President Donald J. Trump has directed the expedited review and issuance of licenses and permits for seabed mining in areas beyond national jurisdiction.Footnote 1 Within days of the president’s order, the U.S. subsidiary of The Metals Company (TMC), a Canadian deep sea minerals collection and processing firm, submitted applications to the National Oceanic and Atmospheric Administration (NOAA) for two exploration licenses and a commercial recovery permit for mining in the Clarion-Clipperton Zone (CCZ), a 4.5 million square kilometer area of the Pacific Ocean between Hawaii and Mexico that is rich in polymetallic nodules.Footnote 2 This would be the first time that the United States has authorized the commercial harvesting of minerals from the deep seabed. The U.S. government’s unliteral issuance of such licenses and permits would conflict with the International Seabed Authority’s (ISA) regulation of deep seabed mining under the UN Convention on the Law of the Sea (UNCLOS) and undermine the Convention’s goals and the ISA’s collective processes. The executive order, and related actions that include an application by the U.S. company Impossible Metals for mining in U.S. waters and the conclusion of the Ukraine minerals deal,Footnote 3 extend the work of the Biden administration in encouraging the creation of a secure U.S. supply chain for critical minerals, including mining and processing, to counter dependence on China for these core components of advanced technologies.Footnote 4
The commercial recovery of minerals from the seabed, long anticipated but until now economically and technologically prohibitive, has become increasingly conceivable, as the mechanisms for mapping, exploration, and collection have progressed and the desire for, and the value of, those minerals, important for batteries, electronics, clean technologies, and military applications, have motivated public and private investment worldwide.Footnote 5 The form of seabed minerals varies, including sulfide deposits and manganese crusts, but current operations are mainly focused on the retrieval of potato-sized polymetallic nodules, comprised of highly sought-after metals such as cobalt, copper, manganese, and nickel. TMC has developed a device that vacuums nodules from the seafloor and sends them to the surface through a tube, while Impossible Metals plans to collect them with robotic arms before bringing them up to waiting vessels.Footnote 6 One study has concluded that the “[n]odules [that are strewn across] the CCZ[’s] [seafloor] have more [Thallium, Manganese, Tellurium, Nickel, Cobalt, and Yttrium] than the entire global terrestrial reserve base for those metals,” as well as “significant amounts” of copper, lithium, and other metals.Footnote 7 TMC’s exploration application covers an area that is estimated to contain 1,635 million wet metric tons of polymetallic nodules, including about 15.5 million metric tons of nickel, 12.8 million metric tons of copper, 2 million metric tons of cobalt, and 345 million metric tons of manganese.Footnote 8 One estimate puts the total value of all seabed minerals at $20 trillion.Footnote 9
As the likelihood of commercial deep-sea mining has grown, so have concerns about its environmental impact.Footnote 10 Work on the seabed at an industrial scale could significantly alter this largely unknown and fragile habitat,Footnote 11 with potentially long-lasting effects on the abyssal plain, including biodiversity loss, from both the nodules’ removal and the means by which they are removed.Footnote 12 Vacuuming nodules to the surface, as planned by TMC, would result in the dumping of extraneous materials into the water column, creating plumes of sediment and debris floating through, and likely causing harm to, the pelagic ecosystem.Footnote 13 Pollution of various types (noise, light, vibration, and harmful products) stemming from operations above and below the surface could harm marine life. Mining companies contest deep-sea mining’s impact on the marine environment, and they argue that it may, overall, be beneficial, as it will have the effect of reducing the demand for terrestrial mining and its attendant harms.Footnote 14 Because of its possible, if uncertain, consequences, thirty-three states have called for either a moratorium, a precautionary pause, or a ban on deep-sea mining in international waters.Footnote 15 Sixty-four major companies have also endorsed a moratorium.Footnote 16
UNCLOS sets out a comprehensive regime governing “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction,” which it labels the “Area.”Footnote 17 The treaty declares that “[t]he Area and its resources are the common heritage of mankind.”Footnote 18 It precludes states from “claim[ing] or exercis[ing] sovereignty or sovereign rights over any part of the Area or its resources” or the appropriation thereof.Footnote 19 It proscribes any “State or natural or juridical person” from “claim[ing], acquir[ing] or exercis[ing] rights with respect to the minerals recovered from the Area except in accordance with” its provisions.Footnote 20 It stipulates that “[a]ctivities in the Area shall … be carried out for the benefit of mankind as a whole,” and that the ISA “shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area … on a non-discriminatory basis.”Footnote 21 And, among its many other provisions, UNCLOS directs that “[n]ecessary measures … be taken … with respect to activities in the Area to ensure effective protection for the marine environment.”Footnote 22
UNCLOS established the ISA to “organise and control activities” in the Area, in particular its resources,Footnote 23 and tasked it with developing regulations for “exploration and exploitation.”Footnote 24 Pursuant to its exploration regulations,Footnote 25 the ISA has issued thirty-one fifteen-year exploration contracts, including two in the CCZ with TMC subsidiaries Nauru Ocean Resources Inc. (NORI) and Tonga Offshore Mining Limited, sponsored by Nauru and Tonga.Footnote 26 But the ISA has not issued exploitation regulations, which would permit mining, despite more than a decade of work,Footnote 27 a road map that called for their adoption by 2020,Footnote 28 a 2023 deadline triggered by Nauru,Footnote 29 and a 2025 goal set by the ISA’s Council.Footnote 30 Though the treaty provision that Nauru activated now requires the Council to “consider and provisionally approve” an application for exploitation even though exploitation regulations have not yet been adopted, the Council has repeated stated that any mining in the Area “should not be carried out in the absence of” regulations.Footnote 31 In late 2024, Nauru notified the ISA that NORI will submit a plan of work for exploitation by the end of June 2025, and that it expects the Council to provisionally approve the application.Footnote 32
