Pradeep A. Singh for the Deep-sea Mining Observer [1]
In late June 2021, some three months ago now, the Republic of Nauru invoked section 1(15) of the 1994 Agreement Relating to the Implementation of Part XI of the UN Convention on the Law of the Sea (hereinafter ‘section 1(15)’), which houses the ‘two-year rule’ or ‘trigger’, at the International Seabed Authority (ISA). The potential implications and consequences that would ensue from the invocation of section 1(15) have been broadly discussed in previous editions of the DSM Observer, for example, in November 2020, June 2021, and August 2021.
There are numerous legal ambiguities surrounding the implications and consequences that would necessarily follow from the invocation of section 1(15), especially in relation to how the Council should respond in the event the two-year deadline has passed and an application is submitted while the exploitation regulations remain incomplete. Some of these uncertainties have been broadly highlighted elsewhere from an academic viewpoint in a short paper and recent blog post. This commentary will instead focus on a separate but closely related question, namely, whether the invocation of section 1(15) can be challenged?
In terms of judicial avenues, the two available options are commencing contentious proceedings or requesting for an advisory opinion at the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (hereinafter ‘SDC-ITLOS’). Submitting a request for an advisory opinion would be appropriate if the intention is to obtain clarifications over the interpretation and application of section 1(15). Although non-binding, an advisory opinion could help resolve some of the uncertainties surrounding the implications and consequences arising out of the invocation section 1(15) and guide the Council as it moves forward. The advisory opinion route, however, will not be discussed here since the primarily purpose of this commentary is to ascertain whether the invocation of section 1(15) by Nauru can be legally challenged, and thereby render its implications redundant if successful.
Commencing Contentious Proceedings to Challenge the Invocation of Section 1(15)
While unlikely to happen, it is technically possible for any ISA Member State to commence contentious proceedings against Nauru in relation to its invocation of section 1(15), or against the Council in respect of how it chooses to respond as a result of the said invocation. Apart from that, although even more unlikely, it is also possible for the Council to decide to institute contentious proceedings against Nauru.
Article 187 of the UN Convention on the Law of the Sea (UNCLOS) lists the jurisdiction of the SDC-ITLOS over contentious proceedings with respect to activities in the Area. Two provisions are of particular relevance to the matter at hand, namely, subparagraph (a) and sub-paragraph (b)(i). Article 187(a) states that the SDC-ITLOS shall have jurisdiction over “disputes between States Parties concerning the interpretation or application of [Part XI]”. Article 187(b)(i) provides that the SDC-ITLOS shall have jurisdiction over “disputes between a State Party and the [ISA] concerning acts or omissions of the [ISA] or of a State Party alleged to be in violation of [Part XI]”. In terms of process and procedure, five points are relevant here.
First, in order to invoke Article 187, it is necessary for a “dispute” to exist.[2] This would necessarily mean that there has to be more than just a mere difference of opinions or diverging views or differing sentiments. Since the actual implications of the invocation of section 1(15) has not been debated at the Council, it can hardly be said that a “dispute” exists (as of yet, at least). In the absence of a dispute, the SDC-ITLOS would likely find that it does not have subject-matter jurisdiction over the matter.[3]
Second, it is clear that even though Article 187 refers to Part XI and related Annexes of UNCLOS, this would necessarily include disputes pertaining to the 1994 Implementing Agreement (which is to be interpreted and applied together with UNCLOS as a single instrument).[4]
Third, in terms of the scope of Article 187(a), it serves to cover disputes that occur between member States concerning the interpretation or application of UNCLOS of the 1994 Implementing Agreement, and in this respect, it would appear to suffice if as few as just two States are prepared to contest this. This might happen if the Council takes a formal stance on what it considers to be the implications of section 1(15) as well as how it intends to respond to its invocation and this is disputed by one or several States.
Fourth, turning now to Article 187(b)(i), it would appear that the said provision has a two-fold requirement, namely, for the dispute to be between a State and the ISA, and for the dispute to concern with acts or omissions that allegedly violates Part XI (and its related Annexes or the 1994 Implementing Agreement). Likewise, such a situation in the present case would also appear to happen if the Council takes a decisive stance in relation to section 1(15) and a Member State challenges it, or alternatively, if the Council (as an organ) decides to commence proceedings against Nauru. In terms of the latter, it seems very unlikely that the Council will be able to muster the required political will among its members for this purpose.
Fifth or lastly, Article 189 of UNCLOS sets the limitation of the jurisdiction of the SDC-ITLOS. Depending on the nature of the claims that are raised in the proceedings, it could very well be possible that the SDC-ITLOS may lack the jurisdiction to intervene and adjudicate on the matter.
