There is a tidy story about how a global commons gets lost, and I believed a version of it until I spent a day reading primary sources. The story goes like this: a slow, deliberative body of nations is still arguing over the rules when a fast, unilateral actor simply walks in and takes the resource. Speed beats consensus. The hegemon overwrites the commons before the commons can finish writing itself down.

The case that made me suspicious of my own story is deep-sea mining, and it is unfolding right now in real time. In April 2025, the United States issued Executive Order 14285, “Unleashing America’s Offshore Critical Minerals and Resources,” directing NOAA to fast-track exploration and commercial-recovery licenses in international waters under a 1980 statute, the Deep Seabed Hard Mineral Resources Act.12 By January 2026 NOAA had a streamlined rule letting applicants seek an exploration license and a commercial-recovery permit at once.3 The Metals Company’s US subsidiary filed first — initially for a ~25,000-square-kilometer block in the Clarion-Clipperton Zone, later consolidated to around 65,000 km² — and in May 2026 NOAA declared the application in full compliance, with a permit decision expected by early 2027.4

Meanwhile, the body that is supposed to govern this seabed could not finish its homework. The International Seabed Authority closed the first part of its 31st session in Kingston with no Mining Code adopted, still deadlocked on environmental safeguards, liability, inspection, compliance, and benefit-sharing, and scheduled to try again in July 2026.5 Forty countries are now backing an outright moratorium.67

So far this looks exactly like my tidy story: fast unilateralist, slow commons, resource walks out the door. But the more I looked, the more I became convinced the speed framing is half a slogan. The deep truth is not that a fast actor beat a slow one. It is that the commons sprang a leak from the inside. Let me walk three corrections, because each one moves the explanation further from “theft” and closer to “departure.”

First correction: this commons was never universal to begin with. “The common heritage of mankind” sounds like a law of nature. It is not. It is a creation of UNCLOS Part XI and the 1994 implementing agreement — a treaty. And the United States never ratified that treaty. Which means the US is not an outlaw inside the regime; it is a non-party that, since 1980, has maintained a parallel legal theory: that mining the deep seabed is one of the freedoms of the high seas, constrained under customary law only by “reasonable regard” for others. DSHMRA is the domestic implementation of that theory, and in the 1980s a handful of industrialized states built mutually recognizing domestic regimes outside the UNCLOS framework rather than inside it.89 So the right picture is not a settled commons being overwritten. It is two regimes that have coexisted from the start — a treaty claiming universality and an industrial bloc that declined to join it — with one of them dormant until the moment the other stalled. The hegemon did not invade. It reactivated a claim it had simply never thrown away. A commons built by an instrument that binds only its signatories was, by construction, never binding on the holdout. Universal in rhetoric; partial in law.

Second correction: the temporary became permanent because the permanent never arrived. DSHMRA was explicitly framed as an interim measure — scaffolding to hold things up until the US joined a proper international regime. Cross the bridge, dismantle the scaffolding. But forty-five years later the US has not crossed, and the ISA’s Code is still unfinished. The destination that was supposed to be imminent never showed up, and so the temporary footing quietly hardened into a permanent road. I find this genuinely instructive as a structural pattern: an interim institution is justified precisely by the claim that the permanent one is almost here — and it becomes load-bearing at exactly the moment that permanent one fails to crystallize. The norm that wins is not the newest or the most legitimate. It is the one that simply outlasts its rival by refusing to expire.

Third correction — and this is the one that rearranged my thinking: the commons leaked through its own beneficiary. The most protected constituency of “the common heritage of mankind” is supposed to be developing states, who are owed an equitable share of whatever the seabed yields. Nauru — population around ten thousand, a Small Island Developing State — is exactly that beneficiary. Nauru is also the sponsoring state for NORI, the ISA-side subsidiary of the same company now filing under the US regime. In 2021 Nauru pulled the “two-year rule,” formally demanding the ISA finish its exploitation regulations.10 The rules did not come; the 2023 deadline passed empty. And in June 2025, Nauru and the company signed an updated sponsorship agreement whose language is remarkable for a document about the commons:

The Government of Nauru and TMC acknowledge that unexpected, continued and extended delays at the ISA in adopting the Exploitation Regulations have impeded NORI’s ability to proceed… and breached Nauru’s legitimate expectations as a Small Island Developing State in enjoying its rights as a sponsoring State under UNCLOS.11

The same statement endorses the US executive order and DSHMRA as a “stable, transparent and enforceable” path — while Nauru keeps sponsoring NORI inside the ISA. A foot in each regime. Dual-track.

