Deep Sea Mining: What's Next for Mexico and the World?

(Written in collaboration with Carlos Suárez de Miguel and Alejandro Preciat Campos.)

Deep sea mining, also known as seabed mining or underwater mining, is the practice of extracting metals and other resources from the ocean floor. This activity can take various forms, the most widespread being that in which specialized machinery extracts polymetallic nodules, mineral formations of between 5 and 20 centimeters that are relatively rich in cobalt, nickel, copper and manganese, from the seafloor. 

The potential of these nodules as a resource source has been well documented since the late 19th and early 20th centuries. However, due to the technical difficulty of their extraction, their large-scale exploitation has not been a possibility until recent years, subject to international and domestic regulations. 

The International Regulatory Context 

To understand the current underwater mining landscape it is first necessary to answer the question: Who has rights over the world’s oceans? According to the United Nations Convention on the Law of the Sea (UNCLOS), the regulatory treaty on the subject, the waters of our planet can be divided mainly into three main jurisdictional zones: the territorial seas; the exclusive economic zones; and the high seas. 

First, all coastal states enjoy full sovereignty over their territorial seas, which extend 12 nautical miles from the low tide line on their coasts. A second area is the exclusive economic zone, which comprises 200 nautical miles from the same reference point. In this zone, countries can still exercise exclusive rights and jurisdiction in certain matters delimited by UNCLOS, but cede other rights for the use of the rest of the international community.

Any country could, theoretically, establish exploitation areas for deep sea mining within these first two zones. However, once the 200 nautical miles are crossed, we reach the high seas, where most of the polymetallic nodule deposits are located. 

The right to explore and exploit minerals on the high seas is regulated by UNCLOS, which establishes certain provisions with respect to the unregulated exploitation of the sea floor. 

Under the mandate of UNCLOS, the International Seabed Authority (ISA) was created. This autonomous body has the objective of administering and regulating activities in the deep-sea subsoil and has authority over all members of the Convention. 

The ISA is assessing the authorization of a framework for deep sea mining, with a deadline of 2025 to communicate to the members of the UNCLOS its final resolution, and in its case, the regulations that will exist for the practice. In the meantime, this authority has awarded 22 contracts to public and private companies endorsed by a member state of the convention, contracts for exploration, mapping and research purposes. 

This procedure has caused a wide range of reactions in the international community. Below we will analyze some of the actions taken and perspectives from different jurisdictions.

The Norwegian Perspective 

As of March 2019, Norway already had specific regulations for carrying out exploration or exploitation activities in its Exclusive Economic Zone through the Act Relating to Mineral Activities on the Continental Shelf. This text provides the country with a regulatory framework that covers everything from the licensing of mapping and extraction activities to the causes and consequences of the termination of activities. In addition, the law provides guidelines on environmental and occupational safety and addresses issues specific to the marine landscape, such as the stipulation of financial compensation to Norwegian fishermen for damages inflicted by mining activities.

Yet, for almost five years this law remained inactive, since no company could carry out any exploration and exploitation activity until the executive branch decided to open a delimited area for this purpose in accordance with the provisions of Chapter 2, Section 2-1 of the same law.

This requirement was fulfilled in January of this year, when the Norwegian government finally approved the opening of an area of 280,000km2 on its continental shelf. However, this resolution was made with the clarification that the delimitation of the area did not mean instant approval for any exploitation operation, but that it will start gradually with the granting of licenses for exploration and mapping purposes, which companies can use to gather further information to demonstrate the feasibility of proceeding with commercial extraction in a responsible and sustainable manner. 

Prior to the enactment of this regulatory framework, however, 120 European legislators signed an open letter asking the Norwegian parliament to reject the then proposal. The Norwegian government, for its part, has responded to the criticism by stating that its new policy will be taken with caution, emphasizing that: "Profitability, sustainability and safety are prerequisites for extraction and must be documented in extraction plans, including an impact assessment process" and that any exploitation operation must be approved jointly by parliament and the Ministry of Energy.

This debate has prompted those involved to study issues such as state sovereignty and the balance between state and international regulations. This plan may be a legislative guide for other jurisdictions and/or take the first steps toward a set of customary obligations within the parameters of public international law.

The Perspective of the United States 

The United States is one of the few members of the United Nations that has not ratified UNCLOS. The country, therefore, finds itself in a situation where it must abide by the provisions of the Convention as a valid source of customary international law, but cannot actively participate in its provisions. 

