An “America First” Challenge Over Seafloor Minerals

In a fresh blow to a liberal international order that once viewed multilateral institutions with great hope, the Trump administration has issued an executive order expediting U.S. permitting for companies to explore and exploit seafloor minerals in international waters, leveraging National Oceanic and Atmospheric Administration (NOAA) mining regulations from the 1980s.

International seafloor mineral resource development supervised by NOAA would bypass an ongoing process by the International Seabed Authority (ISA)—of which the United States is not a member—to develop a standardized set of regulations for mineral collection on the international seabed beyond countries’ sovereign waters.

Yet the eventuality of such a seafloor minerals grab was no surprise considering the ISA’s longstanding paralysis. A prolonged status quo where members and NGO stakeholders sought to block even sluggish progress towards an international seabed mineral collection framework was always bound to produce an eventual challenge to the ISA’s legitimacy. Despite drawing condemnation from governments, environmental groups, and scientists, U.S. actions to unilaterally permit seabed mineral resource production serve as an important reminder that, in practice, the ISA framework was always competing against more self-centered alternative models for mineral development.

A bitter lesson of the current moment is that an international framework for environmental governance of a global common resource must allow for resource utilization if the framework is to survive. If policymakers and environmental advocates truly prefer systems of accountability enforced by international institutions as opposed to a free-for-all rush for seafloor minerals, they must recognize that a credible alternative regulatory framework must offer a viable path for seafloor mineral projects to move forward.

A crossroads for the International Seabed Authority and its courtiers

Intergovernmental organizations already face plenty of growing cynicism over their ability to execute their intended missions and uphold related international norms. UN institutions have impotently looked on as countries like Azerbaijan, Russia, Israel, and Rwanda engaged in blatant territorial conquest and armed interference in neighboring states. Economists might argue for the comparable severity of the World Trade Organization’s incapacity, with the “dead” Doha Development Round’s negotiations having failed to substantively advance since their commencement in 2001. International climate diplomacy has endured considerable turbulence of its own, with the Paris Agreement succeeding two decades of the Kyoto Protocol’s relative ineffectiveness only to confront an increasing deadlock over questions of climate lending and damage awards to poor countries.

President Trump has eagerly poured salt into many of these wounds. His administration blocked the appointment of WTO officials in his first term, and moved to pause all U.S. contributions to the WTO a few months into his second. On his first day in office, Trump directed his administration to start the process of U.S. withdrawal from both the Paris Agreement and the World Health Organization.

Such actions make it easy for environmentalists and international officials to simply dismiss Trump’s seafloor minerals grab as yet another irreverent middle finger to international cooperation and laws. The damage Trump is inflicting not only to U.S. foreign policy interests but to these valuable, if flawed, international organizations indeed deserves withering criticism. Since cracks in these multilateral institutions were emerging well before the Trump era, flaws within the ISA and similar international efforts to regulate the global environmental commons may have made it more likely than not that they would confront such challenges to their legitimacy eventually.

Now is the time for the governmental, scientific, industry, and advocacy stakeholders engaging with the ISA to reckon openly with the powerlessness of a multilateral institution inherently designed to favor bureaucratic process over effective outcomes. The UN Convention on the Law of the Sea (UNCLOS) erred in structuring the ISA to require universal consensus to execute important decisions—a negotiation hurdle that imposes fundamental structural weaknesses on the organization rather than strengths. Armed with the credible threat that a single dissenting member state could block codification of policy, many countries and nongovernmental organizations have exploited this structure to continually delay drafting and approval of an international code for seafloor mineral development, even while claiming that the ISA was shamefully in bed with industry and pro-development. The ISA’s resulting difficulties in making progress towards a final regulatory code for seafloor minerals collection has, if anything, reinforced longstanding U.S. conservative critiques that ratifying UNCLOS would only obstruct U.S.-led efforts to explore seabed minerals.

Trump’s reminder that nothing fundamentally stops nations from unilaterally claiming international seabed resources ought to remind ISA members that they must always compete against this implicit alternative. An internationally-governed regulatory system for seafloor minerals collection with high environmental standards is not only a worthy framework to strive for in principle but could serve as a positive example for global mining writ large. Considering all of the environmental, labor, human rights, and public health impacts imposed by past and present mining, many would welcome greater accountability guided by high quality, internationally harmonized standards.

A valuable opportunity still remains for the ISA to—for the first time in history—codify best practices for mineral development before an industry has commenced commercial operations. Development of an international framework for seafloor mineral collection represents the strongest possible leverage that advocates could bring to bear against companies that would otherwise move projects forward with the unilateral backing of a single country’s government. The Trump administration’s seafloor minerals declaration must be understood as a call to action for international stakeholders to finalize the ISA mining code as quickly as possible.

How should the United States and engaged seafloor mineral companies proceed?

From the perspective of seafloor mineral operators, the ISA has clearly failed to meet its past deadlines for finalizing and enacting its draft mining code. At the same time, the current moment is a curious time for firms to be throwing up their hands at the ISA process and turning to the newly-reinaugurated Trump administration.

