Mining without Rules: The Risky US Bet on the Deep Sea

Why It Matters

The order could reshape global supply chains for rare‑earths but risks legal disputes, insurance gaps, and undermining the maritime order that underpins international trade.

Key Takeaways

• US order bypasses UNCLOS, risking legal challenges
• Deep-sea nodules could reduce Chinese rare‑earth dependence
• Insurance and port access remain major obstacles
• Environmental fallout risk from mining equipment failures
• Industry lacks clear commercial licensing framework

Pulse Analysis

The United States’ decision to sidestep UNCLOS reflects a broader strategic shift toward resource nationalism, driven by concerns over China’s leverage over rare‑earth exports. By granting private firms the right to harvest polymetallic nodules in the high‑seas, Washington hopes to diversify critical‑mineral inputs for defense, clean‑energy, and consumer technologies. Yet the move also signals a willingness to challenge the post‑World‑War II maritime regime, potentially prompting other powers to pursue similar unilateral actions and eroding the consensus that has governed ocean resources for decades.

Legal uncertainty is the most immediate obstacle. Because the United States has not ratified UNCLOS, its executive order exists in a gray zone where customary international law may still apply. Courts, insurers, and foreign partners will scrutinize whether U.S. licences constitute a breach of the “common heritage of mankind” principle upheld by the International Seabed Authority. Without clear liability frameworks, major underwriters are reluctant to cover deep‑sea mining equipment, and vessels flagged by non‑U.S. states may be denied port services, creating a logistical bottleneck for any commercial operation.

Even if legal hurdles are cleared, the technical and economic challenges remain formidable. Extracting nodules from depths of 3,500‑6,000 metres requires robust suction or pipe systems that can withstand extreme pressures; failures could release massive sediment plumes, triggering environmental litigation reminiscent of Deepwater Horizon. Moreover, the market price of extracted metals such as nickel, copper, and cobalt must outweigh the high capital costs of specialized vessels and processing infrastructure. Until the International Seabed Authority establishes a universally accepted regulatory regime, the U.S. initiative is likely to produce limited output while raising the stakes for the global maritime order.

Mining without rules: The risky US bet on the deep sea

February 9, 2026 · 9:00 am ET

Elisabeth Braw

Bottom lines up front

• In April 2025, President Donald Trump issued an executive order permitting deep‑sea mining in international waters.

• This is contrary to the United Nations Convention on the Law of the Sea, and might mean that the United States has violated customary international law.

• The executive order raises questions regarding the legal status of any mining that might take place under US license, particularly whether insurers and companies based outside the US would be willing to participate.

The increasingly tense geopolitical landscape has brought into sharp relief Western dependence on rare‑earth minerals. The minerals exist in minuscule concentrations (hence the “rare” label) in rock around the world, but where the rare earths are found is less important than how they are processed. Because the processing is cumbersome and extremely polluting, Western countries have long been reluctant to permit large‑scale processing, which has instead become the domain of Chinese companies.

That has resulted in rare earths overwhelmingly being processed in China: As of 2025, some 90 percent of rare earths are processed there. “China Currently Controls over 69 % of Global Rare Earth Production,” Mining Technology, 18 Jan 2025. Western governments have long tolerated this situation, even though it involved minerals crucial to the functioning of modern societies, because they believed in the rules of globalization and calculated that China would not weaponize other countries’ rare‑earth dependence. (Products such as smartphones, electric vehicles, wind turbines, and fighter jets require one or more rare earths.) However, escalating geopolitical competition has raised concerns that China could ban exports of these minerals to Western countries. At various points, Beijing has suspended rare‑earth exports to specific countries or threatened to do so. The most infamous case occurred in 2010, when Beijing banned exports to Japan after the latter detained a Chinese fishing‑boat captain for trespassing in Japanese waters (over which China also claims sovereignty). Keith Bradsher, “China Bans Rare Earth Exports to Japan amid Tension,” New York Times, 23 Sept 2010. Such actions, however, were so limited that most countries considered continued reliance on Chinese‑processed rare earths an acceptable risk. Or, rather, they knew that citizens would vehemently oppose processing the rare earths domestically. Michael Standaert, “China Wrestles with the Toxic Aftermath of Rare Earth Mining,” Yale Environment 360, 2 July 2019.

