Deep-sea mining beyond national jurisdiction: context and legal analysis of the current situation

Abstract

The commercial exploitation of mineral resources of the International Seabed Area (deep-sea mining) constitutes an unprecedented legal, environmental, and political challenge for the international community. Pursuant to the provisions of the United Nations Convention on the Law of the Sea, the Area and its resources are the common heritage of humankind, a principle that establishes a unique legal regime founded on equity, international solidarity, and sustainability. Under this regime, the International Seabed Authority holds the exclusive mandate to organize, control, and regulate the exploration and exploitation of the mineral resources of the Area, ensuring that such activities are carried out for the benefit of all humankind, with particular regard to the interests and needs of developing States. This mandate further entails the obligation to ensure the effective protection of the marine environment, in accordance with the principles of precaution, prevention, and sustainable development, so that the utilization of these resources does not compromise the rights or well-being of future generations. This study examines the main technical and legal issues involved in the development of the exploitation regime, providing an overview of the current state of negotiations, with emphasis on areas that still lack consensus. It also addresses the principal challenges arising from the prevailing regulatory uncertainty, namely: (i) the interpretation of the so-called “two-year rule”; (ii) the legal status of exploration contracts; (iii) the implementation of a precautionary pause or moratorium. Finally, the implications of unilateral deep-sea mining promoted by the Trump Administration will be examined from the perspective of the legal nature of the principle of the common heritage of humanity.