A Commentary on the International Seabed Authority’s (ISA) FAQs for the media about the International Seabed Authority and Deep-Sea Mining

1. What was the International Seabed Authority’s Reactions to The Metal Company (TMC) announcing that its US subsidiary has initiated an application for a licence to mine under the existing US Mining Seabed Code and bypass the ISA

A. It is important to state that the legal mandate to regulate mineral-related activities in the seabed beyond coastal countries’ national jurisdictions (the Area) rests solely with the International Seabed Authority (ISA), as enshrined in the United Nations Convention on the Law of the Sea (UNCLOS).

As a result, no private entity or State may undertake such activities outside this framework without contravening the international legal regime, including customary international law, that governs the Area as the common heritage of humankind. Any action outside this multilateral system undermines this principle.

The international legal regime established under UNCLOS provides that:

• the Area and its mineral resources are the common heritage of humankind. Therefore, the claim or exercise of sovereignty or sovereign rights over any part of the Area or its resources, and the appropriation, alienation or exercise of any right with respect to the minerals recovered from the Area, is prohibited for any State or natural or juridical person
• unilateral exploitation of resources that belong to no single State but to all of humanity is prohibited
• this applies to all States, whether they are parties to UNCLOS or not, and constitutes general international law and customary international law
• all activities in the Area must be conducted under the organization and control of the ISA in accordance with UNCLOS and the 1994 Agreement
• States have a duty not to recognize any claim, acquisition of resources or exercise of rights over the resources of the Area that is made in any manner other than in accordance with Part XI of the Convention, the 1994 Agreement and the rules, regulations and procedures of ISA.

Thus, any commercial exploitation outside of national jurisdiction carried out without the authorization of ISA would constitute a violation of international law, from which arises international responsibility. Activities outside the international legal framework would compromise the integrity of the whole UNCLOS and the comprehensive regime it establishes. It would undermine the legitimacy of the multilateral system, which is essential for the international community to organize and coordinate its respective rights and duties in a space that belongs to all.

In her Statement on the announcement by TMC in March 2025 during Part I of the thirtieth session of ISA, the Secretary-General of ISA, Madam Leticia Carvalho, expressed deep concern over TMC’s announcement to seek a US permit for deep-sea mining, bypassing ISA’s established framework. Madam Secretary-General emphasized that such unilateral actions violate international law and undermine the principle of the seabed as the common heritage of humankind, as enshrined in the UNCLOS. Madam Secretary-General reaffirmed ISA’s exclusive mandate to oversee all mineral-related activities in the Area and called for continued multilateral cooperation to ensure that seabed resources are managed for the benefit of all humanity.

Following that statement, ISA Member States broadly reiterated their commitment to the ISA and its exclusive role in regulating activities in the Area under international law. In that sense, it was reassuring to see that virtually all States, especially those States that currently have exploration contracts with ISA and could have plans to proceed to the next phases towards exploitation, strongly rejected the possibility of acting outside the system and without ISA.

Comments

 The Centre for Community Law largely agrees with the ISA’s views on this point because the Centre believes that it is difficult, if not outrightly impossible, to ignore the role the multilateral approach of the UNCLOS, under the supervision of the ISA, plays in this field without risking serious consequences for international relations. Nevertheless, the Centre is not as confident as the ISA to the extent that the ISA seems to suggest that non-parties to the UNCLOS have any form of duty arising exclusively from the UNCLOS. Notwithstanding, the Centre aligns with the ISA on the possibility of a finding that customary international law (CIL) of the common heritage of humankind has arisen from Charter provisions, to make the concept of common heritage of humankind of the UNCLOS applicable to non-parties as CIL. The Centre states that the possibility of such a finding, even if remote, could be drawn from the decision of the International Court of Justice (ICJ) in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, (Nicaragua v. Colombia), ICJ Rep 2022, 266, where the ICJ had no difficulty applying the provisions of articles 56, 58, 61, 62 and 73 of UNCLOS to Columbia, a non-party to the UNCLOS on the ground that they reflect CIL.

