De Maribus

On 12 November 2024 the Amsterdam Court of Appeal issued judgment in appeal summary proceedings concerning the previously reported preliminary relief in Nauru Ocean Resources Inc (NORI) v. Stichting Greenpeace Council and Stichting Phoenix (ECLI:NL:GHAMS:2024:3127). In confirming the judgment under appeal and rejecting an incidental appeal two matters of principal interest to the law of the sea were addressed.

First, in rejecting an incidental appeal by Greenpeace concerning NORI being inadmissible as only representing the interest of its parent company (The Metals Company (TMC)), the court confirmed “NORI, as a contractual party of [International Seabed Authority] ISA in the contract from which the research on the seabed by COCO in [the NORI-D Contract Area of the Clarion Clipperton Zone] arises, has a legally respectable interest in the claims” (para. 4.4).

Second, in rejecting NORI’s appeal on the dismissal of its second claim in the first instance, that Greenpeace “be prohibited from being within a radius of 500 metres around the COCO for a period of six months after service of the judgment and from taking or facilitating unlawful and obstructive actions there, as long as the COCO is located in the Clarion Clipperton Zone” (para 4.1), the court found that the claim is “inadmissible because there is no urgent interest in it” (para 4.5). The deployment of the COCO to the Clarion Clipperton Zone in the foreseeable future was currently a “purely hypothetical situation”, as was the “need for clarity about the admissibility of any future protest actions by Greenpeace with a view to the budget and planning of new deployment of the COCO” (para 4.5).

However, the court also made several interesting observations on protests at sea when discussing the second claim, affirming the application of both the law of the sea and human rights law, but distinguishing the legal aspects raised by protests in the vicinity of a foreign vessel from those conducted on board a vessel flying a flag of a contracting party to a relevant human rights treaty:

Claim II amounts to a general ban on Greenpeace et al. from carrying out a protest action within a radius of 500 metres from the COCO (as the court understands: in [place], although this is not stated in the conclusion on appeal) for a period of six months (after service of the judgment). As the court assumes, NORI is referring to an action such as that carried out by Greenpeace at the end of 2023 on the high seas against deep-sea mining, with the ARCTIC SUNRISE, canoes and motorised rubber dinghies in close proximity to the COCO and with action on board the COCO.

It is rightly not disputed that the question of whether a protest action on the high seas on board the COCO sailing under the Danish flag, as a result of which Danish law applies on board, must be answered on the basis of Article 10 and/or 11 of the European Convention on Human Rights (ECHR).

With regard to a protest action by the ARCTIC SUNRISE, the canoes and the motorised rubber dinghies on the high seas in the vicinity of (but not on board) the COCO, this question must be answered on the basis of the relevant rules of maritime law. Protest actions at sea are considered to be a lawful use of the sea linked to the freedom of navigation as referred to in Article 87, paragraph 1, introductory phrase and (a), of the United Nations Convention on the Law of the Sea (UNCLOS) (cf. ARCTIC SUNRISE Arbitration, PCA case no. 2014-02, Award on the Merits, 14 August 2015, par. 227). The right to protest on the high seas derives from the internationally recognised freedoms of expression and association, as laid down, inter alia, in the International Covenant on Civil and Political Rights (ICCPR) and the ECHR. Whether a protest on the high seas is permissible depends on the facts and circumstances of the specific case. The right to protest on the high seas is limited by the relevant maritime law, which serves, among other things, the safety and freedom of use of the sea and from which it follows that only peaceful protest actions are permitted (Article 88 UNCLOS). The precise content of the maritime law that is (potentially) relevant here – including the question of whether the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) is relevant in this context – can be left undiscussed.

NORI v. Greenpeace & Phoenix (Gerechtshof Amsterdam, 200.337.542/01), para 4.5

For further context, see the Greenpeace and TMC responses following judgment.

Following the previously reported Decision on Challenges and resignation of two arbitrators in the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), on 8 August 2024 the President of ITLOS, following consultations, appointed Mr James Kateka (United Republic of Tanzania) and Ms Joanna Mossop (New Zealand) to fill the vacancies (UNCLOS, Annex VII, Art 3(e)-(f)), as well as appointing Mr Gudmundur Eiriksson (Iceland) as president of the Arbitral Tribunal (UNCLOS, Annex VII, Art 3(e)-(f)).

The appointments follow previous developments under the Arbitral Tribunal, whereby, among others, the Russian Federation had requested the Arbitral Tribunal “proceed with a ruling in respect of the proper procedure for appointment of replacement arbitrators” (Procedural Order No. 9, para 1). The Arbitral Tribunal noted “that the Parties disagree on the proper interpretation and application of Article 3 of Annex VII to the Convention and the Rules of Procedure [..and..] notes especially its reference to the desirability of agreement between the Parties” (Procedural Order No. 9, paras 45-46). While progress was made, no agreement between the Parties on the appointment of replacement arbitrators was reached (Procedural Order No. 9, paras 17-22). In proceeding with the request, the analysis of the Arbitral Tribunal stated:

39. Professor McRae and Judge Wolfrum were appointed as members of the Arbitral Tribunal, and Professor McRae as its President, by the ITLOS President. Thus, in accordance with Article 3, subparagraph (e), of Annex VII, “the manner prescribed for [their] initial appointment” under subparagraph (f) for filling the vacancies resulting from the successful challenges to Professor McRae and Judge Wolfrum is that outlined in Article 3, subparagraph (e).
[…]
43. In Article 6 of its Rules of Procedure, the Arbitral Tribunal chose to deal with the application of the term in Article 3, subparagraph (e), of Annex VII to the Convention, “the manner prescribed for [their] initial appointment”, in the case of filling a vacancy in the event of withdrawal, incapacity or death of an arbitrator […]
44. Notably, Article 6, paragraph 1, of the Rules of Procedure does not refer to the event of disqualification of an arbitrator upon a successful challenge by a Party.

Procedural Order No. 9, paras 39-44

The Arbitral Tribunal ultimately concluded in Procedural Order No. 9 of 18 July 2024:

48. In its request for a ruling, the Russian Federation has not identified any question of procedure which, in the terms of Article 1, paragraph 2, of the Rules of Procedure of the Arbitral Tribunal, “is not expressly governed by these Rules [of Procedure] or by Annex VII to the Convention or other provisions of the Convention”, and the Arbitral Tribunal will not rule, in the abstract, on questions outside this scope.
49. Ukraine has now applied to the ITLOS President to appoint replacements for Professor McRae and Judge Wolfrum. It is not for this Arbitral Tribunal to comment on how the ITLOS President should respond to that request.
50. Accordingly, for the reasons set out above, the Acting President and the other members of the Arbitral Tribunal, by a majority of two to one, reject the request of the Russian Federation that the Arbitral Tribunal rule on the procedure for the appointment of replacement arbitrators.

Procedural Order No. 9, paras 48-50

Professor Vylegzhanin appended a Dissenting Opinion to Procedural Order No. 9 (not yet publicly available).