Initially, this decision was driven by a legislative sector which advocated that such a treaty could undermine US sovereignty and interests over the oceans. However, this strategy could now leave the country outside the emerging frontier in the mining industry because it does not have access to the ISA governance process despite recognizing its de facto authority and, furthermore, cannot negotiate exploration licenses or eventual exploitation contracts with the ISA for itself or for US companies.

This potential crossroads has not gone unnoticed in Washington, with nearly 350 current and former high-ranking officials signing an open letter in March 2023 urging the Senate Foreign Relations Committee to finally ratify UNCLOS. This call has already been answered by 10 senators from both sides of the political spectrum, who have joined together to introduce a draft resolution to this effect.

Additionally, in the House of Representatives, the lower house of the United States, another bill has been introduced that, in a similar manner to Norway's, seeks to develop the domestic underwater mining industry independently of the ISA and UNCLOS. The bill in question, entitled the "Responsible Use of Seafloor Resources Act of 2024," is not necessarily a regulation that induces direct action to start operations as in the Norwegian case, but it still promises to encourage investment in this emerging sector, as well as to support international governance of seabed resource exploration and responsible harvesting.

Although both examples of regulations mentioned in this section are still in the draft stage, they show a growing eagerness on the part of American policymakers and legislators to bet on a new industry that promises to revolutionize mineral extraction. 

The Mexican Perspective

Mexico, in turn, was one of the first states to adhere to UNCLOS, having signed the treaty on Dec. 10, 1982, and ratified it on March 18, 1983. The country, therefore, has taken an active role in the ISA discussions. However, its position on deep sea mining has changed over time.

After energetically supporting the acceleration of the ISA's regulatory processes at its July 2023 meeting Mexico changed its position four months later by joining 25 other countries in calling for a moratorium on any deep sea mining practices in November 2023.

This decision, issued through a joint statement from the Ministry of Environment and Natural Resources and the Ministry of Foreign Affairs, calls on other countries to refrain from seabed mining activities, both in their areas of jurisdiction and on the high seas, until sufficient impact studies are available to ensure the protection of the oceans. 

Furthermore, the statement emphasizes that Mexico will not endorse or support the issuance of international licenses until this condition is met. However, the country keeps open the possibility of collaborating with the ISA in this area. It is likely that, once said authority issues its regulation this year, Mexico will adjust its position within a framework of international legal certainty. 

As for its national legislation, Article 27, fourth paragraph, of the Constitution recognizes the state's sovereignty over the continental shelf for extractive purposes, without imposing restrictions on such activities in territorial waters or the exclusive economic zone.

However, following the 2023 reform, the Mining Law introduced prohibitionist provisions. In particular, Article 20 establishes restrictions on marine mining operations, including a ban on the exploration and exploitation of the subsoil within the exclusive economic zone, as well as on the seabed.

Nevertheless, this prohibition does not apply to concessions granted before the reform took effect in 2023. This conclusion arises from a harmonious interpretation of the transitional provisions of the Mining Law and the principle of non-retroactivity. 

Specifically, the Sixth Transitional Article of the reform confirms the validity of previously granted concessions, stating that they shall retain the terms of their respective titles, regardless of modality or location. Similarly, the Seventh Transitional Article provides that concessions in Protected Natural Areas will not be extended, indicating that lawmakers chose to respect their validity until their original expiration date, without imposing additional restrictions.

As a result, the existing submarine mining concessions in Mexico may continue to operate despite the increasing regulatory restrictions:

What's Next?

Despite the above normative hurdles, Mexico has great potential to become a leader in this emerging industry. Its long history in the mining sector, its strategic location close to polymetallic nodule deposits in the Pacific Ocean and its active participation in the ISA and UNCLOS are just some of the factors that give it some advantage to benefit from the fruits of an eventual international regulatory framework. 

Therefore, there is an obligation on the part of legislators and other authorities in the country to be informed on the subject, and thus work taking into consideration all the factors involved. It is important to follow closely the actions and regulations of the ISA, as well as to invest in the development and adoption of technologies that allow for more efficient and less environmentally damaging extraction.

1. The involvement of private entities in the ISA process works through a sponsorship system as stipulated in Annex III, Article 4(3) of UNCLOS. In accordance with this system, the interested company must resort to the State in which it is located, which must necessarily have ratified the Convention. In other words, the States function as intermediaries between the ISA and the private companies, since the ISA does not have the power to interact directly with the latter. In this system, the States are responsible for ensuring that the entity to which they have granted their sponsorship complies with the obligations stipulated by their contract and by the UNCLOS itself.