The United States is not a party to UNCLOS, though U.S. officials have often stated that “much of the convention reflects customary international law” and though a 1994 agreement resolved U.S. objections to the UNCLOS’s seabed mining provisions that had initially impeded U.S. ratification.Footnote 33 It is thus only an ISA observer state, not a member.Footnote 34 Under U.S. law, deep seabed mining in areas beyond national jurisdiction is governed under by the Deep Seabed Hard Mineral Resources Act, enacted in 1980, two years before UNCLOS’s adoption.Footnote 35 The law, intended to be a stopgap until a comprehensive law of the sea treaty went into force,Footnote 36 provides for the issuance of exploration licenses and commercial recovery permits and includes requirements for the use of best available technologies for the protection of the environment.Footnote 37 It also disclaims that the law’s passage indicates any assertion by the United States of “sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any areas of resources in the deep seabed.”Footnote 38 In 1984, a decade before UNCLOS went into force, NOAA issued four exploration licenses (all for the CCZ), but none since.Footnote 39 Two of the licenses, both now held by Lockheed Martin, are still active, though no at-sea activities are currently being conducted.Footnote 40 NOAA has issued no recovery permits to date. Since the ISA’s establishment, the United States has abstained from taking any action regarding deep sea mining in the Area, aside from the routine renewals of exploration licenses, effectively ceding the field to the ISA.Footnote 41
President Trump’s executive order reverses that practice. It seeks to “Unleash[] America’s Offshore Critical Minerals and Resources” to take on the “unprecedented economic and national security challenges in securing reliable supplies of critical minerals independent of foreign adversary control.”Footnote 42 The order directs the secretaries of commerce and the interior, respectively, to expedite the process of reviewing and approving applicable licenses, permits, and leases for the exploration and recovery of seabed minerals in areas beyond national jurisdiction and in the U.S. outer continental shelf.Footnote 43 While the order encourages coordination with allies and industry in the development of seabed mining, including through mapping, it omits entirely any reference to international law or the ISA. Describing deep sea mining as “the next gold rush,” NOAA stated that it “is committed to an expeditious review of applications.”Footnote 44 Principal Deputy Assistant Secretary of Commerce for Oceans and Atmosphere Erik Noble said that, “[w]ith this Executive Order, the President is paving the way for supply chain resilience and a thriving domestic manufacturing industry.”Footnote 45
The United States’s unilateral action was widely condemned as a violation of international law.Footnote 46 ISA Secretary-General Leticia Reis de Carvalho said that the order was “a matter of the rule of law within the global ocean governance.”Footnote 47 She asserted that “no State has the right to unilaterally exploit the mineral resources of the Area outside the legal framework established by UNCLOS. It is common understanding that this prohibition is binding on all States, including those that have not ratified UNCLOS.”Footnote 48 A spokesperson for the European Commission agreed.Footnote 49 A Chinese Foreign Ministry spokesperson similarly stated that “[t]he exploration and exploitation of minerals in the international seabed area must be carried out in accordance with the United Nations Convention on the Law of the Sea and under the framework of the International Seabed Authority.”Footnote 50 “The U.S. move to authorize exploration and exploitation of mineral resources,” he concluded, “violates international law and harms the collective interests of the international community.”Footnote 51
Given the increasing importance of critical minerals, the ISA’s inability to finalize exploitation regulations, and the Trump administration’s general disdain for multilateralism, it is not surprising that TMC and the United States have moved forward on their own.Footnote 52 China’s control of the critical minerals trade, and its recent leverage of that control in its trade relationship with the United States, which was long anticipated, has created urgency for the United States, as a matter of economic and national security, to seek alternative means of acquiring those minerals.Footnote 53 TMC, which has invested over half a billion dollars into deep sea mining research, grew tired of waiting for the ISA to conclude its regulations.Footnote 54 “I’m not sure why ISA member states act surprised that TMC is now looking at an alternative, long-standing regulatory regime,” TMC Chairman and CEO Gerard Barron said.Footnote 55 “Member states cannot have it both ways—expressing shock while repeatedly breaching UNCLOS and failing to deliver the regulatory clarity they committed to years ago,” he continued.Footnote 56 In testimony before a House of Representatives subcommittee, Barron said that the time it has taken for the ISA to agree to the exploitation regulations is part of “a deliberate strategy by activists, land mining nations, and green coalition governments to stall by any means necessary.”Footnote 57 He argued that through deep sea mining “America can end critical mineral dependence [on China] … and create over 100,000 American jobs and generate hundreds of billions in GDP.”Footnote 58
If the United States grants TMC a commercial recovery permit, the ISA may feel compelled to move more expeditiously on the adoption of exploitation regulations and the granting of exploitation contracts, lest other countries decide to proceed unilaterally themselves for fear of being left behind.Footnote 59