Concerning the United States, specifically, the Centre notes the troubling seeming impossibility of submitting any dispute arising from its conduct with respect to the Area to the compulsory jurisdiction of the ICJ or the International tribunal of the Law of the Sea (ITLOS) or to an arbitral tribunal, except in the unlikely event that the ICJ consents.    

The Centre’s concern stems from the fact that the United States has since exited the optional clause system of the ICJ and therefore not subject to the compulsory jurisdiction model of that system; and by reason of its refusal to ratify the UNCLOS, it is not subject to the Part XV of the UNCLOS, and thus outside the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS) and any tribunal constituted pursuant to the UNCLOS. Accordingly, subject to the existence of a jurisdictional clause in a treaty in force relating to the subject and to which the US is a party, the possibility of subjecting the conduct of the US in this regard to judicial scrutiny is non-existent, and this further complicates, assuming such a jurisdictional clause exists, if it is sought to be used to assert CIL rights arising, not from the treaty in force, but from the UNCLOS.   The Centre notes, in this regard, the view of the ICJ in Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, ICJ Rep 2018, p. 292 ,323, paragraph 102, where it would not adjudicate on the certain aspects of the case relating to CIL because the Palermo Convention – the Treaty in force that underpinned the jurisdiction of the court – did not incorporate the CIL rules being asserted.

 The Centre is of the further view that this possibility of a claim to customary international law in this field, however strong, may not be effective against non-parties to the UNCLOS, because of the role the persistent objector doctrine might play in determining whether States that refused to join the UNCLOS and who are, ipso facto, not members of the ISA, are bound by CIL in this regard. Without diminishing the difference between the multilateral aura of the UNCLOS, compared to the Montevideo Conventions of 1933 and 1939, the Centre finds some similarities between the circumstances that led the ICJ to conclude that Peru was not bound by the asserted custom in the Colombian-Peruvian Asylum Case, ICJ Rep 1950, 266.   On this score, the Centre refers to page 277 -278, where the ICJ said:

The Court cannot therefore find that the Colombian Government has proved the existence of such a custom. But even if it could be supposed that such a custom existed between certain Latin-American States only, it could not be invoked against Peru which, far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence in matters of diplomatic asylum.

 The Centre notes, also, the not very helpful to the sentiments expressed by the ISA, but legally tenable emphasis the Seabed Dispute Chambers of the ITLOS placed on the link between consent and the obligations created by the UNCLOS in the Obligation of States Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10. Rightly, the Chambers declared at p. 32, para 75, that: 

The purpose of requiring the sponsorship of applicants for contracts for the exploration and exploitation of the resources of the Area is to achieve the result that the obligations set out in the Convention, a treaty under international law which binds only States Parties thereto, are complied with by entities that are subjects of domestic legal systems. This result is obtained through the provisions of the Authority’s Regulations that apply to such entities and through the implementation by the sponsoring States of their obligations under the Convention and related instruments.

Even if a general CIL normative order is established to exists, there would yet remain the onerous responsibility of establishing that CIL replicates some specific obligations of the UNCLOS, such as the obligation set out in part XI relating to the ISA and the obligations of sponsoring States as well as the settlement of dispute provisions of part XV of the UNCLOS.

Be that as it may, the Centre considers that the intricate balance that must be struck between the environment and the exploration of seabed minerals may open another line of normative consideration that may tie in a non-party State of the UNCLOS to the multilateral approach of the UNCLOS to the resources of the Area. The need for a uniform and verifiable environmental impact assessment is one such areas. For the avoidance of doubt, in Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Rep 2010, 14, 82-83, paragraph 204, the ICJ declared that environmental impact assessment, where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context may now be considered is a requirement under general international law.

• How will the ISA respond to TMC’s activities in the international waters, especially if they interact with contract areas already allocated by ISA

A. ISA remains fully committed to upholding its legal mandate under UNCLOS. Any exploration or exploitation activities in the Area must be conducted under a contract with ISA and in accordance with the rules, regulations and procedures ISA has established.

Under UNCLOS, States Parties have “a duty not to recognize any claim, acquisition, or exercise of rights over minerals recovered from the Area by any State or by any natural or juridical person, unless conducted in accordance with Part XI of UNCLOS” (Article 137(3)).

