Declaration of Judge Brown appended to the Order of the Chamber of 18 July 2026 in the Case concerning an inquiry by the International Seabed Authority (Nauru Ocean Resources Inc. v. International Seabed Authority)

Authoritative text

DECLARATION OF JUDGE BROWN

1. I fully share the views of the Chamber on the exercise of its jurisdiction in this case. I would merely add a few observations on the finding stated in paragraph 97 of the Order that "article 187, subparagraph (c), of the Convention appears prima facie to afford a basis on which its jurisdiction might be founded."

2. The Applicant asserts that "[t]he Chamber has prima facie jurisdiction under

Articles 187(c)(i) and 187(c)(ii) and is accordingly competent to prescribe the provisional measures requested." It also states that the "contractual aspect of the dispute arises from the same acts and omissions of the Authority that are disputed under Article 187(c)(ii)."

3. However, neither Party refers to article 188, paragraph 2(a), of the Convention in its submissions. Nor is this provision referred to in the Order of the Chamber. Article 188, paragraph 2(a), of the Convention states: Disputes concerning the interpretation or application of a contract referred to in article 187, subparagraph (c)(i), shall be submitted, at the request of any party to the dispute, to binding commercial arbitration, unless the parties otherwise agree. A commercial arbitral tribunal to which the dispute is submitted shall have no jurisdiction to decide any question of interpretation of this Convention. When the dispute also involves a question of the interpretation of Part XI and the Annexes relating thereto, with respect to activities in the Area, that question shall be referred to the Seabed Disputes Chamber for a ruling. (Emphasis added.)

4. In paragraph 97 of the Order, the Chamber observes that at this stage of the proceedings, it need only to satisfy itself that at least one provision cited by the Applicant appears prima facie to afford a basis on which its jurisdiction might be founded and considers that this requirement is met under article 187, subparagraph (c). The statement of the Chamber may be read as addressing both subparagraphs (c)(i) and (c)(ii) of article 187, therefore setting aside the question whether both or only one of the provisions of the Convention invoked by the Applicant provides a basis for the Chamber's finding that its jurisdiction is prima facie well founded.

5. The default reference to commercial arbitration in article 188, paragraph 2(a), of the Convention covers contractual disputes of a commercial or technical nature.1 This provision does not limit the jurisdiction of the Chamber ratione materiae. Rather, it indicates the choice of the procedure which, failing the contrary agreement of the parties, will determine the forum to which the dispute must be submitted. However, even where a commercial arbitral tribunal is properly seized of a matter, it must refer any questions concerning the interpretation of the Convention to the Chamber for a ruling and, in accordance with article 188, paragraph (2)(b), "[t]he arbitral tribunal shall then proceed to render its award in conformity with the ruling of the Seabed Disputes Chamber."

6. As article 188, paragraph (2)(a), does not oust the Chamber's jurisdiction under article 187, subparagraph (c)(i), it may be inferred prima facie that the parties "otherwise agree" to submit their dispute to the Chamber, within the meaning of article 188, paragraph (2)(a), where the respondent raises no objection to its jurisdiction. Alternatively stated, the Chamber may conclude that it has prima facie jurisdiction over the claim arising under article 187, subparagraph (c)(i), on the basis of forum prorogatum taken in its traditional sense, i.e., the extension of already existing jurisdiction to cover certain aspects of a dispute which would otherwise be outside that jurisdiction.2

7. That inferences may be made from the conduct of the respondent for the

Chamber to determine its prima facie jurisdiction to prescribe provisional measures does not necessarily indicate that similar inferences would be drawn in assessing

