On 24 April 2025, the White House issued an Executive Order (“Unleashing America’s Offshore Critical Minerals and Resources”) directing the Administrator of the US National Oceanic and Atmospheric Administration (NOAA) to “expedite the process for reviewing and issuing seabed mineral exploration licenses and commercial recovery permits in areas beyond national jurisdiction under the Deep Seabed Hard Mineral Resources Act” (DSHMRA) (EO, sec 3(a)(i) (emphasis added)).
Four weeks earlier, on the penultimate day of the International Seabed Authority’s (ISA) 30th Session, The Metals Company (TMC), a deep seabed mining company headquartered in Vancouver, Canada, announced that it had – through its US subsidiary – “formally initiated a process with NOAA … to apply for exploration licenses and commercial recovery permits under” DSHMRA, continuing “TMC USA expects to submit applications to NOAA in the second quarter of 2025”. Also in March, TMC’s CEO, Gerard Barron, declared that “[t]he freedom to mine the deep seabed, like the freedom of navigation, is a high seas freedom enjoyed by all nations”.
Question: Would unilateral US issuance of commercial recovery permits for mineral resources of the seabed beyond national jurisdiction (“the Area”) violate its international legal obligations?
Answer: The White House and TMC, if they cared to consider the question, would almost certainly answer “no” on the basis that the United States is not a party to the 1982 United Nations Convention on the Law of the Sea (“the Convention”), and, under customary international law, the mineral resources in the Area are res nullius subject to the freedom of the high seas regime.
That answer would receive a failing grade in my Law of the Sea class.
Obligations of the United States under Conventional International Law
It is correct that the United States has not signed and has not yet acceded to the Convention, which the Reagan administration rejected because “the deep seabed mining part of the convention [Part XI] does not meet United States objectives”. The United States is not bound, as a matter of conventional law, by the Convention.
But that is not the end of the story. The US rejection of Part XI prompted the renegotiation of that part, resulting in the 1994 Agreement Relating to the Implementation of Part XI (“the Implementing Agreement”). The Implementing Agreement substantially revised Part XI and provides that the Agreement would prevail over Part XI “[i]n the event of any inconsistencies” (IA, art 2(1)).
Unlike the Convention, the United States did sign the Implementing Agreement because, as President Clinton noted in his 7 October 1994 transmittal letter to the United States Senate, with those revisions, “the Agreement meets the objections the United States and other industrialized nations previously expressed to Part XI”.
Despite Clinton’s transmittal to the Senate for its advice and consent (to both the Convention and the Implementing Agreement) and support for ratification from subsequent administrations (Republican and Democrat alike), the United States remains a non-party. But its non-party status does not relieve the United States of all conventional law obligations. Instead, as a signatory, the United States has a continuing obligation to “refrain from acts which would defeat the object and purpose of” the Implementing Agreement (VCLT, art 18(a)). The object and purpose of the Implementing Agreement was the creation of a common management regime for the Area and its mineral resources. Unilateral US permitting in areas beyond US jurisdiction, as contemplated in the Executive Order, would severely undermine that common management regime and would constitute a violation of US obligations as a signatory to the Implementing Agreement.
It should be noted that, since the mid-1990s, the United States has done much more than refrain from acts which would defeat the object and purpose of the Implementing Agreement. Indeed, for the last thirty years, the United States has engaged in acts that uphold the object and purpose of the Agreement (discussed further below).
Customary International Law – High Seas Freedoms
It is also correct, as implied in Barron’s March statement, that the United States is bound by rules of customary international law, but Barron misidentifies those rules as they apply to the mineral resources of the Area.
If Barron’s statement had been made seventy years ago, in the mid-1950s, his assessment of the rules governing the resources of the seabed beyond national jurisdiction would have been incontrovertible, describing the customary law in place since the 1600s and the conventional law as codified in the 1958 High Seas Convention. The 1958 Convention provides a non-restrictive list of high seas freedoms (HSC, art 2), which, although not expressly mentioned in the list, would also include the “freedom to explore or exploit the subsoil of the high seas” (p 21).
Customary International Law – Common Heritage of Mankind
Barron’s statement ignores a few of the notable things that have happened in this area of the law in the last seventy years, starting with Arvid Pardo’s 1967 speech.
Ambassador Pardo’s speech urging the United Nations General Assembly to adopt a resolution regarding the governance of the deep seabed beyond national jurisdiction spurred the move away from the freedoms regime and toward the common heritage regime. In December 1970, the General Assembly followed through on Pardo’s request with Resolution 2749 (XXV), declaring that “[t]he sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction . . . as well as the resources of the area, are the common heritage of mankind”, and “[a]ll activities regarding the exploration and exploitation of the resources of the area and other related activities shall be governed by the international regime to be established”. These events mark the beginning of the formation of a new set of rules.
