{"id":1693,"date":"2026-07-10T14:56:26","date_gmt":"2026-07-10T12:56:26","guid":{"rendered":"https:\/\/site.uit.no\/nclos\/?p=1693"},"modified":"2026-07-10T14:57:01","modified_gmt":"2026-07-10T12:57:01","slug":"the-isas-proposed-advisory-opinion-and-the-obligations-of-state-parties-in-respect-to-unilateralism","status":"publish","type":"post","link":"https:\/\/site.uit.no\/nclos\/2026\/07\/10\/the-isas-proposed-advisory-opinion-and-the-obligations-of-state-parties-in-respect-to-unilateralism\/","title":{"rendered":"The ISA\u2019s Proposed Advisory Opinion and the Obligations of State Parties in Respect to Unilateralism"},"content":{"rendered":"\n

Author: Ekaterina Antsygina<\/em><\/p>\n\n\n\n

The International Seabed Authority (ISA) is considering whether to request an Advisory Opinion<\/a> from the ITLOS Seabed Disputes Chamber in response to unilateral deep-sea mining activities in the Area. A note by the Secretary-General (ISBA\/31\/A\/8<\/a>), submitted to the 31st session of the Assembly, proposes a request under Article 191 of UNCLOS. Although no State is explicitly named, the underlying context is unmistakable and refers to the emergence of parallel regulatory regimes for deep-sea mineral exploitation outside the ISA framework.<\/p>\n\n\n\n

In 2025, President Trump issued an Executive Order<\/a> promoting unilateral licensing for deep-sea mining, not only on the U.S. continental shelf, but also in areas beyond national jurisdiction. The Order relies on the 1980 Deep Seabed Hard Mineral Resources Act<\/a> (DSHMRA), U.S. domestic legislation that predates the adoption of UNCLOS and was originally established as an interim domestic legal regime for deep seabed mining (DSM) pending creation of the international regime for seabed mining in areas beyond national jurisdiction. <\/em>The 2025 Order attempts to revive this unilateral approach.<\/p>\n\n\n\n

The rise of unilateralism in areas beyond national jurisdiction, partly in response to the ongoing crisis within the ISA over the adoption of the Mining Code<\/a>, risks eroding the multilateral regime. This trend raises concerns that domestic regulatory frameworks may increasingly be applied to activities in areas beyond national jurisdiction. This trajectory reflects, in part, the U.S. position, reaffirmed at the June 2025 Meeting of the UNCLOS States Parties<\/a>, that, as a non-party, it is not bound by the seabed mining regime in UNCLOS and does not regard Part XI as reflecting customary international law. The U.S. parallel system offers companies a potentially faster, more predictable transition to the exploitation stage<\/a>, therefore creating competitive advantage of the U.S. system compared to the ISA framework. However, this competitive advantage might have a downside due to the possibility of subsequent limitations that might be imposed by States Parties to UNCLOS. That is precisely the non-recognition question the proposed Advisory Opinion would address, and its resolution could substantially alter the commercial calculus for parallel mining operations.<\/p>\n\n\n\n

Against that backdrop, the international response has been significant. Thirty-nine Member States, together with the African Group (representing 49 countries) reaffirmed that the ISA is the sole internationally recognized institution<\/a> with jurisdiction over the Area and its resources. Some delegations likewise reaffirmed that the principle of <\/em>the common heritage of humankind<\/em> (CHM) constitutes a rule of customary international law<\/a> binding on non-parties and may even qualify as a jus cogens<\/em> norm (para. 36).<\/p>\n\n\n\n

The Architecture of the Proposed Questions<\/strong><\/p>\n\n\n\n

The proposed request for Advisory Opinion potentially seeks to establish what counterweights can be deployed in response to parallel mining in the Area. What is particularly striking is not the prospect of an Advisory Opinion per se<\/em>, but the architecture of the proposed questions. They, in substance, are the following:<\/p>\n\n\n\n

