On Whose Authority? Freedom of Navigation and Protests in the 2023 NORI-D Area Incident

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Introduction

The activities of Greenpeace vessels have a habit of triggering the further illumination and development of international law. Greenpeace’s “Stop Deep Sea Mining” campaign is no exception. It effectively raises questions on the scope of Greenpeace’s individual right to protest (international human rights law) and the scope of the Netherland’s flag State right to freedom of navigation, which includes the qualified right to permit vessels flying its flag to protest at sea (international law of the sea). While these regimes intertwine (“the right to protest at sea is necessarily exercised in conjunction with the freedom of navigation” (Arctic Sunrise Award (2015) para. 227), this post focuses on the law of the sea element, namely whether the flag State’s freedom of navigation on the high seas extends to vessels flying its flag conducting peaceful protests against activities in the Area.

For context, in November-December 2023, the M/V Coco, a Danish flagged vessel operated by Nauru Ocean Resources Inc (NORI) and Tonga Offshore Minerals Limited (TOML), was conducting exploration activities for mineral resources in the NORI-D Contract Area. It is unquestionable NORI, TOML and Coco were conducting lawful activities under the competence and mandate conferred upon the International Seabed Authority (ISA) to regulate, organize and control “activities in the Area” (United Nations Convention on the Law of the Sea (UNCLOS), Art. 1 & Part XI; Contracts (2)). At this time, the Dutch flagged M/V Arctic Sunrise, operated by Greenpeace, carried out a protest targeting the Coco and its activities. Protest actions were conducted by the Arctic Sunrise and by kayaks launched therefrom in the vicinity of the Coco, as well as by Greenpeace activists boarding the Coco. The Secretary-General of the ISA (SG-ISA) responded by promulgating immediate measures of a temporary nature pursuant to Regulation 33(3) of the Polymetallic Nodules Regulations (previously discussed here) which, among others, called for limitations upon Greenpeace’s protest at sea in the vicinity of and aboard the Coco.

Importantly, the ensuing discourse has illuminated a difference of opinion between the Netherlands and the SG-ISA on the freedom of navigation and activities in the Area. The Netherlands contends that the protest at sea is exercised in conjunction with the Netherlands’ freedom of navigation and, as the flag State of the Arctic Sunrise, it has jurisdiction to determine the limits of the right of protest at sea, including with respect to the lawfulness of the protest actions “in the vicinity of and on board” foreign vessels (Note Verbale (2023) p. 5). The SG-ISA stipulates it is not within the jurisdiction of flag States 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)” (Second Report (2024) para. 17(d)). Apparently, in SG-ISA’s view, the rights associated with the freedom of navigation are irrelevant as the endorsement of any interference with activities under the control of the ISA will encroach upon the competences conferred to the ISA (UNCLOS, Art. 153(4)).

The question is do –as the Netherlands contends– protests at sea concerning activites in the Area remain within the right of the flag State and the vessels flying its flag to enjoy the freedom of navigation and other internationally lawful uses of the sea related to the freedom of navigation (UNCLOS, Arts 58 & 87)? Or, do –as the SG-ISA argued– protests at sea concerning activites in the Area fall outside the flag State’s rights and are squarely within the competence of the ISA (UNCLOS, Art. 153(4))?

This post first introduces the freedom of navigation, including protest at sea as an internationally lawful use of the sea. It then addresses ‘due regard’ as the primary legal tool governing the interaction between activities conducted under the freedom of navigation (Arctic Sunrise’s protests) and ‘activities in the Area’ (Coco’s mineral exploration). Contrary to the position of the SG-ISA, the authors take a view that the ISA must –like States– have due regard to the rights of other States, including the rights of flag States to regulate vessels flying their flag to peacefully protest at sea as an internationally lawful use of the sea related to the freedom of navigation.

Freedom of Navigation and Protests at Sea

All States and vessels flying its flag have the right to freedom of navigation on the high seas or in foreign exclusive economic zones. Beyond navigation, this includes “other internationally lawful uses of the sea related to these freedoms” (UNCLOS, Arts 58 & 87). Peaceful protests at sea is an internationally lawful use of the sea, derived from the individual’s freedoms of expression and assembly (Arctic Sunrise Award (2015) para. 227; Settlement Agreement (2019)). Numerous States have now recognised the right to peacefully protest at sea in the context of deep seabed mineral exploration and exploitation activities (India (2024); Nauru (2024) p. 2; Nauru Non-Paper (2024); Spain (2024); Trinidad & Tobago (2024)). The obligation upon all States to respect the flag State’s freedom of navigation enables the unhindered exercise of the right of protest at sea.

A number of conditions define when a protest at sea remains an internationally lawful use of the sea and thus an exercise of the flag State’s freedom of navigation (Arctic Sunrise Award (2015) paras 228 & 327; Settlement Agreement (2019); Netherlands (2024) para. 11; Nauru Non-Paper (2024) para. 2.2). The protest shall remain peaceful (UNCLOS, Art. 88). The protests should not violate the applicable laws of coastal State(s), and potentially those of Sponsoring State(s) or foreign flag State(s), which were adopted in conformity with international law. The protest should not threaten human life, the marine environment or property (IMO Resolution (2010) para. 3.3). The protest should not lead to a delay or suspension of the rights and activities being protested. Finally, protests under the freedom of navigation shall be exercised with due regard to the interests of other States, including coastal States, other States exercising the freedom of the high seas, and rights with respect to ‘activities in the Area’ (UNCLOS, Arts 58(3), 87(2) & 147(3)).