Notably, the United States voted in support of Resolution 2749 (XXV). The US vote is not surprising considering the Nixon administration’s support for an international governance regime for these resources. In his May 1970 statement on US oceans policy, Nixon called upon all nations to “adopt as soon as possible a treaty under which they would renounce all national claims over the natural resources of the seabed beyond [the continental shelf] and would agree to regard these resources as the common heritage of mankind”, suggesting further that “agreed international machinery would authorize and regulate exploration and use of seabed resources beyond the continental margins” and that “all permits for exploration and exploitation of the seabeds beyond 200 meters be issued subject to the international regime to be agreed upon”.
Nixon’s suggested treaty came to pass after nearly a decade of negotiations culminating in the 1982 Convention (with full United States participation throughout). Another decade later, the only part of the Convention to which the Reagan administration objected had been substantially modified by the 1994 Implementing Agreement. That Agreement reaffirmed that the Area and its resources “are the common heritage of mankind” (IA, preamble) and that the ISA “is the organization through which States Parties … shall … organize and control activities in the Area” (IA, annex, sec 1(1)).
Finally satisfied, the United States (and most of the other industrialized nations that had been holding out for changes to Part XI) signed the Implementing Agreement in July 1994 and then proceeded to apply the Agreement provisionally for two years (pursuant to IA, art 7) and to participate for four years as a provisional member in the work of the ISA (pursuant to IA, annex, sec 1(12)) before ceding its guaranteed seat on the Council to Italy in November 1998, having been unable to overcome domestic political obstacles to accession.
Despite not being a state party to the Convention or the Implementing Agreement, since 1998, the United States has participated in the business of the ISA “with active engagement, attending its Council and Assembly meetings and contributing to the debate on draft regulations” (pursuant to ISA Assembly RoP, rule 82; ISA Council RoP, rule 75). By way of recent example, during the July 2024 meeting of the Assembly, at the end of a statement on one of the agenda items, the United States noted the ISA’s “30 years of work to develop the legal framework for the Area”, closing with “[t]he United States looks forward to continuing to contribute to the success of the ISA as it begins its next decade of work”.
Between the 1950s and the 2020s, something had changed. As ISA Secretary-General Carvalho stated in reaction to TMC’s March announcement, “[t]he principle of the Common Heritage of Humankind, as applied to the Area, is a cornerstone of general international law and a fundamental pillar of ocean governance, widely upheld in the international community”. Some delegations to the ISA’s 30th Session went further asserting that “the principle of the common heritage of humankind . . . [is]a rule of customary international law, a norm which is also binding on non-State Parties to the Convention which have through state practice, accepted Part XI of the Convention and the 1994 Agreement as a norm of jus cogens, a non-derogable norm under international law” (ISBA/30/C/5, para 36).
This position might overstate the legal status of the common heritage principle, but it is certainly safe to quote Dolliver Nelson, writing in 1995: “The argument that ‘deep seabed mining is a freedom of the high seas’ is no longer tenable” (p 202, quoting DSHMRA sec 1401(a)(12)).
Contents of the Customary Rule
How does the common heritage principle, which has supplanted the regime of high seas freedoms, translate into detailed rules of customary international law?
The United States relies on the idea that the Convention, where it addresses traditional uses of the oceans, “reflects” customary international law. But the United States also relies on this notion to claim new rights, such as sovereign rights and jurisdiction in its exclusive economic zone: a sui generis zone that is primarily a creature of conventional law, “subject to the specific legal regime established in” and “governed by the relevant provisions of this Convention” (Convention, art 55). Similarly, the United States relies on this interpretation of the relationship between conventional and customary rules to lay claim to continental shelf outer limits on the basis of the highly-specific criteria set out in Article 76 of the Convention, leading some commentators to question the legitimacy of this “pick and choose” approach.
Admittedly, disentangling customary rules from related (and sometimes identical) conventional rules is problematic, especially detecting opinio juris in the shadow of a treaty system enjoying near-universal acceptance. Yet, when considering whether unilateral US permitting in the Area would violate a rule of customary international law, one must ask:
Do any of the provisions of Part XI or the Implementing Agreement reflect rules of customary international law?
If yes, what are the contents of those rules?
Pardo, writing in 1979, identifies “five basic implications” of the common heritage principle as it applies to the Area and its mineral resources (p 141), and John Noyes, writing in 2011, posits six “elements or components of the [common heritage] principle, the features that give it content” (pp 449-451). Combining and paraphrasing these sources, the common heritage principle includes the following features:
(1) non-appropriation/non-acquisition,
(2) vesting of rights in humankind,
(3) reservation for peaceful purposes,
(4) environmental protection,
(5) equitable sharing of benefits, and
(6) governance via a system of common management.
