Sharon E. Burke is president of Ecospherics, a consulting firm. She is a former US assistant secretary of defense.
While there’s still plenty of piracy in the Strait of Malacca, off the coast of Somalia, and elsewhere, the systematic looting of merchant ships on the high seas is a thing of the past. Robust British naval action and a series of treaties abolished piracy and privateering (state-sponsored piracy) in the 18th, 19th, and 20th centuries, culminating in the 1994 United Nations Convention on the Law of the Sea. The expansive treaty codified global marine and maritime conduct, including defining the deep ocean seabed as the “common heritage of mankind,” a global commons to be managed collectively by and for all nations through a small United Nations agency, the International Seabed Authority.
But seafaring nations may be entering a new era. In early April, a Canadian mining outfit, The Metals Company, asked the United States for permission to mine the ocean floor in international waters between Hawaii and Mexico, even though the United States is not a signatory to UNCLOS.
Last week, the Trump administration responded definitively with a new executive order, “Unleashing America’s Offshore Critical Minerals and Resources,” which may signal the beginning of a deep seabed mining boom — and the end of UNCLOS.
While President Ronald Reagan praised the treaty when it first opened for signature in 1982, he opposed the deep seabed provisions, and a group of Republican lawmakers has blocked US ratification ever since. It’s been US policy to abide by the principles of the agreement nonetheless, such as freedom of navigation in the South China Sea, but the race for critical minerals has been challenging that balancing act.
At first, the International Seabed Authority’s role in managing the ocean floor was somewhat theoretical: The pressure and temperature at those depths generally ruled out commercial activity. In recent years, however, new technologies have made deep-sea mining possible, if not yet profitable.
The ISA has granted 31 licenses to companies from signatory nations (i.e., not the United States) for deep-sea exploration so far; the results of such exploration have confirmed the presence of manganese, cobalt, rare earth elements, and other minerals and metals packed into rock nodules and other formations in the deep ocean. Moreover, the concentration of valuable minerals in these rocks appears to be high relative to some terrestrial ores.
But the ISA’s sclerotic process has been slow to adopt a global mining code and award concessions for actual mining, largely due to environmental concerns. Until recently, scientific exploration was also challenging in the deep ocean, so there’s an evolving understanding of the importance of mineral deposits to seabed ecosystems and global biodiversity. It is worth noting that some of the UNCLOS nations that object on environmental grounds also have mining industries that may be disrupted by the competition from marine ores.
Whether the US government has the right to give a mining company permission to operate in international waters is a matter of opinion. The 170 parties to UNCLOS think not, of course — as China, the largest holder of ISA licenses to date, was quick to make clear. Even under the agreement, though, no one (or everyone) owns the high seas. There’s been nothing but the custom of honoring treaties, the benefits of friendly international relations, and the high cost of deep-sea operations to stop anyone from just setting up shop.
It’s hard to say what will happen next once the Trump administration gives The Metals Company or another mining outfit a green light. Perhaps the ISA will expedite licenses or cut some kind of deal to protect the treaty. Or maybe US Navy vessels will start patrolling mining operations and escorting ships, which may be reflagged as American, per the executive order. Perhaps this will even mean a return to some form of privateering, if other nations follow suit and scramble to secure the best sites.
It’s all surely a win-win proposition from the Trump administration’s point of view: The United States gets a new source of minerals (without invading a NATO ally) and furthers administration efforts to take down an international system of institutions and agreements designed to prioritize collective global action over unilateral interest.
To be fair, it’s not just the Trump administration that takes issue with the infrastructure of global governance — there have been thousands of think tank reports and international conversations about how to adapt these institutions and agreements for 21st-century challenges. Reforming big bureaucracies has proven to be a steep hill to climb, though. In the meantime, China has been busily establishing its own parallel international order — and a decided comparative advantage in critical minerals.
At the same time, there’s something to be said for functional international cooperation, even when it’s cumbersome and inadequate. As a rallying cry, “rule of law: it’s good enough,” isn’t all that inspiring, but a return to contested, violent high seas is certainly not in any nation’s best interests.
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