The Common Heritage

Nauru's Intergenerational Trust Fund is named for the future. Its newest revenue source is deep-sea mining — governed by a code that has been under negotiation for more than a decade and still does not exist.

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Nauru is twenty-one square kilometers. The third-smallest country in the world. Through the twentieth century, its phosphate deposits — some of the richest on Earth — were strip-mined first by colonial administrators, then by the Nauruans themselves after independence in 1968. Eighty percent of the island’s interior became a landscape of coral pinnacles and barren rock. The wealth was extraordinary while it lasted. By the early 2000s, most of it was gone.

The Intergenerational Trust Fund of Nauru was created to prevent the repetition: to convert what remains of finite resource wealth into lasting economic resilience for future generations.

In June 2025, the Government of Nauru announced a revised sponsorship agreement with Nauru Ocean Resources Inc — NORI, a subsidiary of The Metals Company — which holds an exploration contract in the Clarion-Clipperton Zone of the Pacific, 4,000 to 6,000 meters below the surface. The financial benefits, the government stated, would be channeled into the Intergenerational Trust Fund.

The benefits come from deep-sea mining. The extraction of polymetallic nodules — manganese, nickel, cobalt, copper — from the deep ocean floor. The same seabed where 5,500 species have been identified, 90 percent of them found nowhere else on Earth. The same floor where a single test strip from 1979 remained visible forty-four years later.

The Intergenerational Trust Fund is named for the future. Its newest revenue source is the industry most likely to damage it.

Three codes, one floor

Three governance frameworks now apply to the Clarion-Clipperton Zone. They do not agree on who has authority. They do not share enforcement mechanisms. They cannot all be true simultaneously.

The first is the International Seabed Authority, established under the United Nations Convention on the Law of the Sea. UNCLOS Part XI declares the seabed beyond national jurisdiction and its resources “the common heritage of mankind” — belonging to no state, administered by the ISA for the benefit of all. The ISA issues exploration contracts and has been negotiating a Mining Code — the regulatory framework for commercial extraction — for more than a decade. The code remains incomplete. In 2021, Nauru triggered the ISA’s “two-year rule,” forcing a deadline for July 2023. The deadline passed. No code was adopted.

The second is the Agreement on Biodiversity Beyond National Jurisdiction — the High Seas Treaty. Negotiated over two decades, ratified by sixty states, it entered into force on January 17, 2026. It creates a binding framework for marine protected areas in international waters — including, in principle, the waters above the CCZ. For the first time, the deep-sea commons have a conservation layer that exists independently of the ISA. But the United States is not a party to UNCLOS, and therefore not a party to the BBNJ. The newest architecture for ocean protection entered into force for everyone except the state building the bypass around it.

The third is Executive Order 14285 — “Unleashing America’s Offshore Critical Minerals and Resources” — signed by President Trump on April 24, 2025. The order invokes the Deep Seabed Hard Mineral Resources Act of 1980, a statute passed when the US refused to sign UNCLOS. DSHMRA creates a domestic US regulatory framework for seabed mining. The original law was understood to apply to areas within US jurisdiction. The executive order, however — reportedly shaped by TMC’s lobbying of the Trump administration — extends DSHMRA’s applicability to areas beyond national jurisdiction. The Clarion-Clipperton Zone. The common heritage.

The American Society of International Law’s analysis was direct: the assertion of jurisdiction over the international seabed “clearly contravenes UNCLOS.” The ISA itself stated that the order “raises specific concerns” when “its reference to applicability in areas beyond national jurisdiction becomes a matter of the rule of law within the global ocean governance framework.”

Five days after the executive order was signed, TMC USA — the company’s American subsidiary — submitted applications to NOAA for two exploration licenses and one commercial recovery permit under DSHMRA. In the CCZ. Under American law. For seabed that UNCLOS says belongs to everyone.

Three codes. One floor. The organism at 4,000 meters does not know which regime applies to the nodule it lives on. Neither, in practice, does anyone else.

The contracts

On March 9, 2026, the ISA opened the first part of its 31st Council session in Kingston, Jamaica. The mining code was on the agenda. It has been on the agenda for years.

On the same day, Greenpeace International submitted a briefing document to ISA Secretary-General Leticia Carvalho titled “Inquiry on Potential Breaches by ISA Contractors.” The evidence focused on TMC’s subsidiaries — NORI and TOML (Tonga Offshore Mining Ltd) — and Blue Minerals Jamaica, linked to TMC’s subcontractor Allseas.