We will continue to monitor developments and engage with all stakeholders, including Member States, in line with our responsibilities. We will also pursue work on finalizing the Mining Code as a central priority, in accordance with the Council’s decision of July 2023 (ISBA/28/C/24), which sets a goal to finalize the Mining Code during ISA’s thirtieth session in 2025 if the regulations are ready for adoption.

Comments

The Centre strongly supports the right of the ISA to uphold its legal mandate, which is supported by the great majority of States (169) who are members of the ISA and joins the ISA to remind member States of the UNCLOS of their responsibility under article 137(3) of the UNCLOS, which they must uphold by refusing to participate in any unilateral action relating to the mineral resources of the Area and by refusing to recognise any claim to such minerals by a non-party State. The Centre notes the importance of reminding States to remain steadfast and support the efforts of the ISA to sustain the current regime that is predicated on the benefit of all humankind.  

The Centre therefore calls on State parties to ignore the example set by the US Executive Order: ‘Unleashing America’s Offshore Critical Minerals and Resources’ and uphold their obligation under article 137(3) of the UNCLOS by refusing to recognise any claim to the minerals of the Area on the authority of a licence unilaterally issued by the US or any other State.

The Centre unequivocally emphasises its firm belief that the multilateral framework of the UNCLOS remains the ideal position, and one that better serves the interest of all States under the doctrine of the common heritage of humankind. This, in the Centre’s considered view, is because it is impossible not to see how the race for deep seabed resources under a title of right granted under the municipal law of States would not lead to conflicts that would not only put the mineral resources of the Area beyond the reach of developing States but also risks disturbing the peaceful exercise of freedoms on super jacent waters.

It is however felicitous that while rejecting the unilateral action of the US, the ISA reiterated, as always, its commitment to the completion of the Mining Regulations, which the Centre (having also participated in the exercise) knows that the ISA is committed to, notwithstanding that the Regulations have suffered delay.

• What is the ISA’s reaction to the US executive order unleashing America’s offshore critical minerals and resources

A. The issuance of an Executive Order by the Government of the United States regarding deep-seabed mineral resources raises specific concerns. While the Executive Order primarily addresses domestic political and policy matters, its reference to applicability beyond national jurisdiction becomes a matter of the rule of law within the global ocean governance framework.

While the US has not ratified UNCLOS, it recognizes it as reflecting customary international law, including the legal framework governing seabed activities, which is binding on all States, including the United States. The state practice of the United States has been consistent with this view. Additionally, the United States is a signatory to the 1994 Agreement, specifically related to Part XI of UNCLOS, which addresses the Area, but has not yet ratified it. The United States has also engaged with ISA as an observer since 1998, regularly attending meetings of both the Council and the Assembly and contributing substantively to the development of the draft regulations.

Under Article 137 of UNCLOS, all rights to the mineral resources of the Area are vested in humanity (or society) as a whole due to their legal nature as the common heritage of humankind. One of the consequences of this status is the prohibition of appropriation and alienation by any State or natural or juridical person. This applies to all States, whether they are parties to UNCLOS or not, as it constitutes general international law and customary international law.

It is essential to emphasize that ISA Member States remain committed to developing a robust, comprehensive, science-based and equitable regulatory framework. During Part I of the thirtieth session of the Council in March 2025, 39 individual Member States, along with the African Group, representing 49 countries, unequivocally reaffirmed that ISA is the sole internationally recognized institution with jurisdiction over the Area and its resources. Their support for ISA and its role was unquestionable. There was broad consensus, including from States sponsoring contractors, that no exploitation should proceed unilaterally, outside a regulatory framework established through ISA and grounded in the principle that the Area and its mineral resources are the common heritage of humankind.

Any endeavor undertaken outside the recognized and consensual international framework or in an attempt to circumvent international law may incur legal, diplomatic, economic, security, financial and reputational risks.

