The Rules to exploit minerals from the deep seabed outside national jurisdiction are currently drafted under the auspices of the International Seabed Authority (ISA). There is, however, continuous disagreement between those who wish to bring the negotiations for these rules to a close and many states and scientists which demand a moratorium or even a ban due to heavy concerns about the potential damage to underwater nature.
Striking developments demand an update of our earlier publication on this topic. There we had explained why the ISA should adopt the rules on deep seabed mining as soon as possible. Yet, the ISA missed out on it again in its March session 2025. Inter-alia we said that powerful players like the USA, not even a member state of UNCLOS, would certainly not wait on the sidelines forever. This prediction has now come true.
Salient developments
On 27 March 2025, one day before the March 2025 session of the ISA ended The Metals Company (TMC) announced that its US subsidiary TMC USA has formally initiated the process to apply for a deep-sea mining permit under existing US legislation, the Deep Seabed Hard Mineral Resources Act of 1980 (DSMRA) which provided a robust, predictable regulatory regime.
In contrast ISA was in violation of its mandate under UNCLOS and the 1994 Agreement since it had not yet adopted the Exploitation Rules. With this statement TMC surely alluded to the two-year deadline which had, according to the 1994 Agreement, expired in 2023. The Pacific Island State of Nauru had triggered it by notifying the ISA in June 2021 that Nauru Ocean Resources Inc. (NORI) intended to apply for the approval of a plan of work for exploitation. NORI is sponsored by Nauru and a fully owned subsidiary of TMC.
TMC also referred to its collaborating in good faith with the ISA for over a decade and investing half a billion dollars. The company stated that in contrast to the ISA system, the United States offered what it called a stable, transparent and enforceable regulatory path.
Referring to this announcement, the newly elected Secretary-General, Leticia Carvalho, claimed that all exploration and exploitation activities in the Area must be carried out under the Authority’s control and that any unilateral action was in violation of international law. No permit for deep seabed mining could be issued other than on the basis of rules established by the ISA. Nearly 40 countries along with Russia and China joined her opinion.
Despite this international protest, President Trump issued on 24 April 2025 an Executive Order to restore American dominance in offshore critical minerals and resources: It aims to establish the USA as a global leader in seabed mineral exploration and development both within and beyond national jurisdiction. TMC USA did not wait and submitted on 29 April 2025 the application for a commercial recovery permit to the National Oceanic and Atmospheric Administration (NOAA) for a commercial recovery permit. It would, as it said, advance TMC’s timeline ahead of its original 27 June 2025 application target.
The Secretary-General of the ISA reacted to both promptly. She reiterated her above statement that any unilateral actions on deep seabed mining violated international law, undermined the principle of the seabed as the common heritage of mankind, as enshrined in the UNCLOS and the 1994 Agreement and reaffirmed ISA’s exclusive mandate to oversee all mineral-related activities in the Area.
As to the USA it is not the question whether the US law of 1980 on deep seabed mining conflicts with international law. UNCLOS was at this point not even signed. Yet, the new Executive Order breaches the obligations of the USA under the 1994 Agreement. As its signatory they are obliged under international law not to act against the object and purpose of the Agreement.
The provisions of the 1994 Agreement and Part XI of UNCLOS shall be interpreted and applied together as a single instrument. As such any violation of the Agreement is one against UNCLOS as well. It establishes the ISA as the sole organ to permit exploration and exploitation in the Area. According to Art. 137 para. 3 UNCLOS “no State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this Part.”
The order also violates customary international law since the principles of the deep seabed mining regime described by Part XI of UNCLOS have become over decades a well-established part of it as principally the ISA Secretary-General and decisively Germany and others had concluded. It has been the firm understanding, both legally and factually, of the world community that this regime is the sole permissible basis for deep seabed mining. The order violates the very pillar of the UNCLOS regime in deep seabed mining, the common heritage of mankind.
Nauru and TMC announced on 4 June 2025 an updated sponsorship agreement for NORI. Both underlined ISA’s breach of obligations under UNCLOS due to its failure to adopt the exploitation rules and its continuous delay to do so. Nauru will receive continuity benefits upon the commencement of commercial production by NORI or another TMC subsidiary. And both acknowledged the Executive Order of Pres. Trump.
