Three Legal Constraints on U.S. Unilateral Deep-Sea Mining: The ISA’s Objective International Personality and Obligations of Cooperation and Due Regard (Part II) – International Objective Personality of the ISA

[Dr Ekaterina Antsygina is a Marie Skłodowska-Curie Postdoctoral Fellow at the Norwegian Centre for the Law of the Sea at UiT The Arctic University of Norway, working on the deep-sea mining on the Norwegian continental shelf.]

As discussed in Part I, the provisions on common management through the ISA constitutes a foundational element of the legal regime governing the Area. Disregarding this institutional framework risks fragmenting a regime  specifically designed to promote equitable benefit-sharing and to support developing land-based producer States of metals, which could potentially be affected by the mining in the Area. 

One possible way to address this normative gap is to consider whether the ISA possesses objective international personality with respect to activities in the Area, analogous to that of the United Nations (UN). In its Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations, the ICJ recognized that the UN possesses objective international personality enabling it to act vis-à-vis non-member States because “fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality” (p. 185). As Waldock emphasised, “under international law the legal personality of the United Nations is opposable to a non-member independently of its recognition by the latter” (p. 31). 

The Advisory Opinion concerned the capacity of the UN to bring international claims against non-members so far as may be required in the performance of its duties and did not go far beyond that issue. However, the Advisory Opinion has broader implications: it supports the proposition that an organization’s powers may extend beyond its membership where this is necessary for the effective performance of its functions. This approach has been echoed in the practice of the International Criminal Court (ICC). When addressing its jurisdiction over the alleged deportation of the Rohingya people from Myanmar, a non-party to the Rome Statute, the ICC relied on the ICJ reasoning to affirm the relevance of its objective international personality in relation to non-member States (para. 48). 

A similar logic can be observed in the practice of the International Monetary Fund, which has acknowledged that its experience with non-member States “illustrates the misleading character of any principle … which suggests that states cannot be affected, to their advantage or disadvantage, by a treaty to which they are not parties.” Taken together, these examples indicate that, in certain contexts, the exercise of international legal personality may extend beyond formal membership. 

On this basis, the concept of objective international personality may be invoked to assess whether the ISA’s jurisdiction over activities in the Area is opposable to non-members. This analysis does not derive directly from the principle of the CHH, but rather from the law of international organizations and functions of the ISA conferred to it by the majority of the international community.

The ICJ in the Advisory Opinion concluded that States establishing an international organization entrust it with the competences necessary for the effective discharge of its functions (p. 179), including those that may be implied (p. 180). Applied to the ISA, this suggests that, in order to fulfill its raison d’être, the centralized common management of activities in the Area, it must possess an objective international personality capable of operating vis-à-vis all States. To this end, the effectiveness of the regime presupposes a degree of universality of the ISA’s jurisdiction, since its functions cannot be meaningfully discharged if participation is fragmented along lines of UNCLOS membership. 

Also, the ISA’s mandate concerns an area beyond national jurisdiction, where unilateral regulatory practices would undermine the coherence of the regime. These considerations suggest that the ISA occupies a sui generis institutional position within the law of international organizations. Unlike classical organizations whose competences operate primarily within a closed circle of members, the ISA’s functional logic implies a broader application. This might not imply that all of its powers are opposable to non-parties, nor that it may impose direct obligations on them in the absence of consent. However, it does support a more limited conclusion: that the ISA’s existence, and its international objective personality, have objective effects that prevent unilateral activities outside of the ISA’s framework. 

Duty to Cooperate

Another argument limiting unilateral DSM can be derived from the duty to cooperate in international law. The obligation of the United States to refrain from unilateral deep-sea mining activities may follow from the general duty to cooperate, duty to cooperate on environmental protection, and specific obligations to cooperate on activities in the Area, connected with the duty to act in good faith. These types of cooperation frequently coincide and overlap. This blogpost does not strive to cover all types of cooperation required but would like to discuss a useful analogy from international fisheries law. 

Regional Fisheries Management Organizations (RFMOs) adopt conservation and management measures within their convention areas. In practice, these measures are often treated as binding on all States, not only States parties, and fishing conducted in violation of RFMO measures is frequently characterized as unregulated fishing (p. 459). Although this practice has been criticized as potentially inconsistent with the pacta tertiis rule, it reflects a broader understanding that cooperation is essential for the governance of shared resources. It is necessary to acknowledge that fisheries and the non-living resources of the Area do not have the same legal nature. The resources of the Area are not “shared resources” in the conventional sense but constitute a distinct category of collectively managed resources governed by the principle of the CHH which does not allow for the open access as on the high seas. Therefore, the level of coordination and cooperation required in the Area regarding non-living resources is even higher than is required for shared fish stocks.