If powerful States or corporations attempt to bypass the international legal framework established by UNCLOS, they risk undermining its very foundation: preventing unilateral actions that privilege the interests of the few at the expense of the many. UNCLOS was crafted to ensure that the deep seabed, recognized as the common heritage of humankind, is governed collectively, not dominated by those with the greatest financial or technological advantage. Circumventing the regulatory authority of ISA not only breaches international law but also erodes trust, exacerbates global inequality and silences the voices of the least developed countries, landlocked developing countries and small island developing States, who are equal stakeholders in the stewardship of the Area.

One thing is clear: the regime governing the deep seabed beyond national jurisdiction, established by UNCLOS, has been carefully articulated and developed precisely to prevent unilateral actions and parallel avenues.

Comments

The Centre strongly aligns with the concern of the ISA regarding the risk of the total exclusion of “the least developed countries, landlocked developing countries and small island developing States, who are equal stakeholders in the stewardship of the Area.” The Centre reiterates its view that the regulatory regime established by a vast majority of States under the UNCLOS is the best guarantee to uniform standards in resource extraction, environmental standards and reporting.  

• What is the potential global implications of the US executive order?

A. We sincerely hope and invite the Government of the United States to channel its efforts towards developing a leading role in deep-sea science, technology and seabed mineral resource activities through the institutional and legal frameworks established by the international community under the UNCLOS. This regime enjoys broad global recognition and legitimacy. The advantages for the United States in engaging through the international legal system are substantial and far outweigh the potential risks and challenges associated with unilateral action, ranging from intergovernmental relations to investment security.

We reaffirm that the legal mandate to regulate mineral-related activities in the international seabed area rests solely with the ISA, as enshrined in the UNCLOS.

No private entity or State may undertake such activities outside this framework without contravening the international legal regime, including customary international law, that governs the Area as the common heritage of humankind.

Any commercial exploitation carried out in the Area without the authorization of ISA would, thus, constitute a violation of international law and undermine the principle of the common heritage of humankind.

This breach encompasses the infringement of contract terms, ISA regulations and provisions of UNCLOS. In such a scenario, the ISA is empowered to take appropriate actions within the legal framework. These measures may entail suspending or terminating the contract, imposing financial penalties or implementing other corrective actions based on the severity and persistence of the violation. Additionally, ISA holds the right to conduct inspections of installations to ensure compliance. These measures are outlined in UNCLOS, Annex III, and the standard clauses of the exploration contracts, underscoring the importance of upholding the established legal and regulatory framework in maritime activities.

It also compromises the integrity of the whole UNCLOS and the comprehensive regime it establishes. Furthermore, such action undermines the legitimacy of the multilateral system, which is essential for the international community to organize and coordinate its respective rights and duties in a space that belongs to all.

Comments

The Centre states that the ISA is absolutely right to insist on the full implementation of contractual terms between it and contractors. The Centre however hopes that the ISA would work closely with the sponsoring State of an erring contractor with a view to achieving an amicable solution and bringing the contractor back to the path of legality. It should invoke its disciplinary powers against a contractor only when all attempts at amicable settlement fail to produce results. This is particularly important because forcing compliance by way of a threat of sanctions, or the imposition of sanctions a contractor with which the ISA has contractual ties would not produce the needed deterrence for companies that have no prior relationship with the ISA.      

• Should an ISA contractor proceed with commercial mining activities within their designated exploration area under a licence from a non-ISA member state would it constitute a violation of their contractual and legal commitments

A. This breach encompasses the infringement of contract terms, ISA regulations and provisions of UNCLOS. In such a scenario, the ISA is empowered to take appropriate actions within the legal framework. These measures may entail suspending or terminating the contract, imposing financial penalties or implementing other corrective actions based on the severity and persistence of the violation. Additionally, the ISA holds the right to conduct inspections of installations to ensure compliance. These measures are outlined in UNCLOS, Annex III, and the standard clauses of the exploration contracts, underscoring the importance of upholding the established legal and regulatory framework in maritime activities.

