By Amiel Ian Valdez
This blog post is adapted from the author’s presentation at the 10th Biennial Conference of the Asian Society of International Law in Hanoi, Vietnam from 9 to 10 October 2025.
My goal in this short essay is to spark a discussion on how we might rethink the legal standards governing the precautionary principle and the principle of environmental impact assessment (EIA) in the context of deep seabed mining in areas beyond national jurisdiction. In particular, I examine this issue through the lens of judicial review, exploring what insights can be drawn from other legal regimes, such as the climate change framework, as well as from landmark decisions of domestic courts in the developing world.
Recent Developments: President Trump’s Executive Order, TMC US’ applications, and the ISA’s statement
This issue can be better understood in light of recent developments in the deep seabed mining industry. On 24 April 2025, U.S. President Donald Trump issued an Executive Order authorizing American companies to apply for exploration licenses and commercial recovery permits in areas beyond national jurisdiction through the National Oceanic and Atmospheric Administration (NOAA). Just a few days later, on 29 April 2025, the U.S. subsidiary of The Metals Company (TMC)—a private corporation headquartered in Canada—submitted two applications for exploration licenses to the U.S. government. These applications cover areas located in the Clarion-Clipperton Zone in the North Pacific Ocean, with a combined total area of approximately 199,895 square kilometres.
Following President Trump’s Executive Order on deep seabed mining and the subsequent exploration license applications by TMC’s US subsidiary, the International Seabed Authority (ISA) swiftly issued a statement warning that any unilateral action could undermine the fundamental principles that have guided deep-sea governance for decades. The ISA, established under the United Nations Convention on the Law of the Sea (UNCLOS), is the body responsible for managing mineral resources in seabed areas beyond national jurisdiction—commonly referred to as the Area. During the closing session of the ISA’s 30th meeting in July, ISA Secretary-General Leticia Reis de Carvalho accordingly warned that such unilateral actions would amount to a violation of international law.
These developments raise profound and unsettling questions under international law. Is the Executive Order issued by the United States a clear violation of international law, or does it simply expose the limits of international legal authority over states that have chosen to remain outside the UNCLOS framework? In other words, how far does international law truly reach when dealing with a powerful non-party state, and what does this mean for the legitimacy of global ocean governance? Equally compelling is the question of how international law can or should regulate non-state actors, such as deep-sea mining corporations and private contractors. This debate is not new; it echoes earlier struggles in international human rights law to hold private entities accountable for global harms. Yet, the deep seabed represents something different: a space that is, by design, meant to belong to all humankind. So what, then, is at stake? Beyond the technicalities of licensing and jurisdiction, deep seabed mining forces us to confront deeper tensions—between profit and principle, sovereignty and stewardship, and national ambition and global responsibility.
There are many ways to approach these questions. But at this point, it is crucial to recognize the close connection between the growing interest in deep seabed mining and the global demand for energy. Indeed, President Trump’s Executive Order explicitly framed deep-sea resource extraction as part of the effort to secure the United States’ energy future. This link extends beyond U.S. policy. The global drive toward net-zero greenhouse gas emissions by 2050, through the transition from fossil fuels to renewable and zero-carbon energy sources such as solar and wind power, and to electric mobility, has intensified the demand for critical minerals. The essential components of solar panels, wind turbines, and electric vehicle batteries rely on many of the same rare earth and metallic minerals that lie buried in the deep seabed.
On one hand, some states and private actors are actively pushing for the extraction of minerals from these areas. On the other, many countries and environmental organizations are calling for a moratorium or at least a precautionary pause on deep seabed mining. Their central argument is simple but powerful: we still know very little about the oceans, particularly the rich and fragile ecosystems that exist in the deep sea. In fact, some studies suggest that only about 10% of deep-ocean species have been discovered, underscoring just how limited our scientific understanding remains. Another closely debated issue within the ISA concerns the protection of cultural heritage (both tangible and intangible) and how the right to culture should be respected and safeguarded in the forthcoming Mining Code. In South Asia, a striking example is the Godavaya shipwreck, a 2,000-year-old vessel discovered in the depths of the Indian Ocean, near the coast of Sri Lanka, which raises important questions about the intersection of heritage preservation and resource exploitation.
The Mining Code and the Draft Exploitation Regulations: Standing Issues
The ISA is currently in the process of finalising the Mining Code, particularly the section on Exploitation Regulations. The Mining Code as a whole consists of three main components: (1) the Regulations on Prospecting, (2) the Regulations on Exploration, and (3) the Regulations on Exploitation. The first two sets of regulations were adopted between 2010 and 2013, but the third and most critical component, which will govern the actual extraction of minerals, remains under negotiation.
