Wildcatting the Pacific: Seabed mining and the Pacific islands

10 April 2024

Since July 2023, the mercurial business of deep-sea mining in international waters has been trapped in an uncertain regulatory environment — and some of the Pacific Islands stand to benefit. On 9 July, the International Seabed Authority (ISA), the body responsible for managing the seabed in waters beyond the national jurisdiction of states, faced a deadline under the United Nations Convention on the Law of the Sea (UNCLOS) to finalise regulations that could govern commercial seabed mining.

However, in an anticlimactic outcome, the ISA failed to finalise regulations. Most observers closely watching the seabed mining saga saw this result coming. The ISA is hardly a unified body. The 36 council members as well as 167 assembly members, of varying opinions on the efficacy of seabed exploitation, are more closely scrutinising the ISA’s work than ever before. A consensus among all member states that would pave the way for commercial-level seabed mining was always elusive.

The Council — including such diverse members as China, India, and Uganda — did come to a consensus on one thing: the need for more time. The new deadline to finalise the draft regulations on mineral exploitation of the seabed is now July 2025.

A window for wildcatting

Normally, this would be a desirable outcome for private companies aggressively pursuing seabed mining — such as The Metals Company (TMC), which carried out an unprecedented extraction test in the resource-rich seabed of the South Pacific Clarion Clipperton Zone in 2022. Without finalised regulations, there are effectively no regulations at all. Companies could, in theory, pursue licenses for commercial extraction and begin the process of mining the seabed tomorrow.

While the ISA Council could not agree on regulations, it did agree that it would from now on have oversight over the seabed mining application process instead of the ISA’s exclusive Legal and Technical Commission.

The South Pacific, in particular, is in a strange and new age resembling the wildcatting era of the American West, where opportunists and oil barons — or ‘wildcatters’ — tried to find their fortune in remote areas. Except in this new era the opportunists span a spectrum from scrappy start-ups like TMC to Chinese state-backed mining giants like China Minmetals Corporation, flocking to Pacific waters. Their goal is to prospect and explore mineral resources on the seabed precisely because they anticipate commercial mining to be feasible soon.

However, other developments have made international seabed mining more difficult. While the ISA Council could not agree on regulations, it did agree that it would from now on have oversight over the seabed mining application process instead of the ISA’s exclusive Legal and Technical Commission. For mineral extraction, a company now needs to receive approval from the ISA Council’s 36 member states — with consensus.

However, this is unlikely to happen because the Council is not unified on the perceived benefits of commercial-level mineral extraction in the middle of the ocean.

A precautionary pause

There is an attitude spreading among the international community that the best course of action is a de facto ban on any mining activity in the open ocean. Or, as most states are putting it, a “precautionary pause”. The rationale for this varies, although the most common concerns about seabed mining are environmental.

Reams of studies on areas of the ocean dense with seabed minerals have been published in the last few years. They overwhelmingly show that the environmental impacts of seabed mining are likely to be deeply harmful to marine life — in some cases, the noise pollution from mining activity alone is enough to cause irreversible damage to local ecosystems. These ecosystems are some of the most fragile on earth, containing organisms at the bottom of the ocean completely isolated from any human activity, and thus especially susceptible to its aftereffects.

Concerns about the negative effects of seabed mining on marine life in the South Pacific’s Clarion Clipperton Zone are compounded by the fact that what exactly lives on the seabed is not yet known — research published in 2024 shows the scientific community is still discovering different species and ecosystems on the seabed and around hydrothermal vents thought to be rich in rare earth metals.

In short, the concept of environmentally conscious seabed mining is something of a farce. True environmental impact assessments are arguably not even possible, given the marine ecology of areas ripe for seabed mining is not yet known. Out of an abundance of caution, countries like France, Germany, and Chile have called for a pause on any mining activity on the international seabed.

The other development that put a damper on seabed mining is the recent passage of the High Seas Treaty, or Boundaries Beyond National Jurisdiction (BBNJ) Treaty, which codifies states’ obligations to conserve the resources and marine life in international waters. The BBNJ Treaty has far stricter requirements for mining companies to assess the environmental impact of their activities in international waters than the ISA, and even absent a finalised Mining Code. It adds additional regulatory hurdles to any company considering commercial-level extraction. The BBNJ Treaty has only added to the momentum of those countries in favour of pausing seabed mining entirely. On the other hand, countries like China and Norway are eager for seabed mining to begin in earnest.

