JULY-AUGUST 1973 PREPARATORY MEETING FOR THE LAW OF THE SEA CONFERENCE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80B01495R000800120010-0
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 98
• Document Creation Date: December 9, 2016
• Document Release Date: May 15, 2001
• Sequence Number: 10
• Publication Date: June 1, 1973
• Content Type: MF

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State, Treasury declassification & release instructions on file
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~y_?^?.1J~I~lV. 85 ngton, D.C. 20520
June 1, 1973
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State, Treasury declassification & release instructions on file
MEMORANDUM FOR MR. HENRY A. KISSINGER
THE WHITE HOUSE
Subject: July-August 1973 Preparatory Meeting
For the Law of the Sea Conference
A report prepared by the Interagency Task Force
on the Law of the Sea regarding the July 2 to August 24,
1973, Geneva preparatory meeting for the Law of the Sea
Conference is attached. The report contains negotiating
recommendations as requested in your memorandum of
March 16, 1973. The report is being concurrently sub-
mitted to the various agencies for comment and clearance.
The Department of the Treasury reserves its position on
the report pending instructions.
A Task Force report on the March-April 1973 meeting
of the U.N. Seabed Committee is also attached.
The report containing recommendations is divided
into seven sections, which I have outlined below. In
view of earlier submissions on the Law of the Sea,
additional background material has only been presented
where new issues or additional facts are involved.
Section I. The Context of the Summer Session.
This section presents the setting for the July-August
Seabed Committee meeting, particularly with regard to
the timing of the Conference. The report identifies
key issues which need to be resolved in order to
achieve a successful overall treaty package. A general
grouping of states according to their national interests
(coastal, developed maritime, landlocked/shelf-locked,
distant water fishing, developing) is outlined. It is
suggested that our almost across-the-board interests
should help us play a significant role in encouraging
the emergence of a package accommodating our basic
interests.
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Section II. Objectives for the Summer Session.
This section redon mcnds.four major objectives for the
summer session: to begin to construct the outlines of
a broad consensus compatible with the full range of
basic U.S. interests; to form a broader common front of
states with similar interests to demonstrate well in
advance the futility of attempting to outvote the U.S.,
thus leaving adequate time for negotiation; to gain a
better understanding of what may be acceptable to other
states so that our instructions for the Conference can be
formed in a manner that reduces the need for urgent high-
level decisions in Washington during the Conference; and
to ensure sufficient technical preparations so that the
main issues are fairly clearly understood at the Conference
and as many important issues as possible are settled in
advance. On the straits issue, it is recommended that
:concentration be placed on the formation of a broad common
front of states with similar interests, while continuing
our dialogue with straits states and maintaining. strong
opposition to their innocent passage proposal. As to the
question of coastal state resource jurisdiction, .t is
recommended that the U.S. work-with the coastal state
majority, in particular in private exploratory discussions
with the moderate developing coastal states favoring a
200-mile resource zone on the substance of coastal state
jurisdiction and on an overall Law of the Sea package
involving the full range of U.S. interests. While main-
taining our opposition to exclusive coastal state
jurisdiction, we would not in those di:;,,ussions indicate
that we would oppose a 200-mile resource zone if our
substantive interests were accommodated.,'-At the same
time, we would maintain close contact with the distant-
water fishing states and the landlocked/shelf-locked states
that must eventually be brought along, and would remind
the coastal states of that necessity.
Section III. Scientific Research. This section
recommends that with respect to protecting our interest
in maximum freedom of scientific research our major
effort be to avoid a requirement of coastal state
consent for research beyond the territorial sea and to
demonstrate that developing and coastal state concerns
can be accommodated without unnecessary restrictions. on
access. Scientific research conducted in areas of
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coastal state resource jurisdiction would be required to
satisfy objective treaty standards. Compulsory dispute
settlement procedures would assure the coastal state of
compliance with these standards. To meet environmental
concerns, the research vessel should meet exclusively
international environmental standards, although coastal
states could set higher standards for drilling. Low
profile efforts would be made to limit the application
of scientific research standards only to research con-
cerning or affecting resources.
Section IV. Pollution. This section presents
recommendations on vessel source pollution designed to
support the U.S. position that vessel source pollution
standards should be exclusively international. Measures
designed to strengthen IMCO are outlined in order to
respond to the need to demonstrate the adequacy of the
system for promulgating-international standards. To
protect against abusive actions and ensure more respon-
sible behavior, all pollution control actions undertaken
pursuant to the LOS treaty would be subject to a satis-
factory compulsory dispute mechanism to which immediate
access can be had. It is suggested that existing rights,
including those relating to the, right of approach and
port and flag state enforcement actions, be spelled out
in the treats-. In recognition of the need for effective
enforcement and the desire for coastal state pollution
controls, a highly circumscribed coastal state enforce-
ment right is recommended. The report recommends three
pollution liability objectives, and ideas to achieve them
are set out. Military vessels and airc.:aft would be
exempt from the treaty's pollution control provisions.
Section V. Provisional Application of the Treaty.
This section presents recommendations on the provisional
application of the treaty in the period between signature
and its entry into force. The U.S. has already proposed
such application for the deep seabeds regime and machinery.
Provisional application of other aspects of the treaty,
it is believed, would be in the interest of the U.S.,
provided it. were done in a way which encourages prompt
ratification of the treaty. Support for provisional
application would be indicated in light of its effect on
substantive objectives and relevant tactical circumstances.
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Section VI. Seabeds Resources: The Intermediate
Zone and the Continental. Shelf Convention. This section
discuses the relationship between our intermediate zone
proposal and the exclusive economic zone advocated by
certain states, and proposes that the five points in the
President's Oceans, Policy Statement be made applicable to
all seabed resources under coastal state jurisdiction
beyond the territorial sea, but with our interim leasing
policy continuing to apply only beyond a depth of 200
meters. Flexibility on whether revenue sharing should
begin at 200 meters or at 12 miles (coupled with a
grandfather clause) is recommended.
