Deep-sea mining is a complex and polarising topic, and I have developed a keen interest in and knowledge of it. I devoted nearly two months of full-time study to reviewing the entire process, after being selected and completing ISA’s DIVE 3 qualification,
Yet I’m not writing in this blog about its potential benefits and problems (that will take a book!), but about the underlying rules-based order that governs prospecting and eventually mining there, as well as other activities in Areas Beyond National Jurisdiction (ABNJ), such as fishing, and the risk of deviating from the already challenging and sometimes contentious rules-based order as the one it exists at the RFMO level.
The issue for me is that the recent USG executive order allows American companies to operate free from international constraints and extract polymetallic nodules rich in nickel, copper, cobalt, manganese, and other critical minerals from the ocean floor.
The order applies to America’s exclusive economic zone (EEZ), which is understandable to some extent, but also to international waters, including the Clarion-Clipperton Zone in the North Pacific, which holds vast mineral reserves.
However, this zone has been carefully planned and stewarded by the United Nations’ International Seabed Authority (ISA) an autonomous international organisation established under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1994 Agreement relating to the Implementation of Part XI of UNCLOS, has the mandate to look after the mineral resources of “the area”, meaning the seabed, ocean floor, and subsoil beyond the limits of national jurisdiction (i.e. beyond the 200nm and, in very few cases, beyond the 350 nm of the extended continental shelf. In any case, the "The Area" concept is linked to the "common heritage of mankind", which means that all nations should benefit from its resources, not just those that can explore and extract them.
The ISA has worked for decades to establish a regulatory framework for deep-sea mining, which includes many layers of environmental safeguards, accessibility conditions, financial management, etc.
Under ISA, the Clarion-Clipperton Zone comprises nine Areas of Particular Environmental Interest (APEIs) designated as protected areas, spanning a total of 1.7 million square kilometres. These APEIs are specifically designed to safeguard biodiversity and habitats within the CCZ, including abyssal plains, abyssal hills, seamounts, and fracture zones.
The issue is that the USA’s unilateral move bypasses the ISA and UNCLOS. America has not ratified the latter (it is one of 15 countries not to do so) but generally considers it “customary law.” Thus, in principle, it does not consider itself bound to work under the ISA’s framework and perhaps does not even recognise the APEIs.
Ironically, the PrepComm on the Agreement on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ) is being worked out this week at the UN in New York to address MPAs in ABNJ above the seafloor. Yet, if bypassing ISA’s jurisdiction is the way forward, there is little hope for anything the BBNJ can achieve. Furthermore, what guarantees exist now for the Fish Stocks Agreement, the RFMOs, and the general rules-based order that we have progressively relied on since the 1970s?
This executive order undermines international compliance with maritime law and has provoked global outrage due to environmental concerns and legal implications.
The executive order mandates collaboration across government agencies to ensure national security, technological dominance, and support for exploration, extraction, and refining. The National Oceanic and Atmospheric Administration (NOAA) is tasked with issuing mining licenses (and i assume monitoring compliance?)
The Metals Company (TMC), a Canadian firm listed in America, has been a key beneficiary of the order. TMC has conducted prospecting missions in the Clarion-Clipperton Zone, recovering thousands of tonnes of polymetallic nodules. The executive order boosted TMC’s share price by 47%, valuing the company at over $1 billion and facilitating its fundraising efforts. While TMC’s aggressive lobbying had previously drawn criticism, some American policymakers and mining executives now support the administration’s push for a comprehensive seabed mining policy, viewing it as an opportunity to shape international rules and regain initiative in the sector.
America’s unilateral move may provoke resistance from ISA members, who could impose sanctions on American mining companies and refuse to purchase their mineral output, potentially isolating the USA. Yet, it is more likely to disrupt the ISA’s already fragile consensus.
Over two dozen countries, including Canada, Britain, and several EU members, have called for a moratorium on deep-sea mining until further research on its environmental impact and a regulatory framework with strong protections is established. However, in a classic example of the tragedy of the commons, some of these nations may enter the race to avoid being left behind.
Other countries that oppose a moratorium, such as China, Japan, India, and Russia, are likely to increase pressure on the ISA to approve deep-sea mining in international waters.
Interestingly, despite its technological disadvantage in deep-sea mining compared to America and Japan, China has funded much of the ISA’s activities and positioned itself as a global leader within the rules-based order. Of course, it criticises the USA’s actions as outside the law.
It has formed alliances with Pacific island states, such as the Cook Islands, which view seabed mining as an economic lifeline. America may counter China’s influence by offering seabed mining incentives to Pacific Island countries (PICs) outside the ISA framework. However, this approach may fracture PICs general unity regarding successful shared resource exploitation (which is the case with fisheries) and bring back concerns about exploitation reminiscent of colonial history.
I fear that this executive order has initiated a race to the bottom (pun intended), not only in seabed mining but potentially extending to other areas of the blue economy with significant geopolitical, environmental, and economic implications worldwide.