The United States has neither moral nor legal right to minerals found in the deep ocean. If it tries to take them, others will too. Guy Standing writes.
Among the 143 executive orders Donald Trump issued in his first 100 days is one that gives American companies the green light to mine for minerals in the deep ocean. A violation of international law, which regards the deep seabed as a global commons belonging to all, this order could be the most globally consequential of all.
Deep-sea mining is so dangerous for the environment that many countries have called for a moratorium. However, the order also resurrects the risk of armed conflict between the world’s technological powers, a risk that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) was intended to avoid.
In an electrifying speech in the United Nations General Assembly in 1967, the Maltese diplomat Arvin Pardo pleaded for the deep seabed to be treated as “the common heritage of mankind”, warning that competition for the resources of the ocean floor would otherwise inevitably spark military confrontation. His speech galvanised the negotiations that concluded in the adoption of UNCLOS 15 years later.
The treaty brought to an end centuries of maritime power rivalry for domination of the high seas and decades of postwar tension and skirmishes over territorial waters.
Pardo was bitterly disappointed by the final outcome, which included giving coastal states jurisdiction over large areas of adjoining ocean and seabed as Exclusive Economic Zones (EEZs). However, UNCLOS also enshrined in international law that the deep seabed was “the common heritage of mankind” and, as such, a global commons, just as first declared in the Roman Justinian Codex of AD 534, the basis of common law to this day. The UN Secretary General at the time, Javier Pérez de Cuéllar, described UNCLOS as “the most significant legal instrument of the century”.
The treaty brought to an end centuries of maritime power rivalry for domination of the high seas and decades of postwar tension and skirmishes over territorial waters after the Truman Proclamation of 1945. This unilateral pronouncement declared all the large continental shelf off the United States coast to be American territory, an act of imperial power. Previously, all the seas and seabed, excepting near-shore coastal waters, were regarded as commons. Soon, other countries began to unilaterally declare 200 nautical miles (370 km) off their own coasts as their territory. With no fixed rule on how much seabed belonged to each country, this was a recipe for chaos and conflict.
UNCLOS dealt with this by universalising the 200 nautical mile rule. Altogether, 138 million square kilometres of ocean were enclosed as national EEZs. There were some obvious inequities. France and the US, which had ocean island colonies and territories, each gained more than 11 million square kilometres of sea and seabed, while China received a mere 900,000 square kilometres.
China would have good reason to feel cheated if Washington were now to renege on its side of the deal
However, the essence of the UNCLOS negotiations was that all countries would obtain some advantages at the cost of some concessions. In the final bargain, every coastal state obtained a 200-mile EEZ, superpowers, the US and the Soviet Union obtained freedom of navigation in all waters beyond the coastal 12-mile limit, and developing countries and the world’s 43 landlocked countries thought they had obtained an agreement promising that they would benefit from any future mining in the deep sea, in return for which they allowed the US and other powers access to their fishing grounds.
China led those developing countries in arguing that benefits from the exploitation of the global commons should be shared equitably by all countries. Given the unfair and arbitrary EEZ rule, China would have good reason to feel cheated if Washington were now to renege on its side of what, in US terms, was an excellent deal. Although the US, alone among the major powers, refused to sign or ratify UNCLOS, it helped to shape its provisions and remains bound by them under customary international law. A total of 168 countries and the European Union are party to it.
Outside the EEZs, the treaty established what is called the “Area,” which comprises 54 per cent of the seabed, ocean floor, and subsoil beyond national jurisdiction. In 1994, the International Seabed Authority (ISA) was established under UNCLOS to develop a set of rules governing mining in this deep-sea zone, including environmental safeguards and a formula for equitable benefit sharing. No deep-sea mining was to commence until a mining code had been agreed upon.
The US and other rich countries insisted that the code be agreed by consensus — that is, by all countries, not just a majority — because they did not want to give power to developing nations.
The US and other rich countries insisted that the code be agreed by consensus — that is, by all countries, not just a majority — because they did not want to give power to developing nations. Washington also got its way there and has been active in the subsequent negotiations regarding the code, despite not being an ISA member. A consensus has never been reached.
Trump’s executive order envisions granting licences to US-backed mining companies to exploit both deep-sea and US waters, for the sole benefit of the US, without any of the environmental protections and benefit-sharing provisions that the ISA is still negotiating. The order does not make a single mention of UNCLOS or the international regulatory system that has given the US such a strong position.
