Institutional Discretion, Due Process and the Common Heritage of Humankind: The First Provisional Measures Orders in NORI and TOML v. the Authority

The first contentious proceedings ever brought before the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (the Chamber) concern far more than a procedural dispute between two contractors and the International Seabed Authority (the Authority). They represent the first judicial examination of the legal limits of the Authority’s discretion when exercising the supervisory and regulatory powers conferred upon it by Part XI of the United Nations Convention on the Law of the Sea (UNCLOS) and the 1994 Agreement. As the Authority moves from exploration to exploitation, defining those limits will become increasingly important.

The Chamber’s Orders of 18 July 2026 on provisional measures do not resolve the dispute on the merits. Nevertheless, they provide the first judicial guidance on how the Authority’s discretionary powers should be exercised pending that determination. More fundamentally, they suggest that the Authority’s discretion cannot be understood in isolation from the institutional framework established by Part XI, within which effective regulation and procedural fairness form part of the same legal order.

These proceedings arose at a particularly sensitive moment for the functioning of the Authority. In April 2025, the United States adopted Executive Order 14285, directing federal agencies to facilitate deep-seabed mining under domestic legislation, including in areas beyond national jurisdiction. Shortly afterwards, The Metals Company (TMC), the parent company of Nauru Ocean Resources Inc. (NORI) and Tonga Offshore Mining Ltd. (TOML), announced its intention to pursue commercial mining through its US subsidiary, TMC-USA. These developments raise broader questions concerning the coexistence of the multilateral regime established by Part XI and emerging unilateral approaches to deep-seabed mining. Those issues lie beyond the scope of this post and have been examined elsewhere on EJIL:Talk! (here and here).

Against this background, the Council of the Authority requested the Legal and Technical Commission (the Commission) to conduct an inquiry into possible contractor non-compliance. At the same time, it emphasised that the inquiry had to be conducted in accordance with the principles of due process, transparency, and fairness, including by ensuring that both contractors and sponsoring States were given an effective opportunity to respond (Council Decision ISBA/30/C/19, paras. 9 and 10; Council Decision ISBA/31/C/18, para. 4).

It was in this context that NORI and TOML sponsored respectively by Nauru and the Kingdom of Tonga, instituted parallel proceedings against the Authority (Cases Nos. 34 and 35). They argued that the inquiry had been conducted without the procedural guarantees required by the Council’s decisions, the Commission’s established methodology, and their exploration contracts. In particular, they alleged that they had been designated as contractors requiring “specific attention” without adequate notice or disclosure of the factual and legal basis for that designation.

Although confined to provisional measures, the Orders are significant beyond the immediate dispute. They are the first judicial pronouncement of the Chamber on the exercise of the Authority’s supervisory powers in contentious proceedings brought by contractors. This post argues that the principal contribution of these Orders lies not in the specific measures prescribed, but in the legal framework within which the Chamber chooses to assess the dispute.

Interim measures and the institutional framework of Part XI

The Orders interpret Article 290(1) UNCLOS as serving not only to protect the parties’ respective rights, but also the broader objective of ensuring the proper administration of justice in matters concerning activities in the Area and the effective implementation of the common heritage of humankind regime established under Part XI. In doing so, the Chamber makes clear that provisional measures must be assessed within the broader institutional framework governing activities in the Area, where the Authority and the Chamber perform distinct yet complementary functions (paras. 58–64 and 44–51).

From that perspective, the Chamber recalls that Article 311(6) safeguards the common heritage principle embodied in Article 136, which informs the interpretation of all provisions governing activities in the Area. It also reiterates that contractors possess no autonomous entitlement to exploit the resources of the Area. Their rights derive from the Convention, the Authority’s regulatory framework, and the terms of their contracts. The exercise of the Authority’s supervisory powers must therefore be understood within the legal framework established by Part XI, rather than through the narrower lens of contractual rights alone. Judge Kittichaisaree’s Declaration emphasises this interpretation by describing Part XI as resting upon a ‘delicate equilibrium’ between the Authority’s role as regulator and the protection of contractors’ procedural rights (para. 2).

Against that background, the Chamber declined to suspend the inquiry and accepted the Authority’s view that it has broad powers to control activities in the Area and is tasked with ensuring the compliance of contractors. Instead, it allowed the Authority to continue exercising its supervisory functions, while making clear that the inquiry had to be conducted in accordance with the applicable requirements of due process. While preserving the Authority’s power to conduct the inquiry, the Orders required it to provide the applicants with sufficient information to enable them to exercise effectively their right to be heard within a reasonable time. The Chamber also directed both parties to cooperate and to refrain from taking any action that might aggravate the dispute.