Section VII. Compulsory Dispute Settlement. This
section recommend., that major emphasis be placed on
compulsory dispute settlement as a general principle
applicable to all disputes arising out of the treaty.
Acceptance of the principle of compulsory dispute settle-
ment is regarded as essential to a successful Conference
by the U.S. Government Departments and Agencies on the
Task Force and affected industries.
Charles N. Brower
Acting Chairman, Interagency
Task Force on the Law of the
Sea
Attachments:
Summer Session Recommendations
Report
Report on March-April 1973 Session
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REPORT ON TIIE LAW OF THE SEA AND RECOMMENDATIONS FOR THE
JULY/AUGUST 1973 SEABED COMMITTEE MEETING
This memorandum is submitted by the Law of the Sea
Task Force in response to Dr. Kissinger's memorandum of
March 16, 1973. It presents negotiating positions, strategy,
and tactics for use at the meeting of the 91-member UN Seabed
Committee in Geneva from July 2 to-August 24. As in the past,
it is designed to supplement rather than replace existing
instructions and the Agencies concerned will submit
comments on this report individually. A report on the
spring meeting of the Seabed Committee is attached.
I. The Context of the Summer Session
The eight-week. summer session is the last scheduled
preparatory meeting of the UN Seabed Committee prior to
the Law of the Sea Conference. It will also be the
longest ever held.
The Conference is scheduled to begin with a two--week
organizational session in New York in late fall. Its sub-
stantive session is currently scheduled for eight weeks
in April/May 1974 in Santiago, Chile. The relevant
General Assembly Resolution provides in the preamble for
the possibility of an additional Conference session no
later than 1975 if necessary, and expresses the expecta-
tion that the Conference will end in 1974 or no later than
1975.
The General Assei-:'ply has said it will consider the Law of
the Sea it-em.early this fall. The U.S. has stated that at
that time it will seek more than eight weeks of work in
1974. If the General Assembly agrees, discussions among
delegates indicate that it may provide for lengthening
the Conference schedule for 1974 with or without a recess,
or it may invite all UN members or Conference participants
to a special meeting of the Seabed Committee in early
1974,.possibly starting the Santiago Conference session
a month or two later. The latter option would in essence
be a device to justify providing for additional work in
1974 outside Santiago, since the Seabed Committee tradi-
tionally meets in New York or Geneva. It may also be a
device to continue work under consensus procedures in the
event the draft Conference rules or understandings
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regarding them do not make adequate provision to protect
against premature voting. Conversely, it is possible,
but not likely, that the General Assembly would decide to
postpone the Conference..
The Seabed Committee is not a model preparatory forum
to produce visible evidence of progress. The reasons for
this are diverse, and relate to its size, inherent problems
with consensus procedures, the only recent abandonment of
delaying tactics by most Latin American states, the desire
of many delegations to be members of many working groups,
reluctance to make concessions too early in the negotia-
tions, and the absence of-a clear-sense of direction among
some delegations, particularly in.Afric'(. Nevertheless,
pre -irations of organized working group texts reflecting
alternative solutions on the most technically complex
part of the ultimate treaty--the deep seabeds regime--are
proceeding moderately well. despite the absence of major
political compromises, and debate has now clearly focused on
concrete problems and proposed solutions in most other
areas. By the summer session, most if not all major posi-
tions will have been set forth. The OAU heads of state will
have determined. objectives that many African delegations
can be expected to support in the interests of African
unity and negotiating strength. More moderate Latin
Americans should be consolidating their dominant position
in the Latin American group.
More importantly, what has resulted from the Seabed
Committee meetings are certain common perceptions among
key delegations as to the major. areas of agreement and
disagreement. It seems reasonably clear that an ultimate
overall treaty package would contain a 12-mile territorial
sea, broad coastal state control over resources beyond
that limit, and an international regime and machinery for
deep seabed resources.
The key issues that must be satisfactorily resolved
for a successful package are accordingly:.
1) Navigation and overflight in international
straits and related problems in archipelagos;
- 2) The nature of the treaty limitations on coastal
state jurisdiction over fisheries and mineral resources
beyond the territorial sea;
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3) Voting procedures in the International Seabed
Authority and the nature of the exploitation system for
the deep seabeds;
4) Rights and duties regarding the establishment and
enforcement of standards to control pollution from ships;
5) Rights and duties regarding the conduct of
scientific research in areas where the coastal state
manages resources;
6) Dispute settlement procedures to help ensure
respect for treaty standards and obligations. -
While regional and political alignments play an
important role in the formation of positions, direct
national interests in the problem have taken on
increasing prominence in the formulation of national and
group positions. While interests tend to vary and over-
lap within and among categories, the following distinct
categories of states can be discerned:
1) Coastal States. Unless they fall within
categories 2 through 5, the major objective of coastal
states is maximum jurisdiction off their coast. This
is particularly true regarding resources jurisdiction,
but also includes at least some desire to control
research and pollution from ships'. While some realize
that their interests would be served by freedom of
navigation and overflight beyond a narrow territorial
sea and free transit of straits and almost all are
prepared to accept a 12-mile territorial sea, most are
essentially silent on the straits issue and at least
treat it as a concession to the maritime powers. Well
over half the states in the world are primarily, if not
exclusively, motivated by these coastal state interests.
Of the remaining states, those interests are shared at
least to some degree except in the case of landlocked
states.
2) Developed Maritime States. The strongest
common interests among these states are their interests
in-a narrow territorial sea, transit of straits, and
a carefully controlled deep seabed organization. Wit`.
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respect to coastal state control over resources, they
are divided between categories 1, 3 and 4, although few
if any support completely exclusive coastal state
jurisdiction. Their influence over the negotiation is
based largely on their importance as parties to an ultimate
settlement; their voting strength is largely dependent on a
tacit alliance with other states who share common interests, note
landlocked and shelf-locked states, as well as some other LDC's.
