In the midst of the Second World War, the U.S. Secretary of Interior Harold Ickes declared that the United States was running out of oil. In a bid to alleviate this perceived shortage, Ickes turned President Roosevelt’s attention to the “storehouse of natural resources” lying just off America’s coasts: a reference to the untapped petroleum buried under the seabed of the Gulf of Mexico beyond the narrow territorial sea and, therefore, beyond U.S. jurisdiction.
Eighty years later, in the midst of the Green Transition and with China controlling much of the mining and processing of battery metals, a familiar scarcity narrative is unfolding in Washington. Seabed mining executive Gerard Barron has turned President Trump’s attention to polymetallic nodules found on the abyssal plain of the world’s oceans in areas beyond U.S. jurisdiction, noting “[t]hey contain high concentrations of nickel, cobalt and manganese – they’re effectively an EV battery in a rock.”
In the 1940s, the pesky phrase “beyond U.S. jurisdiction” created an obstacle to American resource ambitions. It does so again today.
President Truman (filling out Roosevelt’s fourth term) transformed international law to accommodate U.S. interests. Trump is trying to accomplish a similar feat.
To paraphrase fellow Just Security authors, we can use the lessons from past crises that have forged new norms of global governance to anticipate and understand how the next crisis may impact international law. In the context of seabed resources, if we are not witnessing a repetition, we are at least hearing a rhyme. This prompts the question, will Trump, as Truman did, succeed in refashioning the law governing international seabed minerals?
Truman and Petroleum
In the decades prior to Ickes’ declaration of impending scarcity, private petroleum interests sought U.S. government-guaranteed security of tenure in the Gulf of Mexico. The United States declined to provide it. Under the international legal framework at the time, the U.S. did not have jurisdiction over the seabed or resources of the oceans beyond the three-mile-wide territorial sea extending from its coasts. The areas beyond the territorial sea were governed by the legal regime of the high seas, and the mineral resources of those areas were a res nullius (a thing owned by no one and subject to capture by anyone). In order to claim exclusive rights to those areas and resources, Washington would need to “evolve new concepts of maritime territorial limits beyond three miles, and of rights to occupy and exploit the surface and subsoil of the open sea.” By September 1945, the Truman administration had done just that.
In the immediate aftermath of the war, with fallout from the nuclear detonations over Japan still swirling through the atmosphere, Truman proclaimed U.S. jurisdiction and control over “the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States.” Truman’s Proclamation 2667 transformed international ocean governance by redefining access to the continental shelf (extending far beyond the territorial sea) and bringing its oil under the exclusive control of the United States. Truman’s new rule created legal certainty for industry and supplanted “the law of the jungle [which] allows such countries as have reached the highest technical progress to take possession of areas where – to put it bluntly – they have no business” (see Rights to the Sea Bed and Its Subsoil, 43 Int’l L. Ass’n Rep. Conf. 168 (1948) at 173).
Truman’s assertion of this right rested on a new legal theory, the ipso jure attachment of the continental shelf to the coastal State, a theory that, in the words of the International Court of Justice, bequeathed to the coastal State “an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores” (para 47). This theory was attractive to other coastal States who shared the growing U.S. appetite for petroleum, and by 1949 key States in the Persian Gulf, and Central and South America had made similar claims. Others quickly followed. By 1951 ipso jure attachment had the support of the International Law Commission and was on its way to codification in the 1958 Continental Shelf Convention. Truman’s proclamation, as the Court noted, “soon came to be regarded as the starting point of the positive law on the subject, and the chief doctrine it enunciated, … came to prevail over all others” (para 47).
Today, the continental shelf doctrine forms the legal basis for coastal State jurisdiction and sovereign rights over nearly half of the world’s ocean floor beyond the territorial sea: some 160 million square kilometers of seabed and subsoil and the natural resources therein.
In short, in the mid-20th century the perceived resource shortage created by a petroleum-hungry global conflagration spurred a revolutionary change to the international legal order of the oceans: rejecting the res nullius rule for seabed minerals of the continental shelf and capturing vast areas of the commons for the exclusive use of coastal States.