Mining activity in the Area carried out pursuant to United States permits could run afoul of several of these elements. Environmental protection has been at the fore of recent debates, but the unilateral issuance of permits would most directly and immediately conflict with the common management element (of which the ISA is the institutional embodiment) and the corollary prohibition against unilateral mining activities.
Is this prohibition a rule of customary international law? Almost certainly, yes.
The common management element was articulated early by Pardo and Nixon, and it consistently appears throughout the ensuing history, evident in the 1970 General Assembly resolution, the Convention, and the Agreement.
There is widespread state practice that subscribes to the common management of the Area and its resources, including the continuous US practice since 1994. Since its adoption in 1994, all subsequent work carried out pursuant to the Implementing Agreement has been in furtherance of this common management element. Noyes notes that “[i]n practice, no state is actively pursuing any alternative deep seabed mining regime” (p 465), and that has remained true until now.
In response to the March TMC press release, “Germany and others noted Article 137 as customary international law” (p 22). Article 137 of the Convention prohibits the appropriation, acquisition or alienation of mineral resources in the Area except in accordance with the common management regime. In contrast to other provisions, Article 137 is addressed to all states (“No State shall . . .), which seems to presuppose an application erga omnes.
Joanna Dingwall, in her excellent 2021 book, points to Article 137 which, if it reflects a customary rule, “would effectively proscribe all external actors (be they [non-states parties] or their nationals) from undertaking unilateral deep seabed mining activities and, ultimately, from trading in any minerals recovered unilaterally from the deep seabed” (p 167). Relying on, inter alia, her analysis of treaty texts and travaux; subsequent and prior conduct of parties and non-parties; decisions of the ICJ and the ITLOS Seabed Disputes Chamber; and the writings of the most highly qualified publicists over the last four decades (Charney, Egede, Fitzmaurice, Koskenniemi, Lehto, Nelson, Noyes, Treves, Wolfrum, Wood, to name a few), Dingwall finds it “difficult to refute the claim that a state or other actor undertaking unilateral deep seabed mining activities would violate customary law” (p 180). Unilateral US permitting would do just that.
Persistent Objector?
Any attempt by the United States to characterize itself as a persistent objector to the formation of the customary rules governing the mineral resources of the Area would be made in the teeth of US practice over the last fifty-five years, which is, at best, inconsistent.
It is true that, despite US expressions of support for the common heritage principle in 1970, by the end of the Carter administration and for the duration of the Reagan administration, the United States balked at the transformation underway from a freedoms regime to a common heritage regime with respect to the Area and its mineral resources. In an attempt to neutralize the common heritage principle, L.F.E. Goldie argued “insofar as it reflects customary international law, common heritage means no more than a commonness of a common field wherein all may pasture their stock” (p 80), paraphrased pages later as “a theory of common access to a common good” (p 84). This was in 1983, the same year President Reagan asserted that “[d]eep seabed mining remains a lawful exercise of the freedom of the high seas open to all nations” while also proclaiming a US exclusive economic zone.
A few years earlier, President Carter signed into law the Deep Seabed Hard Mineral Resources Act (DSHMRA). DSHMRA is formulated as an interim measure with the express purpose “to encourage the successful completion of a comprehensive Law of the Sea Treaty” (DSHMRA, sec 1401(b)(1)) and, in the meantime, “to encourage the continued development of technology” related to deep seabed mineral resources (DHSMRA, sec 1401(b)(5)). In keeping with the benefits-sharing element of the common heritage principle, a further purpose was “to provide for the establishment of an international revenue-sharing fund” (DSHMRA, sec. 1401(b)(2)). (Somewhat surprisingly, the recent Executive Order also pays lip service to this element (EO, sec. 3(c)(2)).)
Under DSHMRA, four exploration licenses were issued in 1984, two of which were surrendered in the 1990s. The two remaining licenses are both held by Lockheed Martin whose CEO explained, in a 2012 letter to the Senate Foreign Relations Committee, why the corporation could not move forward with deep seabed mining: “the multi-billion dollar investments needed to establish an ocean-based resource development business must be predicated upon clear legal rights established and protected under the treaty-based framework of the LOS Convention, including the International Seabed Authority (ISA)” (p 74). Since 1984, no other licenses have been issued under DSHMRA, and no commercial recovery permit has ever been issued under this moribund, half-century-old statute.
When considering a possible persistent objector argument, special attention should be paid to the conduct of the United States over the past thirty years, which exhibits a consistent pattern of commitment and adherence to the common heritage principle and, in particular, the common management element, including the prohibition against unilateral activities. With the successful renegotiation of Part XI, the US approach shifted from pushing a parallel interim regime to wholeheartedly adopting the common management regime of the Convention as modified by the Implementing Agreement. Since then, the United States has actively participated in the work of the ISA, adding to the practice of the 170 parties to the Convention.
