Combating unregulated mining: insights from high sea fishing regime

The United States’ unilateral authorization of deep-sea mining exposes a fundamental limitation of the traditional treaty rule that treaties cannot bind non-party States. As a non-party to the United Nations Conventions on the law of the Sea (UNCLOS), the United States proceeds with deep-sea mining unilaterally, undermining multilateral efforts toward sustainable resource management. In addressing this governance challenge, the international community urgently requires innovative legal frameworks to transcend the constraints imposed by the “treaty-bound States” doctrine. In this regard, the high seas fisheries regime offers instructive parallels. It has successfully addressed similar challenges through the framework for combating illegal, unreported, and unregulated (IUU) fishing, including measures such as port State controls, market-related measures, and subsidy disciplines, which create de facto constraints on non-party States. This article draws lessons from the high seas fishing regime and explores how the regulatory rules of international seabed mining can impose de jure or de facto constraints on third parties. It proposes an “illegal, unreported and unregulated (IUU) mining” regulatory framework, considers the framework’s legitimacy and feasibility, and discusses enforcement pathways. This unique governance paradigm, when appropriately adapted, presents a viable pathway for addressing the persistent governance gaps in deep-sea mining.