The draft Exploitation Regulations is a massive document, containing over a hundred provisions, many of which remain highly contested. Among the unresolved issues are several with far-reaching legal and environmental implications. In this essay, I focus particularly on the debates surrounding inspection, compliance, and enforcement mechanisms, as well as the question of effective control by states. These areas are where key environmental principles especially the precautionary principle and the principle on EIA are most directly at stake.
Four General Observations:
(1) Uncertainties in Operationalising Precautionary Principle
Here, I would like to share four general observations. The first is that, although the draft Exploitation Regulations place considerable emphasis on the precautionary principle and EIA, they offer little concrete guidance on how these principles should be applied in practice and balanced out in case of conflict. In particular, it remains unclear how the precautionary principle should be operationalised, representing a significant gap in the current Mining Code. This issue is especially critical given the possibility of unilateral mining activities in areas beyond national jurisdiction and the active involvement of private corporations and contractors. In such a context, the importance of state responsibility and the obligation to exercise due diligence becomes all the more urgent.
(2) Situating Precautionary Principle and EIA within Rules on Regulatory Due Diligence and the Law on State Responsibility for Internationally Wrongful Act
Second, I argue that Precautionary Principle and EIA should be situated within the broader framework of due diligence and, ultimately, state responsibility for internationally wrongful acts. Recent advisory opinions on climate change by the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) offer valuable lessons that can be transposed to deep seabed mining. More specifically, the ICJ has held that the duty to prevent environmental harm is an obligation of due diligence (para 280) and that this duty of prevention has attained the status of customary international law (para 272, citing Trail Smelter, Corfu Channel, and Pulp Mills) , that is, binding on all states, including those that are not parties to relevant treaties. The ICJ has further recognised that a state may be held responsible if it has failed to exercise regulatory due diligence (see para 428); a state that does not act with due diligence to prevent environmental harm commits an internationally wrongful act (see para 409). Read through this lens, the precautionary principle and EIA are core elements of the due‑diligence duty (see 2011 ITLOS Seabed Chamber Advisory Opinion). They require states to anticipate and assess risks, to use the best available science, to adopt and enforce effective regulatory measures, and to adjust or halt activities where serious or irreversible harm is plausible. This line of reasoning is directly applicable to the deep seabed mining regime, where sponsoring states and other states involved with contractors must demonstrate robust regulatory diligence and effective control. Failure to do so would not merely be a procedural lapse but arguably a breach of international law.
(3) Elements of Regulatory Due Diligence
This brings me to my third point: the specific elements that constitute regulatory due diligence. Both the ICJ and ITLOS advisory opinions have elaborated on this, though the ICJ has provided a more detailed articulation. In its recent opinion, the ICJ identified several factors that determine whether a state has fulfilled its due diligence obligations, including the establishment of a comprehensive environmental impact assessment system and the application of measures consistent with the precautionary principle (see paras 280-300, see also ITLOS Advisory Opinion on climate change, para 235). Crucially, the Court emphasized that due diligence is not merely about adopting abstract commitments but about building and maintaining a functioning national regulatory framework comprising legislation, administrative procedures, monitoring institutions, and enforcement mechanisms capable of effectively preventing environmental harm. This insight has particular resonance for developing states, which often find themselves both resource-dependent and regulation-constrained. Here, perspectives from the Third World Approaches to International Law (TWAIL) scholarship offer an important counterpoint: they invite us to reconsider how international environmental law, and the due-diligence standards it imposes, might reflect structural inequalities and power asymmetries in the global regulatory order. In this sense, developing states are not merely rule-takers but potential norm-shapers, capable of advancing more context-sensitive and equitable interpretations of regulatory diligence.
(4) Drawing Lessons from the Domestic Courts in Assessing Precautionary Principle and EIA
My fourth and final point is that international law can also learn from the experience of domestic courts in interpreting and applying the precautionary principle and EIA in environmental disputes. National judiciaries have often been more innovative and pragmatic than international tribunals in giving concrete meaning to these principles. Several domestic decisions, for instance, have held that defects or omissions in an EIA may amount to a breach of the precautionary principle itself recognising that a flawed assessment undermines the very purpose of precaution. Other courts have affirmed that, where environmental harm is uncertain or scientifically contested, the precautionary principle should prevail as a matter of evidentiary reasoning and judicial prudence. These jurisprudential developments offer valuable insights for the international community: they remind us that precaution is not merely a procedural step, but a substantive commitment to protect the environment amid uncertainty.
About the author
Amiel Ian Valdez is a Research Fellow at the Centre for International Law, National University of Singapore.
Image credit: AI-generated (source: Freepik)