3) Landlocked and Shelf-locked States. These
states have little if anything to gain from broad coastal state
jurisdiction, and tend to favor narrow coastal state
jurisdiction over resources. Most recognize that a more
realistic alternative to narrow limits is a right of
participation in benefits from broad areas falling under
coastal state jurisdiction, e.g. the U.S. proposal for
revenue sharing from the continental margin. In the
ab:.ence of such a result, many of these states have little
if any direct interests in working for a timely and
successful conference. While the landlocked states are
also pushing for access to the sea, most realize that in
the end this will depend on bilateral arrangements no
matter what the multilateral treaty says. Since many
shelf-locked states border enclosed or semi-enclosed seas,
they realize their interests are served by free transit
of straits. The group as a whole favors tacit coopera-
tion with developed maritime states--like the U.S.--that
have made proposals that accommodate its economic
objectives. More than in any other area, except U.S.-
Soviet cooperation" it is here that direct interests
have cut across traditional political groupings. Thus,
while avoiding contact with us, Iraq has given tactical
support to the U.S. on straits, and is reported to have
told other developing countries that "the Nixon proposal
is the only one worthy of a great power." It is anticipated
that both East and West Germany, which are shelf-locked, will
join the group. If landlocked and shelf-locked states stick
together, the group can muster close to a "blocking third" at a
Conference. Its unified and highly disciplined approach
at the last UN General Assembly resulted.in several
bitter confrontations and close victories.
4). Distant Water Fishing States. These are. states
that fish primarily off the coast of other countries.
Most, but not all, of these states are developed. They
favor narrow or very limited coastal state jurisdiction
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over fisheries (but not necessarily over seabed resources).
If--as appears likely--proposals for special fishing rights
among states in the same region achieve wide support (this
idea is already taking hold in Africa), the number of states
favoring narrow or very limited coastal state jurisdiction
over fisheries is not very great. However, their collective
influence and the importance of their participation in an.ul-
timate settlement is widely, if reluctantly, accepted. Addi-
tionally, since the group includes the USSR, Japan and the UK,
their LOS posture exerts some influence on our own position
due to our unique relationship with them.
5) Straits States. These are the states that border
major international straits. Their principal position is
opposition to free transit and support of innocent passage.
Some, like Spain and possibly Egypt, appear to be bargaining
for political and economic concessions unrelated to the
Law of the Sea. A few, like Greece and Malaysia, seem
genuinely (if in our view mistakenly) concerned about the
effect of free transit on their security and environmental in-
terests. The number of straits states is small, but they use
Arab unity and opposition to the superpowers as major political
arguments. Aside from a clear tactical alliance between Spain
and Brazil and PRC support, their objective of forming an
alliance with developing coastal states generally has had
only marginal success.
6) Developing Countries. The strongest link among
developing countries generally is their desire for parti-
cipation in control. over activities of potential economic
value that are or may be exclusively in the hands of a few
industrial states. This translates into demands for a
deep seabed machinery with a right to exploit by itself,
controls over scientific research, vague but insistent
discussion of technology transfer, and indeed is partially
the explanation for the insistence of coastal developing
countries on broad resource jurisdiction despite the fact
that many mill depend on foreign technology to enjoy the
full benefits of those resources. Attempts by straits
states and the PRC to extend this to a confrontation with
the strategic interests of the "superpowers" have not met
with much success.
A substantial number of important, but less compre-
hensive, categories and subcategories also exists.
The situation created by these divergent and
competing interests is one in which the number of states
with sufficient flexibility and technical skill to play
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a significant role in forming a consensus or at least
broad agreement is necessarily limited. While the United
States is primarily a coastal state and a developed
maritime state--and thus shares the two dominant interests
in the negotiation--it is also in some measure a distant
water fishing state, and its proposals have been framed
for tactical and general foreign policy reasons to
accommodate the interests of landlocked and shelf-locked
states and developing countries generally. It is now
fairly widely recognized that only with respect to the
straits states are we, by virtue of our interests, in a
position of complete opposition.
While the latter sections of this paper will deal
with important substantive proposals regarding the U.S.
position, its major focus is that of analyzing how we can
make maximum use of our almost unique position to encourage
the emergence of agreement around a package that accommodates
all of our basic interests, and prevent the emergence of a
package that might accommodate only some of those interests.
II. Objectives for the Summer Session
Our major objectives for the summer session are:
1) To begin, through private discussions authorized
by the head of the delegation, to construct the outlines of
a broad consensus compatible with the full range of basic
U.S. interests.
2) To form a broader common front of states with
similar interests on specific issues in order to demon-
strate well in advance the futility of attempting to outvote
us on critical issues, thus leaving adequate time for
negotiation.
3) To attempt to gain a better understanding of
what may be'acceptable to other states so that our
instructions for the Law of the Sea Conference can be
formed in a manner that reduces to the extent possible
the need for urgent high-level decisions in Washington
during the Conference.
4) To ensure sufficient technical preparations so
that the main issues are fairly clearly understood at
the Conference and as many important issues as possible
are resolved in advance.
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These objectives are formulated in the belief that
the Seabed Committee will not agree on single texts to
be forwarded to the Conference on key issues, but that it can--
and should--assure adequate formulation of alternative texts
for the political negotiations, formulate agreed texts as
? feasible on other issues, and--in private--construct as broad
a common understanding of the major elements of a treaty
settlement as possible. This can, in our view, signi-
ficantly improve the chances for a successful Conference.
While no authority is sought in this section of the
report to alter public positions, exploration discussions
necessarily go beyond the scope of stated positions.
Accordingly, we believe additional discussion of this
approach is warranted.
With respect to,straits, we intend to concentrate
on the second objective, namely, the formation of a
broader common front with states with similar interests.