1. Has the non-appropriation principle under Article 137(1) become customary international law?
2. What is the scope of members\u2019 obligation not to recognize claims of sovereignty or sovereign rights over the Area or appropriation of its resources (Article 137(1) and other relevant provisions of UNCLOS)?
3. What is the scope of members\u2019 obligation not to recognize claims, acquisition, or exercise of rights over minerals recovered outside Part XI (Article 137(3), read together with 137(2) and other relevant provisions of UNCLOS)?<\/p>\n\n\n\n

The structure of the request is notable for what it omits. Rather than directly inviting a pronouncement on the legality of parallel regimes (which would raise immediate questions about the Chamber\u2019s competence to comment on the conduct of non-parties), the request is mostly structured around the obligations of UNCLOS States Parties. That\u2019s a strategic choice: it keeps the request within the Chamber\u2019s competence over \u201clegal questions arising within the scope of [the Assembly\u2019s] activities\u201d (Article 191), while still generating normative pressure on third-party conduct by clarifying what members of the Authority are obliged to do in response to unilateralism. It is, in other words, a tactical flanking: the Chamber need not discuss whether operations under DSHMRA are lawful in order to constrain their practical and legal consequences. The procedural pathway is equally telling. Unlike the 2011 Advisory Opinion, which emanated from the Council, the present initiative does not appear to be driven by specific members and will likely be shaped in the Assembly. That broader, more political forum both amplifies the normative signal of the request and heightens sensitivity around the limits of the Chamber\u2019s advisory competence. At the same time, questions may be raised as to whether, under the Assembly\u2019s Rules of Procedure, the Secretariat can place such an item on the agenda in this manner, and it remains far from certain that the Assembly will ultimately agree to submit the request to the Chamber.<\/p>\n\n\n\n

Before turning to the substance of the proposed questions, an important interpretive point should be noted. As The Seabed Disputes Chamber emphasized in its 2011 Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area<\/em><\/a> Part XI must be interpreted together with the 1994 Implementation Agreement, with the two instruments forming a single integrated legal framework. In the event of any inconsistency between the two, the provisions of the 1994 Agreement prevail (para. 54). The 1994 Agreement emerged from the recognition that a regime lacking the participation of the States most likely to undertake deep seabed mining would struggle to achieve its practical objectives (Wood<\/a>, p. 178, Lodge<\/a>, pp. 263-267). The interpretation of obligations under Part XI should therefore take account not only of the Convention\u2019s distributive objectives, but also of the commercial and operational considerations embedded in the 1994 Agreement.<\/p>\n\n\n\n

Question One: Non-Appropriation as Customary International Law<\/strong><\/strong><\/p>\n\n\n\n

The first question concerns whether the non-appropriation principle has crystallised into customary international law. The customary status of non-appropriation is relevant in respect to the analysis of non-parties\u2019 behaviour and reaction to this behaviour of the ISA and its members. Only the latter will be in the competence of the Chamber. The Chamber may thus narrow its response or address the customary law question with particular care, precisely to avoid commenting on issues in substance exclusively referring to non-members of the ISA.<\/p>\n\n\n\n

If the Chamber answers affirmatively on the customary status, the non-appropriation principle would bind all States, Parties and non-Parties, independently of UNCLOS\/ISA membership. Under Article 38(1) of the Statute of the International Court of Justice<\/a>, the existence of a customary rule requires sufficiently widespread, consistent, and representative general practice<\/a> (Conclusion 8(1), p. 100) accompanied by opinio juris<\/em>. Acceptance of the binding status of the non-appropriation principle is both widespread and representative: the ISA currently counts the majority of States as members, and numerous States Parties have implemented Part XI through domestic legislation<\/a> recognizing in various ways that activities in the Area may only be conducted with the involvement of the ISA (paras. 32, 35, 40, 42, 43, 49, 50, 54, 55, 90). Such practice appears consistent and normatively motivated. General practice need not be universal<\/a> (Section 14(i)),<\/a> and a State may be bound even if it did not participate actively in the practice (Ibid<\/em>., Section 14(ii)). From this perspective, the requirements for the crystallization of a customary status of the non-appropriation principle could be considered fulfilled, although its operational content remains subject to interpretation within the framework of Part XI as modified by the 1994 Agreement.<\/p>\n\n\n\n