In terms of substance, there appear to be several grounds that may be available, at least for the sake of argument, with respect to challenging the invocation of section 1(15) by Nauru.
One, an argument could be crafted to contend that although Nauru Ocean Resources Inc. (NORI) is the national sponsored by Nauru, the actual intention to submit an application for the approval of a plan of work is its parent company (formerly DeepGreen and now The Metals Company), which is not a national of Nauru. The argument here would essentially be that Nauru was not entitled to invoke section 1(15) because it was premised on the intention of a ‘non-national’ to submit an application for the approval of a plan of work for exploitation.
Here, it would have to be alleged and proven that NORI is a shell corporation that is being used as a front by the real ‘operator’ (namely, its parent company) for the purpose of conducting activities in the Area. Indeed, the legality of sponsorship arrangements such as the present one, i.e. where the sponsoring State arguably does not have effective control over the sponsored entity and appear to be a ‘sponsorship of convenience’, have been called into question.
In reality, this is a very strong assertion that would seem to be difficult to establish in a judicial proceeding, let alone debated informally among Member States at the ISA. Even if this claim can be somehow substantiated, it is improbable that the SDC-ITLOS would be prepared to arrive at such a finding as a matter of fact. In other words, the prospects of success here are low.
Two, it may be possible to contend that NORI has no real intention to submit an exploitation application in the near future. It is unclear, for example, if NORI has already or is about to successfully completed all its exploration work, including the collection of required environmental baseline data, carrying out equipment and systems testing, and preparation of environmental assessments, which are all essential for the transition to exploitation. It is also possible that, as opposed to actually wanting to mine, the invocation of section 1(15) was partly intended to boost market confidence as its parent company, DeepGreen, was then merging to become The Metals Company and seeking to be listed on the Nasdaq Global Select Market, which has very recently materialized.
For its part, there have been statements from DeepGreen/The Metals Company that a mining application will be submitted in coming years (e.g. by 2024), thereby signifying (on paper at least) that the intention seems to be there. Besides, section 1(15) does not set any temporal requirements regarding the intention to mine as a prerequisite to its invocation.
Moreover, while there is a possibility that the timing of the invocation of section 1(15) was directly linked to the previously mentioned merger, this would be hard to establish in judicial proceedings. In the absence of direct evidence (e.g. admission by the Nauruan government or NORI or its owners) or strong circumstantial evidence, this option may not be worth pursuing.
Three, an argument could be made with the view to establish that Nauru’s act of invoking section 1(15) is in violation with Part XI and its Annexes or the 1994 Implementing Agreement. This would entail either proving that the invocation of section 1(15) by Nauru was not done in good faith, or that its invocation constituted an abuse of right pursuant to Article 300 of UNCLOS.
At the outset, it should be clarified that this would be difficult to establish, given that States are presumed to act in good faith when exercising their rights under a treaty or customary international law and in the conduct of diplomatic affairs, and thus, international tribunals and courts are, quite rightly, very hesitant to intervene and find otherwise.[5]
Article 300 of UNCLOS comprises two parts, i.e. (1) for States to fulfil obligations under UNCLOS in good faith; and (2) to exercise rights recognised under UNCLOS in a manner that would not constitute an abuse of right. Both elements are to be considered as separate although closely related concepts.[6]
It is clear from the jurisprudence of ITLOS, that Article 300 must be invoked in reference to a specific provision of UNCLOS and is not a ‘stand-alone’ provision, whereby the obligation that was allegedly not fulfilled or the right that was exercise in an abusive manner must first be identified and linked to Article 300.[7] Detailed evidence or circumstances that give rise to the allegations of bad faith or abuse of a right must be particularized and eventually proven.[8]
It is possible to contend that the invocation of section 1(15) was not done in good faith or the right to invoke it amounted to an abuse because it was exercised in a manner that contradicts the intention behind its introduction. Indeed, it has been posited that the true intention behind section 1(15) was to address situations where one or a small number of Council members were seeking to deliberately stall or prevent exploitation activities to commence simply by raising formal objections to block the adoption of the exploitation regulations at the Council.
In this respect, the invocation of section 1(15) at a point in time where the Council and most of its member States have explicitly affirmed their dedication to ensure the timely adoption of the exploitation regulations and committed to take all necessary steps to achieve this expeditiously may be questioned. More crucially, one may argue that invoking section 1(15) and imposing a deadline to elaborate and adopt exploitation regulations amidst a global health emergency was not carried out in good faith or was an exercise of a right that amounted to an abuse.
