THE ORE WITHOUT A COMMON COURT

Shanaka Anslem Perera

16th August 2026

An American agency is reviewing the application that could authorize the first commercial mine in international waters, under a statute the treaty system never absorbed. Congress built two clocks into that 1980 statute. One governed access. One governed revenue sharing. Both referred to a Law of the Sea treaty entering into force for the United States. The access restriction had no calendar stop. The removal tax ended at the earlier of treaty entry or ten years. The treaty never entered into force for the United States. The tax ceased to apply on 28th June 1990. The national commercial-recovery route remained unused but legally available until an executive order and an accelerated agency process made it one live alternative to the multilateral system.

No commercial recovery permit exists. No cargo exists. Yet the contest has already reached an asset that could accelerate a future mine. On 31st August 2026 two International Seabed Authority contractors and the Authority itself are due to file compliance reports with the Seabed Disputes Chamber in Cases 34 and 35, the first listed contentious cases before that Chamber. The Authority is examining whether contract-derived information or support crossed from two companies inside the multilateral system to a sister company seeking authorization outside it. The July orders protected process. They decided nothing on the merits and established nothing about what crossed that boundary.

Metal prices cannot settle this contest. Five records will decide most of the investable question, and none is another resource estimate. The data-lineage record will show whether the American application rests on independently usable knowledge. A final agency permit will show what domestic law authorizes and on what conditions. A route-specific processing contract will show whether a foreign industrial counterparty accepts the legal and technical allocation. A funded sources-and-uses schedule will show who carries construction risk. The first physical-sale terms under the chosen route will show whether the output is merchant inventory, strategic procurement or a product usable inside a narrow sovereign system. Until those records exist, the deposit is not a financeable mine. The route from evidence to permit, permit to production and production to cash is.

Nauru Ocean Resources Inc. and Tonga Offshore Mining Ltd. hold exploration contracts with the International Seabed Authority. Both belong to The Metals Company group. TMC USA is pursuing an exploration licence and a commercial recovery permit under the United States Deep Seabed Hard Mineral Resources Act. One corporate group therefore holds contractors inside the multilateral regime and an applicant seeking authorization outside it.

That structure became contentious in 2026. The Authority asked whether the two contractors had supported activity outside the framework established by the United Nations Convention on the Law of the Sea. Its questions reached possible direct or indirect support for appropriation beyond Part XI, and possible sharing of information obtained through exploration contracts. Nothing in the public record establishes a breach. What exists is an inquiry into where the corporate boundary ends and the contractual obligations begin.

The contractors brought Cases 34 and 35 before the Seabed Disputes Chamber. On 18th July the Chamber prescribed provisional measures, found prima facie jurisdiction for that phase, recognized plausible procedural rights, and required the Authority to provide or clarify the information and questions needed for meaningful responses. The inquiry was not stopped. Nothing was decided on the merits. The orders said nothing final about the legality of the American route or about the provenance of material used in the agency application.

Initial compliance reports are due on 31st August. They may show how the inquiry has been structured, which questions have been clarified, and whether the dispute is narrowing. The orders do not provide for publication of those reports, and public availability is unknown. A silent docket would prove nothing either way.

A decade of contract work has already assembled much of the information a mine needs. A resource estimate lowers geological uncertainty. An environmental baseline supports permitting. Collector data reduce engineering risk. Processing trials improve confidence in recoveries and product quality. Samples, models, vessel experience and specialist personnel create value years before commercial recovery. If any of that value was generated under one legal regime and then used subject to restrictions to accelerate entry into another, the immediate dispute attaches to the knowledge behind the mine rather than to the ore itself.

A clean record would leave the Authority with materially less contractual leverage over the group’s national route. A record showing restricted transfers could expose the two contractors to remedies inside the system they joined, raising financing and execution risk across the group long before any court sees a cargo.

The decisive record is granular. Which datasets, environmental baselines, resource models, engineering studies, samples and processing results support the application? Which entity created each item? Which contract governed the work? Who owns it, who licensed it, what restrictions followed it? Which employees and contractors moved between entities, and what knowledge did they carry?

An institutional diligence file on this asset should therefore open with the data schedule, not the discounted cash flow. Grade, recovery and capital intensity remain essential. They now sit behind a prior question: did the applicant hold the right to use the information that made those estimates credible?

The policy looks new. The operating authority predates the International Seabed Authority.

Congress enacted the Deep Seabed Hard Mineral Resources Act in 1980. Its findings and purposes described interim national legislation pending a comprehensive Law of the Sea agreement. Section 1401 referred to an interim legal regime. Section 1441 called the chapter transitional. An entire subchapter addressed the intended move to an international agreement. The statute was structured as a transition measure, not as a permanent replacement for the treaty system.

That transition did not occur. The Convention entered into force internationally in 1994 and never entered into force for the United States. The domestic statute remained available. Four exploration licences were issued in 1984, and NOAA lists two Lockheed Martin licences as active. The national regime was therefore not dormant. The unused instrument was the commercial recovery permit, which NOAA has never issued.

Section 1412 directs the agency to recognize a permit holder’s right to recover, own, transport, use and sell minerals recovered under the permit, subject to the Act and to the international law recognized by the United States. It also bars new licences or permits after an international agreement is ratified and enters into force for the United States, except where issuance would be consistent with that agreement. That condition carries no calendar expiry.

Congress also addressed activity already under way. Section 1442 preserves provisions not inconsistent with a later agreement and directs the Administrator to make every effort, to the maximum extent practicable under that agreement, to keep pre-existing operations running. Section 1444 denies any legal or moral claim for compensation if a future treaty impairs those investments. The provisions contemplate transition without erasing every position created before it.

Revenue sharing ran on a shorter clock. The Act contemplated an international fund supported by a 3.75 percent tax on the imputed value of resources removed under a commercial recovery permit. Section 4498 ended the tax at the earlier of treaty entry or ten years after enactment. No commercial recovery permit was issued while it was active. The charge expired on 28th June 1990.

Equivalent receipts were assigned to a trust fund, but treaty contributions required appropriations. Without a treaty at year ten, the balance became available only for purposes Congress might later enact. No automatic distribution followed. Congress removed the expired tax provisions in 1997 under Repeal of Expired Provisions. That repeal was housekeeping, not the destruction of a live payment system.

The asymmetry was present on enactment day. Access waited on a treaty with no fixed deadline. The sharing charge did not. The text proves the different clocks. It does not prove why Congress chose them. Legislators may have expected a treaty within a decade, may have treated the tax as a temporary instrument, or may have used different drafting conventions for different provisions. Any stronger claim about motive would outrun the record.

The result was institutional survival by default. A temporary authorization regime remained available because its treaty condition never arrived. When critical-minerals security rose up the political agenda, the United States did not need a new seabed statute. It needed an administration willing to use the old one.