On 24 April 2025, the President of the United States issued an Executive Order, entitled, Unleashing America’s Offshore Critical Minerals and Resources. The Order addresses policies directed at seabed mineral exploration and exploitation both within the U.S. continental shelf and in areas beyond national jurisdiction (the Area), as well as processing capacity in the United States or on United States-flagged vessels, and possible partnering with other States in exploiting the resources of their continental shelf/EEZ.
Of particular note for the law of the sea is the (a) possibility of a unilateral exploration and exploitation regime concerning the mineral resources of the Area (contra, Part XI of UNCLOS) and (b) the possibility of the unilateral definition and implementation of an international benefit-sharing mechanism (contra, the principle of the common heritage of humankind):
Sec. 3. Strategic Seabed Critical Mineral Access. Within 60 days of the date of this order:
Unleashing America’s Offshore Critical Minerals and Resources
(a) The Secretary of Commerce shall:
(i) acting through the Administrator of the National Oceanic and Atmospheric Administration, and in consultation with the Secretary of State and the Secretary of the Interior, acting through the Director of the Bureau of Ocean Energy Management, expedite the process for reviewing and issuing seabed mineral exploration licenses and commercial recovery permits in areas beyond national jurisdiction under the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401 et seq.), consistent with applicable law. The expedited process, consistent with applicable law, should ensure efficiency, predictability, and competitiveness for American companies;
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The Secretary of Commerce […] shall […] provide a joint report […] on the feasibility of an international benefit-sharing mechanism for seabed mineral resource extraction and development that occurs in areas beyond the national jurisdiction of any country.
On 25 April 2025 a Spokesperson for the Foreign Ministry of China stated China’s objections to both the proposed exploration and exploitation of mineral resources of the Area/beyond national jurisdiction, as well as the exploration and exploitation of mineral resources on the extended continental shelf of the U.S (the delimitation of which China does not recognise).
On 29 April 2025, The Metals Company (TMC) announced that its U.S. subsidiary, The Metals Company USA LLC (TMC USA), has submitted applications for a commercial recovery permit and two exploration licenses under the Deep Seabed Hard Mineral Resources Act (DSHMRA) and National Oceanic and Atmospheric Administration (NOAA) implementing regulations. This is an expedited timeline ahead of what was previously reported, which already raised preliminary discussions at the Council of the International Seabed Authority.
On 30 April 2025, the Secretary-General of the International Seabed Authority issued a Statement on the US Executive Order (for previous statements, see here), taking note of the order and raising specific concerns, including in respect of the ISA regime and the common heritage principle. The SG-ISA states her view that:
Its issuance is also surprising because for over 30 years the US has been a reliable observer and significant contributor to the negotiations of the International Seabed Authority, actively providing technical expertise to each stage of the development of the ISA regulatory framework.
Statement on the US Executive Order
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[G]eneral principles of international law and customary international law proclaims the Area and its resources as the Common Heritage of Humankind. A direct corollary of this legal status is that no State may claim, acquire, or exercise sovereignty or sovereign rights over any part of the Area or its mineral resources. This includes a prohibition on appropriation and alienation by any State, or by any natural or juridical person.
The Convention and the 1994 Agreement further establishes the International Seabed Authority, clearly mandating that all activities related to mineral resources in the Area must be conducted under the Authority’s oversight to ensure sustainable use, equitable benefit-sharing, and environmental protection. Accordingly, exploration and exploitation activities in the Area must be carried out under the Authority’s control, that is, under a contract with the Authority and in accordance with the rules, regulations, and procedures it establishes; and no State has the right to unilaterally exploit the mineral resources of the Area outside the legal framework established by UNCLOS. It is common understanding that this prohibition is binding on all States, including those that have not ratified UNCLOS.
De Maribus 