Immediate measures issued by the Secretary-General on 27 November 2023 – Incidents involving Greenpeace in NORI-D contract area in the Clario-Clipperton Zone

On 27 November 2023, in the light of the urgency of the matter, the Secretary-General promulgated interim measures (“Interim Measures”) pursuant to Regulation 33 of the Regulations on Prospecting and Exploration for Polymetallic Nodules in relation to the reported incident involving the ISA contractor, Nauru Ocean Resources Inc (NORI), and Greenpeace International in the NORI-D contract area in the Clarion-Clipperton Zone.

Factual background

On 25 November 2023 and on 26 November 2023, NORI notified ISA of the disruption of its permitted exploration activities in the NORI-D contract area, by representatives of Greenpeace International, whilst carrying exploration activities aimed at gathering scientific and environmental data and observations.

NORI alleged that the conduct of Greenpeace had caused significant safety risk since 23 November 2023, with Greenpeace repeatedly disregarding requests to maintain a safe distance from the exploration vessel MV Coco. According to NORI and reported in the media, a number of representatives from Greenpeace subsequently boarded the MV Coco without authorization and climbed to the top of the A-frame at the stern of MV Coco, further gravely exacerbating the safety risks, whilst the ongoing actions of several zodiacs and kayaks with other representatives of Greenpeace on board have interfered and continue to interfere with the operations of MV Coco. NORI further alleges that Greenpeace International has communicated to NORI the intention to stay on board the MV Coco as long as MV Coco is within the Exploration Area.

On 26 November 2023, the Secretary-General requested Greenpeace to comment on the allegations raised by NORI. On 27 November 2023, Greenpeace provided its response. According to Greenpeace, it is engaged in a “safe and peaceful protest at sea”, in the exercise of its “right to peaceful protest at sea”. However, Greenpeace does not deny that it has repeatedly disregarded and continues to disregard requests to maintain a safe distance from MV Coco, nor the allegation that its representatives have interfered with the operation of MV Coco and boarded the MV Coco without authorization. Greenpeace has not offered materials (such as photo or video recordings) to rebut the observation of the Secretary-General that “[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.”

On 26 November 2023, the Secretary-General also informed the Netherlands, as the flag State of the vessel of the Arctic Sunrise, of the allegations raised by NORI. On 27 November 2023, the Secretary-General informed the Kingdom of Denmark, as the flag state of MV Coco, of the same.

Immediate measures

On 27 November 2023, the Secretary-General promulgated interim measures of a temporary nature, with a view to resolving the unfolding incident. The Secretary-General further communicated to the Netherlands on 28 November 2023, 30 November 2023, and 1 December 2023 inviting the Netherlands to consider “any necessary regulatory steps” under Articles 87(2) and 147(3) of UNCLOS and Paragraph 8(g) of the Notification of immediate measures. The Netherlands formally responded to the Secretary-General on 15 December 2023.

These measures taken by the Secretary-General were of a temporary nature and called upon:

  1. all parties present in the vicinity of NORI’s vessel 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;
  2. 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;
  3. NORI and Greenpeace to co-operate 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;
  4. NORI and Greenpeace 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);
  5. NORI and Greenpeace to relay the contents of these immediate measures of a temporary nature to their personnel on board or in the vicinity of MV Coco;
  6. NORI to provide a detailed report on the assessment of the consequences of the disruption of the exploration activities NORI alleges to have taken place since 23 November 2023;
  7. the Netherlands (as the flag State of the Greenpeace vessel, Arctic Sunrise) to consider what measures, if any, are warranted pursuant to international law and the laws of the Netherlands concerning the conduct of Greenpeace and the Arctic Sunrise in the present circumstances.

Facts that occurred after the promulgation of the interim measures

On 2 December 2023, Tonga Offshore Mining Limited (TOML) notified the Secretary-General that the conduct of Greenpeace International also amounts to an interference with its programme of work as the scientific campaign carried out by NORI was done in partnership with TOML under the activities agreed by the Contractor signed with ISA.

On 4 December 2023, the Secretary-General provided the Council with a report on the immediate measures taken on 27 November 2023 stressing that the “supervision over activities in the Area ultimately rests with the Council” pursuant to art.162(2)(a) and (l) of UNCLOS and that the Immediate Measures have been insufficient to remedy the situation and allow the Contractor to pursue its activities without undue interference.

On 4 December 2023, Greenpeace reportedly ceased its interference with the exploration activities of NORI.

On 15 December 2023, the President and Vice-Presidents of the Council for the 28th session of the International Seabed Authority (ISA) issued a joint statement. Taking note of the temporary measures issued by the ISA Secretary-General on 27 November 2023 as well as an Interim Report provided by the Secretary-General to the Council on 4 December 2023, the joint statement:

  1. Noted with concern that the reported protest activities of Greenpeace International on board and in the vicinity of “MV Coco”, the exploration vessel operated by NORI, prevented the Contractor from carrying out its lawful exploration activities in the Area, involving a scientific task to collect environmental data in the NORI-D Contract Area on recommendation of the Legal and Technical Commission;
  2. Expressed the President and Vice-Presidents’ concern about the serious threat posed to the safety of the crew and other personnel on board the vessel;
  3. Recalled that the Area is the common heritage of humankind and that in view of the shared objectives of ISA to pursue exploration activities in gathering and assessing environmental data, urges all concerned parties on this matter to work in a constructive and collaborative manner in furtherance of the mandate of ISA in accordance with the United Nations Convention on the Law of the Sea;
  4. Took note that the Greenpeace vessel, Artic Sunrise, left the NORI-D contract area on 4 December 2023, and invites the Council to address the incidents in the NORI-D contract area during Part I of the 29th session of ISA;
  5. Informed that the President and Vice-Presidents of the Council remain attentive to different legal instruments and institutional mechanisms that may contribute, beside UNCLOS and ISA, to a solution in this matter;
  6. Called upon Greenpeace International to refrain from future actions that could disrupt the contractual activities of NORI on board its vessels or in its contract area and further calls upon Greenpeace International to act with due and reasonable regard in conformity with Articles 87 (2) and 147 (3) of UNCLOS.

 

On 12 January 2024 the Secretary-General provided the Council with a second report on the immediate measures taken on 27 November 2023.