The Arctic Sunrise II Does the ISA have ‘enforcement jurisdiction’ on the High Seas? – EJIL: Talk!

On 28 November 2023, the Secretary-General of the International Seabed Authority (ISA) issued temporary measures orders, in accordance with Regulation 33 (i.e., emergency orders) of the Regulations on Prospecting and Exploration for Polymetallic Nodules (Polymetallic Nodules Regulations). The measures were issued with respect to an incident involving an ISA contractor, Nauru Ocean Resources Inc (NORI), and Greenpeaces vessel, the Arctic Sunrise.

These measures and the overall conduct of the ISA Secretary-General raise some questions concerning the possible expansion of the ISAs jurisdiction. This post wishes to examine the measures issued by the ISA and its capacity to issue such measures to begin with.

Factual background

NORI, sponsored by Nauru, was granted an exploration contract in 2011 concerning Polymetallic Nodules in the deep seabed of the Clarion-Clipperton Zone.

On 25-26 November 2023, NORI notified the ISA that activists of Greenpeace International had disrupted its exploration activities, which included gathering scientific and environmental data and observations. During the incident, Greenpeace activists boarded the exploration vessel MV Coco without authorization and climbed to the top of the A-frame at the stern of the vessel. In its report to the ISA, NORI claimed that the conduct of Greenpeace, and its interference in the exploration operations, had caused a significant safety risk (see here).

While claiming it is engaged in peaceful protests at sea, Greenpeace did not deny interfering with the vessels operations and disregarding requests to maintain a safe distance from the MV Coco. The Secretary-General of the ISA observed that the conduct of Greenpeaces vessel prima facie pose a serious threat to the safety of individuals present in the Exploration Area and to the marine environment.

In response, the Secretary-General issued temporary measures, which include for example maintaining a safe distance between the vessels, disembarking the MV Coco, refraining from interfering with the operation of MV Coco, and reporting to the ISA.

The ISA jurisdiction to issue temporary measures

As mentioned, the ISA issued the temporary measures in accordance with Regulation 33 (emergency orders) of the Polymetallic Nodules Regulations. The actions of the ISA raise some questions as to the capacity and jurisdiction of the ISA in this specific case.

First, while the MV Coco was engaged in the exploration of the deep seabed, which is regulated by the ISA in accordance with the UN Convention on the Law of the Sea (UNCLOS), the activities of the Arctic Sunrise were conducted on the High Seas, which is outside the jurisdiction of the ISA. It is true that Greenpeaces goal was to stop operations relating to the seabed, however the actual conduct breached the freedom of the High Seas (unauthorized boarding, UNCLOS, Art. 87) and related liability issues (damaging the vessel). These issues are not within the capacity of the ISA to regulate (e.g., UNCLOS, Art. 157).

Second, the situation itself and the measures taken, do not seem to fit Regulation 33. This regulation addresses the relationship between the ISA and the contractor in cases of an incident which have caused or threatens to cause serious harm to the marine environment; it does not confer upon the ISA jurisdiction with respect to third parties.

In addition, as mentioned, under Regulation 33 emergency orders can be issued to prevent, contain and minimize serious harm or the threat of serious harm to the marine environment. Despite the above observations of the Secretary-General, other than NORIs claims, there is no proof that the high standards of actual or potential serious harm to the marine environment was met in this case. Boarding the vessel and possibly damaging it does not necessarily affect the marine environment. While it may affect the safety of the vessel, it seems that there is no direct effect on the marine environment. A potential or theoretical risk does not seem to meet the standard for exercising Regulation 33.

And lastly, the measures taken seem to be outside the scope of Regulation 33. The measures in accordance with Regulation 33 must be to to prevent, contain and minimize serious harm or the threat of serious harm to the marine environment. However, the measures taken in this case seem to be essentially a restraining order for Greenpeaces activists, similar to domestic criminal law, rather than relating to the protection of the marine environment. Furthermore, there is no reasonable link between these measures and the so-called immediate and urgent threat (i.e., they are not urgent measures).

Concluding remarks

International law does not prohibit protests on the High Seas. However, the freedom of the High Seas must be exercised with due regards to other states rights (UNCLOS, Art. 87). There is little doubt that Greenpeace has violated the freedom of the High Seas and other rules of international law by boarding the MV Coco unauthorized and damaging the vessel.

However, the actions taken by the ISA to address this incident do not seem to be within the scope of its jurisdiction or authority under the Polymetallic Nodules Regulations. Furthermore, the ISA exercised its jurisdiction with respect to a maritime zone or conduct that are outside its capacity altogether, thus acting ultra vires. The ISA essentially took upon itself what is an obligation of states to request the intervention of the flag state.

Questions of its capacity aside, there is no need for the ISA to intervene in this case. First, Denmark, as the flag state of MV Coco, can and should solve this issue diplomatically vis--vis the Netherlands. Denmark can also submit a claim against the Netherlands for not fulfilling its duties as the flag state to ensure that vessels flying its flag adhere to the relevant rules concerning safety at sea (UNCLOS, Art. 94).

Second, once boarded on the MV Coco, Greenpeace activists are under the jurisdiction of Denmark as the flag state (UNCLOS, Art. 91, 94). In addition, the Master of the Ship of the MV Coco can detain unlawful passengers (e.g., here). Again, the ISA has put itself in the position of the state, without having real influence or achieving real redress.

To conclude, international law and other authorities including flag states have the capacity to address offences on the High Seas. However, the ISA is not the right forum to address such issues.

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The Arctic Sunrise II Does the ISA have 'enforcement jurisdiction' on the High Seas? - EJIL: Talk!