Why has the United States done so? As a signatory to the Implementing Agreement, the United States is not obligated to “comply with its terms” (para 65, quoting Elliot Richardson) or to “take positive action” (para 60, quoting Jean-Pierre Cot) but only to refrain from acts. In the absence of a treaty obligation, the most convincing explanation for this affirmative conduct is a belief that it is, nonetheless, legally obligatory.
Far from a “persistent objector”, the United States has been an “consistent acceptor” of the customary rules related to the Area and its mineral resources. From the mid-1990s until the April 2025 Executive Order, I am not aware of any official US statement to the contrary.
Conclusions
The United States may be short on critical minerals, and China may be far ahead in this area, but the solution is not to destabilize the international order of the oceans that the United States has so intentionally and successfully crafted since the closing days of World War II. Instead of violating its international law obligations, the United States should accede to the Convention, reclaim its seat on the ISA Council, and push the ISA toward completing its exploitation regulations, while also sponsoring deep-seabed mining within the legal regime it created.
The Latest Trump Threat to International Law: Unilaterally Mining the Area
Written by Coalter LathropOn 24 April 2025, the White House issued an Executive Order (“Unleashing America’s Offshore Critical Minerals and Resources”) directing the Administrator of the US National Oceanic and Atmospheric Administration (NOAA) to “expedite the process for reviewing and issuing seabed mineral exploration licenses and commercial recovery permits in areas beyond national jurisdiction under the Deep Seabed Hard Mineral Resources Act” (DSHMRA) (EO, sec 3(a)(i) (emphasis added)).
Four weeks earlier, on the penultimate day of the International Seabed Authority’s (ISA) 30th Session, The Metals Company (TMC), a deep seabed mining company headquartered in Vancouver, Canada, announced that it had – through its US subsidiary – “formally initiated a process with NOAA … to apply for exploration licenses and commercial recovery permits under” DSHMRA, continuing “TMC USA expects to submit applications to NOAA in the second quarter of 2025”. Also in March, TMC’s CEO, Gerard Barron, declared that “[t]he freedom to mine the deep seabed, like the freedom of navigation, is a high seas freedom enjoyed by all nations”.
Question: Would unilateral US issuance of commercial recovery permits for mineral resources of the seabed beyond national jurisdiction (“the Area”) violate its international legal obligations?
Answer: The White House and TMC, if they cared to consider the question, would almost certainly answer “no” on the basis that the United States is not a party to the 1982 United Nations Convention on the Law of the Sea (“the Convention”), and, under customary international law, the mineral resources in the Area are res nullius subject to the freedom of the high seas regime.
That answer would receive a failing grade in my Law of the Sea class.
Obligations of the United States under Conventional International Law
It is correct that the United States has not signed and has not yet acceded to the Convention, which the Reagan administration rejected because “the deep seabed mining part of the convention [Part XI] does not meet United States objectives”. The United States is not bound, as a matter of conventional law, by the Convention.
But that is not the end of the story. The US rejection of Part XI prompted the renegotiation of that part, resulting in the 1994 Agreement Relating to the Implementation of Part XI (“the Implementing Agreement”). The Implementing Agreement substantially revised Part XI and provides that the Agreement would prevail over Part XI “[i]n the event of any inconsistencies” (IA, art 2(1)).
Unlike the Convention, the United States did sign the Implementing Agreement because, as President Clinton noted in his 7 October 1994 transmittal letter to the United States Senate, with those revisions, “the Agreement meets the objections the United States and other industrialized nations previously expressed to Part XI”.
Despite Clinton’s transmittal to the Senate for its advice and consent (to both the Convention and the Implementing Agreement) and support for ratification from subsequent administrations (Republican and Democrat alike), the United States remains a non-party. But its non-party status does not relieve the United States of all conventional law obligations. Instead, as a signatory, the United States has a continuing obligation to “refrain from acts which would defeat the object and purpose of” the Implementing Agreement (VCLT, art 18(a)). The object and purpose of the Implementing Agreement was the creation of a common management regime for the Area and its mineral resources. Unilateral US permitting in areas beyond US jurisdiction, as contemplated in the Executive Order, would severely undermine that common management regime and would constitute a violation of US obligations as a signatory to the Implementing Agreement.
It should be noted that, since the mid-1990s, the United States has done much more than refrain from acts which would defeat the object and purpose of the Implementing Agreement. Indeed, for the last thirty years, the United States has engaged in acts that uphold the object and purpose of the Agreement (discussed further below).
Customary International Law – High Seas Freedoms
It is also correct, as implied in Barron’s March statement, that the United States is bound by rules of customary international law, but Barron misidentifies those rules as they apply to the mineral resources of the Area.