A customary rule, of course, would not apply to the persistent objector<\/a> States, provided that the status has indeed been established. Most likely, the Chamber will not engage in the analysis of the U.S. as a persistent objector to non-appropriation.<\/p>\n\n\n\n

Equally important to the discussion on the status of the non-appropriation, however, would be the Chamber\u2019s articulation of its content, which would likely constitute the first authoritative interpretation of what non-appropriation entails in operational terms. There is no definition of non-appropriation under UNCLOS. Scholars disagree on its scope: Kraska and Rewatkar<\/a> argue that DSHMRA avoided appropriation by not claiming sovereignty or ownership, or exclusive rights or jurisdiction, over any deep seabed areas or resources (p. 23); Wolfrum<\/a> notes that the CHM \u201cinsofar as it is part of international customary law does not contain a moratorium prohibiting unilateral national deep sea-bed activities\u201d (p. 335). Some scholars would interpret non-appropriation broadly (Nollkaemper<\/a>, pp. 14-15, or Dingwall<\/a>, pp. 88-89), as the total prohibition of exploration or exploitation of the resources of the Area outside of the ISA framework. The Chamber’s resolution of this interpretive contest would have consequences well beyond the current dispute, potentially influencing the interpretation of the same principle in space law.<\/p>\n\n\n\n

Questions Two and Three: Non-Recognition and Connected Obligations<\/strong><\/strong><\/p>\n\n\n\n

The second and third questions translate the abstract non-appropriation principle into its functional corollary: the obligation of non-recognition. What does the non-recognition obligations require from States Parties in practice when confronted with parallel mining operations? Does the obligation extend to certification bodies, commodity exchanges, insurance markets, and downstream purchasers operating within States Parties\u2019 jurisdictions? These are private actors, and the obligations under Articles 137(1) and 137(3) fall on States Parties directly. States Parties thus might be obliged to legislate against their own private actors, insurers, refiners, commodity traders, port operators, providing services to parallel mining contractors. That is a significant additional step, requiring the Chamber to address how non-recognition obligations translate into domestic regulatory requirements and what degree of legislative intervention States Parties must undertake to discharge them.<\/p>\n\n\n\n

This is where the potential Advisory Opinion may become most operationally significant and most legally creative. By clarifying the relational obligations of States Parties vis-\u00e0-vis<\/em> third-party activity, the Chamber could substantially influence the legal environment surrounding parallel mining without ever directly ruling on its validity. This would represent a form of indirect but potentially decisive legal pressure. A robust non-recognition obligation, applied to mineral supply chains, could render mining under DISHMRA commercially unviable. For the all-encompassing analysis, the Chamber will need to engage with other provisions of UNCLOS, including Article 139.<\/p>\n\n\n\n

Obligations under Article 139 <\/strong><\/strong><\/p>\n\n\n\n

As Lathrop<\/a> argues, obligation to ensure compliance under Article 139(1) may function as a tool for applying pressure to companies participating in parallel mining. Since it is the most possible scenario of influencing the contractors and sub-contractors acting under DISHMRA, it is worth discussing in detail.<\/p>\n\n\n\n

Under Article 139(1), States Parties are obliged to ensure that activities in the Area are carried out in conformity with Part XI by \u201cany state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals.\u201d On this reading, if a U.S. subsidiary of a company incorporated in a State Party (the TMC\/Canada example being the obvious case) participates in activities in the Area, Canada, as a State Party, would be obliged to take measures to prevent that subsidiary\u2019s non-compliance with Part XI, regardless of whether Canada has formally sponsored it. This is a far-reaching conclusion that would substantially increase the reach of UNCLOS obligations and as discussed below, raise profound questions at the intersection of international and corporate law. It would also need to be reconciled with the broader balance reflected in the 1994 Implementation Agreement, including the requirement that the development of the resources of the Area proceed in accordance with sound commercial principles<\/p>\n\n\n\n