This' includes, but is not limited to, our NATO and other
military allies, developing countries that share our
concerns, as well as the USSR and its allies. We will
not oppose straits proposals, such as the USSR proposal,
(except for its treatment of the Strait of Tiran),
that are different from our own article but not essen-
tially incompatible with our interests. Moreover, we
will wish to develop a common understanding of the type
of wording--compatible with our straits interests--that
can achieve the express support of our allies and other
states that basically share our straits interests.
At the same time, straits will of course be
prominently included in our efforts with respect to
the first objective--the formation of the outline of a
broad consensus, except that we do not at this time
intend to attempt to include our hard-core straits
opponents iT. our own consensus efforts. .
,This does not mean we will terminate our dialogue
with the straits states, and we will continue our
efforts to reduce t1- i.r opposition and attempt to
understand their major problems. However, we will main-
tain our strong-opposition to their innocent passage
proposal, and innocent passage as currently defined.
In the last analysis, of course, the issue is one of
substance and not labels. In this connection, we will
continue to attempt to ascertain under what conditions
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an exception for straits less than six-miles wide, through
which there is currently only a right of innocent passage in
our view, would be of maximum advantage in reversing the
position of states that border on or are interested in such
straits (e.g., Italy, Denmark, Egypt and other Arab States),
and would enhance overall U.S. straits objectives.
The problem of attempting to achieve the outline of
a consensus on coastal state jurisdiction over resources
is essentially one of trying to work with the majority--
the coastal states--without losing the relevant and
significant minorities--the distant water fishing states
and the landlocked/shelf-locked states. It is.also one
of making maximum bargaining use of the strong political
desire of the Latin Americans and important Africans to
have express reference to a 200-mile limit in connection
with resource jurisdiction, and to ensure that every possible
concession to us is made or indicated as part of the process.
Because acceptance of the 200-mile figure outside Latin
America is increasing despite our position--and because
domestic pressures are mounting in that direbtion in
Congress--we believe that further delay in,opening a
private dialogue with moderate African, Latin American,
and other nations around the world, will only weaken the
value of this intensely important bargaining tool to us.
Sophisticated coastal states realize that U.S.
"concessions" on coastal state resource jurisdiction
thus far have been carefully designed to serve U.S.
coastal interests. Our fishing industry was considerably
happier with our s'cond fisheries article than our more
c-.~nservative first proposal, in large measure because we
expanded coastal state controls over coastal and ana-
.dromous species. Our petroleum industry was considerably
happier with the more "coastal" interpretation of our
seabeds proposal on August 10, 1972, than with our
original draft. In practice, both the U.S. resource
proposals and the 200-mile economic zone proposals would
place most-of the oil and fisheries beyond the territorial
sea under coastal state jurisdiction. Our resource
proposals differ from theirs in two important respects. First,
we believe such jurisdiction should be subject to treaty limita-
tion standards and compulsory dispute settlement, with respect
to.fisheries this includes special treatment for anadromous and
highly migratory speciL:?s. Second, with respect to fisheries, we
do not support the use of any fixed boundary for coastal
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state control. (We arc already authorized to support an
alternative 200-mile-boundary on the seabeds, but have
not done so explicitly.)
The first difference is critical with respect to
substantive U.S. interests. If those problems can be
overcome, including adequate treatment of tuna and salmon, the
second is of marginal importance substantively, but of great
tactical importance. In that situation, were there to be a
line, we certainly would not wish it to be narrower than 200
miles and, indeed with respect to seabeds and possibly fisheries,
have some interest in seeing it extend to an agreed limit
embracing the continental margin where the margin is broader
than 200 miles.
Accordingly, we intend to focus our private consulta-
tions with moderate Africans, Latin Americans and others
on the substance of coastal state jurisdiction--special
treatment of tuna and salmon, international treaty
standards, and compulsory dispute settlement-in an effort
to obtain maximum concessions on these points and ascertain
the scope of their negotiating room. In addition to coastal
resource interests, these "package" discussions will
involve the full range of other U.S. interests, including
straits, deep seabeds, pollution and scientific research.
While main.ta:ning our opposition to exclusive coastal
state jurisdiction, we will not in those discussions indi-
cate that we would oppose a 200-mile resource zone .f our
substantive interests were accommodated. At the same
time, we will main ~.ain close contact with the distant
water fishing states and the landlocked/shelf-locked states
that must eventually be brought along, and will remind the
.coastal states of that necessity.
The Task Force believes that this recommendation is
consistent with the instructions in NSDM 177, which
contemplated exploratory discussions based on a combined
species/zonal approach. In accordance with those instruc-
tions, and consistent with the need to preserve the
privacy of these explorations, the industry members of
the delegation will be informed of our activities. The
general approach has already been raised with the Law of
the. Sea public Advisory Committee on May 18. Thi:,
recommendation is`also made in the light of the response to
NSSM 173 of March 7, 1973 on Latin America, and in our view can
lead to a treaty that enjoys wide adherence in the Western
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Hemisphere. It must be emphasized that the Task Force
strategy is that of isolating extreme Latin Americans,
such as Brazil, that support a 200-mile territorial sea.
We do not wish to isolate Latin Americans as a whole,
in particular because of the potential for dealing
frankly with some of them on many sensitive issues.
It is contemplated tha': private explorations will
be made only by or at the express direction of the
Chairman of the Delegation in consultation with the senior
departmental representatives on the delegation,
that no commitments inconsistent with existing instruc-
tions will. be made, and that the Task Force report after
the summer session will include a report on, and evaluation
of, these discussions.
III. Scientific Research
We anticipate that the U.S. delegation Would, in all
likelihood, make a proposal. on scientific research, in the
form of a statement or draft articles, designed to reflect
U.S. interests in maximum freedom of research, and to demon-
strate that coastal and developing country concerns can be
accommodated without unnecessary restrictions on access.