Comments

The Centre strongly aligns with the ISA in this regard and states that no contractor should be allowed to conduct mining activities within their designated exploration area under a licence from a non-ISA member State. Such a contractor should be considered morally and legally estopped from taking a course of action that undermines the jurisdiction of the ISA, to which it had submitted respecting the designated exploration area. The Centre however refrains from commenting either way on the existence or otherwise of the right of the ISA to “conduct inspections of installations to ensure compliance” of mining operations conducted on the unilateral assertion of rights over deep seabed resources by any State. The Centre observes that although not conciliatory, the prospect of the ISA conducting such inspection of an operation it asserts violates international law is clearly an affirmation of the illegality. The dilemma would become particularly obvious if the ISA’s inspection reveals compliance.

• What are the sanctions and measure provided by the UNCLOS?

A. The following is the list of relevant provisions that apply to measures and sanctions.

UNCLOS, Annex III, Article 18: Penalties

A contractor’s rights under a contract may be suspended or terminated only in the following cases:

(a) if, in spite of warnings by the Authority, the contractor has conducted his activities in such a way as to result in serious, persistent and willful violations of the fundamental terms of the contract, Part XI and the rules, regulations and procedures of the Authority; or (b) if the contractor has failed to comply with a final binding decision of the dispute settlement body applicable to him.

2. In the case of any violation of the contract not covered by paragraph 1(a), or in lieu of suspension or termination under paragraph 1(a), the Authority may impose upon the contractor monetary penalties proportionate to the seriousness of the violation.
3. Except for emergency orders under article 162, paragraph 2(w), the Authority may not execute a decision involving monetary penalties, suspension or termination until the contractor has been accorded a reasonable opportunity to exhaust the judicial remedies available to him pursuant to Part XI, section 5.

Standard Clauses, Section 21: Suspension, Termination, and Penalties (ISBA/19/C/17)

These provisions are mirrored in Section 21 of the Annex IV Standard Clauses for exploration contracts (Regulations on prospecting and exploration for polymetallic nodules), which clarify that it is the Council that may suspend or terminate the contract if any of the listed grounds are met.

In particular:

21.3: Any suspension or termination shall be notified through the Secretary-General and must include a statement of reasons. It becomes effective 60 days after notice, unless the contractor disputes the Authority’s right to take such action pursuant to Part XI, section 5.

21.4: If the contractor disputes the action, the suspension or termination shall only take effect following a final and binding decision under the Convention’s dispute settlement procedures.

21.5: If the contract is suspended, the Council may instruct the contractor to resume operations and comply with its obligations within 60 days of notice.

21.6: For violations not covered by section 21.1(a), or in lieu of suspension or termination, monetary penalties proportionate to the seriousness of the violation may be imposed. However, such penalties may only be executed after the contractor has had a reasonable opportunity to exhaust judicial remedies under Part XI, section 5.

Observations:

There is no explicit definition or criteria for what constitutes “serious, persistent and wilful” violations, nor are there pre-established guidelines for assessing the “seriousness” of a violation or determining a proportionate monetary penalty.

To date, these provisions have not yet been applied in practice, and we lack precedent. Therefore, in such a scenario, the ISA should

• begin by issuing formal warnings, ideally following prior consultation with the contractor and
• then submit the issue, including any proposal for suspension, termination or penalties, for the Council’s consideration.

It is important to note that in all such cases, the contractor retains the right to pursue dispute settlement procedures before any decision becomes enforceable.

Additional consequences under the Regulations:

Beyond the penalties outlined above, a contractor that fails to comply with its approved plan of work may lose the preference and priority granted under ISBA/19/C/17, Regulation 24, in future applications for exploitation covering the same area or resources.

Comments

The Centre agrees that these measures are well within the powers of the ISA but would hope that the ISA would call on the sponsoring States of an erring contractor to take necessary measures in the first place. This would be in line with the obligations of sponsoring States under the UNCLOS. The real worry however is that these measures can only be applied to contractors with which the ISA has a contractual relationship.

• What are the potential implications of unilateral decision-making?

A. A contractor’s unilateral departure from the ISA regime, such as conducting commercial mining under a non-ISA licence, would constitute a serious breach of the trust and legal obligations underpinning its relationship with the ISA. While each contract is assessed individually, ISA regulations and contract provisions allow the ISA to consider broader patterns of conduct when deciding on enforcement actions. A serious or wilful breach in one context may affect the contractor’s credibility and compliance record across various contexts.