 In the Advisory Opinion on the Sub-Regional Fisheries Commission (SRFC), ITLOS has observed that the SRFC Member States have the right under Article 64(1) of UNCLOS to require cooperation from non-Member States whose nationals fish for tuna in the region, “directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species” (para. 218). Cooperation amounts in practice to the prohibition on unregulated unilateral activity. Thus, there appears to be an understanding that where an RFMO exists it exercises primary regulatory authority over the species within its mandate (see, e.g., Articles 8(4) and 17(2) of the 1995 UN Fish Stocks Agreement). 

Accordingly, a strong and plausible interpretation of international law is that States should refrain from unilateral authorization of activities in the Area absent meaningful cooperation with the ISA; at a minimum, States are obliged to engage cooperatively and exercise restraint pending adequate coordination within the framework of the ISA.

Due Regard to the Rights of Other States in the Area

Any authorization of DSM activities by the United States must also be assessed against the obligation to give due regard to the rights and interests of other States in the Area. This obligation has deep roots in the regime: paragraph 12 of UNGA Resolution 2749 (XXV) expressly requires that, in conducting activities in the Area, States pay due regard to the rights and legitimate interests of coastal States in the region as well as all other States that may be affected, and that consultations be maintained with coastal States with a view to avoiding infringement of such rights and interests. 

UNCLOS does not contain a due regard clause specifically governing DSM activities in the Area, unsurprisingly, given that the Convention establishes a centralized institutional system intended to balance competing interests through the ISA. Relevant analogues exist nonetheless: Article 142 addresses due regard towards coastal State rights, Article 148 provides for the special interests of developing, land-locked, and geographically disadvantaged States in effective participation in DSM, and Article 87 establishes a general due regard obligation with respect to DSM from a State exercising high seas freedoms. Notwithstanding the absence of an express UNCLOS provision, it is safe to conclude that a due regard obligation towards the rights of other States in the Area exists as a rule of customary international law.

While the precise scope of the due regard obligation in the context of the Area has not been defined, jurisprudence provides some guidance on how to identify the extent of regard. In the Chagos arbitration, the Tribunal declined to identify a universal rule of conduct, but construed the obligation as requiring a State to have “such regard for the rights of [other States] as is called for by the circumstances and by the nature of those rights” (para. 519), a context-dependent standard that weights the significance of the interests at stake. The Tribunal specified that the UNCLOS neither imposes a uniform obligation to avoid any impairment of another State’s rights, nor permits a State to proceed as it wishes having merely noted those rights (para. 519). 

Rather, the extent of the regard required depends upon the nature and importance of the rights held, the extent of the anticipated impairment, the nature and importance of the activities contemplated, and the availability of alternative approaches (para. 540). The Tribunal further identified consultation, timely information-sharing, and a genuine effort to balance competing interests as the practical manifestations of due regard: a standard assessed not merely by reference to formal notifications but by the substantive quality of engagement (paras. 528, 531, 540). 

Applied to DSM activities in the Area, this standard carries significant practical implications. ISA Member States have legal interests in the orderly and coordinated development of the Area. Applying the Chagos balancing test to this context, any assessment would need to weigh the extent of overlap with ISA-designated areas, the adequacy of U.S. environmental regulations, the availability of alternative approaches, and, most fundamentally, the value of the CHH principle and the importance of collective management through the ISA for the benefit of humanity as a whole. The cumulative effect of this analysis reinforces the previous conclusion: unilateral authorization of activities in the Area must be carefully balanced against the rights of other States and the integrity of the international regime, and requires at minimum that the United States take ISA arrangements into account, consult with affected States, and seek to avoid interference with their rights and legitimate expectations.

Conclusion

Unilateral licensing for deep-sea mining in the Area cannot be assessed solely through the lens of treaty law and the pacta tertiis rule. Even if exclusive institutional management through the ISA has not crystallized into customary international law, other concepts, such as objective international personality, and the duties to cooperate and give due regard substantially limit the legal space for unilateral action. In the governance of the global commons, non-participation in the ISA does not translate into legal freedom to act in isolation.