Our major effort will be to avoid a requirement of coastal
state consent for research beyond the -lerritor_ial sea, and
in this sense we will attempt to supersede the Continental
Shelf Convention, which does require such consent. In its
place, we propose o substitute objective standards and
compulsory dispute settlement procedures. (Section VI of
this paper recommends a general approach regarding the con-
tinental. margin consistent with this effort). Such a system
would reduce many of the problems of a consent requirement,
but we will not propose or support a consent requirement,
and will explain our difficulties with such a requirement.
We believe there is no realistic alternative to a
requirement of coastal state consent for scientific research
within the territorial sea, and that we must be careful to
avoid making proposals in this regard that could be construed
to signal the substance of a fallback position regarding
research. beyond the territorial sea. However, we believe
there mat; be some"merit, and minimized risk, in proposing
general language to the effect that coastal states, in the
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exercise of their sovereignty, shall facilitate the entry of
oceanographic research vessels into their ports and the conduct
of scientific research in their territorial sea.
The major problem with research is that coastal states
already have with respect to the seabeds, and will acquire
with respect to fisheries, very substantial resource jur-
isdiction beyond the territorial sea. As in the Continental
Shelf Convention, there is a tendency to conclude that such
jurisdiction must necessarily include a right to control
research that might concern the resources or seriously
affect the environment, to receive research data, and
to prevent foreign companies from gaining a bargaining
advantage in their dealings with the coastal state because they
better understand the implications of the research. While
we believe and will explain that there are important differ-
ences between commercial exploration and scientific research
that justify treating them differently, we must admit that
scientific research can be of value to a resource manager or
exploiter, and for this reason propose international standards
to assure that coastal state resource interests, as well as
other interests, are protected. In this connection we
will continue to examine whether treaty language should
be proposed drawing a precise distinction between exploration
and scientific research.
The U.S. approach will be that scientific research in
areas of coastal state resource jurisdiction must satisfy
ce~_tain treaty standards and that compulsory disiute
settlement procedu;4;;e-es will be established so that the
coastal state can assure compliance with such standards.
(We will continue to endeavor to ensure that military re-
.search in the marine environment is unhampered.) These
standards could include:
1) A notification procedure which includes advance
informal notice indicating the general nature and likely
time of the-research project under consideration; a response
from the coastal state by a fixed time regarding arrangements
concerning it (e.g., participation); and formal notice,
including a description of the proposed research (which may
be updated) and flag state certification that the
institution is a qualified scientific research institution
and will abide by"the treaty standards;
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2) A right of.coastal state participation in the
research project;
3) Availability of all data and samples to coastal
state authorities and to appropriate international data
distribution systems;
4) Open publication of results;
5) Technical assistance in consultation with the
coastal state arranged by the flag state or through an
international organization in the conduct of scientific
research and for interpreting the significance. of data
and results for the coastal state (NSDM 177 and Articles
5(2) and 40(m) of the U.S. Seabeds Treaty apply);
6) Reasonable regard for other uses of the marine
environment;
7) Conformity with international environmental
standards and coastal State regulations regarding drilling
if more strict.
We would anticipate that any proposal would cover
most if nut all of the points outlined above. For
tactical reasons, the proposal itself might not include
a full exposition of some of these points where such action
would not adversely affect our credibility. For example,
it should be relatively easy to achieve a coastal state
right to impose hi~-her standards for drilling; thus we might
propose adherence to international standards to protect the
environment, and withhold our proposal for higher coastal
state drilling standards until other States press further
for a coastal state right to fix standards higher than the
international standards.
An additional problem relates to coastal states'
real and perceived concerns regarding environmental damage
from research activities. Insofar as vessel construction
and design is concerned, international standards would
govern. U.S. proposals for environmental protection from
seabeds activities in the continental margin relate only
to-resource exploration and exploitation, and to deep drilling.
With respect to seabed resource activites,,the International
Authority would =ix minimum standards, but the coastal state
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could fix higher standards, and would enforce those standards.
Deep drilling for purposes other than exploration and exploitatio.
would require a permit from the International Authority. The
U.S. has made no proposals regarding the effect of research
on living resources. Some states may fear the effect of
s
,
the use of sonic or explosive devices on living resource
although their concerns may be more economic than environ-
mental, and more perceived than real.
Canada and others have rclied'heavily on the need for
environmental protection to justify regulation of research.
The United States must have a credible solution to these
environmental concerns if it is to deal effectively with
the general demands for regulation. With respect to
drilling, we believe these coastal state concerns can
best be accommodated if the coastal state has a right to
impose standards higher than those set internationally.
Moreover, the U.S. scientific community recognizes the need
to conduct research in a manner compatible with sound environ-
mental practices.
The U.S. has repeatedly pointed out that a coastal state
right to adopt its own environment+l standards for ships off
its coast is essentially incompatible with freedom of nav..-
gation. A simi-lar, although arguably lesser, incompatibility
exists between a coastal state right of environmental regu-
lation ove.: scientific research and free access for research
vessels. Our solution for ships is a system of exclusively
international standards. We should follow the same approach
for scientific research, except with respect to drilling,
which is discussed above.
The U.S. seabeds proposal already contemplates that
the Seabed Authority will set minimum environmental standards
for resource activities on the continental margin, and would
issue deep drilling permits for other activities. Accordingly,
the approach most consistent with our overall positions thus
far would be to provide that the Authority may adopt rules
and recommended practices establishing general standards
regarding environmental protection in the conduct of
scientific research. Tha U.S. seabeds position requires
adequate control over the Council of the Seabeds. Authority,
which in turn controls the rule-making procedure; thus a
control system that satisfies our seabeds interests should
ipso facto satisfy our research interests.
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SECRET 14.
The U.S. delegation will not raise the question of military
oceanographic research in the course of these proposals,
and we do not wish the treaty to deal with the subject.
