Can a Private Company Litigate the Common Heritage of Mankind? NORI, TOML and the Contractual Temptation
By Francisco Javier Rozas Porras
Published on 29 July 2026
The first surprise is not that deep-sea mining has reached the courtroom. It was always going to. The surprise is who arrived there first.
For half a century, the legal imagination of the deep seabed was populated by States, by the International Seabed Authority (ISA), by developing countries, by future generations, and by that elusive litigant of last resort, humankind itself. The Area and its resources, Part XI of the United Nations Convention on the Law of the Sea (UNCLOS) declares, are the common heritage of mankind. Its minerals were not to be captured by unilateral appropriation, strategic urgency, or private acceleration; they were to be administered through an international regime designed to place law before extraction rather than after it. At least in theory. At least until now.
On 30 May 2026, Nauru Ocean Resources Inc. (NORI) and Tonga Offshore Mining Ltd. (TOML), two exploration contractors sponsored by Nauru and Tonga and subsidiaries of The Metals Company, instituted parallel proceedings against the ISA before the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, entered as Cases No. 34 and 35. Each challenges the manner in which the Authority is conducting an inquiry into possible contractor non-compliance, and each requests provisional measures that would suspend the inquiry and prevent its findings from being communicated or relied upon. The hearing on provisional measures opened on 2 July 2026. On 18 July 2026, the Chamber delivered its Orders—unanimous, and in nearly identical terms in the two cases. These are the first contentious cases ever brought by private contractors against the Authority. With the Orders of 18 July, they are also the first in which the Chamber has ever spoken. Procedurally, they are narrow. Constitutionally, they may prove far-reaching.
They raise an uncomfortable question: can a private company litigate the common heritage of mankind?
The formal answer seems straightforward enough: yes. UNCLOS built a sophisticated system in which contractors enjoy legal personality within the seabed regime and may bring certain disputes against the Authority under Article 187. The proceedings are not an institutional accident; they are part of the architecture of Part XI. The more interesting question, however, is not whether contractors may litigate, but what kind of pressure such litigation places on an organisation whose subject matter is not an ordinary commercial asset, but a resource legally reserved for humankind as a whole.
The Contractual Temptation
The history of the law of the sea, Bernard Oxman reminded us, can be told as the story of the territorial temptation: the recurring impulse of States to project sovereignty seaward. The deep seabed regime was designed as the great exception, the one part of the ocean where enclosure was prohibited in the name of common benefit. What the NORI and TOML cases reveal is a newer and subtler impulse, which might be called the contractual temptation: the impulse to reconceive a public, fiduciary, and intergenerational regime as a bundle of private entitlements enforceable against the regulator. The territorial temptation came from States claiming outward. The contractual temptation comes from corporations claiming inward, into the institution itself.
What might that temptation look like in practice? Cases 34 and 35 offer an early illustration. NORI and TOML did not ask the Chamber to review a sanction, annul a decision, or award compensation. They asked it to suspend an inquiry: to step into the regulatory process while it is still unfolding, and to prevent its findings from being communicated or relied upon. The claims were framed in the familiar vocabulary of administrative fairness—due process, confidentiality, legitimate expectations—and, taken individually, each was perfectly recognisable. That, perhaps, is what makes the temptation so subtle. Nothing here presents itself as a challenge to the common heritage; it presents itself as a contractor asking for procedural courtesy.
The difficulty lies in accumulation rather than in any single claim. Each time a procedural entitlement is asserted and vindicated against the regulator, the relationship between the Authority and its contractors may be quietly redescribed. What Part XI conceives as public stewardship—an international organisation administering a resource on behalf of humankind, including future generations—risks being recast, step by step, as something closer to a bilateral commercial relationship, in which the regulator owes its counterparty predictability, restraint, and comfort. None of this need involve bad faith on anyone’s part. It may require little more than that litigation set the frame, and that the frame go unexamined.
Timing arguably amplifies the effect. These proceedings arrive before the world has agreed on the final rules of exploitation—before commercial mining, before any environmental harm, before any dispute over benefit-sharing. The common heritage principle is arguably at its most fragile at precisely this point: once capital, infrastructure, and expectations accumulate, restraint may become progressively harder, and law risks becoming a way of managing inevitability rather than of deciding whether exploitation should proceed at all. Litigation that constrains the regulator now, however procedurally framed, may help to set the pace later.
None of this means that contractors are not entitled to fairness. Of course they are: the Authority must act lawfully, transparently, and without discrimination; a public international organisation cannot credibly protect the common heritage by ignoring procedural guarantees. The concern is narrower: that procedural rights, invoked early and often, may come quietly to rewrite the hierarchy of values in Part XI without anyone ever quite deciding that they should. The Authority’s duty to regulate, to investigate, and to protect the marine environment sits uneasily beside a contractor’s expectation of regulatory comfort, and much depends on which of the two ends up framing the dispute. If the dispute is seen only as a matter of contractual due process, the deeper question risks slipping out of view.
