That question is, however, inseparable from risk. Investment in deep-sea mining is fraught with uncertainty, beginning with fundamental market considerations. The long-term supply and demand dynamics for critical minerals and resources remain volatile. These market uncertainties are further compounded by a complex and evolving legal environment.
At present, the legal and regulatory landscape for deep-sea mining is already partially formed, even as exploitation regulations remain under development[1]. To date, the International Seabed Authority (ISA) has entered into 15-year exploration contracts with 22 contractors under United Nations Convention on the Law of the Sea[2] (UNCLOS)[3]. Of those contractors, one has already renounced its exploration rights[4] while nine of them are due to expire this year[5][6]. In parallel, and outside of UNCLOS, the United States—acting under the Deep Seabed Hard Mineral Resources Act (DSHMRA)—has issued exploration licenses to four U.S. mining consortia, only two of which remain active[7].
While jurisdictional, regulatory, and enforcement concerns are often viewed as secondary to commercial risk, they have the potential to materially affect project viability, access to mining area, and the enforcement of rights. In a sector where activities may span multiple legal regimes, legal uncertainty can amplify market risk rather than merely accompany it.
Against this backdrop, this bulletin provides insight on the evolving legal landscape governing deep-sea mining, with a particular focus on dispute resolution and enforcement. The issues addressed by this bulletin are of broad relevance to states[8], sponsors, and investors engaged in or considering participation in deep-sea mining activities. For all such stakeholders, understanding the dispute resolution landscape and associated enforcement risks is therefore essential to assessing exposure, allocating risk, and making informed decisions in this emerging sector.
I. Who Decides on Seabed Disputes?
At the heart of UNCLOS sits the Seabed Disputes Chamber (SDC), a specialized arm of the International Tribunal for the Law of the Sea. The SDC has jurisdiction over disputes arising out of activities in the “Area” (the seabed beyond national jurisdiction), including disputes involving State Parties, the ISA, and contractors. These disputes may range from liability claims to contractual disagreements[9]. However, the SDC’s jurisdiction is not unlimited as it cannot declare ISA rules, regulations, and procedures invalid[10].
A. Fragmentation of Ocean Governance
Deep-sea mining raises distinct legal issues depending on where activities take place. Mining within a state’s territorial sea or exclusive economic zone (EEZ) is primarily governed by domestic law while mining in international waters—the “Area”—is typically governed by UNCLOS. This jurisdictional divide creates unique dispute resolution challenges. Activities may involve overlapping domestic and international legal regimes, different regulatory standards, and competing claims of authority. It should be noted that the SDC is not the sole forum for dispute resolution. Commercial arbitration and national courts could also play a role[11]. While arbitral tribunals must refer UNCLOS questions to the SDC, national courts are under no such obligation. This creates a real risk of inconsistent rulings and legal uncertainty, especially for businesses operating across multiple jurisdictions.
B. The U.S. Approach
The United States, as a non-State Party to UNCLOS, relies on its DSHMRA, enabling U.S. companies to mine through domestic licenses. Recent executive orders and policies fast-track permitting, extend exploration windows, bypass formal requests for information or joint task force formation, and offer more favourable leasing terms[12][13].
This parallel legal framework outside of UNCLOS and ISA oversight raises complex legal and practical questions, such as:
- how competing claims will be addressed where ISA contractors and U.S. licensed entities seek access to the same areas of the seabed;
- which dispute resolution mechanisms apply in cross-border or multi-jurisdictional disputes; and
- whether and how domestic court decisions and international rulings will interact—or conflict.
In light of recent geopolitical developments, these questions are no longer theoretical but increasingly urgent.
II. Binding in Principle, Challenging in Practice
Even where deep-sea mining disputes are resolved, enforcement remains a significant challenge. Under UNCLOS, SDC rulings are “enforceable in the territories of the States Parties in the same manner as judgments of the highest court.”[14] While this may sound robust in principle, there are several uncertainties that remain in practice.
Key issues include:
- Scope of application: ISA rulings apply to any State Party “affected thereby,” but the precise meaning of that phrase remains unclear[15][16].
- Domestic implementation: some State Parties lack mechanisms—or political will—to enforce international rulings.
- Sponsoring State responsibility: while Sponsoring States are responsible for their contractors’ compliance, limited oversight capacity or competing priorities may undermine enforcement[17].
- Non‑Party States: states outside UNCLOS will turn to their domestic courts, which increases the risk of producing outcomes that diverge from international rulings.
- Multiple forums: the availability of different forums increases the risk of inconsistent standards and conflicting interpretations.
About Fasken’s Ottawa and London Litigation and Dispute Resolution Teams
As deep-sea mining moves from exploration to exploitation, the ocean floor presents vast opportunity and unprecedented legal complexity. Fasken has been recognized as Global Mining Law Firm of the Year for 11 consecutive years, reflecting our vast experience in complex mining matters. Our Ottawa and London teams draw on significant expertise in cross-border and international mining disputes to advise clients on emerging and highly complex issues that intersect with public international law, domestic regulation, and geopolitics.
Building on this experience, we help clients navigate uncertainty and position themselves for what lies ahead in the evolving legal landscape of deep-sea mining.