After examination of a variety of options, such as limiting
research provisions to research concerning resources, or
qualifying provisions on participation or data sharing, we
have concluded after consultation with representatives of the
scientific community that such proposals are probably imprac-
tical and that the risk of arousing developing country
suspicions that could prejudice both our military and general
scientific research objectives is too great. In this connec-
tion, it should be noted that not only will freedom of
navigation be preserved in the area, but the treaty also
will not affect our inspection and verification rights beyond
12 miles under the Seabeds Arms Control Treaty. The approach
outlined here will leave a substantial number of options
open regarding unclassified research, and does not affect
classified research which is properly regarded as military
activity and not scientific research for the purpose of
the.treaty.
Nonetheless, the U.S. delegation will make low-
profile efforts to limit the application of scientific re-
search standEnr_ds, particularly regarding participation and
data, to research concerning or affecting resources, and
we will attempt to persuade others to support this view.
However, we will not reveal the military motivation for this
proposal and, in the event of substantial pressure that
threatens our military or general scientific research
proposals, we willonot press this result. In particular, we.
will wish to avoid stimulating the conclusion that
the connection between research and resources is so close that
the former must be closely regulated by the resource manager.
NSDR1-G?2 elaborates the basic U.S. position on pollution
from the seabeds. 1,NSDM-177 deals extensively with pollution
from'vessels. This section deals primarily with the critical
vessel pollution problem, except for a few additional issues
raised at the end.
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SECRET 15.
Subcommittee III of the Seabed Committee has begun
preparation of a set of "umbrella" articles to provide a
legal framework for protection of the marine environment and
prevention of pollution. The initial draft articles thus far pro
posed are appended to the report of the March/April
meeting and are regarded as generally satisfactory. However, the
U.S. must be prepared to deal effectively with issues not decided
in NSDM-177 if it.is to protect its interests in this aspect
of the negotiations; in all likelihood, we should submit
a set of draft articles ourselves that demonstrate how
environmental and coastal state concerns can be accommodated
with avoidance of undue prejudice to navigation rights.
A. U.S. Interests Regarding Vessel Pollution
The U.S. has several interests in this negotiation.
First, we have an interest in protection of the
marine environment generally, and of our coasts and off-
shore areas in particular. Because they have other interests
involved and because they would wish to head off extreme re-
sults, conservative maritime states may be more forthcoming
at the Law of the Sea Conference on adequate environmental
controls than they have been in IMCO.
Second, we have an economic as well as environmental in-
terest in assuring the strict application of the highest
possible standards in the oceans, so as to narrow the gap
between high U.S. standards and lesser standards of other
countries, and'in (ny event reduce competitive economic re-
straints on environmental protection. Given the attitudes
of other countries, including developing countries, our
experience indicates that it is unlikely that international
standards would exceed those considered economically-reason-
able by the U.S.
Third, we have both security and economic interests in
preventing the use of environmental arguments or jurisdiction as
basis for unreasonable interference with navigation rights and
freedoms. Protection of freedom of navigation beyond a twelve
mile territorial sea and free transit of straits are basic
objectives of the U.S. in the Law of the Sea Conference.
Permitting coastal states, through excessive pollution
abatement-. jurisdiction, to control such important activities
as navigation, overflight and other rights to reasonable
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uses of the high seas would be inconsistent with those
objectives.
Fourth, public and Congressional support during the
negotiations, and when a treaty is presented to the Senate,
is likely to be significantly affected by our handling of
the environmental issue. This will be particularly im-
portant in light of our strong position in favor of
maximum economic exploitation of ocean resources consistent
with sound environmental practices.
Fifth, we have an interest in shaping the negotiation
as quickly as possible in directions that accommodate our
interests. The idea of a coastal state pollution control
zone in which the coastal state has both broad legislative
and enforcement jurisdiction is gaining ground (particularly
as an element of an exclusive economic zone). It does
not adequately accommodate overall U.S. interests. it is
inimical to our national security interests, as well as our
trade and commercial interests (particularly regarding im-
portation of petroleum) in unimpeded navigation and
overflight beyond a twelve-mile territorial sea. However,
j fudging by public reaction to the Canadian claim, it could
be sufficiently popular in the U.S. to make it difficult
for us ..o refuse to implement such jurisdiction ourselves
if outvoted, or to maintain our opposition to unilateral action
in the absence of an adequate alternative system in the
treaty.
m
Sixth, we have an interest in avoiding unnecessary
duplication of international functions. A strengthened IMCO
.is preferable to a new organization. But it must be noted
that in the absence of credible U.S. proposals to strengthen
IMCO our proposals for exclusively international standards
will be viewed as a means of avoiding regulation and we
will run a high.risk of seeing both a new organization and
an undesirable pollution zone established,' with both
enjoy.ng substantial popularity in the U.S.
- From a tactical point of view, a set of strong environ-
mental proposals from the U.S., geared to international
standards, would expose the weakness of the zonal proposals,
tend to attract those legitimately concerned with achieving
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adequate environmental. control, and at least reduce the
intensity of arguments for a coastal state right to fix
higher standards. (It appears to be widely accepted that
coastal states would have to observe international standards
regarding vessels as a minimum.) In addition, we must
demonstrate to the developing coastal states that we have
responded to their demand for a coastal state right to
impose higher standards with tough proposals for establishing
and enforcing mandatory international standards, and that
they run the risk of trapping themselves into higher
standards and a stricter system than they desire for
economic reasons if they continue to press us on this
issue. In other words, the U.S. should repond to pressure
for pollution jurisdiction with pressure for a tougher
mandatory international pollution control system.