Trump and Polymetallic Nodules
Eight decades on, U.S. corporate and government actors are once again combining perceived scarcity, profit motive, American exceptionalism, and a U.S. presidential pronouncement to fashion a claim to seabed mineral resources in areas beyond national jurisdiction.
This time, the target area is the remaining approximately 180 million square kilometers of seabed beyond the limits of coastal States’ juridical continental shelves (“the Area” in law of the sea parlance), and the target resources are the potato-sized polymetallic nodules advertised as “batteries in a rock.”
On 24 April 2025, the White House published Executive Order 14285, “Unleashing America’s Offshore Critical Minerals and Resources.” Citing “unprecedented economic and national security challenges in securing reliable supplies of critical minerals,” the order invokes a little-used 1980 U.S. statute, the Deep Seabed Hard Mineral Resources Act (DSHMRA, 30 U.S.C. 1401 et seq.) and calls upon the authorizing agency, the National Oceanic and Atmospheric Administration (NOAA), to “expedite the process for reviewing and issuing seabed mineral exploration licenses and commercial recovery permits in areas beyond national jurisdiction” (emphasis added). Days after the executive order landed, Gerard Barron’s aspiring Canadian mining firm, The Metals Company (TMC), submitted three DSHMRA applications through its newly-formed, wholly-owned U.S. subsidiary, TMC-USA – the first such applications in over forty years – one for a commercial recovery permit and two for exploration licenses.
If issued, TMC-USA’s commercial recovery permit would be, as TMC has trumpeted, a “world first.” As for previous DSHMRA exploration licenses, four have been granted, all in 1984. Two have been surrendered, and the remaining two are held by Lockheed Martin on the basis of pro forma renewals over the last four decades. In a 2012 letter to the U.S. Senate Foreign Relations Committee, Lockheed’s CEO explained why his company would not move forward under U.S. unilateral permission. He wrote, “the multi-billion dollar investments needed to establish an ocean-based resource development business must be predicated upon clear legal rights established and protected under the treaty-based framework of the LOS Convention, including the International Seabed Authority (ISA)” (p 74).
The ISA, now representing the 171 parties to the UN Convention on the Law of the Sea (UNCLOS), would agree. Reacting to TMC’s April 2025 announcement, the ISA issued a strong statement that “no private entity or State may undertake such activities outside this framework without contravening the international legal regime, including customary international law, that governs the Area as the common heritage of humankind.”
In an America turning away from Truman’s post-war international order, Trump asserts the right to exploit unilaterally the mineral resources of the international seabed, seeking to roll back the well-developed rule of res communis (a thing owned by all but subject to capture by none) and to replace it with the 1940s rule of res nullius: a rule that favors the fastest and the strongest.
A Different International Legal Impediment
Truman’s resource nationalism faced an international legal impediment: the areas and resources he desired to bring within U.S. control and jurisdiction were part of the global commons. But, in respect of seabed mineral resources, the res nullius rule was inchoate, no entity, statal or corporate, had relied on it to stake a claim, and no champion of the rule emerged to resist Truman’s incursion. Post-war attention was focused elsewhere, and the interests of other powerful States generally aligned with those of the U.S. As a result, Truman’s transformation of international law happened quickly and with little opposition.
Trump’s resource nationalism faces a more formidable international legal impediment. Despite Barron’s wishful incantation that “[t]he freedom to mine the deep seabed, like the freedom of navigation, is a high seas freedom enjoyed by all nations” (a statement that would have been accurate in the 1870s as the H.M.S. Challenger sailed the seven seas dredging up, among other things, “a number of very peculiar black oval bodies” from the bottom of the Atlantic and Pacific oceans), the reality is that international law has moved on. The effort to wrench the law back to the same inchoate rule that Truman’s continental shelf proclamation so easily displaced is confronted with a comprehensive body of international treaty and customary law developed over the last six decades with the participation of the United States and the many then-recently-independent members of the international community.
The beginning of this development is often marked by Maltese Ambassador Arvid Pardo’s 1967 speech before the UN General Assembly. Concerned that “[c]urrent international law encourages the appropriation of this vast area by those who have the technical competence to exploit it,” Pardo urged a move away from a high seas regime and toward a common heritage regime for the Area and its mineral resources.