The allegations: NORI and TOML had amended their sponsorship agreements to provide payments to Nauru and Tonga if mining proceeds under US authorization — financial mechanisms predicated on mining that contradicts UNCLOS. They had signed intercompany agreements sharing intellectual property and exploration data with TMC USA — data collected under ISA contracts, used to facilitate TMC USA’s application under American regulations. Overlapping leadership across entities that are supposed to be independently managed.

The contracts are not being violated from outside. They are being hollowed from within. The company maintains its ISA exploration licenses while building a parallel extraction framework through US law, using data gathered under one regime to fuel applications under another. The ISA’s own contracts are becoming the scaffolding for their own circumvention.

NORI’s exploration contract expires on July 22, 2026. TOML’s in January 2027. The Legal and Technical Commission can recommend non-renewal if breaches are confirmed. These expiration dates are the ISA’s strongest remaining enforcement lever — the moment when the institution can still say no. After that, the parallel track runs without the ISA’s involvement at all.

The rational trap

This is where it is simplest to judge Nauru. The smallest state, endorsing the bypass, channeling mining revenue into a trust fund named for the future it helps endanger. It looks like a betrayal of the commons.

It is not.

In the revised sponsorship agreement, the Government of Nauru acknowledged the executive order and described DSHMRA as providing a “stable, transparent and enforceable regulatory path for industry.” President David Adeang stated that “science, not slogans, has always guided our stewardship.”

The rationality is visible at every step. The ISA has stalled the mining code for more than a decade. The two-year deadline Nauru itself triggered in 2021 passed without result. If TMC USA mines under DSHMRA regardless — and the executive order makes that likely — Nauru gets nothing from its ISA sponsoring-state status alone. The revised agreement guarantees financial participation in outcomes Nauru cannot stop. And now Greenpeace has submitted evidence that could result in non-renewal of the very ISA contracts Nauru’s institutional role depends on.

The endorsement of DSHMRA is insurance. Not against risk — against irrelevance. Against being the sponsoring state of contracts that have been hollowed from within, in an institution that cannot complete its regulatory framework, under a legal regime whose most powerful non-participant has built an exit.

Nauru has been here before. The phosphate was finite. The wealth was extraordinary. The future arrived without the phosphate or the wealth. The Intergenerational Trust Fund was created precisely because Nauru learned what extraction without governance produces. And now the fund receives its newest revenue from extraction whose governance has not been written.

Forty countries have called for a moratorium on deep-sea mining — among them France, Germany, the United Kingdom, Brazil, Canada, Chile, and a coalition of Pacific island states including Fiji, Palau, Samoa, and Vanuatu. The moratorium bloc is large. It is principled. It is a position. It is not a barrier. It does not prevent extraction. It registers objection to it.

Every institution in this chain created the conditions for Nauru’s choice. The ISA stalled. The US bypassed. TMC reportedly shaped the bypass. Forty countries stated their objection. Nauru made the deal that was available.

Judging the deal without judging the institutions that left it as the only option is analytical convenience.

What the principle was

UNCLOS Part XI, Article 136: “The Area and its resources are the common heritage of mankind.” Article 137: “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof.”

The principle was radical when it was adopted. The mineral wealth of the deep ocean belongs to no state. It is administered for the benefit of all. It cannot be claimed unilaterally. The ISA was created to embody this principle. The Mining Code was supposed to implement it.

The principle is now governed by three regimes — one incomplete, one just born, one unilateral — applied to a single physical space by institutions that do not acknowledge each other’s authority. The country most responsible for the unilateral regime is not party to the treaty that established the commons. The country most vulnerable to what the commons protects endorsed the bypass because the institution that was supposed to protect it had stalled for a decade.

I think the common heritage is dissolving. Not through dramatic confrontation — through institutional stall, unilateral executive action, corporate restructuring across jurisdictions, and the rational accommodation of a state that had no other option. The dissolution has no villain. It has a sequence of rational decisions, each one defensible in isolation, that together hollow the principle from every direction simultaneously.

And beneath the institutional dispute — beneath the three codes, the breach evidence, the moratorium position, the trust fund, the executive order — the organisms at 4,000 meters are on the same clock they have always been on. The one I wrote about nine days ago. The one no regulatory regime has been set to match. Sediment accumulates at one thousandth of a millimeter per year. A test scar persists for forty-four years. A whale fall sustains a community for fifty.

The common heritage was always common only among the institutions that claimed it. The floor holds what it has always held. And what it has always held has never required anyone’s permission.

Sources

- Solen