1 See also A/CONF.62/C.1/L.27 and Add.1 Report of the coordinators of the working group of 21 to the

First Committee, at p. 136 ("The proposal presented by the Chairman was to the effect that, in principle, commercial arbitration would be appropriate for contractual disputes of a commercial or technical nature, provided, however, that the unity of jurisprudence regarding the interpretation of part XI should be maintained at all costs, by providing exclusive jurisdiction regarding such interpretation in the sea bed disputes chamber.") 2 E.g., Rights of Minorities in Upper Silesia (Minority Schools) (Germany v. Poland), Judgment No. 12, 1928, P.C.I.J. (Ser. A) No. 15 (April 26), p. 24 ("there seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it."). See also Anglo-Iranian Oil Co. Case (Order of July 5, 1951), I.C.J. Reports 1951, p. 89 (granting provisional measures even though Iran had contested the Court's jurisdiction in its Application); cf. Anglo-Iranian Oil Co. case (United Kingdom v. Iran), Preliminary Objection, Judgment of July 22, 1952, I.C.J. Reports 1952, p. 93 at 114 (finding that the Court has no jurisdiction as the Government of Iran "has consistently denied the jurisdiction of the Court.") consent for the purposes of the merits of the case. The respondent's arguing the substance of the request for provisional measures without addressing a particular jurisdictional issue may be interpreted as implied consent for the purposes of that request only, given that an excess of legal significance should not be attached to the parties' actions at this stage of the proceedings.

8. In the present case, it is particularly relevant that the Applicant asserts that

"[t]he Chamber has prima facie jurisdiction under Articles 187(c)(i) and 187(c)(ii)" yet makes no reference to any provisions of its Exploration Contract other than to section 13, paragraph 4. This provision imposes an obligation on the Authority to fulfil in good faith its powers and functions under the Convention and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, "in accordance with article 157 of the Convention".

9. The Authority draws attention to this, noting that "the Applicants rely solely on section 13.4 of their contracts, which is also one of the standard clauses incorporated in all exploration contracts by way of the Nodule Regulations."

10. The obligation to act in good faith as stated in article 157 of the Convention is applicable to the conduct of the Authority in organizing and controlling activities in the Area, particularly with a view to administering the resources of the Area, independently of the specific terms of Applicant's Exploration Contract.3 In the present circumstances, the specific reference to the terms of the Applicant's Exploration Contract may seem unnecessary. Furthermore, an examination of the "acts or omissions of a party to the contract relating to activities in the Area and directed to the other party or directly affecting its legitimate interests" falling within article 187, subparagraph (c)(ii), does not preclude reference to the terms of the relevant contract, where necessary. Therefore, the Chamber's jurisdiction over the

3 Paragraph 4 of article 157 of the Convention is modelled on article 2, paragraph 2, of the United

Nations Charter, which is widely interpreted as "a principle from which duties flow for all the organs of the Organization"; see Robert Kolb, Article 2, in: Bruno Simma/Daniel-Erasmus Khan/Georg Nolte/Andreas Paulus 21. (eds.), The Charter of the United Nations: A Commentary, vol. I (3rd edn. 2012) at p.169 (4).

dispute submitted to it may, prima facie, be established on the basis of article 187, subparagraph (c)(ii), alone.

11. Significantly, the "Notice of Dispute issued pursuant to Part XI, Section 5 of the United Nations Convention on the Law of the Sea", submitted to the SecretaryGeneral of the Authority by the Applicant by letter dated 18 May 2026, refers to the possibility of commencing proceedings before the Chamber, including by submitting an application for provisional measures under article 290 of the Convention, but it also states that "[w]ithout prejudice to its position that the Seabed Disputes Chamber has direct jurisdiction over this dispute under Article 187(c)(ii) of UNCLOS, NORI further reserves its right to submit any dispute arising out of or in connection with the exploration contract, including disputes concerning the interpretation or application of the contract, to binding commercial arbitration in accordance with the UNCITRAL Arbitration Rules, pursuant to Article 188(2)(a) of UNCLOS."

The Applicant, therefore, has declared its intention to pursue arbitration for any disputes arising out of or in connection with its Exploration Contract in subsequent litigation before a commercial arbitral tribunal should the circumstances so require.

12. This request for provisional measures marks a new chapter in the work of the

Chamber and draws attention to the integrated and complementary nature of the dispute settlement arrangements provided by Part XI, section 5, of the Convention. It however also raises a number of legal issues which remain to be adjudicated at the merits stage. (Signed)

Kathy-Ann Brown