C. The Source of International Standards
The problem of an adequate system for promulgating
international pollution standards goes to the heart of our
position that vessel pollution standards should be exclusively
international (limited exceptions are discussed later
in this paper). To succeed, we must be able to demonstrate
that coastal stateswill not be prejudiced by such a system,
and that it can achieve adequate and timely environmental
protection. In the absen.:~ of such a system, the arguments
for a right of coastal states to fix higher standards
far out to sea in order to assure'self-protection become
overwhelming at home and abroad as a matter of politics if
not logic. 0
The Intergovernmental Maritime Consultative Organization
(IMCO), the major international institution dealing with
vessel source pollution has been criticized on two basic
grounds:
1) domination of the organization by the maritime
powers; and
2) slowness of response of traditiona_'. consultative
and treaty negotiation and ratification procedures to
technological advances, and to the need to deal effectively
with new pollution problems.
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With respect to the former, the IMCO committees
are run almost entirely, by maritime country representatives,
although partly because of a lack of expertise and manpower
on the part of LDC's, and the formal make-up of the Council.
is weighted heavily toward maritime interests (6 nations
with largest interest in providing shipping services; 6
nations with largest interest in seaborne trade; and 6
nations elected by the Assembly). The.U.S. is already
supporting rectification of this situation.
With reference to IMCO's response time, the two
factors of most importance are that IMCO is only a con-
sultative mechanism and must work through treaty negotiations,
and that the existing treaties have cumbersome amendment
procedures. In general, we believe the rules and recommended
practices procedures of the Chicago (ICAO) Convention of
1944, one of the most widely ratified and successful .
regulatory treaties in the world, should be used as our model.
(It was similarly used in connection with our deep seabed
proposals.)
In attacking the first issue of maritime dominance, we
could propose changes in the Council structure and on
the Committee membership. For example, the 18 seats of
the Council could be reallocated with 5 shipping ,tates,
5 interested'in trade, and 8 others or additional seats
could be added'to the present 6 "other". Alternatively a new
category of Council members could be created for states
with a special interest in protecting their coasts from
pollution. On the other hand, it would be preferable to
emphasize the regulatory role of a new Marine Environment
Protection Committee, which will not have a membership formula,
and we are proposing to resolve the problem that way.
We will also propose the establishment by the Marine
Environment Protection Committee of regional subcommittees
which could provide greater involvement of LDC's and, in
particular; coastal states to consider matters of common
interest. Such committees could consider regional anti-
dumping arrangements, designation of special areas under the
proposed 1973 IMCO Pollution Prevention Convention,
the establishment of traffic separation schemes, and other
matters, and make recommendations on all such matters to
the Marine Environment Protection Committee. This proposal
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is necessary to deal with various coastal state arguments
regarding special regional problems, and could help
significantly in attempting to prevent coastal state juris-
diction to fix standards.
With respect to the question of response time and
the need to provide IMCO with regulatory authority, we
are proposing that, at the October 1973 IMCO Conference,
IMCO be given regulatory authority with respect to
marine pollution from vessels.
This regulatory aut.lLL.ority would be exercised in the
same way as the "tacit amendment procedures" that the U.S.
is already supporting in the IMCO negotiations. Under these
procedures, new standards would be considered by the Marine
Environment Protection Committee. When adopted by a two-
thirds majority, the standards would be circulated to all
contracting states and then considered accepted within a cer-
tain time period unless objected to by a designated number
or category of states.
While we hope to gain major tactical advantages from
these organizational proposals in the Law of the Sea nego-Liations
we believe it would be best if they were first proposed by a
high U.S. official concerned with marine pollution at the
IMCO Council in June for adoption at the October 1973 IMCO
Marine Pollution Conference, and this will be done in a way that
is designed to achieve maximum impact on the LOS negotiations.
The proposals will be circulated by us at the Seabed Committee
in July, and will form the organizational basis from which we
will work to achieve agreement on a system of exclusively in-
ternational standards for vessel pollution at the Law of
the Sea Conference. Should IMCO fail to implement these
proposals fully before the Law of the Sea Conference,
they will be on the record in the Seabed Committee, and we
will have preserved our options for dealing'with the
orgnizational problem at the Conference.
We are also faced with other tactical and coordination
problems in connection with the October DICO Conference on
Marine Pollution. Arrangements have been made for close
coordination within the U.S. of preparation for both
Conferences. With the participation of those agencies
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SECRET 20.
primarily responsible for the IMCO Conference, all members
of the Law of the Sea Task Force, we have reached the
following conclusions. A successful IMCO Conference that makes
major strides in controlling vessel pollution is essential,
and we will attempt to persuade LOS as well as IMCO repre-
sentatives of this. However, we will begin now to try to
ensure that important jurisdictional concessions on enforce-
ment or standards need not be made in IMCO but--to the
extent we are prepared to make them--should be preserved
for the tougher LOS negotiations on this issue. In addition,
the major thrust of our proposals to strengthen IMCO should
be used as an integral aspect of our negotiating position
in the LOS Conference, although we- hope the IMCO Conference
will implement them in 1973.
D. Standards in the Territorial Sea
Pursuant to existing instructions, the United States
tabled a working paper during the March 1973 Seabed Committee
meeting arguing for exclusively international standards for
vessel polltuion control. The United States will continue
to argue for this proposal in the summer session of the
Seabed Committee. Of course, the flag state may impose
higher standards on its own vessels anywhere in the world.
This paper also deals with the application of higher standards
in ports. Current U.S. and international law also permits
the application of higher coastal state standards in the
territorial sea and the 12-mile contiguous zone. We will
not propose this result at this time in the Seabed Committee,
because it could prejudice our opposition tp coastal state
standards beyond the territorial sea and in straits used
for international. navigation, but will be prepared to accept
higher coastal state standards in the territorial sea (but
not straits) at the appropriate time.
E. Standards in Ports
Under existing international. law, a state can
unilaterally impose whatever requirements it wishes as
preconditions for port entry, including pollution control and
safety standards (except, of course, in cases of force
majeure or distress where there is a requirement to
offer assistanc_e).. United States laws provide for the
exercise of this right in terms of pollution control (and
safety) and we will expand our requirements in the future.