But as geopolitical tensions between China and the West have intensified, Beijing has increasingly threatened to impose restrictions on rare‑earth exports to Western countries. In April 2025, China responded to Trump’s announcement of steep tariffs on Chinese goods (as well as goods from other countries) by imposing export restrictions on seven rare earths. Gracelin Baskaran, “China’s New Rare Earth and Magnet Restrictions Threaten U.S. Defense Supply Chains,” CSIS, 9 Oct 2025. At the end of that month, Trump issued an executive order, “Unleashing America’s Offshore Critical Minerals and Resources,” giving US‑based companies the right to mine for critical minerals in seabed areas beyond national jurisdiction; that is, in international waters. “Unleashing America’s Offshore Critical Minerals and Resources,” White House, 24 Apr 2025. In the order, the president instructs his administration to identify “private sector interest and opportunities for seabed mineral resource exploration, mining, and environmental monitoring in the United States Outer Continental Shelf; in areas beyond national jurisdiction; and in areas within the national jurisdictions of certain other nations that express interest in partnering with United States companies on seabed mineral development.” Ibid. In October 2025, Beijing imposed further export restrictions on rare earths. This was an apparent response to the US announcement of significant tariffs on Chinese goods; after the United States lowered the tariffs, China suspended the restrictions. Peter Hoskins & Laura Bicker, “China Tightens Export Rules for Crucial Rare Earths,” BBC, 9 Oct 2025; “Trump Lowers Tariffs on China and Announces End to ‘Rare Earths Roadblock’ after Xi Meeting,” BBC, 30 Oct 2025.

Mining in the law of the sea

The existence of valuable minerals—manganese, cobalt, nickel, copper, and rare‑earth elements—at the bottom of the ocean has been known since the 1800s, and the minerals’ locations are well documented. The largest concentrations are in the deep sea; that is, outside countries’ territorial waters and exclusive economic zones (EEZ). “Polymetallic Nodules,” International Seabed Authority, June 2022. (The Clarion‑Clipperton Zone between Hawaii and Mexico is home to particularly large amounts.) The minerals are found in so‑called polymetallic nodules the size and shape of potatoes, which lie on the seabed at depths of 3,500–6,000 m. “Deep‑Ocean Polymetallic Nodules and Cobalt‑Rich Ferromanganese Crusts in the Global Ocean: New Sources for Critical Needs,” USGS, 21 Apr 2022. Because the nodules reside primarily in international waters, reaching agreement on the circumstances under which they can be mined has long been considered a task for the global community of nations.

In 1982, when the vast majority of the world’s nations adopted, signed, and later ratified the United Nations Convention on the Law of the Sea (UNCLOS), they included a section dedicated to the deep‑sea mining of these minerals, which Part XI of UNCLOS calls “the common heritage of mankind.” “United Nations Convention on the Law of the Sea,” UN, 1994, Article 136. UNCLOS specifies the conditions under which polymetallic nodules can be mined from the areas of the international seabed where they can be found:

“All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with this Part and the rules, regulations and procedures of the Authority.”

UNCLOS continues:

“No State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this Part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized.” Article 137.

The authority referenced is the International Seabed Authority (ISA), created when UNCLOS came into force in 1994. With UNCLOS universally considered the constitution of the oceans, the ISA is ipso facto the global seabed regulator. (UNCLOS also encompasses elements of customary law.) Since the ISA’s inception, its member states—the countries that have ratified UNCLOS—have tried to reach an agreement governing deep‑sea mining. Because the United States has not ratified UNCLOS, it is not a member of the ISA, though it has participated in the negotiations as an observer. Caitlin Keating‑Bitonti, “U.S. Interest in Seabed Mining in Areas Beyond National Jurisdiction: Brief Background and Recent Developments,” CRS, 16 May 2025.

Legal challenges

A key reason why the United States decided not to sign or ratify UNCLOS was opposition to Part XI. This issue aside, the United States has long abided by UNCLOS’s key tenets, not least because a functioning maritime order also benefits the United States. Indeed, the United States has always treated UNCLOS as a reflection of customary international law, save for Part XI. It is also worth highlighting that the part of UNCLOS regarding the settlement of disputes does not, and cannot, reflect customary international law as it lacks a “norm‑creating” character, said Iva Parlov, an associate professor at BI Norwegian Business School who specializes in the law of the sea.