If Barron’s statement had been made seventy years ago, in the mid-1950s, his assessment of the rules governing the resources of the seabed beyond national jurisdiction would have been incontrovertible, describing the customary law in place since the 1600s and the conventional law as codified in the 1958 High Seas Convention. The 1958 Convention provides a non-restrictive list of high seas freedoms (HSC, art 2), which, although not expressly mentioned in the list, would also include the “freedom to explore or exploit the subsoil of the high seas” (p 21).
Customary International Law – Common Heritage of Mankind
Barron’s statement ignores a few of the notable things that have happened in this area of the law in the last seventy years, starting with Arvid Pardo’s 1967 speech.
Ambassador Pardo’s speech urging the United Nations General Assembly to adopt a resolution regarding the governance of the deep seabed beyond national jurisdiction spurred the move away from the freedoms regime and toward the common heritage regime. In December 1970, the General Assembly followed through on Pardo’s request with Resolution 2749 (XXV), declaring that “[t]he sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction . . . as well as the resources of the area, are the common heritage of mankind”, and “[a]ll activities regarding the exploration and exploitation of the resources of the area and other related activities shall be governed by the international regime to be established”. These events mark the beginning of the formation of a new set of rules.
Notably, the United States voted in support of Resolution 2749 (XXV). The US vote is not surprising considering the Nixon administration’s support for an international governance regime for these resources. In his May 1970 statement on US oceans policy, Nixon called upon all nations to “adopt as soon as possible a treaty under which they would renounce all national claims over the natural resources of the seabed beyond [the continental shelf] and would agree to regard these resources as the common heritage of mankind”, suggesting further that “agreed international machinery would authorize and regulate exploration and use of seabed resources beyond the continental margins” and that “all permits for exploration and exploitation of the seabeds beyond 200 meters be issued subject to the international regime to be agreed upon”.
Nixon’s suggested treaty came to pass after nearly a decade of negotiations culminating in the 1982 Convention (with full United States participation throughout). Another decade later, the only part of the Convention to which the Reagan administration objected had been substantially modified by the 1994 Implementing Agreement. That Agreement reaffirmed that the Area and its resources “are the common heritage of mankind” (IA, preamble) and that the ISA “is the organization through which States Parties … shall … organize and control activities in the Area” (IA, annex, sec 1(1)).
Finally satisfied, the United States (and most of the other industrialized nations that had been holding out for changes to Part XI) signed the Implementing Agreement in July 1994 and then proceeded to apply the Agreement provisionally for two years (pursuant to IA, art 7) and to participate for four years as a provisional member in the work of the ISA (pursuant to IA, annex, sec 1(12)) before ceding its guaranteed seat on the Council to Italy in November 1998, having been unable to overcome domestic political obstacles to accession.
Despite not being a state party to the Convention or the Implementing Agreement, since 1998, the United States has participated in the business of the ISA “with active engagement, attending its Council and Assembly meetings and contributing to the debate on draft regulations” (pursuant to ISA Assembly RoP, rule 82; ISA Council RoP, rule 75). By way of recent example, during the July 2024 meeting of the Assembly, at the end of a statement on one of the agenda items, the United States noted the ISA’s “30 years of work to develop the legal framework for the Area”, closing with “[t]he United States looks forward to continuing to contribute to the success of the ISA as it begins its next decade of work”.
Between the 1950s and the 2020s, something had changed. As ISA Secretary-General Carvalho stated in reaction to TMC’s March announcement, “[t]he principle of the Common Heritage of Humankind, as applied to the Area, is a cornerstone of general international law and a fundamental pillar of ocean governance, widely upheld in the international community”. Some delegations to the ISA’s 30th Session went further asserting that “the principle of the common heritage of humankind . . . [is]a rule of customary international law, a norm which is also binding on non-State Parties to the Convention which have through state practice, accepted Part XI of the Convention and the 1994 Agreement as a norm of jus cogens, a non-derogable norm under international law” (ISBA/30/C/5, para 36).
This position might overstate the legal status of the common heritage principle, but it is certainly safe to quote Dolliver Nelson, writing in 1995: “The argument that ‘deep seabed mining is a freedom of the high seas’ is no longer tenable” (p 202, quoting DSHMRA sec 1401(a)(12)).
Contents of the Customary Rule
How does the common heritage principle, which has supplanted the regime of high seas freedoms, translate into detailed rules of customary international law?
