Declaration of Judge Kittichaisaree appended to the Order of the Chamber of 18 July 2026 in the Cases concerning an inquiry by the International Seabed Authority (Lists of Cases Nos. 34 and 35)

Authoritative text

DECLARATION OF JUDGE KITTICHAISAREE

1. The multilateral legal regime established under Part XI of the Convention and the 1994 Agreement relating to the Implementation of Part XI thereof is an edifice built upon monumental expectations. Sponsoring States and contractors have invested decades of scientific research, technological innovation and vast financial capital in the prospect of deep seabed mining. They have done so under a grand, treaty-bound promise – the promise of a forthcoming, stable deep seabed exploitation regime that will benefit mankind as a whole while respecting the legal and procedural rights of those who pioneer the erstwhile uncharted frontier. The Applicant finds itself in a state of suspended anticipation, holding its own "great expectations" of future progress and financial gains.

2. This case tests the practical administration of the institutional architecture established under the Convention and the 1994 Agreement. The exclusive mandate to manage the Area as the common heritage of mankind rests upon a delicate equilibrium: the Authority must act as a fair, transparent and impartial regulator, while contractors and sponsoring States must maintain unwavering fidelity to this multilateral legal framework.

3. This equilibrium is fundamentally compromised if regulatory compliance inquiries are perceived to lack rigorous procedural guarantees. Far from representing a victory of private commercial interests over the global commons, the protection of the Applicant's procedural rights at this stage through these provisional measures serves a profound systemic purpose: it restores and reinforces that very balance. If sponsored contractors – who commit substantial resources in reliance on this multilateral legal framework – cannot depend on stable, predictable procedural safeguards and robust due process, the cooperative architecture of Part XI of the Convention and the 1994 Agreement is undermined. By ensuring that regulatory oversight strictly adheres to these core principles of due process, fairness and transparency, this Chamber strengthens the institutional legitimacy of the Authority itself. In doing so, it provides States Parties, sponsoring States and contractors with the legal certainty indispensable to realizing the peaceful use of the Area and the equitable utilization of its resources for the benefit of mankind as a whole.

4. Concurrently, although contractors and their sponsoring States are entitled to have their legitimate interests safeguarded in the conduct of activities in the Area, the relationship between corporate personality, sponsoring State control and the integrity of the multilateral legal framework presents a profound question for the merits phase. The unique public interest nature of the Area and its resources obligates an unwavering commitment to the multilateral legal framework, under which sponsoring States must exercise "effective control" and fulfil their obligation to ensure compliance by juristic entities under their sponsorship.

5. This brings to the fore the allegation raised by the Authority that while the

Applicant asserts its rights under the Convention and the 1994 Agreement, it is a wholly owned subsidiary of The Metals Company, another wholly owned subsidiary of which (namely, The Metals Company USA, LLC) is pursuing a domestic licence to conduct seabed mining exploration activities in the Area outside of the multilateral legal framework. It is not for the Chamber at this stage of provisional measures to determine whether such actions constitute an evasion of treaty obligations or a misuse of the doctrine of separate legal personality which undermines the common heritage of mankind. At the merits phase, the Parties will have a full opportunity to present evidence and legal arguments to support their respective claims.

6. By prescribing these provisional measures, the Chamber reinforces the principle that all actors within the Area are bound by the rule of law. It is my sincere hope – and the international community holds "great expectations" – that during the upcoming merits phase, the Authority, the Applicant and the Applicant's sponsoring State will recognize that preserving the multilateral legal framework requires absolute respect for binding judicial relief, strict adherence to due process, fairness and institutional transparency, as well as an unyielding commitment to the sanctity of the deep seabed mining regime under the Convention and the 1994 Implementation Agreement. (Signed)

Kriangsak Kittichaisaree