In this respect, it is arguable that the invocation of the said provision and causing the prescribed time of two-years to enter into effect at this point in time is objectionable, given the difficulties for the Council to meet in-person to continue debating and negotiating the text of the exploitation regulations. It would have been a different situation altogether, for instance, had Nauru instead given notice of its intention to invoke section 1(15) during the next in person Council meeting.
That said, establishing the above is both challenging and difficult. Section 1(15) is arguably there in explicit terms in order to be invoked by any Member State, while Nauru could earnestly respond that the extended hiatus on negotiations over the regulations are prejudicial to its interests, and thus, the invocation of section 1(15) was done in good faith with the intention of resolving the prevailing regulatory uncertainties. Again, it is useful to stress that States are presumed to exercise their rights and obligations in good faith, and consequently, allegations of bad faith or abuse of rights must be rigorously proven.
However, given the fact that the pandemic itself was a wholly unexpected event that brought negotiations to an abrupt halt and prevented in person meetings for 18 months now, this could contrarily be seen as an intervening event that incapacitated the Council and made it impossible for the Council to act in the timely fashion needed to meet the deadline. It is difficult to predict how the SDC-ITLOS might react to such arguments given the unprecedented effects of the pandemic, although it would seem that the longer the Council is unable to meet to resume negotiations due to the global health crisis, the chances of the SDC-ITLOS being sympathetic to this reasoning could increase.
In support of some of the contentions made above, references to some of the leading literature on good faith and abuse of rights under international law might be useful to help put things into perspective. In describing the potential of the doctrine of abuse of rights in “adjusting the law to new conditions and preventing unfair or anti-social use of rights”, Lauterpacht explains that “the exercise of a hitherto legal right becomes unlawful when it degenerates into an abuse of rights; and that there is such an abuse of rights each time the general interest of the community is injuriously affected as the result of the sacrifice of an important social or individual interest to a less important, though hitherto legally recognized, individual right.”[9]
Lauterpacht continues to state that, “rights are conferred by the community, and the community must see to it that the rights are not exercised in an anti-social manner. To deny this in regard to international law is to maintain that in the international sphere rights are faculties whose source lies not in the objective law created by the community, but in the will and the power of the State.”[10]
Indeed, it has been observed in this respect that in cases involving “an anti-social use of the right, the abuse of rights doctrine helps in readjusting the balance of countervailing interests”.[11] “Where the right [in question] confers upon its owner a discretionary power, this must be exercised honestly, sincerely, reasonably, in conformity with the spirit of the law and with due regard to the interests of others”.[12] Crucially, “[f]or the determination of such abuse of rights the question of subjective fault and intention may, but need not always, be material.”[13]
Next, Kolb contends as follows: “Abuse of procedure is a special application of the prohibition of abuse of rights, which is a general principle applicable in international law as well as in municipal law. It consists of the use of procedural instruments or rights by one or more parties for purposes that are alien to those for which the procedural rights were established, especially for a fraudulent, procrastinatory, or frivolous purpose, for the purpose of causing harm or obtaining an illegitimate advantage, for the purpose of reducing or removing the effectiveness of some other available process or for purposes of pure propaganda.”[14]
As observed by Kiss, an abuse or right may arise where “a right is exercised intentionally for an end which is different from that for which the right has been created”. This, he notes, alongside arbitrary exercises of discretion, appear “to play a growing role within the framework of the law of international institutions, especially as far as the exercise of rights conferred upon individuals by international conventions is concerned.”[15]
Finally, it should be emphasised that Article 300 of UNCLOS “reflects the intention of the drafters to ensure that States do not exercise rights provided by [UNCLOS] in ways that transgress other States’ rights”, as argued by Wolfrum, and particularly comes into play where the action or exercise of right is recognised as legal under UNCLOS.[16]
Consequently, although the right to invoke section 1(15) is legally recognized under UNCLOS, its invocation is theoretically open to challenge pursuant to Article 300 of UNCLOS if the circumstances are warranted and can be proven to the satisfaction of the SDC-ITLOS.
Conclusion
While the prospects are rather unappealing and the probabilities of success are low, the possibility to succeed in challenging the invocation of section 1(15) through contentious proceedings should not be dismissed completely. The biggest obstacle would appear to be for a Member State (or States) or the Council to muster the political will to take the first step and institute contentious proceedings before the SDC-ITLOS.
In the event a contentious proceeding is instituted, it would be particularly interesting to see how the SDC-ITLOS responds, bearing in mind the fact that section 1(15) was invoked amidst the COVID-19 pandemic, as well as considering the contention that section 1(15) was arguably designed with a different intent from how it is being used now.
