISA-SG stressed:

Any unilateral action would constitute a violation of international law and directly undermine the fundamental principles of multilateralism, the peaceful use of the oceans and the collective governance framework established under UNCLOS.
For over three decades, the absence of claims under any regime outside Part XI has demonstrated the international community’s strong confidence—including that of States not party to the Convention—in the system developed through the Authority.

Statement by Madam Secretary-General of the International Seabed Authority, Leticia Carvalho (28 March 2025)

As reported in Earth Negotiations Bulletin, numerous States expressed serious concerns about the reported intent of TMC USA. Numerous States emphasised that “the seabed, subsoil, and resources thereof in the Area are the common heritage of humankind and under the exclusive mandate of ISA” (Sierra Leone for the African Group, Argentina, The Bahamas, Belgium, Brazil, Cameroon, Chile, China, The Cook Islands, Costa Rica, Denmark, Fiji, Germany, Ghana, Greece, India, Indonesia, Italy, Jamaica, Japan, Lesotho, Mauritius, Mexico, The Netherlands, New Zealand, Norway, Poland, The Philippines, Portugal, The Russian Federation, Singapore, Spain, Switzerland, Trinidad And Tobago, The UK, and Zimbabwe). The common heritage principle, as applicable to the Area and its resources, is codified in Article 136 of UNCLOS, as well as relevant UN General Assembly Resolutions (Brazil, Greece and Mexico).

Numerous States also emphasised Article 137(1) of UNCLOS, which provides “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized” (Brazil, Greece, Mexico and others). “Germany and others noted Article 137 as customary international law”, while “France called for preserving the integrity and universality of the UNCLOS legal framework”.

Ireland, Jamaica, Singapore, and others rejected the TMC assertion that because the ISA has not yet adopted the Exploitation Regulations the ISA is somehow “in breach of its treaty obligations under UNCLOS and the 1994 Agreement”. Observers were critical of the timing of the TMC announcement and intentions perceived thereof.

On 12 November 2024, Nauru Ocean Resources Inc (NORI), falling under the responsibilities the Republic of Nauru as the applicable Sponsoring State, has signalled that it expects to submit an application for a plan of work for the commercial exploitation of mineral resources in the Area to the International Seabed Authority (ISA) on 27 June 2025. The submission date appears to have been selected to directly follow Part I of the Council’s scheduled meeting (17 – 28 March 2025) and directly before Part II of the Council’s scheduled meeting (7 – 18 July 2025) during the 30th Session of the International Seabed Authority. Consultation and support of Nauru as the Sponsoring State is evident in the reported actions, whereby “the Republic of Nauru has requested in a formal letter that the ISA clarify the submission and review process during the March session [Part I], with the goal of providing certainty for all stakeholders and allowing for review to begin immediately after NORI’s submission under an agreed-upon process [Part II]”. An accompanying statement suggests the NORI submission strategy is to seek review of its application for a plan of work for exploitation in 2025, regardless of whether the Mining Code has been finalised and adopted i.e. including ISA’s possible review of the application based on the draft regulations.

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 29^th 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;
[…]
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.

2024 Secretary-General Report, paras. 11(c) and 18.

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.
[…]
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.

2023 Interim Report, paras 4,7; see further Second Report, para. 17.

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).

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.

The member states of the informal group “Arctic-five” (Canada, USA, Russia, Norway, and Greenland/Denmark), together with representatives of other states (Iceland, Japan, South Korea, China and the European Union)  have reached agreement on a legally binding international agreement that will protect nearly three million square kilometers of the Central Arctic Ocean from unregulated fishing. The initial term of the agreement is 16 years, after which it will automatically be extended every five years unless a country objects or until science-based fisheries quotas and rules are put in place. The NGO Ocean Conservancy has referred to this as an example of the precautionary approach. This accord comes two years after a previously set moratorium. Evidence of this new agreement may be found here: (Canada) (Norway) (EU).