All of these countries sit on the ISA Council for 2024 and are already showing signs of disagreeing over even small procedural matters concerning progress on a mining code. Consensus is few and far between.

This effectively kills the licensing process for mining in international waters in the meantime.

Mining in home waters

There are other notable exceptions to the emerging perspective that deep-sea mining is too harmful to bother with. They include several Pacific Island Countries (PICs), namely Nauru, Tonga, the Cook Islands, and Kiribati. There are several reasons for this.

The ISA’s draft mining code and the recently passed BBNJ Treaty only apply to “international waters”. Under the UNCLOS articles 76 and 77, states are essentially free to do whatever they want within the borders of their maritime entitlements — and on their continental shelf limits. They enjoy economic rights to the ocean floor around their territory, up to 200 nautical miles from their coastlines, and potentially up to 350 nautical miles if they can prove certain geographic features on their aforementioned “continental shelf”.

It is important to note that this definition of a continental shelf is a purely legal one, and not one derived from the scientific definition. Under UNCLOS, a state’s legally permissible continental shelf can include virtually anything on the ocean floor — including parts of the deep seabed.

If a mining company is surveying its business prospects in 2024 and remains interested in extracting resources from the seabed, its logical next step is to pursue mining licenses on a country’s continental shelf, outside any possible regulations of the ISA or BBNJ. Preferably a country with a massive maritime entitlement under UNCLOS, close to mineral-rich waters, with lax regulation, and a small economy eager for foreign investment.

The PICs fit these criteria, and sure enough, they are poised to be the biggest recipients of the uncertain regulatory environment the seabed mining industry finds itself in. The Cook Islands alone has a massive continental shelf, nearly 2 million square kilometres in size. Its continental shelf abuts some of the most resource-rich in the world. It is extending an invitation to mining companies with this in mind. It has created its own Seabed Authority, for governing mining activity within its continental shelf, and already issued exploration licenses to mining companies with the stipulation that they incorporate Cook Islands-based subsidiaries of their businesses.

Alongside the Cook Islands is Nauru, another PIC that has wielded outsized power on the state of internationally approved seabed mining. Nauru holds the distinction for single-handedly forcing the ISA to finalise its regulations — or fail at doing so — at the aforementioned 9 July 2023 session. Nauru did this by stating its intent to issue a license for commercial seabed mining in international waters as far back as 2021 — which then triggered a two-year deadline built into UNCLOS that would force the issue and require the ISA to finalise regulations on the practice in 2023. Which brings us to the present day.

Commercial seabed mining drifts closer

It is an unprecedented time for seabed mining. The richest territory for prospecting lay in the maritime boundaries of Nauru, the Cook Islands, Kiribati, and Tonga, and only now in the present day has the technology for commercial extraction approached something close to full operational capability.

While international waters may be off-limits for now, those companies eager to demonstrate commercial extraction is possible in the first place — such as TMC in Nauru and Ocean Minerals in the Cook Islands — can still prove their business concept in the Pacific Islands.

These PICs have become the strongest advocates for mining companies interested in the seabed, and have led the way in granting exploration licenses, allowing mining companies to prospect from resources on their continental shelves. They are now poised to do the same in seabed extraction, opening up their continental shelves to largely untested mining companies attempting a proof-of-concept.

For those looking for where the seabed mining industry is headed, they should be pointed in the direction of the South Pacific.

DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.

Author biography

Drake Long is a Non-Resident Fellow with the Brute Krulak Center on Innovation & Future Warfare, Marine Corps University. He is also a Pacific Forum Young Leader and a frequent writer on US-Southeast Asia relations, having been published in The Diplomat, 9DASHLINE, 1945 Magazine, and the Center for International Maritime Security. He is currently writing a book on deep seabed mining and international seabed issues. His views do not reflect the opinion of any of his employers, the United States government, or the Department of Defense. Image credit: Flickr/NOAA Photo Library.