The United States relies on the idea that the Convention, where it addresses traditional uses of the oceans, “reflects” customary international law. But the United States also relies on this notion to claim new rights, such as sovereign rights and jurisdiction in its exclusive economic zone: a sui generis zone that is primarily a creature of conventional law, “subject to the specific legal regime established in” and “governed by the relevant provisions of this Convention” (Convention, art 55). Similarly, the United States relies on this interpretation of the relationship between conventional and customary rules to lay claim to continental shelf outer limits on the basis of the highly-specific criteria set out in Article 76 of the Convention, leading some commentators to question the legitimacy of this “pick and choose” approach.
Admittedly, disentangling customary rules from related (and sometimes identical) conventional rules is problematic, especially detecting opinio juris in the shadow of a treaty system enjoying near-universal acceptance. Yet, when considering whether unilateral US permitting in the Area would violate a rule of customary international law, one must ask:
Do any of the provisions of Part XI or the Implementing Agreement reflect rules of customary international law?
If yes, what are the contents of those rules?
Pardo, writing in 1979, identifies “five basic implications” of the common heritage principle as it applies to the Area and its mineral resources (p 141), and John Noyes, writing in 2011, posits six “elements or components of the [common heritage] principle, the features that give it content” (pp 449-451). Combining and paraphrasing these sources, the common heritage principle includes the following features:
(1) non-appropriation/non-acquisition,
(2) vesting of rights in humankind,
(3) reservation for peaceful purposes,
(4) environmental protection,
(5) equitable sharing of benefits, and
(6) governance via a system of common management.
Mining activity in the Area carried out pursuant to United States permits could run afoul of several of these elements. Environmental protection has been at the fore of recent debates, but the unilateral issuance of permits would most directly and immediately conflict with the common management element (of which the ISA is the institutional embodiment) and the corollary prohibition against unilateral mining activities.
Is this prohibition a rule of customary international law? Almost certainly, yes.
The common management element was articulated early by Pardo and Nixon, and it consistently appears throughout the ensuing history, evident in the 1970 General Assembly resolution, the Convention, and the Agreement.
There is widespread state practice that subscribes to the common management of the Area and its resources, including the continuous US practice since 1994. Since its adoption in 1994, all subsequent work carried out pursuant to the Implementing Agreement has been in furtherance of this common management element. Noyes notes that “[i]n practice, no state is actively pursuing any alternative deep seabed mining regime” (p 465), and that has remained true until now.
In response to the March TMC press release, “Germany and others noted Article 137 as customary international law” (p 22). Article 137 of the Convention prohibits the appropriation, acquisition or alienation of mineral resources in the Area except in accordance with the common management regime. In contrast to other provisions, Article 137 is addressed to all states (“No State shall . . .), which seems to presuppose an application erga omnes.
Joanna Dingwall, in her excellent 2021 book, points to Article 137 which, if it reflects a customary rule, “would effectively proscribe all external actors (be they [non-states parties] or their nationals) from undertaking unilateral deep seabed mining activities and, ultimately, from trading in any minerals recovered unilaterally from the deep seabed” (p 167). Relying on, inter alia, her analysis of treaty texts and travaux; subsequent and prior conduct of parties and non-parties; decisions of the ICJ and the ITLOS Seabed Disputes Chamber; and the writings of the most highly qualified publicists over the last four decades (Charney, Egede, Fitzmaurice, Koskenniemi, Lehto, Nelson, Noyes, Treves, Wolfrum, Wood, to name a few), Dingwall finds it “difficult to refute the claim that a state or other actor undertaking unilateral deep seabed mining activities would violate customary law” (p 180). Unilateral US permitting would do just that.
Persistent Objector?
Any attempt by the United States to characterize itself as a persistent objector to the formation of the customary rules governing the mineral resources of the Area would be made in the teeth of US practice over the last fifty-five years, which is, at best, inconsistent.
It is true that, despite US expressions of support for the common heritage principle in 1970, by the end of the Carter administration and for the duration of the Reagan administration, the United States balked at the transformation underway from a freedoms regime to a common heritage regime with respect to the Area and its mineral resources. In an attempt to neutralize the common heritage principle, L.F.E. Goldie argued “insofar as it reflects customary international law, common heritage means no more than a commonness of a common field wherein all may pasture their stock” (p 80), paraphrased pages later as “a theory of common access to a common good” (p 84). This was in 1983, the same year President Reagan asserted that “[d]eep seabed mining remains a lawful exercise of the freedom of the high seas open to all nations” while also proclaiming a US exclusive economic zone.
A few years earlier, President Carter signed into law the Deep Seabed Hard Mineral Resources Act (DSHMRA). DSHMRA is formulated as an interim measure with the express purpose “to encourage the successful completion of a comprehensive Law of the Sea Treaty” (DSHMRA, sec 1401(b)(1)) and, in the meantime, “to encourage the continued development of technology” related to deep seabed mineral resources (DHSMRA, sec 1401(b)(5)). In keeping with the benefits-sharing element of the common heritage principle, a further purpose was “to provide for the establishment of an international revenue-sharing fund” (DSHMRA, sec. 1401(b)(2)). (Somewhat surprisingly, the recent Executive Order also pays lip service to this element (EO, sec. 3(c)(2)).)