With this move Nauru violates the fundamental rule of UNCLOS on the legal status of the Area and its resources principally twofold. According to Art. 137 para. 1 UNCLOS no State shall recognise any unilateral claim or exercise of sovereignty or sovereign rights nor such appropriation. Agreeing to receive benefits from another TMC subsidiary implies that it would accept to receive those from the proceeds of TMC USA once it has started to mine under US law. And this would violate Art. 137 para. 3) UNCLOS.
For these reasons it is particularly surprising that on the part of Nauru, as a sponsoring State of NORI, there had been initially no reaction to the announcements of TMC of 27 March and 29 April 2025. This was surprising since Nauru had still underlined on 28 March 2025 its full commitment to the ISA and noted that it was working with NORI on the intended submission of its plan of work to ISA in June 2025 and highlighted the need to discuss the procedure for considering NORI’s plan of work.
On 27 June 2025 NORI did not submit its application for the approval of its plan of work as notified by its parent company TMC and its sponsoring State Nauru on 12 November 2024 in order to give the ISA Council the possibility to adopt the rules in its March 2025 meeting. This shows that TMC/NORI wish to give the ISA Council another chance to adopt the rules in its July meeting.
Possible solutions
There is a good possibility that a deep seabed mining permit under US law would be issued to TMC USA before the ISA is ultimately in a position to adopt the Exploitation Rules. Then TMC would need to decide how to proceed: Rely on the permit for its US subsidiary, or pursue the application with ISA for approval of a plan of work? It is difficult to perceive that TMC would work it both ways. According to its press releases of 29 April and 4 June 2025 it rather looks as though it would prefer the US alternative.
If this happened there is a lot to be said about the fact that the area TMC USA has applied for not only overlaps but is identical with that TMC/NORI wishes to apply for with its plan of work. For TMC underlined in its press release of 29 April 2025 that its commercial recovery permit under US law would advance its timeline ahead of its 27 June 2025 application, i.e the date on which TMC/NORI meant to apply to the ISA for its plan of work.
This would be tantamount to a transfer of rights of TMC/NORI to TMC USA held under the TMC/NORI exploration contract with the ISA. Without the ISA’s permission this would be a serious violation thereof, giving ISA the right to suspend or even terminate the contract, or to impose pecuniary penalties. Uganda had indicated as much. Although TMC/NORI would have the right to dispute such measure to the Seabed Disputes Chamber (Art. 187 (c) (ii) UNCLOS) it probably would have little chance to prevail.
Hence, TMC must decide whether it wishes to use the singletrack possibility of a permit under US law despite international objections to do so or to possibly wait until the closure of the ISA session in July 2025 in order for NORI to apply for the approval of its plan of work under UNCLOS. However, if it took the US avenue it would under UNCLOS be legally impossible for TMC USA to make use of the facilities of any other country to process or to export to its products mined illegally on the deep seabed.
Principally there is also a possibility to have the matter adjudicated by the Seabed Disputes Chamber (Article 187 (b) or (d) UNCLOS). Considering the TMC investment such complaint might include a claim for damages alleged to arise from delayed return on investment. Such action would, however, raise more public discussion and time-consuming effort.
Conclusion
These new developments call for an adoption of the rules in the July session of the ISA. On the other hand, there is the call for a precautionary pause or a moratorium because of the potential environmental risks of deep seabed mining.
In accordance with the Council’s decision of 21 July 2023 the rules should be finalised during ISA’s thirtieth session in 2025, i.e. now in July. Rather than to further impede the adoption, those against it should take into account that each plan of work for exploitation shall contain an environmental impact assessment (Section 1, paragraph 7 of the Annex to the 1994 Agreement). This should be then the basis to decide whether such plan shall be approved.
The Secretary-General of the Authority has principally a steering role. He or she coordinates and controls the entire administration of the authority, prepares all meetings and draft decisions. Thus, there is great hope that the newly elected, Leticia Carvalho, will use this position accordingly.
