Capturing the Ocean Floor
Stephany Corzantes
A Canadian company, The Metals Company (TMC), recently applied for U.S. government approval to mine the deep seabed. Specifically, parts of the Pacific Ocean outside any country's borders. Instead of going through the usual international process run by the United Nations International Seabed Authority, TMC is asking for a license under U.S. law called the Deep Seabed Hard Mineral Resources Act (DSHMRA), which allows U.S. companies to explore the ocean floors.
This unusual legal approach raises an old but essential question: Who has the right to use resources in the global commons, and under what legal basis? This issue cannot be directly resolved by common law, since international and statutory laws apply. Nevertheless, property law offers the framework of the first possession doctrine, established in Pierson v. Post, that, by applying it, we might gain some valuable insights, making it worth engaging in this academic exercise.
The first possession doctrine is one of the oldest ideas in property law. This doctrine holds that a person who first takes possession of a previously unknown resource has a stronger legal claim than anyone who comes later. In Pierson, Lodowick Post believed he had a right to the property of a fox he was pursuing with his hounds. Unfortunately for him, Pierson ended up killing and taking the fox. The court reasoned that a “fox is an animal feræ naturæ, and that property in such animals is acquired by occupancy only.” The court ruled that simply chasing a wild fox did not create legal ownership; capturing it did. In other words, possession, not intention, creates rights.
TMC could perhaps argue for mining rights according to this logic. It has allegedly invested in exploring parts of the seabed and now seeks to secure the right to extract minerals before other companies can. Just as Pierson had the right to property over the fox after capturing it, TMC wants ownership of the seabed by holding permits that allow the company to extract the valuable minerals. By being first, TMC could establish priority and a right to property under U.S. law.
Yet it seems difficult to believe that the first possession doctrine alone can justify private claims over unowned, globally significant resources. What’s the difference? Perhaps the answer is that the seabed is not a wild fox to be captured—it is a shared, fragile ecosystem with long-term value for all humanity. Indeed, the public trust doctrine provides an opposing view. In Illinois Central Railroad Co. v. Illinois (1892), the court struck down a state grant of waterfront property to a private railroad in order to preserve such spaces for public use. The public trust doctrine may limit what the government allows private companies, such as TMC, to do, especially when it comes to natural resources intended to benefit all people, not just a select few. Conceivably, granting licenses like TMC’s risks prioritizing private gain over shared stewardship.
Relying solely on the first possession rule to justify private claims to the seabed is deeply flawed. While Pierson rewards those who act quickly to seize unclaimed resources, applying that logic to the deep ocean ignores the unique nature of the global commons. The public trust doctrine reminds us that some resources should not be commodified simply because someone arrived first. Allowing companies like TMC to claim rights based on early exploration risks turning the ocean into a race for profit rather than preserving it for the public good. The first possession doctrine, when stretched to fit international waters, leads to outcomes that are not only legally questionable but also ethically shortsighted. The law must evolve to reflect the reality that some resources, like the seabed, are too important to be claimed by whoever shows up first.
Stephany Corzantes is a law student with advanced standing at the American University Washington College of Law and an accredited lawyer in Guatemala with an interest in international environmental law.
Image: Liquid Art, Drina River Starting Point Underwater - The place where Piva and Tara river waters meet.
