Equitable Access to Ocean Nodules

Conflicts over natural resources are inseparable from human history. As technology has advanced, however, competition over certain resources has only grown. Over the past few decades, there has been an ever-increasing need for critical minerals, which are essential for national security as they are crucial for everything from renewable energy to weapons systems. One such source is polymetallic nodules (“nodules”), found on the seabed floor of the Clarion-Clipperton Zone (“CCZ”) in international waters. Competition over who gets the right to extract this resource has intensified in recent years, and while there have been international efforts to create a workable framework, actions taken by countries such as the United States have complicated that process.

While the international order will hopefully produce a workable framework, an analysis of resource allocation within U.S. law could provide valuable insight into how a framework could operate. In Tyler, the court was determining the rights of riparian owners on a river. Both parties operated mills on the river, but the defendant had constructed a dam which diverted water toward their mills, impacting the operation of the plaintiff’s mills. The court determined that each riparian owner had a right to use the water flowing over it in its “natural current, without diminution or obstruction,” but had “no property in the water itself.” Because the water was common to all, “there must be allowed…a reasonable use,” and “the true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not.” An exclusive right could be established in two ways: by grant from all affected proprietors, or through “twenty years of exclusive uninterrupted enjoyment,” which creates a conclusive presumption of a grant or right.

This doctrine provides useful insight into the dispute over nodules on the seabed. Nodules are, of course, distinct from flowing water, so applying Tyler requires extending its reasoning from water rights to resources located on the seabed. However, because both involve resources treated as common to all, that extension is reasonable. Under Tyler, because nodules are found in international waters to which no country holds exclusive title, they function as a resource “common to all,” and “the true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not.” Countries that receive an initial allocation of rights to portions of the CCZ occupy the role of riparian owners. While there would need to be a determination of initial allocation among countries, once established, each would be entitled to make reasonable use of their portion without diminishing the ability of others to benefit. Part of the difficulty in developing a framework is allowing some way for less-developed nations to benefit from extraction. A country engaged in large-scale extraction could argue that its use constitutes a “reasonable use” of a shared resource in international waters. Other countries, however, could argue that extraction by a small number of technologically advanced states would diminish their own ability to benefit from the resource and would therefore operate to their injury. As for the two exceptions, while less-developed countries could grant their extraction rights to more technologically advanced states as a way of still receiving some benefit, no country appears to have the kind of “twenty years of exclusive uninterrupted enjoyment” that would establish a superior claim. On balance, the Tyler framework would result in a more equitable distribution of these resources, as no country has yet established a superior claim to any portion of the CCZ.

Using the framework in Tyler would, at the very least, prevent a “race to the bottom” that would only enrich the countries with the resources to extract from international waters, to which no country owns exclusive rights under current international law. The rule in Tyler would enable a more equitable distribution of these resources, which UNCLOS considers “the common heritage of mankind,” similar to the water in Tyler, which is framed as being “common to all.” While ultimately many smaller and less-developed states would likely grant their rights to countries with greater extraction capacity, those states would still receive some benefit. Furthermore, because rights to certain areas of the CCZ would be allocated in advance, states and companies would have greater incentive to carefully consider the environmental impacts of extraction and how to minimize those threats—a consideration that becomes especially important given the largely uncharted nature of this part of the ocean.

Nathan Konchak is a law student at the American University Washington College of Law with an interest in national security law and public policy.

Image: Philweb, Champ de nodules dans le Pacifique équatorial nord.