The Authority is more than a contractual counterparty

The significance of the Orders lies not only in the solution adopted by the Chamber, but also in the interpretative choices it rejected. The Chamber could have approached the dispute primarily as a contractual matter, deriving the applicable procedural guarantees from the exploration contracts and the exploration regulations. Equally, it could have adopted a more deferential approach, allowing the compliance inquiry to run its course before exercising judicial review. At the opposite end of the spectrum, it could have suspended the inquiry altogether pending the determination of the merits.

Instead, the Chamber adopted an intermediate position. It neither reduced the dispute to the contractual relationship between the Authority and the contractors, nor displaced the Authority’s supervisory functions. Rather, it recognised that the Authority exercises public powers conferred upon it by Part XI, while making clear that the exercise of those powers remains subject to judicial scrutiny where procedural rights are at stake.

This approach reflects the distinctive legal nature of the regime governing activities in the Area. Exploration contracts are not ordinary commercial agreements. They are the legal instruments through which the Authority organises and controls activities in the Area on behalf of humankind as a whole, in accordance with Articles 136 and 137 of the Convention. The contractual relationship therefore cannot be detached from the broader institutional framework established by Part XI.

This distinction is likely to become increasingly relevant as the Authority exercises a broader range of supervisory and enforcement powers under the future Exploitation Regulations. Judicial review will therefore concern not only contractual disputes, but also the manner in which those powers are exercised under the Convention and 1994 Agreement.

Protecting contractors’ rights within Part XI

The Chamber’s institutional approach does not diminish the procedural protection afforded to contractors. On the contrary, it recognises that the applicants have a plausible claim to due process and fair treatment, including the right to be informed of the allegations against them, to respond to those allegations, and to have any decision affecting their rights taken through a lawful, transparent and impartial procedure (paras. 173 and 195). It further concludes that the continuation of the inquiry, without those safeguards, creates a real and imminent risk of irreparable prejudice to those procedural rights before the merits of the dispute can be decided. On that basis, it finds that the requirement of urgency under Article 290(1) is satisfied and prescribes provisional measures (paras. 176 and 198).

The Chamber is careful, however, not to prejudge the merits of the dispute. The Orders neither determine whether the Authority acted unlawfully, nor resolve the scope of its supervisory powers. Those questions remain for the merits. What the Orders do establish is that any future assessment of the Applicants’ claims must proceed within the legal framework established by Part XI, the relevant Annexes to the Convention, and the 1994 Agreement. In that sense, the provisional measures already define the legal framework within which the Chamber will examine the dispute.

Conclusion

Ultimately, these proceedings concern more than the procedural guarantees applicable to a particular compliance inquiry. They raise broader questions about how the Authority should exercise the institutional responsibilities entrusted to it under Part XI while ensuring effective judicial protection for those subject to its regulatory powers. The Orders preserve the Authority’s institutional autonomy, but they also make clear that the exercise of its supervisory powers must be accompanied by procedures that are transparent, predictable, and capable of ensuring the effective protection of contractors’ procedural rights.

At the same time, the Orders represent only the first stage of the proceedings. By their nature, provisional measures do not determine the merits of the dispute, and the Chamber has been careful not to prejudge the parties’ substantive claims. The forthcoming judgment will provide the first opportunity to clarify the legal scope of the Authority’s supervisory powers, the procedural standards governing compliance inquiries, and the relationship between contractors’ contractual rights and the institutional responsibilities conferred upon the Authority under Part XI.

Whatever the outcome on the merits, the Orders already point towards a broader institutional development. As the Authority moves from exploration to exploitation, the transition will not be merely regulatory. It will also be institutional. Questions concerning inspections, compliance procedures, and enforcement are likely to become as important as the substantive rules governing activities in the Area. The effectiveness and legitimacy of the common heritage regime will therefore depend not only on the content of the future Mining Code, but equally on the Authority’s ability to exercise its public functions through transparent, coherent, and legally robust procedures. In that respect, the significance of these Orders extends well beyond the present dispute. They mark the beginning of what is likely to become the Chamber’s jurisprudence on the institutional balance between effective regulation and procedural fairness under Part XI.

Views and opinions expressed in this post are those of the author and do not necessarily reflect the official views or positions of the Kingdom of Spain.