The Scaffold

On March 9, 2026, two things happened on the same calendar day.

In Kingston, Jamaica, the International Seabed Authority opened the first part of its 31st Council session. On the agenda: the Mining Code --- the regulatory framework for commercial extraction of polymetallic nodules from the deep seabed beyond national jurisdiction. The code has been under negotiation for more than a decade. Its third consolidated text in three years was before the Council. Over thirty substantive disagreements remained unresolved --- on environmental thresholds, financial terms, governance architecture, and the operationalization of the Economic Planning Commission. The session would run through March 19.

In Washington, the National Oceanic and Atmospheric Administration issued a substantial compliance determination for TMC USA’s consolidated application to explore and commercially recover polymetallic nodules from the Clarion-Clipperton Zone of the Pacific Ocean. The application covers approximately 65,000 square kilometers --- expanded from the 25,000 square kilometers filed in April 2025. An estimated 619 million tonnes of wet nodules. The legal basis: the Deep Seabed Hard Mineral Resources Act of 1980, a US statute passed when the United States refused to sign UNCLOS. The application is the first of its kind under NOAA’s new consolidated review process, finalized January 21, 2026, which allows exploration data to flow directly into commercial recovery assessment.

One institution is still writing the rules. The other has cleared the first formal threshold under rules that already exist.

The same seabed. The same day.

The data

TMC USA is the American subsidiary of The Metals Company, a Canadian-incorporated mining firm. TMC also controls two other subsidiaries: Nauru Ocean Resources Inc. (NORI) and Tonga Offshore Mining Ltd. (TOML). Both hold exploration contracts with the ISA --- contracts that grant access to specific areas of the Clarion-Clipperton Zone under the condition that activities are conducted in conformity with UNCLOS Part XI and the ISA’s regulatory framework.

The data NORI and TOML collected under those contracts did not stay within the ISA framework.

Greenpeace International submitted a briefing to the ISA Council on March 9 --- the same day as the NOAA determination --- presenting evidence that NORI and TOML had signed intercompany intellectual property and data-sharing agreements with TMC USA. Data obtained under ISA exploration contracts was shared with the American subsidiary to support its application under DSHMRA. The ISA’s own contracts generated the knowledge base for the application that bypasses the ISA.

This is not a company exploiting a loophole discovered after the fact. The sequence was prepared in advance.

On June 4, 2025, TMC and the Government of Nauru announced a revised sponsorship agreement for NORI. The revision explicitly acknowledged Executive Order 14285 --- Trump’s “Unleashing America’s Offshore Critical Minerals” --- and described DSHMRA as providing “a stable, transparent and enforceable regulatory path for industry.” The agreement was amended to ensure Nauru receives financial benefits if mining proceeds under US authorization, not just under the ISA framework.

The sponsorship agreement was restructured in June 2025. The NOAA consolidated permitting rule was finalized in January 2026. The application was filed in April 2025 and expanded to 65,000 square kilometers by March 2026. The ISA exploration contracts that generated the underlying data were signed years earlier.

The scaffold was assembled before the building it supports was permitted. Each piece was placed in the correct order: ISA contracts first, data collection second, sponsorship agreement revision third, US regulatory rule fourth, consolidated application fifth, substantial compliance determination sixth. The international framework was not circumvented from outside. It was used as the foundation and then stepped over.

The investigation

The ISA is not entirely passive in this sequence. On July 21, 2025, the Council initiated an inquiry into whether TMC’s subsidiaries had breached their contractual obligations --- specifically Sections 13 and 27 of the Standard Clauses for the Exploration Contract. The inquiry was triggered by concerns about data-sharing with TMC USA and the pursuit of US authorization while holding ISA contracts.

At the March 2026 session, the Council received Greenpeace’s breach evidence and, according to SeafoodSource, formally opened an investigation into whether TMC, its subsidiaries, and partners are complying with their obligations under UNCLOS and their contract agreements. The ISA also issued a formal statement responding to Trump’s executive order, noting that it “raises specific concerns” when applied to areas beyond national jurisdiction.

The institution has tools. EJIL:Talk’s legal analysis identifies three:

First, extension denial. NORI’s exploration contract expires in July 2026. TOML’s in January 2027. The Legal and Technical Commission can recommend non-renewal if breaches are confirmed. These expirations are the ISA’s most concrete enforcement lever --- the moment when the institution can still say no.

Second, contract termination for “serious, persistent, and wilful violations” under UNCLOS Annex III, Article 18. The dual pursuit of US authorization while holding ISA contracts is, in EJIL:Talk’s analysis, a potential willful breach through “incompatible dual participation.”

Third, sponsoring state accountability. UNCLOS Article 139(1) requires sponsoring states to ensure that activities in the Area are carried out in conformity with Part XI. Canada, where TMC is incorporated, bears responsibility for ensuring that subsidiaries it “effectively controls” do not conduct activities that violate UNCLOS obligations. Breach of this duty triggers compulsory dispute settlement before the Seabed Disputes Chamber of ITLOS.

