A legal analysis released this week by the Pacific Network on Globalisation (PANG) has raised fresh alarm over the terms of Tonga’s sponsorship agreement with Tonga Offshore Mining Limited (TOML), warning the contract grants sweeping investor protections and exposes the kingdom to costly legal liabilities abroad. The report, prepared by University of Auckland Emeritus Professor Dr Jane Kelsey, finds clauses that could allow TOML to challenge Tongan laws and policy changes in offshore jurisdictions, a development campaigners say is especially worrying as the International Seabed Authority (ISA) meets in Kingston, Jamaica to debate deep-sea mining rules.
PANG deputy coordinator Adam Wolfenden said the contract resembles an “old generation” bilateral investment treaty, tilting rights heavily in favour of the corporation. “This sponsorship deal is a callback to investor agreements that give all the advantages to the corporation, including the right to sue the Tongan government for changes in policy and law in pro-investor, foreign jurisdictions,” Wolfenden said, calling the analysis a “wake-up call” for Pacific states considering similar arrangements. The legal brief concludes TOML could pursue arbitration in an offshore forum — Wolfenden specifically warned TOML could challenge Tongan laws in Singapore — and that Tonga may face enforcement of awards without clear safeguards or notification requirements.
Dr Kelsey’s review identified numerous provisions in the TOML agreement that would grant extensive rights to the company and impose significant obligations on Tonga, including protections for TOML’s “expectations” of profit and mechanisms to resolve disputes through ad hoc private arbitration. She warned that such investor-state dispute resolution processes operate extraterritorially and lack many hallmarks of public legal systems, effectively prioritising corporate claims over domestic regulatory space. The analysis signals a legal exposure that critics say is inconsistent with the precautionary approach many Pacific civil society groups have been urging.
The timing of the analysis is significant. The ISA’s 31st session is currently considering the Mining Code — the rules that would govern deep-sea mining activity in international seabed areas — and the authority’s council remains divided on whether and how to finalise regulations. PANG and other campaigners argue that while the ISA process is unresolved, individual states sponsoring private operators should not be entering deals that cede broad rights or create offshored liabilities. The legal brief underscores how national decisions on sponsorship can precede and be complicated by incomplete international governance.
Tongan civil society and church leaders have seized on the analysis to press for caution. Latai Halafihi of the Civil Society Forum of Tonga said the nation must not be rushed into commercial mining at the cost of sovereignty and environmental protection. “Racing ahead without clear international safeguards exposes our nation to dangerous liabilities and undermines the very principles of sustainable development we stand for,” Halafihi said. Reverend Ikani Tolu of the Tonga National Council of Churches urged a precautionary moratorium, pointing to knowledge gaps, potential transboundary impacts and the high value of deep-sea biodiversity and ecosystem services.
The PANG analysis reiterates calls for stronger domestic safeguards and for Pacific governments to resist agreements that replicate one-sided investor protections until the ISA’s rules are settled. It also places renewed emphasis on transparency — the review notes a lack of public safeguards requiring notification, financial security or limits on arbitration remedies in the TOML contract. With the ISA negotiating the Mining Code this week, campaigners say the Tonga–TOML agreement is emblematic of why clearer international rules and national legislative checks are urgently needed to prevent small island states from assuming disproportionate legal and environmental risk.
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