Before Exploitation Begins: What the NORI and TOML Orders Mean for ISA Accountability

On 18 July 2026, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea issued orders on requests for provisional measures submitted by Nauru Ocean Resources Inc. (NORI) and Tonga Offshore Mining Ltd. (TOML) in their respective proceedings against the International Seabed Authority (ISA). The Chamber did not suspend the ISA’s ongoing inquiry into possible contractor non-compliance. It nevertheless prescribed procedural safeguards governing how the inquiry must be conducted. The orders thus preserve the ISA’s supervisory role while making clear that the exercise of that authority is subject to judicial scrutiny where procedural fairness is at stake.

The importance of that conclusion lies partly in its timing. The cases arose at a time when commercial exploitation of deep-seabed minerals had not yet begun and debate over the Area remained focused primarily on environmental protection, exploitation regulations, and the common heritage of mankind. The orders draw attention to a different question: what procedural obligations govern the ISA when it investigates contractors under Part XI of the United Nations Convention on the Law of the Sea (UNCLOS).

The Inquiry and the Dispute

NORI and TOML hold ISA exploration contracts for polymetallic nodules in the Area. Under Part XI and the 1994 Agreement relating to its implementation, the ISA organizes and controls mineral-related activities beyond national jurisdiction. Its Council exercises principal decision-making and supervisory functions, while the Legal and Technical Commission (LTC) reviews plans of work, monitors contractor performance, and advises the Council on compliance-related matters.

In July 2025, the Council requested additional information from contractors considered at risk of non-compliance and directed that the information be forwarded to the LTC. In March 2026, it took note of the Commission’s identification of contractors requiring specific attention and directed that the inquiry continue with due process, transparency, and fairness at every stage.

The immediate controversy was procedural. NORI and TOML argued that they had not received sufficient notice, particulars, or explanation of the legal and procedural basis of the questions put to them. In their view, the lack of clarity impaired their ability to understand the case they were expected to answer and to participate effectively in the inquiry. NORI also argued that the process could affect its pending application to extend its exploration contract, which was due to expire on 22 July 2026. The ISA Council later granted a five-year extension on 20 July 2026.

The ISA responded that neither contractor had been found to be in breach of its obligations. They had merely been identified for possible non-compliance, and the inquiry remained preliminary. The Authority characterized the process as part of its ordinary supervisory responsibilities and argued that the applicants were seeking judicial intervention before any final regulatory decision had been made.

The Chamber approached the cases within this procedural frame. It was not deciding whether commercial deep-seabed mining should begin, whether either contractor had violated its obligations, or whether any sanction would ultimately be justified. At the provisional-measures stage, the narrower question was whether the manner in which the inquiry was being conducted created a real and imminent risk that irreparable prejudice would be caused to the rights claimed before the Chamber could render its judgment on the merits.

The cases therefore raise issues with a distinct administrative-law character. Their immediate concern is not the substantive merits of a regulatory decision, but the procedures through which an international authority investigates and supervises actors subject to its regulatory powers.

Due Process and the Limits of Article 189

The Chamber first found that a dispute appeared to exist over whether the ISA had observed due process in conducting the inquiry. It also accepted that activities in the Area may give rise not only to substantive rights and obligations, but also to procedural rights governing the exercise of the Authority’s supervisory functions. In particular, the right to due process in an inquiry concerning possible non-compliance was sufficiently connected to the legal relationships established by UNCLOS, the ISA’s institutional framework, and the contractors’ exploration contracts. Procedural fairness was therefore not merely a matter of administrative convenience or good practice, but part of the legal framework governing activities in the Area.

The Chamber further found those procedural rights plausible, relying particularly on the Council’s instruction that the inquiry be conducted with due process, transparency, and fairness, together with other relevant Council and LTC documents. Rather than articulating a comprehensive code of international administrative procedure, it grounded the applicants’ claims in the framework already governing the inquiry.

The more difficult issue concerned Article 189 of UNCLOS. That provision limits judicial review of the ISA’s discretionary powers and prevents the Chamber from substituting its own discretion for that of the Authority. The ISA relied heavily on this limitation in arguing against judicial intervention.

The Chamber accepted that Article 189 prevents it from substituting its judgment for that of the ISA on matters committed to the Authority’s discretion, including decisions about which contractors warrant scrutiny and what regulatory conclusions should ultimately be reached. Reviewing whether a contractor had been given a meaningful opportunity to understand the process, know the case it had to answer, and respond within a reasonable period, however, did not require such substitution. It required only an assessment of whether the ISA was exercising its authority through lawful procedures. In other words, Article 189 protects discretion from substitution; it does not protect procedure from scrutiny.