Under DSHMRA, four exploration licenses were issued in 1984, two of which were surrendered in the 1990s. The two remaining licenses are both held by Lockheed Martin whose CEO explained, in a 2012 letter to the Senate Foreign Relations Committee, why the corporation could not move forward with deep seabed mining: “the multi-billion dollar investments needed to establish an ocean-based resource development business must be predicated upon clear legal rights established and protected under the treaty-based framework of the LOS Convention, including the International Seabed Authority (ISA)” (p 74). Since 1984, no other licenses have been issued under DSHMRA, and no commercial recovery permit has ever been issued under this moribund, half-century-old statute.
When considering a possible persistent objector argument, special attention should be paid to the conduct of the United States over the past thirty years, which exhibits a consistent pattern of commitment and adherence to the common heritage principle and, in particular, the common management element, including the prohibition against unilateral activities. With the successful renegotiation of Part XI, the US approach shifted from pushing a parallel interim regime to wholeheartedly adopting the common management regime of the Convention as modified by the Implementing Agreement. Since then, the United States has actively participated in the work of the ISA, adding to the practice of the 170 parties to the Convention.
Why has the United States done so? As a signatory to the Implementing Agreement, the United States is not obligated to “comply with its terms” (para 65, quoting Elliot Richardson) or to “take positive action” (para 60, quoting Jean-Pierre Cot) but only to refrain from acts. In the absence of a treaty obligation, the most convincing explanation for this affirmative conduct is a belief that it is, nonetheless, legally obligatory.
Far from a “persistent objector”, the United States has been an “consistent acceptor” of the customary rules related to the Area and its mineral resources. From the mid-1990s until the April 2025 Executive Order, I am not aware of any official US statement to the contrary.
Conclusions
The United States may be short on critical minerals, and China may be far ahead in this area, but the solution is not to destabilize the international order of the oceans that the United States has so intentionally and successfully crafted since the closing days of World War II. Instead of violating its international law obligations, the United States should accede to the Convention, reclaim its seat on the ISA Council, and push the ISA toward completing its exploitation regulations, while also sponsoring deep-seabed mining within the legal regime it created.
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Andrew Serdy says
May 7, 2025
Thanks for this fine analysis which I can't fault. A practical question, though: would the fact that the US is acting in violation of the customary rule represented by Art 137 of UNCLOS have any real-world consequences as long as the minerals recovered are landed directly in a US port and thereafter either consumed in the US (one could pose a parallel question in relation to petroleum extracted by China from disputed areas of the South China Sea and wholly consumed in China itself), or subsequently transformed there into other manufactured goods? At that point, the only response left to other States would be to prohibit imports of goods produced with inputs obtained from the deep seabed other than through the ISA system. Although this would probably not be too difficult to defend before a WTO panel (and even if I am wrong on that, thanks to the demise of the Appellate Body, a successful challenge by the US could be appealed into the void), I doubt there would be much appetite in the US's export markets for reacting this way, not least because the value of the incorporated unlawfully obtained minerals might be only a small fraction of the finished products.
Robin Churchill says
May 8, 2025
Many thanks for alerting us to yet another example of the repudiation of the post-WWII rules-based international order by the Trump administration and your excellently-argued rebuttal of the views of TMC’s CEO. Presumably the reason that TMC is planning to apply for a licence under DSHMRA through its US subsidiary rather than waiting for its wholly-owned subsidiaries in Nauru (Nauru Ocean Resources Inc), Tonga (Tonga Offshore Mining) and Kiribati (Marawa) to be awarded exploitation licences under the ISA’s mining regime is because TMC has lost patience with waiting for the ISA to adopt the draft exploitation regulations. Should TMC’s US subsidiary be granted a licence under the DSHMRA, one wonders whether this will cover areas that TMC has already explored under the exploration contracts held by its three Pacific Island subsidiaries or whether it will be applying to explore areas outside of those that are currently the subject of exploration contracts awarded by the ISA. If the former, one wonders whether the CEO of TMC would consider that as compatible with the freedom of the high seas regime that requires States to have reasonable/due regard to the rights of other States, an obligation found in the 1958 Convention on the High Seas, to which the US is a party. If TMC is planning to search new areas, one wonders whether it will be in a position to begin commercial mining before the ISA has adopted the exploitation regulations.