What the Chamber Kept in View
https://blog.ifila.org/2026/06/19/the-first-contractor-claims-against-the-isa-an-isds-like-dispute-under-unclos/On 18 July 2026, the Chamber gave its first answer. It did not turn the provisional measures phase into a grand theory of the common heritage; neither did it treat the dispute as a routine administrative disagreement detached from the structure of Part XI. In two unanimous Orders, it declined the most far-reaching relief sought: the inquiry was not suspended, and its eventual findings were not placed under seal. Availing itself of its power to prescribe measures different from those requested, the Chamber instead ordered the Authority to act in accordance with the relevant legal framework, including rules of due process, in the conduct of the inquiry—and, in NORI’s case, in the procedure for the extension of its exploration contract, a procedure whose urgency needed little demonstration, since the contract was due to expire within days of the reading. It ordered the Authority to clarify the procedures being followed and the questions posed, so that each contractor can respond meaningfully and within a reasonable time; and it directed the parties to cooperate and to refrain from aggravating the dispute. Nor did the Chamber simply pronounce and withdraw: initial compliance reports are due from both sides by 31 August 2026, and the President of the Chamber stands authorised to request further information thereafter. The measures are modest in form. They are not trivial in substance: for the first time in its history, the Authority is conducting a regulatory process under the continuing supervision of a court.
It is worth pausing over what the Chamber did with the Authority’s assurances. The Authority had formally undertaken before the Chamber that NORI’s extension application would be handled fairly, lawfully, and separately from the inquiry. The Chamber took note; it accepted that such assurances might help alleviate the risk; and it found that they did not fully address the procedural concerns raised. International organisations appearing before international courts may wish to reflect on that sequence. An undertaking given at the bar is welcome, and it counts; it is no longer, by itself, dispositive. In a regime built on confidence in institutions, the Chamber has quietly signalled that confidence will henceforth be verified.
To arrive there, the Chamber first had to pass through Article 189 of the Convention, which bars it from pronouncing on the Authority’s exercise of its discretionary powers. It did so by locating due process outside the gate: the observance of due process, the Chamber held, is “extraneous” to the exercise of discretion, so that reviewing how the Authority proceeds is not reviewing what the Authority decides. The distinction is elegant, and it is doing a great deal of work. Administrative lawyers have spent a century discovering how porous the line between procedure and substance can be; every enlargement of what process requires narrows, by exactly that measure, the domain of unreviewable discretion. It is on that line—drawn with confidence at the provisional measures stage, and certain to be contested at the merits—that the contractual temptation will now be tested. Yet the source from which the Chamber drew the contractors’ rights deserves equal attention, for it points in a more reassuring direction. The right to due process was found plausible not because the Chamber imported the protective standards of investment arbitration, but because the Council itself had mandated that the inquiry be conducted with due process, transparency, and fairness at every stage. The Authority, in other words, was held to its own word. That is a very different proposition from the quasi-investment framework some feared: it treats judicial review not as an external discipline imposed upon the regime, but as a mechanism of internal accountability—the institution’s own promises, made enforceable.
It is telling that both parties could claim vindication, and that both were right. The Metals Company welcomed the Chamber’s unanimous findings that the contractors’ asserted rights to due process and fair treatment are plausible and face a real and imminent risk of irreparable prejudice; the Authority observed, with equal accuracy, that the inquiry remains in effect and will be implemented. That the Orders can sustain both readings is not an ambiguity to be regretted; it is the point. The Chamber ordered the regulator to explain itself, not to stop. And it took care to say why, describing the Authority and the Chamber as discharging separate but mutually reinforcing roles within Part XI, on whose equilibrium the integrity of the regime depends, and its own power over provisional measures as serving not only the litigants before it but the sound administration of justice in matters touching the Area. That framing repays attention. A chamber that understands interim relief in those terms is not umpiring a commercial standoff; it is tending an institution. Judicial oversight has arrived at the seabed; regulatory paralysis has not.
The Orders appear alert to the difference between protecting procedural rights and entrenching corporate leverage. Part XI gives contractors a place within the system; it is less clear that it gives them a veto over the system’s public purpose. By declining to suspend the inquiry while insisting that it be explained, the Chamber granted the place and withheld the veto. It is also worth remembering who is missing from the room. Humankind is the ultimate beneficiary of the Area, but it is not the procedural protagonist. Contractors can appear; the Authority can respond; sponsoring States stand in the background; civil society may influence the debate but not the pleadings. Future generations are legally invoked and institutionally absent. Humankind has no shareholder meeting, no board of directors, and no seat in the courtroom. The Authority’s discretion matters for precisely that reason.
The seabed is often described as the last frontier. The metaphor deserves some caution: frontiers are places where law tends to arrive late, after extraction has already begun. UNCLOS attempted something more ambitious—to place law before the frontier. The NORI and TOML proceedings have now put that ambition to its first judicial test, and the Orders of 18 July suggest that it has survived the encounter—for the time being, and pending the merits.
The task is not to deny contractors access to justice; it is, rather, to remain attentive to the possibility that access to justice might quietly become access to acceleration. The Chamber’s first word on the subject—measured, unanimous, deliberately modest—suggests a bench attentive to precisely that risk. A private company may litigate within the common heritage regime. The harder question is how to ensure that it does not, in the process, litigate the common heritage away.
Francisco Javier Rozas Porras is a PhD Researcher in Dehukan Institute, Ankara University in Türkiye. He has an LLB and an LLM (Maritime Law) from the Icade University Madrid, Spain.