Urgency and Procedural Harm

The Chamber then considered whether continuation of the inquiry created a real and imminent risk of irreparable prejudice. A later judgment might, in principle, declare the process unlawful or require it to be repeated. Yet the opportunity to participate meaningfully exists while the inquiry is underway. If a contractor does not know the applicable procedure, the legal basis of the inquiry, or the information needed to answer the questions put to it, that opportunity may be lost as the process advances. A later judgment may not fully restore that lost opportunity once the inquiry has advanced and institutional positions have begun to harden.

The NORI order illustrates the point particularly clearly. Because NORI’s exploration contract was due to expire and its extension application was still pending at the time of the order, the Chamber required the ISA to observe the relevant legal framework, including due process, in dealing with both the compliance inquiry and the extension procedure. This did not predetermine whether the extension should be granted. It ensured only that the route to that decision remained procedurally lawful.

The Remedy: Supervision Without Paralysis

The applicants’ principal request was for suspension of the inquiry. The Chamber declined to grant that relief. It did not prevent the LTC from continuing its work, prohibit the Council from considering the matter, or otherwise restrict the ISA’s exercise of its supervisory functions.

Instead, the Chamber adopted a narrower remedy. The inquiry could continue, but subject to clearer procedural safeguards. In both cases, the ISA was required to act in accordance with the relevant legal framework, including rules of due process. It was also required to clarify or provide information concerning the applicable procedures and the questions put to each contractor, so that the contractor could engage constructively and respond meaningfully within a reasonable period.

The parties were further required to cooperate and refrain from any action that might aggravate or extend the disputes. NORI, TOML, and the ISA were directed to submit initial reports on implementation by 31 August 2026, and allowed the President of the Chamber to request further information thereafter.

The remedy preserved the ISA’s ability to continue the inquiry while addressing the procedural risks identified by the Chamber. A full suspension, by contrast, would have curtailed the Authority’s supervisory functions before any final determination of non-compliance had been made. Yet allowing the inquiry to proceed without adequate procedural safeguards would have risked insulating the Authority’s regulatory power from meaningful review in practice.

Under the principle of the common heritage of mankind, the ISA bears responsibilities extending beyond the protection of contractors’ commercial interests. It must act on behalf of the international community and safeguard broader regulatory and environmental interests. But those responsibilities do not authorize administrative opacity. An institution exercising international public authority strengthens its legitimacy when its decisions are reached through fair and intelligible procedures.

The orders therefore leave supervision where Part XI places it—with the ISA—while insisting that the Authority exercise that supervision through a process that respects the legal position of those subject to it.

Why the Orders Matter

The orders are likely to matter beyond these two cases in three respects. First, they may influence the design of future ISA compliance procedures by requiring adequate notice, clearly framed questions, and a meaningful opportunity to respond. Second, they confirm that Article 189 does not exclude review of procedural legality, even where the underlying regulatory judgment remains within the ISA’s discretion. Third, they show that provisional measures may protect participation rights before an administrative process produces a final decision, without freezing the process itself. The reporting requirement allows the Chamber to monitor implementation without assuming control of the inquiry.

Seen in the broader context of ITLOS case law, the orders reflect an institutional approach also visible in the Tribunal’s advisory opinions: providing legal clarification without assuming responsibility for administering the underlying regime. That approach can be seen in its advisory opinions on sponsoring-State responsibilities, fisheries, and climate change. The present cases were different, however, because they arose in contentious proceedings during an ongoing administrative process. The Chamber therefore confined itself to identifying the procedural conditions governing the ISA’s exercise of authority, without displacing the regulatory choices entrusted to the Authority under Part XI.

Conclusion

The orders of 18 July 2026 do not resolve the merits of the disputes or answer the larger political question whether commercial deep-seabed mining should proceed. Their importance lies in confirming that the ISA may continue to investigate possible contractor non-compliance, but must do so through a process that gives affected parties adequate notice and a genuine opportunity to respond.

The orders are important to the evolving understanding of accountability under the Part XI regime, particularly before exploitation begins. They show that the legitimacy of that regime depends not only on the substantive standards governing activities in the Area, but also on the procedures through which those standards are applied. Regulatory authority and procedural accountability are not competing principles under Part XI, but mutually reinforcing conditions of lawful international administration.