One might also note that for any other US corporation that is tempted to apply for a licence under the DSHMRA, there is an alternative way to obtain an exploration/exploitation licence that is in conformity with the Law of the Sea Convention regime. That is to set up a wholly-owned subsidiary in a State party to the Convention that is prepared to sponsor it. For example, this is what Lockheed Martin has done by incorporating a wholly-owned company in the UK (Loke CCZ), sponsored by the UK, which holds two exploration licences for polymetallic nodules from the ISA.
Arron Honniball says
May 9, 2025
Thank you for an excellent post and analysis. For those interested in the locality of the 2 exploration and 1 exploitation ('commercial recovery permit') applications already submitted to NOAA, they are discussed in an announcement by TMC https://investors.metals.co/news-releases/news-release-details/world-first-tmc-usa-submits-application-commercial-recovery-deep
And yes, they are in the Clarion-Clipperton Zone...
Coalter Lathrop says
May 12, 2025
Andrew Serdy - Thank you for your comment, which raises an excellent point. For now, the US does not have processing capacity or vessels for this work. I understand The Metals Company hopes to process nodules in Japan and, in a plot twist which would certainly send Ambassador Pardo rolling in his grave, to extract those nodules with a Malta-flagged vessel. The US may be willing to violate its international obligations, but I wonder where Japan and Malta would come down on this if extraction under a US permit were to occur.
Coalter Lathrop says
May 12, 2025
Robin Churchill - Thank you for your comment and kind words. Indeed, the question of what areas TMC's exploration and exploitation applications cover adds another strand or two to this web. As Aaron Honniball notes, they are all in the CCZ, but I do not know their exact locations. Based on the few clues provided in TMC's press releases to date, it is likely the exploitation permit application covers areas within the NORI area. If that is correct, I assume there has been some communication between TMC and Nauru about TMC's DSHMRA plans. More information should become available as the applications move through the NOAA process.
Maria Esther Salamanca Aguado says
May 13, 2025
Thank you for your interesting contribution.
Since the adoption of UNCLOS in 1982 and its entry into force in 1994, alongside the 1994 Agreement, I fully agree that the common heritage principle has been widely recognised as part of customary international law. For instance, Patrick L. Robinson, former judge at the International Court of Justice, recently asserted that, based on state practice, it is reasonable to conclude that the basic principle of the common heritage of mankind has now "crystallised as a rule of customary international law”. This recognition is supported by the widespread ratification of UNCLOS (170 Parties) and the 1994 Agreement (153 Parties), its incorporation into national legislation by States sponsoring activities in the Area, and numerous affirmations by Member States in the Authority’s deliberations, as you also mentioned.
Although no court or tribunal has directly addressed the customary status of the common heritage principle, the ITLOS Seabed Disputes Chamber accepted it indirectly in its 2011 Advisory Opinion acknowledging a "common interest of all States in the proper implementation of the principle of the common heritage of mankind" (paras. 76 and 266). The reference to “all States” rather than “States Parties” implicitly supports the interpretation that this principle is binding under customary international law.
In my view, although the United States is not bound by the system of exploration and exploitation established under Part XI of UNCLOS or by the 1994 Agreement, including the Authority’s rules, regulations and procedures, it is nonetheless obliged, under customary international law, to respect the legal status of the Area and its resources as well as the exclusive mandate of the Authority to administer those resources on behalf of humankind.
The evolving tension between multilateralism and unilateralism in deep-seabed mining highlights a fundamental question of international law: how should global commons be governed in the face of national or corporate ambitions?
The current moment presents a critical opportunity for the international community to reaffirm the principle of collective management of the Area and to ensure that its resources are administered for the benefit of all humankind. It underscores the urgent need for the Authority to finalise and adopt the Exploitation Regulations, striking a delicate balance between preserving the common heritage and fostering sustainable resource development. Legal uncertainty not only invites unilateral action but also deters responsible investment and undermines environmental safeguards.
Furthermore, the equitable participation of developing countries and Small Island Developing States (SIDS) must be safeguarded to uphold the international solidarity embedded in the common heritage principle.
Dr Niels J Seeberg-Elverfeldt says
May 19, 2025
Sorry, there was in the second sentence an error in the transmission. Please, find below the corrected version.
Thank you for your excellent analysis. As to your further comment there is, however, a lot to be said that the application of TMC USA for a commercial recovery permit not only overlaps with that of NORI/TMC but is identical. According to its announcement of 29 April TMC advances the timeline of its original target for such application of 27 June. For this date TMC and Nauru had announced on 12 November 2024 the expected submission of its subsidiary NORI of its ISA exploitation application. It it remains to be seen how Nauru reacts on this matter, particularly since it still underlined at the 30th session of the ISA Council its full commitment to the ISA and noted that it were working with NORI on the intended submission to ISA in June 2025. TMC/NORI may be in breach of its exploration contract with the ISA as also indicated by Uganda at the same session.