Laurence Teillet, PhD candidate at NLS https://www.ntu.ac.uk/study-and-courses/courses/our-students-stories/law/laurence-teillet
Steve Sharp on Unsplash
“We are pirates of compassion hunting down and destroying pirates of profit.”
Paul Watson, Worldfest 2006, Los Angeles.
At the time of writing of this blog post, Captain Paul Watson, the co-founder of Greenpeace, founder of the Sea Shepherd Conservation Society, and now leader of the Captain Paul Watson Foundation, is detained in Nuuk, Greenland’s capital. Captain Paul Watson is currently being held by Danish authorities whilst they await a decision of Denmark’s Ministry of Justice on whether he can be extradited to Japan to face charges of obstructing business and causing damage to whaling ships in relation to his opposition to Japan’s illegal commercial whaling in Antarctica.
If extradited, Watson could spend the rest of his life in jail for his lifelong dedication to environmentalism and the spectacular battles that have saved countless marine species. This latest arrest highlights the dangerous and precarious environment for environmental defenders, where 200 activists are killed each year and face increasingly harsh and disproportionate sanctions for direct action protests.
Accusations of piracy and ecoterrorism, leading to preliminary injunctions to stop their operations, are increasingly and worryingly used against environmental activists. The criminal charges being levied against environmental activists are becoming more extreme and are completely out of line with the principle of proportionality in criminal law, which states that penalties must match the severity of the offence and the offender’s responsibility.
Amidst the growing trend of severe accusations against environmental activists, the NORI case at the Amsterdam District Court demonstrates a more precise approach taken by judges compared to other jurisdictions. This case addresses the balance between safeguarding activists’ freedom of expression—including their right to engage in disruptive protests —and the commercial interests of companies operating at sea. This blog post will examine how the NORI case delineates the fine line between lawful protest and actions that cross into illegality, with a particular focus on the court’s implicit assessment of incapacitation and its implications for environmental activism.
Deep-Sea Mining Controversy
In the winter of 2023, Greenpeace staged a protest against the Danish-flagged vessel MV Coco, operated by Nauru Ocean Resources Inc (NORI), in the NORI-D contract area of the Clarion-Clipperton Zone. The MV Coco was conducting deep-sea mining exploration activities under the auspices of the International Seabed Authority. On 22 November 2023, Greenpeace’s vessel, the MV Arctic Sunrise, arrived at the MV Coco’s location and notified NORI of its intention to carry out a peaceful protest at sea.
Greenpeace activists in kayaks deployed from the MV Arctic Sunrise followed and sailed around the MV Coco, coming close to the stern of the vessel. This resulted in one kayak capsizing in the MV Coco’s propeller wash. Four Greenpeace activists boarded the MV Coco without the master’s permission and climbed onto the vessel’s A-frame, a structure used for deploying equipment such as submarines. Their presence on the A-frame obstructed operations, preventing the submarine from being lowered into the water. Additionally, the MV Arctic Sunrise was reported to have sailed directly towards the MV Coco, allegedly on a collision course, though no collision ultimately occurred — Greenpeace is criticised for navigating in a manner that could have led to a collision.
In response to these protest actions, NORI filed summary proceedings against the owners of the MV Arctic Sunrise in the Amsterdam District Court in the Netherlands.
NORI made two primary claims. Firstly, they requested that the Court order Greenpeace to immediately cease and desist from all actions regarding the MV Coco. Secondly, NORI sought to prohibit Greenpeace from being within a 500-metre radius of the MV Coco for a period of six months following the service of the judgment. This prohibition aimed to prevent any future unlawful or disruptive actions by Greenpeace as long as the MV Coco remained in the Clarion-Clipperton Zone.
The Amsterdam District Court, while reminding the parties of the applicability of the European Convention on Human Rights and the right to engage in disruptive activism, granted NORI’s request to compel Greenpeace activists to cease their occupation of the A-frame. However, the Court rejected NORI’s other claim with respect to a 500 metre protected radius around the MV Coco. The Court justified its decision by noting that the occupation of the A-frame was preventing operations, thereby rendering it unlawful. However, the Court considered the remainder of Greenpeace’s operations, only disruptive, as not unlawful.
“Several activists have boarded the MV Coco without permission and do not intend to leave the ship anytime soon. They are currently residing at the top of the A-frame, which has rendered the submarine unable to be lowered into the water. Additionally, the activists have pressed the emergency button, causing the A-frame to be locked in place and preventing the ship from sailing. While it may be possible to reset the emergency button from the bridge, NORI is uncertain about this, and such an action could cause the A-frame to start moving, creating a potentially dangerous situation.
(…)
While Greenpeace has indeed hindered NORI in conducting its research and navigation, primarily due to the activists’ presence on the ship, this interference will be significantly reduced now that Greenpeace is ordered to remove its activists from the MV Coco by this verdict. A certain amount of hindrance is inevitable in the conduct of protest actions. However, annoying actions, without a concrete description of what the nuisance entails, cannot be prohibited in advance.”
This approach by the Amsterdam District Court is noteworthy on several levels:
First, it reaffirms that disruptive environmental activism, in and of itself, is not illegal and constitutes a fundamental part of the right to freedom of expression. This right protects not only the content of speech but also the manner in which it is expressed. This aligns with the European Court of Human Rights’ decision in the Bryan and Others v. Russia case, where, in June 2023, the Court found Greenpeace’s actions against Gazprom and the Prirazlomnaya platform to be lawful, rejecting Russia’s accusations of terrorism and piracy as unfounded.
Second, the NORI decision introduces a new observable metric to differentiate between lawful and unlawful protest actions: whether the target was incapacitated, meaning it was completely prevented from carrying out its operations.
