As the race for securing much sought-after critical mineral resources intensifies, those with strong financial muscle and the requisite technical expertise are shifting their focus to deep-sea mining, an area that has the potential to supply the world with the minerals needed for the green energy transition.
However, marine scientists have expressed concerns about venturing into deep-sea mining owing to the lack of scientific knowledge around the environmental impact on the deep seabed, given the lack of baseline marine environmental data. These concerns have resulted in a push by some NGOs and governments around the world for a moratorium as a precautionary pause or a complete ban on deep-sea mining.
A moratorium, or precautionary pause, would stall deep-sea mining until such a time that there is sufficient environmental impact baseline data to inform how contractors should go about mining deep-sea minerals. Such a moratorium might also provide an opportunity for the UN’s International Seabed Authority to finalise its mining code, particularly the exploitation regulations dealing with mining deep-sea minerals for commercial benefit, thereby allowing the authority an opportunity to fortify its governance over deep-sea mining.
US challenges UN seabed authority
US President Donald Trump’s passing of an executive order on the governance of deep-sea minerals, “Unleashing America’s Offshore Critical Minerals and Resources”, dated April 24 2025, seems to throw a spanner in the works by introducing an alternative deep-sea mining governance system for the US, independent of the UN governance system. This represents a governance tension between the UN and the US with far-reaching implications for geopolitics, business and regulation.
Section 2(d) of the executive order makes provision for a pathway to advance the US’s “leadership in seabed development”, in terms of which America must establish itself as a “[global] leader in responsible seabed exploration…”.
This, according to the executive order, includes partnering with other states in developing seabed mineral resources in maritime areas falling within their national jurisdictions, as well as their exclusive economic zones, an area where states can exercise sovereign rights over natural resources. Section 3 of the order provides that the US would be able to issue mining permits for deep-sea mining beyond its national jurisdiction.
Environmental concerns
The International Seabed Authority has taken issue with the US order, noting that it deals with an issue that is within the remit of the UN Convention on the Law of the Sea, specifically that of issuing deep-sea mining licences in marine areas beyond national jurisdiction.
The authority said in a statement that the UN convention’s status as a multilateral framework on the governance of deep-sea related matters, as well as its recognition of the deep-sea mineral resources in areas beyond national jurisdiction, as the “common heritage of humankind”, means no one state owns the deep-sea area beyond national jurisdiction, nor can any state lay claim over them or exercise sovereignty or sovereign rights over them and their mineral resources.
Article 311(6) of the UN convention provides that no state party may enter into agreements that undermine the Common Heritage of Humankind principle. This is specific to state parties that are signatories to the convention, not all states. Here, the implication is that states that are not party to the convention are not bound by its governance framework and principles, and could therefore act outside of its scope. The US may well be relying on this point, thereby giving it grounds to establish its own deep-sea mining governance regime.
Further engagement possible
Despite the emergent governance tension, one can argue that there is a silver lining looming on the deep-sea mining regulatory horizon. The fact that none of the two competing governance systems has been finalised leaves the door open for further engagement between the two parties to find a common solution for the benefit of all in the quest to preserve a common heritage for humanity.
Working under one governance umbrella, global collaboration on deep-sea mining has the potential to be of benefit to all nations, including bridging the gap of inequality regarding seabed technical expertise and access to other resources.
The governance frameworks of the UN and US systems are similar in their makeup. These are categorised into five indicators, namely: the Governing Law, the Governing Authority, the Jurisdiction of the Governing Law and Authority, the Subjects of Authority and Licence Types.
• Molefe is a PhD researcher in mineral law in Africa at the University of Cape Town.
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