Freedom of Navigation & Due Regard in the 2023 NORI-D Area Incident

The stated intention of the Arctic Sunrise and facts available support an exercise of the right of protest at sea, on the high seas, in connection with the freedom of navigation of the Netherlands (Annex I (2024); NORI v. Greenpeace (2023); ILT Investigation (2024)). The Netherland’s freedom of navigation extends to flagged vessels protesting in the vicinity of other actors (Arctic Sunrise Award (2015) para. 330), including the Coco.

Thus, contrary to the assertions of the SG-ISA and Nauru (Statement (2024) pp. 4-5), a mere interference with activities under the control of the ISA does not bring a matter solely within the competences conferred on it. UNCLOS imposes no such hierarchy (UNCLOS, Art. 135) but rather implores “harmonization between high seas freedoms and activities in the Area” (Spain (2024) p. 1). The Bureau of the ISA Council, unlike the SG-ISA, did acknowledge the relevance of the flag State’s right to allow vessels flying their flag to protest, so long as they are not disruptive to contractors’ ‘activities in the Area’, and exercised with due regard.

Incidents such as the 2023 NORI-D Area Incident may concurrently involve both: ‘activities in the Area’ to be governed by Part XI of UNCLOS and the ISA, and activities not directly and immediately connected to the exploration and extraction of minerals, to be governed by Part VII of UNCLOS and the flag State (ITLOS (2011) paras 82-97). To repurpose the words of the ITLOS Seabed Disputes Chamber when excluding the transportation of extracted minerals to points on land from ‘activities in the Area’, “the inclusion of [the right of protest at sea] could create an unnecessary conflict with provisions of the Convention such as those that concern navigation on the high seas” (ITLOS (2011) para. 96).

What remains unsettled is if the activities of protestors disembarking the Arctic Sunrise and boarding the foreign flagged Coco could remain an internationally lawful use of the sea within the freedom of navigation. On this matter, the individual’s rights and the State’s rights may differ. The European Court of Human Rights affirmed an individual’s freedom of expression may include protests involving an unauthorised and disruptive boarding of a Russian platform at sea (Bryan and Others v. Russia (2023) paras 81-86). However, the respective findings of an UNCLOS Annex VII Arbitral Tribunal that Russia violated the Netherlands’ right to the freedom of navigation only concerned Russian actions on 19 September 2013 and thereafter (Arctic Sunrise Award (2015) paras 144 & 401(C)). Therefore, the Tribunal was silent on if the activists’ boarding and protests aboard the Russian platform on 18 September 2013 were part of the freedom of navigation. For one, Willaert (2021) argues against any boarding activities as a form of peaceful protest. Practically speaking, it is also difficult to envisage an unauthorised boarding at sea being conducted in a manner that does not threaten human life at sea (see conditions above).

On the conditions to qualify as the freedom of navigation with due regard, a few preliminary observations can be made.

First, Greenpeace’s conduct (SG-ISA (2024) para. 6) remained peaceful.

Second, both relevant sponsoring States, Nauru and Tonga, prescribe “interference with seabed mineral activities” as an offence (International Seabed Minerals Act 2015 Sec. 50; Seabed Mining Act, Sec. 114). Interference is narrowly defined as willful sabotage or violence, neither of which Greenpeace has been accused of to-date. The protest would therefore appear to have not violated applicable laws.

Third, on not endangering safety as sea, which raised concerns of India (2024), Denmark and Nauru (Note Verbale (2024)), an investigation by the Netherlands concluded that the maneuvers of the Arctic Sunrise did not compromise the safety of navigation, but “the presence of Greenpeace activists in kayaks at the stern of the MV Coco created safety hazards towards these persons” (ILT Investigation (2024)). The Netherlands determined the appropriate remedy was to discuss relevant international safety standards for demonstrations at sea with Greenpeace (Netherlands (2024) para. 41; contra a need for administrative or criminal proceedings as suggested by the SG-ISA (Second Report (2024) para. 17(e)).

Fourth, protests at sea should not delay or suspend Coco’s main operations (Bureau of the ISA Council (2023) para. 7). The unauthorized boarding and continued presence of activists on the Coco did delay its operations (NORI v. Greenpeace (2023) para. 4.6; Netherlands (2024) para. 23), although, as noted above, it is questionable if the unauthorized boardings aspect can be included within the freedom of navigation in any event.

