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Thousands of miles offshore, and more than 10,000 feet underwater, lies a cache of minerals on the deep seabed that could have great value to the technologies of today and tomorrow. Those critical minerals — including cobalt, manganese, nickel, and copper — are essential components of the lithium batteries powering mobile devices and electric vehicles, as well as AI data centers, wind turbines and defense applications. 

Harvesting the minerals, contained in polymetallic nodules, hasn’t been commercially viable because of high costs, technical challenges, and a still-developing regulatory framework governing leasing and commercial mining in international waters. 

Despite these challenges, a Canadian deep sea mining firm, The Metals Company (TMC), is applying, through a North Carolina-based subsidiary, for U.S. seabed mineral exploration licenses and commercial recovery permits for resources in areas far beyond U.S. jurisdiction. It is doing so under a U.S. statute that essentially lay dormant for 40 years until it was revived by an executive order calling for “unleashing America’s offshore critical minerals and resources.”

If the National Oceanic and Atmospheric Administration (NOAA) authorizes this activity, it could put the U.S. at odds with longstanding international law and potentially endanger its other interests, warns Duke ocean law expert Coalter Lathrop. 

“If you had asked me a year ago about the Deep Seabed Hard Mineral Resources Act of 1980 and the U.S. position on deep seabed mining, I would have said that statute is moribund,” said Lathrop, who teaches law of the sea at Duke Law School and is the founder of Sovereign Geographic, an international law firm and cartography consultancy.

“It has been overtaken by a robust body of international law that has developed since the mid-1960s and has crystallized and been applied for at least the last 30 years. The possibility of unilateral mining really wasn’t on my radar.” 

Now it is. Lathrop writes that the executive order directs federal agencies to expedite the permitting and licensing process for private entities seeking to mine in waters beyond U.S. control. TMC’S strategy would circumvent the International Seabed Authority (ISA), which manages minerals and other resources in the 70 million square miles of deep seabed beyond national jurisdiction and issues contracts for exploration. Taking the minerals unilaterally violates international law that regards them as the “common heritage of humankind,” owned by all and capable of appropriation only under the prevailing rules of law, Lathrop said.

“The executive order addresses seabed mineral resources within U.S. jurisdiction, which is not my current concern. But it also addresses the resources beyond U.S. jurisdiction, and that's where TMC is looking to mine,” Lathrop said.

“Going around the ISA would undermine the international legal regime on which the United States relies for a lot of other rights that it enjoys at sea, such as navigational rights and other resource-related rights that we benefit from with respect to oil and gas, fisheries, laying submarine cables and pipelines ... the list goes on and on. It looks to me like a real problem, not just for the international community but for the U.S.” 
 

A source of minerals — and potential legal conflicts

While critical minerals currently are extracted from land-based deposits, TMC says it can mine the seabed with less environmental and social impact. It’s targeting minerals in the Clarion Clipperton Zone, a 1.7 million square mile area of the Pacific Ocean outside the jurisdiction of any country. 

Like all areas of the oceans and seabed, it is governed by the United Nations Convention on the Law of the Sea (UNCLOS), a multilateral treaty adopted in 1982 often referred to as a “constitution for the oceans,” Lathrop said. 

UNCLOS has been ratified by 171 countries, but the U.S. is among 20 or so that have not joined. Nonetheless, on the basis of customary international law, the U.S. claims many of the benefits it guarantees, including, for coastal states, exclusive sovereign rights over the natural resources in areas off their shores — called an “exclusive economic zone” (EEZ). 

As part of a “package deal,” Lathrop says, UNCLOS defines the seabed minerals farther offshore as a common resource for the benefit of all, subject to the management of the ISA. 

The U.S., which has the world’s largest EEZ, has observed and benefited from UNCLOS’s rules, including those related to deep seabed minerals, Lathrop said. But that approach changed with the issuance of the executive order. 

While ISA has given exploration contracts to TMC subsidiaries in Nauru and Tonga, neither TMC nor any other contractor can proceed with mining until the ISA finalizes exploitation regulations — a process it began in 2014 and which the ISA itself has acknowledged as “excessively slow and delayed.” 

By late 2024, TMC had grown frustrated with that pace and was also experiencing financial difficulties, Lathrop said. With a new administration taking office, the company saw an opportunity and announced it would seek an alternative permitting route through the U.S.

“It looked like they didn't have a viable route through the ISA anytime soon to access these mineral resources they had spent so much time and money exploring, so they lobbied Washington to resurrect the Deep Seabed Hard Mineral Resources Act,” Lathrop explained. TMC succeeded, and NOAA is currently considering a TMC permit application under U.S. authorization.

If it authorizes unilateral mining, the U.S. may be breaching its own customary international law obligations, Lathrop said. Circumventing the international legal system could have other indirect consequences. Unlike most international treaties, UNCLOS has teeth when it comes to dispute settlement and enforcing rules against the 171 states that have ratified it, Lathrop noted. In disputes related to UNCLOS, ratifying states submit to the compulsory jurisdiction of international courts or tribunals whose decisions are binding. For example, Canada, home of TMC, is obligated to ensure that its nationals don’t participate in seabed mining activities unless authorized by the ISA and could open itself to litigation if it allows TMC to proceed. 

TMC may run into other legal roadblocks, Lathrop said. First, the ISA could refuse to renew the exploration contracts for its Nauru and Tonga subsidiaries as early as July 2026. Second, the U.S. “flags,” or registers relatively few ships and owns almost none of the required mining technology or processing capabilities, so TMC will have to rely on its many partners based outside the U.S., including in Switzerland, the Netherlands, Malta, Korea, and Japan. As parties to UNCLOS, all are obligated to prevent their corporations from participating in U.S.-permitted mining, he said. Finally, TMC could run into further legal trouble downstream when it confronts the prohibition against trading in minerals derived from “ill-gotten nodules.” 

Lathrop said the issue illustrates a global interconnectedness that no one company — or country — can ignore. 

“Without foreign partners, a U.S. entity can't mine these minerals, can't process these minerals, and can't sell the products of these minerals. People mistakenly think that because we're not a party to the Convention, this robust regime of international ocean governance somehow doesn't affect the U.S.,” he said. 

“Of course it does. Our system of international ocean law applies to the United States, and to all the countries in the world.”