The Role of Incapacitation in the NORI Decision
Previous cases at the European Court of Human Rights have already established criteria for determining whether an action falls under the protection of freedom of expression or crosses the line into illegality. Specifically, they suggest that direct actions under Article 10 should have a defined and proportionate geographical and temporal scope to be considered acceptable. However, these cases provided limited guidance on assessing the severity of actions, especially in situations involving moral pressure without physical use of force against the target.
In the NORI case, the Dutch court implicitly introduced an additional criterion: whether the activists’ actions completely incapacitated the target from achieving its objectives. Actions that obstructed and fully prevented commercial activities, such as the occupation of the A-frame, which prevented the use of a submarine, were deemed unlawful. Conversely, actions that merely “hindered” commercial exploitation or were simply “annoying” were considered lawful.
The Dutch Ministry of Foreign Affairs conducted further investigations into Greenpeace’s activities, excluding the occupation of the A-frame, as this had already been addressed by the Amsterdam District Court. These investigations confirmed that, aside from the A-frame occupation, Greenpeace’s operations were “neither dangerous nor unlawful.”
This conclusion from the Amsterdam District Court is consistent with decisions from other jurisdictions involving Greenpeace’s protests. In the Arctic Sunrise case, the Permanent Court of Arbitration classified Greenpeace’s protest as “non-violent” because it did not prevent Gazprom’s operations from continuing. In contrast, the Castle John case, where Greenpeace successfully stopped the dumping of toxic waste, the court held that this action was unlawful due to the prevention of the targeted activity. Similarly, now in the NORI case, the occupation of the A-frame, which rendered operations impossible, was considered unlawful. However, Greenpeace’s disruptive presence in the Clarion-Clipperton Zone, described as merely “annoying,” was considered peaceful and a lawful expression under Article 10 of the European Convention on Human Rights.
NORI and Its Impact on Direct Enforcement
With this approach, the NORI decision effectively dismisses an emerging concept developed by several civil society organisations (CSOs), particularly in the realm of ocean protection: direct enforcement. This protest technique aims to prevent environmentally destructive operations that are illegal or perceived to be illegal. The rationale behind direct enforcement is to intervene where States fail to act.
By distinguishing between lawful freedom of expression and unlawful intervention based on the concept of incapacitation, the Amsterdam District Court effectively dismisses any legal arguments supporting direct enforcement — a concept that, even prior to this decision, has found little support in international law or under the European Convention on Human Rights.
This realisation, while not surprising from a legal perspective, points to the responsibility of states. If CSOs have no legitimate means to prevent environmental degradation and face disproportionate consequences for their actions, we must address the enforcement of international environmental law. If States honoured their international commitments, many of these organisations would not need to resort to direct enforcement.
If the actions of CSOs are deemed illegal simply because they obstruct harmful activities, then States must be held accountable for fulfilling their long-neglected responsibilities in environmental protection.
Further Reading
Aaron N. Honniball, ‘Netherlands: NORI v. Greenpeace and Phoenix – Preliminary Relief’ (De Maribus, 2024) <https://demaribus.net/2024/01/08/netherlands-nori-v-greenpeace-and-phoenix-preliminary-relief/>
Arron N. Honniball and Pham Ngoc Minh Trang, ‘On Whose Authority? Freedom of Navigation and Protests in the 2023 NORI-D Area Incident’ (EJIL: Talk!, 2024) <https://www.ejiltalk.org/on-whose-authority-freedom-of-navigation-and-protests-in-the-2023-nori-d-area-incident/>
C-112/00 Eugen Schmidberger v. Austria [2003] ECR I-5659
Case of Bryan and Others v. Russia App no 22515-14 (ECHR, 27 June 2023)
Case of Jersild v. Denmark App no 15890/89 (ECHR, 23 September 1994)
Castle John and Nederlandse Stichting Sirius v. NV Mabeco and NV Parfin (1986) 77 International Law Report, p. 537 (Court of Cassation of Belgium)
Inge Boers, ‘Investigation into the activities of the MV Arctic Sunrise in the NORI-D contract area from 22 November to 4 December 2023’ (Ministry of Foreign Affairs, 2024) <https://demaribus.net/wp-content/uploads/2024/03/note-verbale-isba-ilt-rapport.docx.pdf>
Jasper Teulings, ‘Peaceful Protests against Whaling on the High Seas – A Human Rights-Based Approach’ in Clive R. Symmons (ed) Selected Contemporary Issues in the Law of the Sea (Martinus Nijhoff, 2011)
Laurence Teillet, ‘Non-State Actors’ Direct Enforcement of International Environmental Law: The Example of Environmental Pirates’ (2024) 28 Environmental Liability 135
Laurence Teillet, ‘“Obviously, they are not pirates” - the European Court on Human Rights rules in favour of Greenpeace activists in the Arctic Sunrise case’ (NTU News, 2023) <https://www.ntu.ac.uk/about-us/news/news-articles/2023/07/expert-blog-obviously,-they-are-not-pirates-the-european-court-on-human-rights-rules-in-favour-of-greenpeace-activists-in-the-arctic-sunrise-case>
Mette Eilstrup-Sangiovanni and Jason C. Sharman, Vigilantes beyond Borders (Princeton University Press, 2022)
Rechtbank Amsterdam, ECLI:NL:RBAMS:2023:7600 (NORI v. Greenpeace, 2023)
Richard Caddell, ‘The Law of the Sea and the Exercise of Free Speech and Protest Rights’ in Richard Caddell (ed) The Law of the Sea (Routledge, 2022)
The Arctic Sunrise Arbitration (Netherlands v Russia) (Award on the Merits) Case n° 2014-02 (PCA, 14 August 2015)
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