In fact, others had earlier voiced these concerns, including President Johnson in 1966 who said:
[U]nder no circumstances, we believe, must we ever allow the prospects of rich harvests and mineral wealth to create a new form of colonial competition among maritime nations. We must be careful to avoid a race to grab and hold the lands under the high seas. We must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings. (item 326, p 724)
The international community responded to Pardo’s call with decades of declarations, negotiations, State practice, and treaty-making that resulted in the adoption in 1982 of UNCLOS, under which “the Area and its resources are the common heritage of mankind” (Art 136); the adoption in 1994 of the Agreement relating to the Implementation of Part XI (regarding the Area); and the work of the International Seabed Authority for over thirty years carrying out its mandate to “organize and control activities in the Area, particularly with a view to administering the resources of the Area” (Art 157(1)).
The ISA has agreed 31 seabed mineral exploration contracts involving an array of member states, including Russia, China, Japan, France, Germany, the United Kingdom, Brazil, Korea, and India. Unlike in 1945, current U.S. ambitions face a bulwark of 171 parties to UNCLOS, many with interests diametrically opposed to those espoused in Trump’s April order. Perhaps more importantly, considering the lack of U.S. mining and processing capability and TMC-USA’s heavy reliance on non-U.S. nationals, each one of those States party is under a treaty obligation to ensure that they and their nationals do not participate in unilateral U.S. mining activity in the Area (Art 139(1)).
The United States has not yet joined this robust treaty regime, and yet it benefits tremendously from its rules through a lawyerly sleight of hand that turns permissive treaty provisions into customary rules while interpreting restrictive provisions to bind only treaty partners. For example, the United States claims an exclusive economic zone (a creation of UNCLOS) of over 11 million square kilometers (the second largest in the world), and asserts rights over an additional 1 million square kilometers of seabed on the basis of provisions in the Convention. Until April, it appeared that the United States also accepted the position expressed by Lockheed Martin’s CEO: that the mineral resources of the Area are a res communis subject to common management.
Trump’s order, and its resurrection of DSHMRA forty-one years after it was last invoked, is a rejection of the rule prohibiting unilateral exploitation of the international seabed and an attempt to bring the freedom to unilaterally mine the Area back to life. Not all are convinced by this “pick and choose” approach.
A Different Outcome?
The law of the sea is often referred to as a package deal: an all or nothing proposition reflecting preferences and trade-offs hashed out over decades of negotiation. A central trade off was allowing coastal States to extend their exclusive jurisdiction over the natural resources of the continental shelf, à la Truman, while placing the resources of the remaining seabed under common management for the benefit of humankind. Removing the latter part of the deal could tank the whole package.
At risk of portraying the history of international law as a directional progression, Truman’s proclamation moved the law “forward.” It discarded the old concept of a res nullius under a high seas regime, already under pressure from private and public interests, and replaced it with a new concept of ipso jure attachment. In doing so, it shifted the prevailing legal regime away from the “race to grab” and toward stability and certainty. Truman’s proclamation and the rapid, durable change it wrought provides a textbook example of the international lawmaking process catalyzed by crisis.
In contrast, Trump’s order reaches “backward” to the earlier concept of a res nullius under a high seas regime, long since supplanted by the now sixty-year-old concept of a res communis under a common heritage regime championed by Pardo and adopted by the international community in order to avoid the inevitable domination of the Area by industrialized nations “with the technical competence to exploit it.” If the current U.S. effort were to succeed, it could destroy a key building block of modern ocean governance and might prove to be system-breaking. This would not be catalysis in the modern sense of “acceleration,” but instead in the original sense of its Greek etymon (κατάλυσις) meaning “dissolution.”
Will today’s crisis catalyze the change envisioned by the White House? The answer depends less on the actions of the United States and more on those of UNCLOS States parties and the International Seabed Authority. Will they defend the international legal order of the oceans against this potentially existential threat? Or will they follow the United States back into the jungle?