Having said that, it would appear to be a lot more prudent for Member States to avoid turning to litigation at the SDC-ITLOS and instead seek to maintain comity by exploring amicable options at the Council as its members bind together in response to the invocation of section 1(15). This includes exhausting all efforts to find solutions through diplomatic means on how the Council should proceed from here on.
One example would be to get all Member States to agree on a pact to not submit or sponsor any application for the approval of a plan of work until the Council has been allowed sufficient time to conduct in person meetings. In this respect, even if the prescribed time of two years has expired, the invocation of section 1(15) would not carry any significant legal consequences if no applications are submitted while the forthcoming exploitation regulations remain absent. Another seemingly possible option to explore would be for Nauru and the ISA to agree to defer or extend the expiry date of the prescribed time under section 1(15), or to agree that any provisional approval issued before the regulations are completed would be subsequently re-evaluated after their completion (and no contract would be issued until then either).
Alternatively, as indicated earlier, the Council (or Assembly) could request for an advisory opinion in accordance with Article 191 of UNCLOS to clarify the many ambiguities surrounding section 1(15). Some of the matters raised above could even be couched as legal questions to induce a response from the SDC-ITLOS, although the SDC-ITLOS will probably prefer to focus more on narrow questions that specifically relate to the implications and consequences of the invocation of section 1(15).
If this option is pursued, it would be interesting to see how the SDC-ITLOS would respond to the imposition of the two-year deadline on the Council, given the fact that the previous advisory opinion it delivered in 2011 at the Council’s request had a strong environmental and precautionary focus.
However, it might likewise be more pragmatic to wait until the prescribed time is over or almost over before seeking for such an opinion (especially if it is known or anticipated that an exploitation application will be submitted when the exploitation regulations remain unfinished), while in the meantime channelling all efforts to finding amiable solutions among Member States.
[1] Pradeep Singh is a doctoral candidate at the University of Bremen and independent research consultant.
[2] See ITLOS, ‘Rules of Procedure of the Tribunal’, Article 54(1), where reference is made to “the subject of the dispute”. In this respect, see M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Judgment, ITLOS Reports 2013, p. 4, at paragraph 143.
[3] M/V “Louisa”, paragraph 151: “For the foregoing reasons, the Tribunal concludes that no dispute concerning the interpretation or application of the Convention existed between the Parties at the time of the filing of the Application and that, therefore, it has no jurisdiction ratione materiae to entertain the present case.”
[4] Article 2(1) of the 1994 Implementing Agreement.
[5] Andreas R Ziegler and Jorun Baumgartner, ‘Good Faith as a General Principle of (International) Law’ in Andrew D Mitchell, M Sornarajah and Tania Voo (eds), Good Faith and International Economic Law (OUP 2015), p. 33.
[6] M/V “Norstar” (Panama v. Italy), Judgment, ITLOS Reports 2018-2019, p.10, at paragraph 303.
[7] M/V “Louisa” at paragraph 137, where ITLOS observed that: “it is apparent from the language of article 300 of [UNCLOS] that [A]rticle 300 cannot be invoked on its own”. See also M/V “Norstar” at paragraph 241.
[8] This can be inferred from M/V “Norstar”, see generally paragraphs 246-308.
[9] Hersch Lauterpacht, The Function of Law in the International Community (first published 1933, OUP 2011), 294.
[10] Id at p. 306.
[11] Andreas R Ziegler and Jorun Baumgartner, ‘Good Faith as a General Principle of (International) Law’, p. 31.
[12] Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Stevens and Sons 1953), 105.
[13] Hersch Lauterpacht, The Function of Law in the International Community, 294.
[14] Robert Kolb, ‘General principles of procedural law’, in Andreas Zimmermann, Christian Tams, Christian Tomuschat and Karin Oellers-Frahm (eds), The statute of the International Court of Justice : A commentary (3rd edition, OUP 2019), p. 998. Although this passage relates to abuse of procedure in judicial proceedings, it is submitted that the same reasoning would alsoy apply to the invocation of treaty provisions.
[15] This is also known as the “concept of détournement de pouvoir”. See Alexander Kiss, ‘Abuse of Rights’, Max Planck Encyclopedia of International Law (2006), at paragraphs 5 and 34 respectively.
[16] Rüdiger Wolfrum, ‘The Impact of Article 300 of the UN Convention on the Law of the Sea on the Jurisdiction of International Courts and Tribunals’, in Christian Calliess (ed) Herausforderungen an Staat und Verfassung (Nomos 2015), p. 385-386 and 392.