ISA would act in accordance with its regulations and the relevant provisions of UNCLOS, ensuring that any such measures respect due process and the contractor’s rights under the applicable dispute settlement mechanisms.

Comments

The Centre notes the existence of relevant provisions from which the ISA could draw to sanction an erring contractor but notes that the current situation cannot be fully addressed on the basis of those provisions insofar as those provisions are not application to a sovereign State that is not a party to the UNCLOS.  The Centre notes that, as things stand, since all that the ISA appear able do is to sanction a contractor with no means of deterring the State that is actually responsible for the contractor’s conduct, without itself inflaming the situation, the ISA must keep open a wide door for negotiation and manoeuvring.  

• How might the ISA elaborate on the issue of impact on credibility and compliance?

A. Compliance history can also affect the contractor’s future activities. For example, under ISBA/19/C/17, Regulation 12(10)(a), any new application for exploration must include a description of the applicant’s previous experience and compliance record. A poor record could affect

• the assessment of future applications
• access to financial support and investment
• reputational standing and public perception

• How has the “two-year rule” factored into the current situation

A. In 2021, Nauru invoked the so-called “two-year rule” under UNCLOS, formally requesting ISA to finalize the exploitation regulations within that time frame. This request was made in anticipation of an application by Nauru Ocean Resources Inc. (NORI), a Nauruan entity sponsored by the Government of Nauru and a subsidiary of TMC, to seek approval for a plan of work for exploitation.

In response, Member States engaged in good faith throughout the period, convening up to three Council sessions per year and employing a range of mechanisms to advance the negotiations with the seriousness and responsibility that such a complex process requires. When the two-year time frame elapsed, negotiations did not cease. Instead, the Council continued its work and adopted specific decisions to guide the process forward. The legal and procedural avenues for continuing this work are clearly provided for both in UNCLOS and the Council’s own decisions. In accordance with the UNCLOS, the absence of detailed regulations does not relieve ISA of its obligation to process an application. Likewise, the adoption of the regulations would not imply that exploitation would commence immediately. However, the Mining Code is essential to provide legal certainty for investors, sponsoring States, Member States and all stakeholders involved in the process.

It is essential to emphasize that unilateral action by any one State means that all States, including developing States, especially small island developing States, will ultimately lose out.

Comments

The Centre notes the commitment of the ISA to finalisation of the mining regulations but also notes that the truth remains that, for some reasons, the July 2023 date initially set for the completing of the Regulations has since passed. The Centre notes that although it is legitimate to expect that the completion of the Mining Regulations would not mean that mining would immediately begin, the consequential uncertainty created by the delay in the completion of the Regulations is bound to create anxiety in the circle of sponsoring States, investors and contractors, as has been seen in the triggering of the two-year rule by Nauru and the press release by the TMC.  

 It is however important to echo the salient point made by the ISA respecting the obvious result of unilateral actions in this regard – it would invariably lead to the exclusion of developing States, especially small island developing States and African States, from benefiting from the vast resources of the seabed beyond national jurisdiction. It would also undermine the various training programmes under the auspices of the ISA, which are designed to facilitate the transfer of technology to developing States.  The Centre emphasizes that this is not even to begin to mention how any consequential environmental damage would not be limited to the States who would actually mine the minerals, should the multilateral system fail. The Centre fears that any consequential environmental damage may (compared to developed States) significantly impact developing States, especially small island developing States and African States. It will not be right for the technologically developed States to take the benefits and leave developing States, especially small island developing States and African States, to suffer the consequence.

It is therefore in the best interest of all developing and small island states to strongly support the ISA. Any opposing stance would be unwise, as it would undermine their sole opportunity to benefit from these mineral resources. The Centre remains firmly convinced that the ISA framework is the only system capable of ensuring benefits for all states and for humanity as a whole.

The Centre concludes by emphasizing that, for all practical purposes, only the ISA system can provide the fairness and predictability needed—especially when compared to the uncertainties of political shifts and domestic pressures.  

©Centre for Community Law.