De Maribus

On 22 December 2023 the Aribitral Tribunal (ICSID Convention) rendered its Award in Peteris Pildegovics and SIA North Star v. Kingdom of Norway (ICSID Case No. ARB/20/11). The dispute arose “out of measures taken by the Respondent regarding the alleged restriction of the fishing of snow crab in certain zones over which Norway exercises certain sovereign rights, which allegedly undermined the Claimants’ investments in snow crab fishing, resulting in a loss to their investment” (Award, para. 5). Findings, among others, include:

In the present case, the Tribunal is not entitled to rule on the dispute between the different parties to the Svalbard Treaty on whether or not Article 2 of that Treaty requires Norway to allow nationals of the other States parties access to hunting and fishing resources on the continental shelf around Svalbard (para. 295; see further paras 582-585).

Since the Claimants are claiming only for alleged breaches of the BIT [Latvia – Norway BIT (1992)], it is the BIT which the Tribunal must apply. In doing so, it can consider — if it is necessary to do so — the other treaties invoked [Svalbard Treaty, UNCLOS and the NEAFC Convention], as well as other rules of international law. However, whether a provision of one of those treaties is relevant to the determination of whether Norway has breached a provision of the BIT is not a matter on which it is safe to generalise; that question must be considered in the context of the specific facts and allegation raised (para. 448).

The Tribunal agrees with Norway that whether the snow crab is a sedentary species is a matter of law, namely whether it falls within the definition in Article 77(4) [UNCLOS], and that no designation is required (para. 489).

First, while the Tribunal is not called upon to decide whether or not the snow crab is a sedentary species within the UNCLOS definition, Norway’s conclusion that it is a sedentary species cannot be regarded as an outlier…Secondly, such scientific assessment as has been shown to the Tribunal tends to support the conclusion that, at the harvestable stage, snow crab “are unable to move except in constant physical contact with the seabed” (paras 480-481).

The duty to act in good faith in the exercise of a State’s power is expressly provided for in Article 300 of UNCLOS…The Tribunal does not accept that Norway’s treatment of the status of snow crab was arbitrary or that it demonstrated a lack of good faith…Nor can Norway be faulted for the procedure which it followed…That leaves the question whether, once Norway had concluded that snow crab is sedentary, its action in imposing a ban on taking snow crab in the Norwegian sector of the Loop Hole was arbitrary or amounted to a lack of good faith within the meaning of Article 300 of UNCLOS or customary international law. The Tribunal does not accept that that was the case (paras 534-539).

[T]he Tribunal accepts that a State which uses a power that it possesses for an extraneous, improper purpose may be considered to have acted arbitrarily and in abusive or bad faith manner… It is essential, however, to be clear what is the purpose of the power which the State is accused of exercising improperly. In the case of the powers of the coastal State over the resources of the continental shelf, Articles 77(1) and (2) of UNCLOS make clear that those rights are conferred for the purpose of enabling the coastal State to enjoy the benefit of the resources of the continental shelf…The Claimants have argued that Norway acted in order to exclude the EU vessels harvesting snow crab on its continental shelf and reserve the resource for its own fishing industry, but that is exactly what Article 77 provides for. There is nothing extraneous or improper in Norway acting in this way. Nor is there anything wrong with it using its sovereign rights as a bargaining chip with the EU which has done the same in relation to marine resources in the continental shelves and EEZs of its Member States (paras 541-543).

Peteris Pildegovics and SIA North Star v. Kingdom of Norway, Award of 22 December 2023

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.

On 28 November 2023, the Court of Justice of the European Union (General Court) issued an order in Case T-600/22 (ST v European Border and Coast Guard Agency), addressing allegations of unlawful inaction by the European Border and Coast Guard Agency (Frontex) in the context of asylum rights and regulatory procedures (Article 46(4), Regulation (EU) 2019/1896). The applicant, ST, sought a declaration of Frontex’s failure to act or, alternatively, the annulment of Frontex’s decision refusing to suspend or terminate activities in the Aegean Sea. The dispute arose from an NGO’s invitation to Frontex, representing an anonymous individual and seeking action regarding Frontex’s Aegean Sea activities. However, the Court found the action inadmissible on the grounds that ST failed to demonstrate being the anonymous person behind the pre-litigation invitation, and lacked a vested, present interest in the annulment of Frontex’s decision. The Court dismissed the action entirely, citing ST’s inability to prove identity and establish the decision’s direct impact on his situation. The order can be read here.