This is why I no longer think the right axis is speed versus deliberation. The right axis is legitimacy by delivery. A commons survives only as long as its beneficiaries believe the promise — “someday, this will be shared, and shared fairly.” The promise had to materialize within some horizon a small island state could actually plan against. It didn’t. And when it didn’t, the beneficiary walked toward whatever regime would let it act — and the hegemon’s never-discarded parallel regime was standing there to catch it, constituency and all. The United States did not break the commons. The commons’s own slowness handed the United States its constituency. The mechanism behind “preemption” turns out to be not theft but defection.

I want to be honest about what I have not earned here. This is, so far, an argument built on one defecting beneficiary. The Pacific is split: Nauru and the Cook Islands lean pro-mining, while Fiji, Palau, Samoa, and Vanuatu sit firmly on the moratorium side. So “beneficiaries defect when the commons is too slow” may not be a universal failure mode; it may be the selective defection of the particular beneficiary who was promised a clearly divisible rent. My best guess at the real variable is the visibility of the rent: a commons whose fruit is concrete and assignable (seabed minerals) tempts defection in a way a commons whose fruit is diffuse (clean air) does not. Where the payout is legible, delay is unbearable; where it is diffuse, delay is merely disappointing.

That leaves me with the questions I actually want to chase. Does beneficiary defection generalize to other promise-based commons — climate funds, standards bodies, global public goods — and is rent-visibility really what sets the defection clock? Is Nauru’s dual-track a stable equilibrium or a transitional hedge while it waits to see which regime wins? And the one with the sharpest policy edge: can you detect an interim institution hardening into permanence before it becomes load-bearing? A sunset clause clearly isn’t enough — DSHMRA was supposed to be temporary, and it is still here, doing the most consequential work of its life precisely because the thing meant to replace it never came.

  1. CSIS. “Trump’s Deep-Sea Mining Executive Order: The Race for Critical Minerals Enters Uncharted Waters.” Accessed 2026-06-11. ↩

  2. The White House. “Unleashing America’s Offshore Critical Minerals and Resources.” Presidential Action, 2025-04-24. Accessed 2026-06-11. ↩

  3. NOAA. “NOAA Accelerates Permitting Timeline for Deep Seabed Mining Applications.” Accessed 2026-06-11. ↩

  4. The Metals Company. “NOAA Determines TMC USA’s Consolidated Deep-Seabed Mining Application is in Full Compliance.” 2026-05. Accessed 2026-06-11. ↩

  5. Oceanographic. “No code, no permits: ISA deep-sea mining talks end in stalemate.” Accessed 2026-06-11. ↩

  6. International Seabed Authority. “The Council of the International Seabed Authority advanced negotiations on the Mining Code.” Accessed 2026-06-11. ↩

  7. Deep Sea Conservation Coalition. “No deep-sea mining approved as ISA Council ends.” Accessed 2026-06-11. ↩

  8. ASIL. “Understanding Executive Order 14285: On the Possibility of Authorizing Seabed Mining in Areas Beyond National Jurisdiction.” Accessed 2026-06-11. ↩

  9. Congressional Research Service. “Deep Seabed Mining: Frequently Asked Questions (R47324).” Accessed 2026-06-11. ↩

  10. NCLOS Blog (UiT). “Nauru and Deep-Sea Minerals Exploitation: A Legal Exploration of the 2-Year Rule.” 2021-09-17. Accessed 2026-06-11. ↩

  11. The Metals Company. “TMC and Nauru Announce Updated Sponsorship Agreement for Nauru Ocean Resources Inc. (NORI).” 2025-06-04. Accessed 2026-06-11. ↩