Can Trump Really Approve Mining in International Waters?

 

[By Regina Lam]

 

Pressure to open the international seabed for mining is mounting.

Last month, Canadian business The Metals Company (TMC) announced plans to apply to US authorities for permission to mine in international waters. That could mean bypassing a United Nations seabed regulator that has for years been considered the only body capable of giving such approval.

The news shocked environmentalists and governments who have been pushing for a mining moratorium to prevent damage to little-understood ecosystems.

Deep-sea mining involves harvesting minerals more than 200 metres below the surface. Would-be miners are mainly targeting nickel, copper, cobalt and manganese. These “critical minerals” are essential to modern technologies including smartphones, solar panels, wind turbines and electric vehicles. But collecting them could devastate vulnerable ecosystems, say those opposed to the plans.

Previously, most eyes had been focused on negotiations at the International Seabed Authority. ISA is a UN body that regulates seabed mining in international waters under the UN Convention on the Law of the Sea. Now, TMC says that – thanks to legislation passed in 1980 – the US government has the authority to regulate US citizens’ commercial mining in international waters.

Reports indicate that US President Donald Trump could soon announce an executive order asserting his country’s right to exploit international seabeds, and allowing the National Oceanic and Atmospheric Administration – a US government agency – to give firms permission to mine.

Dialogue Earth spoke with Duncan Currie, a veteran environmental lawyer and long-time observer of negotiations at the ISA, about the announcement and what it means. Currie is a legal adviser to the Deep Sea Conservation Coalition, which advocates for a mining moratorium.

The conversation has been edited for length and clarity.

Dialogue Earth: The Metals Company’s announcement on 27 March came when you were at a meeting of the International Seabed Authority. What was your immediate reaction?

Duncan Currie: My reaction was almost shock. Anger. Frustration. Almost every country that took the floor at the ISA meeting was deeply critical of the announcement.

There are two things to add to that. One is that the US hasn’t done anything yet in response to the announcement. 

Also, the announcement has already impacted the company’s relationships with the Pacific islands. The Pacific countries, such as Nauru, that have worked with the company to explore minerals and obtain commercial mining approval under the UN legal framework, must be feeling incredibly frustrated and confused.

Were you previously aware of the US’s 1980 Deep Seabed Hard Mineral Resources Act, which TMC says gives the US the ability to approve mining?

I knew about it. But I have always seen it, as I think most commentators have, as a belt-and-braces approach, a “just in case” sort of arrangement. The legislation was there in case the US needed to invoke it as part of the Unclos multilateral scheme. It’s not there as one or the other. It was there as part of the UN scheme.

Although the US did not ratify Unclos, it did sign an agreement in 1994 to amend the deep-seabed mining provisions of the convention, after it successfully negotiated all the changes it wanted. That indicates that they were comfortable with it. Also, under the Vienna Convention on the Law of Treaties, countries that have signed a treaty have an obligation not to undermine its objective and purpose.

One legal issue lies in whether the US has persistently objected to part XI [which governs deep-sea mining]. Some in the US government would say they did in 1982 and 1983. However, the negotiations and the subsequent signing of the 1994 agreement show they are not in a position to oppose the provisions.

Can the US government unilaterally authorise mining operations via an executive order from the president?

In this context, number one, they shouldn’t do anything that undermines the provisions [of the 1994 agreement]. Number two, they are bound by customary international law to abide by Unclos.

It’s a big question whether the executive order – a US president’s directive to fast-track deep-sea mining permits – is forthcoming. The US recognises how incredibly important Unclos is to freedom of navigation, maritime boundaries and management of resources.

All of those things are governed by Unclos, which is essentially the constitution for the ocean. I think those in the US government will be very reluctant to take actions that would put in danger all those things Unclos provides.

What are the potential consequences of the US bypassing the UN regime and approving seabed mining?

A part of the problem is that it creates chaos. It creates uncertainty. I wouldn’t want to go down the lane of thinking about what will happen – because it could be quite severe. I’m still hoping that the US decides it’s a really bad idea.

Also, under international law, the metals cannot be sold. Let’s use illegal, unreported, and unregulated fishing as an analogy. When a fishing vessel violates fishing regulations, it faces consequences, including not being able to unload its catch in various ports. Its catch also cannot be sold in several countries, like the US or the European Union. Similar things would apply to metals obtained in violation of Unclos.  

Other countries involved in the mining activities could also act. For example, the deep-sea collection system that The Metal Company used in their recent mining trial is owned by a Swiss-based offshore contractor, Allseas. Switzerland would be under legal obligations to ensure its nationals do not participate in such activity.

Where does this leave The Metals Company’s chances of mining under the UN regime?

As far as I can tell, the firm hasn’t decided on whether a mining application will be made under the US legislation, the ISA or both. The CEO of The Metal Company Gerard Barron’s comments to investors explicitly left the possibility open.

We’re only two months away from 27 June, the date the company said they would lodge an application to the ISA for an exploitation contract. We’re clearly getting a lot of disputes, chaos and difficulties around this issue. All of these give a stronger reason for a moratorium or a precautionary pause on mining. So that we can have some years when countries can say: “Okay, well, let’s just take a deep breath and consider the whole matter properly.”

Regina Lam is an ocean and special projects assistant editor at Dialogue Earth, based in London. She joined in 2021 and has worked at major Hong Kong newspapers and has reported for the BBC World Service. She holds an MSc in global affairs from King’s College London. Regina is interested in global ocean governance, environmental justice and what makes compelling storytelling and robust investigation in environmental journalism. She speaks Cantonese, Mandarin and English.

This article appears courtesy of Dialogue Earth and may be found in its original form here.