“This means that if you, for example, are a party to UNCLOS, mandatory settlement of disputes applies to you… When you’re not a party to a certain treaty, you don’t face mandatory settlement of disputes mechanism under UNCLOS, even though that treaty can reflect customary international law…”

— Iva Parlov

Because UNCLOS codifies and thus functions as customary international law, Trump’s executive order permitting deep‑sea mining under US license—which runs contrary to UNCLOS—presents an obvious and immediate legal experiment. The US government can argue that, as a non‑UNCLOS signatory, it is free to pursue actions that violate the convention. That argument, however, rests on whether the United States can convincingly present itself as a persistent objector to UNCLOS provisions that reflect customary international law. Under international law, a persistent objector is “a State which persistently objects to a rule of customary international law during the formative stages of that rule will not be bound by it when it becomes established.” Olufemi Elias, “Persistent Objector,” Oxford Public International Law, 2024.

“UNCLOS in general is considered a reflection of customary international law,” Parlov said. “This is clear when it comes to shipping, but deep‑sea mining is more complicated… The United States had a problem with Part XI when UNCLOS was being negotiated. This was the main reason why the 1994 Implementation Agreement was adopted—to bring the United States on board.” – Interview, 27 Oct 2025.

Scholars are divided on whether the United States qualifies as a persistent objector. Some argue that the US signed the 1994 Implementation Agreement and therefore gave up its objection to Part XI; others maintain that the US has continued to object to the customary norm that the deep‑sea area is the “common heritage of mankind.” James Kraska, “The U.S. Executive Order on Seabed Mining Is Consistent with International Law,” International Law Studies 106 (2025).

In practice, the issue of whether the deep‑sea mining order violates customary international law might matter little to US policymaking: the world’s most powerful nation has the liberty to act in ways not available to less powerful nations. In January 2026, Trump told New York Times reporters, “I don’t need international law.” David E. Sanger et al., “Trump Lays Out a Vision of Power Restrained Only by ‘My Own Morality,’” NYT, 8 Jan 2026.

The wider challenge arises around the implications for UNCLOS and the global maritime order. Although nations’ and companies’ commitment to UNCLOS and other maritime treaties has never been perfect, China has openly engaged in violations through its maritime harassment and construction of artificial islands in the South China Sea. Russia, through its shadow fleet, and the Houthis, through attacks on merchant shipping, have similarly strained the order. The US executive order risks contributing to an environment in which other nations launch activities that harm the maritime order.

The executive order and any licences granted also raise questions for any companies that might become involved. Because the mining would be conducted by private companies rather than the US government, the fact that they would be mining outside UNCLOS places them in a novel and challenging position. Although they would be licensed by the US government, their operations would also involve businesses based in other countries, including suppliers, engineering firms, and insurers. It is unclear whether, and how, such companies would be willing or able to work with US‑based deep‑sea miners, as doing so could violate their own countries’ laws. “When it comes to insurers, it’s unlikely that any of the well‑known major names in underwriting deep ocean equipment would be willing to cover it,” noted Stephen Hall, oceanographer and former CEO of the Society for Underwater Technology. Hall added that insurers might cover ancillary equipment (e.g., autonomous underwater vehicles) but would be reluctant to underwrite the actual mining equipment.

On 26 Jan 2026, the National Oceanic and Atmospheric Administration (NOAA) announced that it will map the ocean floor near American Samoa to find minerals for industry. “What an exciting time to know that within the next few years, under this administration, there will be companies pulling deep‑sea nodules out of the ocean and bringing them to the US,” the New York Times quoted NOAA deputy assistant secretary Erik Noble as saying.