For instance, despite not ratifying UNCLOS, Washington in 2023 applied Article 76 of the treaty, which allows countries to extend their EEZ beyond 200 nautical miles to areas deemed to belong to its “extended continental shelf”. As a result, whereas most coastal countries have 200 nautical square miles as EEZ, the US has 680 miles off its west coast and 350 miles off its east coast.
Some critics have argued that the high costs of deep-sea mining and the limited availability of high-value minerals make such mining prohibitively expensive. However, future technological advances may make mining more feasible, and more than three-quarters of the ocean seabed remains unmapped. It is unknown.
Trump’s order dismisses the need for environmental safeguards around deep-sea mining, which is extraordinarily irresponsible.
Trump’s order dismisses the need for environmental safeguards around deep-sea mining, which is an extraordinarily irresponsible move. Critics have focused on the risks associated with mining for nickel and copper, including the destruction of the seabed, damage to the ocean as a carbon sink, and the release of radioactive particles during the processing of these minerals. Similarly, drilling for ocean methane hydrates could release vast amounts of greenhouse gases, destabilise the seabed and destroy vital parts of the marine ecosystem.
All that is bad enough. However, if the US follows through on its direct threat to the international law of the sea, China and others with the technological capacity for deep-sea mining may be tempted to break the rules similarly, leading to a complete breakdown of the marine law built up over the past six decades.
The new ISA secretary general, Leticia Carvalho, described Trump’s executive order as “surprising” because the US had shaped the regulatory framework and had been a primary beneficiary, but now plans to steamroll 168 countries that are complying with conditions it will not respect.
The Economist came out in support of it, not mentioning that UNCLOS was a negotiated bargain in which rich countries, led by the US, gained considerable advantages in return for a commitment to share the benefits equitably if deep-sea mining went ahead. That was a legally binding commitment. To say the US is “right” to go ahead is effectively to condone breaking international law.
Sadly, the ISA response to Trump’s order does not propose any countermeasures. The organisation merely asks the US to work with it to finalise a mining code by its deadline at the end of 2025. This raises the concern that negotiations will be rushed to placate the US, resulting in weaker environmental safeguards and an inequitable benefit-sharing system.
The executive order also extends Trump’s transactional approach to foreign policy. The White House is effectively strong-arming countries to surrender or “share” the minerals in their EEZs, as in its mining agreement with Ukraine. The order states that the US will aim to conclude bilateral agreements with other nations, thereby gaining access to their resources. Washington could easily bully the governments of developing countries by offering aid or debt relief solely on the condition of gaining access to their seabed minerals. Where Washington leads, China, Russia and others will be tempted to follow.
In several developing countries, indigenous groups have opposed deep-sea mining off their shores because it would destroy their ancestral way of life.
In several developing countries, indigenous groups have opposed deep-sea mining off their shores because it would destroy their ancestral way of life. So far, some small island states have blocked corporations. But if the US muscles onto the scene, its bargaining strength could be destroyed. Those in Washington may not care. The rest of us should.
A responsible and confident US would ratify UNCLOS and join the ISA to help finalise a mining code that respects environmental and equitable sharing principles. Since that is regrettably unlikely, those 168 countries and the EU that have ratified UNCLOS could choose to take a principled collective stand, through non-cooperation and even commercially retaliatory action if the executive order is not rescinded. They could make this commitment at the UN Ocean Conference in Nice in June, which the presidents of France and Costa Rica will chair.
The US has no legal or moral right to exploit what it might gain from deep-sea mining. If it tries, it will launch a gold rush, increasing the odds of conflict as American, Chinese and Russian companies race to set up operations.
America currently holds technological and military superiority, but this will not last. A Canadian company has taken the lead in exploration work, and China has secured five of the 31 exploration licences from the ISA, with no other country holding more than one.
In 1966, US President Lyndon Johnson declared, “Under no circumstances… must we ever allow the prospects of rich harvests and mineral wealth to create a new form of colonial competition among the maritime nations. We must be careful to avoid a race to grab and hold the lands under the high seas. We must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings.”
Trump seems to disagree. For the sake of humanity, nature and global peace, his executive order must be rescinded.
This was previously published in Prospect here.