The ISA only recently underwent a major leadership change, with newly-elected Secretary-General Carvalho having held her office for mere months. Carvahlho has expressed a public commitment to maintaining the ISA as a neutral regulatory and decision-making body, and to making efficient progress towards a complete mining code. Some rumors have suggested that Carvalho has encountered difficulties filling staff roles at the ISA following the change in administration, affecting the ISA’s ongoing activities. Yet given the recency of this leadership change, one would expect corporate actors to extend good faith towards the ISA’s new direction and evaluate the organization’s forward momentum at the 30th session of the ISA Council and ISA Assembly this summer. But companies are obligated to produce returns for investors, and private sector interest in Trump’s move to establish a U.S. route to seabed mineral development may well intend to put new pressure on this summer’s ISA proceedings.

At the same time, commentators should not assume that seafloor mineral development under a U.S. federal framework would be irresponsibly regulated in comparison to a mining code developed by the ISA. Under the Deep Sea Hard Mineral Resources Act’s (DSHMRA) existing framework, a NOAA process for issuing mineral exploration and exploitation would hardly be a no-holds-barred free-for-all and would likely impose a wide array of regulatory requirements upon prospective operators. First, operators would have to demonstrate that they possess the full financial and technological capability to explore or recover seafloor minerals. Requirements would also include advance federal environmental impact assessment of any mineral recovery plan, environmental protective measures, alignment with standards such as the Clean Water Act, use of best available technologies to reduce impacts, and compliance with regular monitoring including the placement of federal officials on any vessels conducting activities.

Moreover, U.S. presidential leadership will change within four years—either before any commercial-scale seafloor mineral operations begin, or during the industry’s earliest commercial stages. Even if the Trump administration adopts a laissez-faire approach to environmental standards and best practices for seafloor mineral collection, subsequent administrations may take a different, stricter approach—a risk that operators must weigh and are likely proactively accounting for. The DSHMRA even authorizes the President and the Administrator of NOAA to issue an emergency order immediately suspending mineral exploration activities. In general, the NOAA Administrator enjoys considerable latitude to decide the outcome of license applications and even impose special terms upon how operations proceed. A controversial and rapid move to permit seabed mineral recovery at NOAA could provoke overcompensating stringency when political tides shift.

It remains to be seen whether NOAA is sufficiently capable of governing a U.S.-led seafloor minerals industry at all. DSHMRA and its related federal regulations for deep seabed exploration and commercial recovery are all products of the 1980s and require modernization to reflect today’s technologies and scientific knowledge. More crucially, these regulations only intended to provide a skeleton for further refinement, and generally lack the specificity needed to govern maritime mineral activities in practice. Furthermore NOAA has suffered grievous cuts to its workforce while already facing a burdensome breadth of official responsibilities from fisheries management to coastal development to aquaculture to storm early warning to maritime research. As with the ISA, a major question is whether NOAA actually possesses the institutional capacity to oversee effective permitting and to enforce accountability upon a nascent seafloor minerals industry.

The high stakes of international global commons governance

There is a reason some branches of international relations theory describe relations between states as a form of anarchy. You can just do things, after all—like declare that minerals-rich nodules on the seabed thousands of kilometers away from the coastline of any nation belong to your country.

Ultimately, international institutions wield influence only insofar as international actors believe that those organizations can carry out their mission effectively and impartially–and that the consequences of defying them outweigh the benefits of acting unilaterally. If shared governance of a global commons seeks only to bar development of that commons in perpetuity, it should come as no surprise when international actors tire of obstructionary processes and break ranks to kick down the fence. Only one defecting or non-participatory actor may suffice to call the entire institution’s value into question.

Yet the uniqueness of seafloor minerals on the high seas as a non-sovereign resource, if anything, highlights a more general dynamic regarding how different strategies for governing mineral resource development can often lead to unintended consequences. If “high standards” mining means no mining at all, then impacted actors will seek alternative pathways to source the minerals that society so vigorously demands. In the far more ubiquitous case of conventional terrestrial mining, mineral resources are clearly subject to the laws and regulations of the country hosting those deposits. In practice, we can observe today how highly restrictive mining policies and robust environmental opposition in some jurisdictions have funneled significant mineral production into regions subject to lower standards.

A uniform global standard for recovering seafloor minerals would mark a valuable achievement and dissuade countries from taking the alternative route of unilaterally claiming resources on the international seabed. If the ISA places genuine value on collective management of the seafloor, it must rapidly and aggressively reform institutional decision-making processes and finalize an alternative mining code. Only an enacted, functional international mining code provides any leverage and social license pressure to persuade aspiring operators like the Metals Company to continue engaging with the ISA. The burden is now on the ISA to justify its own continued relevance and existence.

Meanwhile, environmental advocacy groups must similarly recognize the misguidedness of strategies oriented around process obstruction and categorical opposition to any forms of seafloor mineral collection. Advocates should pivot towards supporting a good faith effort to progress regulatory development at the ISA and help build robust mechanisms for oversight. The alternative is to spark a resource scramble with little regard for cooperation or standardized industry practices.