The tools exist. They have not been deployed. The investigation is open. The session closes March 19. The code remains unfinished. The substantial compliance determination stands.

The clock

Here is the operational problem the ISA faces. Every enforcement tool runs on a timeline that is slower than the bypass.

The investigation was initiated in July 2025. Eight months later, it has produced an open inquiry and a receipt of evidence, not a suspension or termination. The NORI contract expires in four months. If the investigation does not produce an enforcement action before July, the contract expires on its own terms and NORI’s renewal is the only decision point remaining. If the ISA renews, the contracts continue to serve as the scaffolding for the US application. If it does not renew, the US application proceeds anyway --- NOAA has already declared substantial compliance. The data has already been shared. The application has already been filed. The scaffold has already served its purpose.

This is the design problem I wrote about in The Common Heritage. The ISA’s code negotiations have been running for over a decade. The US executive order was signed in April 2025. The NOAA permitting rule was finalized in January 2026. The substantial compliance determination took less than two months after the rule was finalized. The asymmetry is structural: the international framework deliberates; the domestic framework decides. The Mining Code is on its third consolidated text. NOAA is on its first application.

The ISA’s Legal Counsel told the ISA’s own publication before the session that “the negotiations are complex and involve delicate balances.” This is accurate. It also describes why the negotiations produce a code that is always almost finished and never finished --- the balances are genuinely delicate, the interests genuinely divergent, and the institutional design prioritizes consensus over timeline.

The domestic track has no consensus requirement. It has NOAA, an executive order, a statute from 1980, and a company that filed on day five.

The moratorium that isn’t

Forty countries have called for a moratorium or pause on deep-sea mining. France, Germany, the United Kingdom, Brazil, Canada, Chile, and a coalition of Pacific island states including Fiji, Palau, and Samoa. Eighty-two financial institutions representing over $24 trillion in assets under management have expressed concerns or imposed restrictions.

None of this constitutes a barrier. A moratorium call is a position statement, not an enforcement mechanism. Financial institution restrictions apply to their own portfolios, not to a company’s regulatory pathway. Canada --- the sponsoring state responsible under UNCLOS for TMC’s conduct --- is itself on the moratorium list. Canada calls for a moratorium on the activity it is treaty-obligated to ensure its company does not conduct in violation of UNCLOS.

The moratorium bloc is principled. It is large. It is a record. It is not a wall.

What the scaffold reveals

I have now written three pieces about this ocean floor. The Common Heritage documented three governance codes competing over the same physical space --- the ISA, the High Seas Treaty, the executive order --- and the rational trap that led Nauru to endorse the bypass. The Channel documented the acoustic commons that none of those codes reach --- the SOFAR channel where mining pumps will operate at the depth where sound propagates farthest, governed by no regime.

This piece documents the mechanism. Not the competition between frameworks, not the dimension they fail to cover, but the specific sequence by which one framework’s own output became the instrument of its bypass.

The sequence is complete. The ISA issued exploration contracts. The contractors collected data. The data was shared with an American subsidiary. The American subsidiary filed under a domestic statute the ISA has no jurisdiction over. The domestic regulator declared substantial compliance. The ISA opened an investigation. The investigation’s timeline is slower than the bypass’s operational timeline. The contracts that generated the data expire before the investigation is likely to conclude with enforcement. The scaffold --- the ISA’s own regulatory infrastructure --- performed its structural role and is now architecturally unnecessary.

I think the ISA will not use its enforcement tools before the NORI contract expires in July. Not because the evidence is insufficient --- Greenpeace’s briefing is specific and documented --- but because the institution’s design produces deliberation, not speed. The investigation that opened in July 2025 has not produced an enforcement action in eight months. The contract expires in four. The asymmetry is not a failure of will. It is a description of what the institution is.

The counterargument is that the ISA’s investigation, even if slow, establishes a legal record that will constrain future bypasses. That the sponsoring state mechanism under Article 139 creates long-term accountability even if near-term enforcement fails. That the forty-country moratorium bloc and the financial institution restrictions create a political environment in which the bypass cannot scale.

These are real. They describe a world in which the bypass is documented, contested, and potentially isolated. They do not describe a world in which the bypass is prevented. The data has been shared. The application is substantially compliant. The domestic track runs.

The session closes March 19. The code will not be finished. The investigation will not be resolved. The application will still be substantially compliant. And beneath the institutional dispute --- beneath the three codes, the investigation, the moratorium positions, the sponsorship agreements, the executive order --- the organisms at four thousand meters remain on their own clock. Sediment accumulates at one-thousandth of a millimeter per year. A test scar persists for forty-four years. The scaffold was built for human timelines. The floor operates on geological ones.

The scaffold has done its work. Whether anyone dismantles it is now a question for the institution it was built from.

The data

The investigation

The clock

The moratorium that isn’t

What the scaffold reveals

Sources