Conclusion

The flag State’s freedom of navigation enables protests at sea to be exercised in respect of ‘activities in the Area’ in a manner similar to protests in respect of activities on the continental shelf (Netherlands (2024) para. 50). Just like coastal States, the ISA and sponsoring States are to tolerate a certain level of disturbances caused by protests at sea (Note Verbale (2023) p. 5). The laws of sponsoring States do recognise the obligation to have due regard to the exercise of high seas freedoms (UNCLOS, Art. 147(1); International Seabed Minerals Act 2015, Sec. 48; Seabed Mining Act, Sec. 109). The ISA must, when exercising its rights, also have due regard to the rights of flag States to allow vessels flying their flag to protest (Nauru Non-Paper (2024) para. 2.4; Note Verbale (2023) p. 5). Assuming the SG-ISA is empowered under Regulation 33(3) of the Polymetallic Nodules Regulations to impose temporary limitations on associated protest activites on the high seas, such immediate measures “must fulfil the tests of reasonableness, necessity, and proportionality” (Arctic Sunrise Award (2015) para. 326; Netherlands (2024) paras. 24-27). Likewise, if ISA organs do design and execute a safety zones regime extending to both vessels and installations conducting ‘activities in the Area’(Nauru Non-Paper (2024) part 4; Spain (2024) p. 2), it must recognize high seas freedoms and the balance to be struck by reciprocal due regard obligations, not prohibitions (UNCLOS, Art. 147).

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Joel Ong says

May 10, 2024

Nice article Arron! I was wondering re your paragraph on whether "activities of protestors disembarking the Arctic Sunrise and boarding the foreign flagged Coco could remain an internationally lawful use of the sea within the freedom of navigation", what are your thoughts are on the Right of Visit under UNCLOS? Since that right is reserved for warships (and therefore to board a vessel).

Furthermore, I think an important distinction must be made. The right to board a foreign flagged ship seems to me very different from boarding a platform (which is not a ship). I suppose since you refer to the right of one ship to board another ship, that falls squarely within the right of visit reserved for warships or military aircraft. Moreover, such a visit must be only exercised under narrow circumstances where there is reasonable suspicion of piracy or suspicion of its nationality amongst others (Art 105 and 110 of UNCLOS). It does not seem that unsettled to me that protestors disembarking their ship to board another foreign-flagged ship violates internationally lawful uses of the sea.

I refer to Hoffman's 2011 article "Navigation, Freedom of": https://cil.nus.edu.sg/wp-content/uploads/2017/11/A.J.Hoffmann-Freedom-of-Navigation-EPIL.pdf&ved=2ahUKEwizkPu0uYOGAxUNfGwGHQglApsQFnoECCwQAQ&usg=AOvVaw0QJqp695nx7b29qFNS5Jsh

"Interference with freedom of navigation on the high seas is limited to those instances circumscribed in the UN Convention on the Law of the Sea, namely the rights of visit and hot pursuit. The right of hot pursuit is available to a coastal State who has good reason to believe that a foreign ship has violated its laws and regulations and allows its warship or military aircraft to pursue the ship unto the high seas and to arrest it there (Art. 111 UN Convention on the Law of the Sea). The right of visit, where a warship may stop and board a foreign ship on the high seas, exists only in circumstances in which there are reasonable grounds for suspecting the ship to be engaged in piracy, slave trading, unauthorized broadcasting (Pirate Broadcasting), or where its nationality is under suspicion (Art. 110 UN Convention on the Law of the Sea).

It is only in relation to piracy that universal jurisdiction exists, allowing the warship of any State to visit, search and arrest a pirate ship or a ship taken by piracy (Art. 105 UN Convention on the Law of the Sea). Beyond these specified instances the UN Convention on the Law of the Sea does not permit the non-consensual boarding of a foreign ship on the high seas."

Arron Honniball says

May 13, 2024

Dear Joel, Thanks for your comment and insights. I’m not sure I agree that vessels and platforms should be treated differently in such circumstances, but fully agree that the right of visit –under UNCLOS or other treaties– provides no additional legal basis upon which interference could be legally justified. Not only are protestors the wrong actor, using the wrong type of vessel, but they do not purport to be exercising law enforcement functions at all (Sea Shepherd’s peculiar claims aside), let alone within the confines of the express grounds you rightly note as inapplicable.
In general, and in the context of deep-sea mining, practice and debate should probably consolidate around protests at sea in the vicinity of ‘objected’ activities but avoiding unauthorised boardings. Not only is it challenging to suggest unauthorised boarding may not violate the rights of other States, but first and foremost it is questionable if such activities could even remain within the rights of the flag State as an internationally lawful uses of the sea in the first place. It may thus both exceed rights available and violate obligations owed.
Therefore, in many cases to align ‘at sea’ the individual’s rights under human rights law and both flag states’ rights in the law of the sea, restrictions of expression may be necessary (e.g. ECHR, Art 10) to permit protests in the vicinity of foreign vessels but with boarding only via consent. A flag state might be able to impose such a limitation on its own vessels without violating its human rights obligations, but this matter requires a bit more research on our end. Likewise, the foreign flag state could accommodate safe and lawful protests through designated boarding and assigned areas. However, in light of the concurrency of human rights issues, I am hesitant to suggest an outright prohibition on unauthorised boardings as different facts and scenarios may nuance this general position.
Of course, I suspect others may have a more liberal approach, for example, those who adopt the ‘private ends/political ends’ approach in defining piracy (to which I don’t subscribe) as a matter of consistency.