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).
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).