Practical considerations

Over the years, the International Seabed Authority has granted exploration contracts to twenty‑two companies and organisations from different countries. “Exploration Contracts,” ISA, Dec 2025. The licences allow the entities to mine allocated areas in international waters, though not for commercial purposes. Commercial mining will only be allowed once the ISA’s member states reach agreement on the conditions under which such mining will be permitted. Some of the companies with exploration contracts have succeeded in bringing nodules from the seafloor to the surface. They include The Metals Company (TMC), a Canada‑based firm that holds contracts through the governments of Nauru, Tonga, and Kiribati—South‑Pacific nations whose surrounding waters are home to significant polymetallic nodules. “The Metals Company Advances Deep‑Sea Research Program to Unlock World’s Largest Known Source of Battery Metals,” Sept 2021. Days after the White House issued the executive order, TMC’s US arm applied for two US licences. “World First: TMC USA Submits Application for Commercial Recovery of Deep‑Sea Minerals in the High Seas under U.S. Seabed Mining Code,” 29 Apr 2025. The company plans to mine more than 1.6 billion wet tonnes of polymetallic nodules from which it will extract nickel, copper, cobalt, and manganese. It has not announced plans to extract rare earths.

Commercial deep‑sea mining might sound like a larger version of exploratory deep‑sea mining, but it presents a host of additional complications. The first is the legal status of mining outside UNCLOS—including the challenges of obtaining insurance, equipment, and partnerships with companies in jurisdictions that adhere to UNCLOS. A perhaps even more significant hurdle involves the equipment needed to transport nodules from the seabed to the surface. “The mining is easy. The hard bit is getting the nodules you’ve mined from the bottom of the sea to the top,” Hall explained. Unlike oil and gas, which are extracted from the relatively shallow continental shelf, deep‑sea nodules lie at depths of several thousand metres and are hard. Various experimental techniques (suction, hoppers, elevator‑type systems) have been tried, but scaling them to industrial volumes is technically demanding.

Most companies envision a massive pipe that transports the nodules to the surface. Hall warned that pipe failures could create fallout plumes of material that would disperse with ocean currents, causing environmental harm and creating liability risks. In July 2025, NOAA announced plans to accelerate the application process for deep‑sea mining licences. “Deep Seabed Mining: Revisions to Regulations for Exploration License and Commercial Recovery Permit Applications,” Federal Register, 7 July 2025. It is unclear how NOAA will assess environmental risk, but any accidents could trigger extensive litigation, as seen after the 2010 Deepwater Horizon oil spill.

To reduce the risk of leaks during commercial mining (which would involve hundreds of millions of tonnes), the pipe would need to be extremely sturdy, adding considerable expense. Finding manufacturers willing to produce such equipment for a venture that violates UNCLOS could be difficult. Likewise, certifying engineers and other experts for a project that contravenes widely‑accepted maritime law may prove problematic.

Ships carrying mined nodules would also face complications. Because the mining would violate UNCLOS, the vessels would need to be owned and flagged in the United States, yet they would still require port services. Ports in UNCLOS‑ratifying states are likely to refuse service to ships engaged in activities deemed illegal under the convention, creating logistical challenges for refuelling, crew changes, and cargo discharge.

Potential outcomes

The legal challenges related to deep‑sea mining would naturally vanish if and when the ISA’s member states reach an agreement that allows commercial mining to begin. That is unlikely in the near future, as forty countries—including Mexico, Brazil, and most of the European Union—have called for a moratorium on commercial mining. Momentum for a Moratorium, Deep Sea Conservation Coalition. These and other nations argue that far more research is needed on the potential ecological impacts of deep‑sea mining.

Technical challenges also remain. Many can be overcome, at considerable expense, especially if the ISA reaches an agreement and mining in international waters becomes legal. Operators would still need to weigh the expense of mining against the revenue from extracted minerals. Copper, cobalt, nickel, and iron are relatively easy to extract but currently command low prices; rare earths are more cumbersome and environmentally damaging to process but command higher prices and are likely to become even more crucial to Western economies as China’s export bans continue. Hoskins & Bicker, “China Tightens Export Rules for Crucial Rare Earths.” To reduce dependence on both land‑based and sea‑based mining, countries—including those in the European Union—have stepped up efforts to recycle metals already in circulation. Jonathan Josephs, “How Europe Is Vying for Rare Earth Independence from China,” BBC, 6 Aug 2025. At the time of writing, TMC remains the only company that has submitted an application for a US licence under the new executive order.

It seems the likely outcome of the executive order is, paradoxically, that it will result in little deep‑sea mining but risk undermining the already precarious global maritime order.

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About the author

Elisabeth Braw is a senior fellow at the Atlantic Council, focusing on security, technology, and geopolitics.