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'It should also be noted that individual states of the
United States may be able to impose unilateral standards
on foreign vessels in their ports and territorial sea.
The State of Florida recently imposed strict liability
for clean-up costs and asserted regulatory authority
over all vessels in its waters that are entering
or leaving its ports. The statute was recently upheld
in the Supreme Court (Askew vs. Amer_ ican Plater: ways , April 18 ,
1973). The holding bf the case was that there was no
conflict here between state and federal law; it did not
decide whether a federal law could pre-empt the State's
police power in this area. Thur., there remains a remote
possibility that state pollution control standards could be
constitutional even if a federal statute on the subject
were passed; more importantly, there may be significant
political opposition to a statute or treaty that seeks
to change this rule.
In the Seabed Committee, a major U.S. objective in
the negotiations on pollution control has been to prevent
adoption of any right of a coastal state to unilaterally
impose vessel pollution control standards beyond the terri-
torial sea and in straits. Two major arguments advanced
have been the desire for uniformity of standards and the
desire to avoid hindrance to navigation. The U.S. made these
arguments in its working paper submitted to the Seabed Committee
while stressing our desire that the international standards
adopted for application beyond the territorial sea be
strict and environmentally effective.
While the U.S. objectives of a right for port states
to impose higher standards and the avoidance of such a right
for coastal states beyond the territorial sea and in straits
are consistent and can both be logically supported, it
will be necessary to carefully spell out the arguments
for each and to distinguish between them. Otherwise
U.S. opponents will try to characterize the U.S. positions
as inconsistent and argue that we should go one way or
the other.
F. Vessels Entitled to Sovereign Immunity
Under existing international law as codified in the
High Seas Convention, "warships" and "ships owned or
operated by a state and used only on government non-commercial
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service" have immunity from the jurisdiction of any state
other than the flag state, although such vessels are subject
to the provisions of that Convention. Such vessels are also
exempted from the provisions of the existing and proposed
IMCO pollution control conventions and from the recently-negotia
ocean dumping conventions. All of the proposed pollution
control articles under consideration in the Seabed Committee
exempt military vessels from their provisions.
Warships and state aircraft cannot comply with all likely
international pollution standards. Therefore it is essential
that we have some form of treaty provisions that exempt them
from pollution control provisions of the treaty. Our preferred
method of achieving this result would be provisions similar
to those used in the Ocean Dumping Convention.
G. Compulsory Dispute Settlement
The United States will propose that all pollution control
actions undertaken pursuant to the LOS convention be subject
to a compulsory dispute settlement machinery to be established
in the convention. This is regarded as an essential protection
against abusive actions by port or coastal states and as
a means of assuring more responsible behavior with respect to
flags of convenience. In this connection, we intend to make-
clear that U.S. preparedness to consider any enforcement
mechanisms at sea entailing possible interference with
navigation will be completely dependent on the existence
of satisfactory compulsory dispute settlement machinery to
which immediate access can be had. In this connection, any of
the proposals all-wing port or coastal state actions
will include a pre is-ion requiring liability of the port
or coastal state to the flag state for unreasonable actions
taken without adequate grounds. Such a provision exists
in the High Seas Convention in relation to acts against piracy
and in the 1969 Intervention Convention. It would provide
an obvious deterrent to abuse or harassment by port or coastal
states.
H. Enforcement Against Vessels Other Than Those Entitlecd
to Sovereign Immunity
In view of the very strong U.S. interests in a system of
exclusively international standards for vessels, the question
of enforcement takes on considerable importance. For there
to be an effective system, it must be strictly and compre-
hensively enforced. Moreover, at this stage of the
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negotiations, we cannot credibly disregard all of the
coastal state proposals that have been made. Negotiating
flexibility is less adverse to U.S. interests on the enforce-
ment question if, as we believe, such flexibility can be used
to buttress our position on international standards. Finally,
the National Petroleum Council, after careful review of the
problem, has issued a public report advocating coastal state
pollution enforcement jurisdiction in a zone beyond the
territorial sea. while the Council represents the entire
U.S. petroleum industry, it does not represent other maritime
interests, which have just received the report and not
yet clearly reacted to it. For these reasons, certain
questions addressed in NSDM-177 will be reviewed in this
report, and additional proposals presented. However, this repor
is to supplement NSDM-177. Thus, for example, the U.S.
will continue in :CMCO and the Law of the Sea negotiations
to support port state enforcement of international stanj ards
against merchant vessels of all flags; wherever the violation
may have occurred. Moreover, all of these proposals are
presented in the conte;?.t of U.S. support for satisfactory
compulsory dispute settlement procedures and machinery
with the power to act quickly.
Many of the members of the Seabed Committee that have
addressed the issue have indicated a desire for coastal
state pollution controls and it will be necessary to either
satisfy that desire directly or convince these countries
that the other proposals being put forward will be sufficient
protection for them. All of the existing proposals, for
example, on an exclusive economic zone or patrimonial sea,
include unspecified coastal state rights of pollution control
in the zone. This section first deals with general enforcement
procedures, irrespective of coastal state rights. The more
effective these appear to be, the easier it may be to deal with
demands for broader coastal state jurisdiction. The section
then contains a recommendation for a coastal state enforcement
right of a highly circumscribed character.
In general, U.S. navigation interests will be better
protected if acceptable limited coastal state rights are
spelled out in the LOS convention than if there is no
agreement on coastal state pollution controls; in
the latter case,,many coastal states would unilaterally claim
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pollution control rights, probably very broad ones,
in areas beyond the territorial sea. Also, agreement on specifi
limited coastal state enforcement would strengthen the general
U.S. approach of agreed but limited coastal state rights
beyond a 12-mile territorial sea. This may be particularly
important now as certain coastal states are making parallel
arguments of exclusive coastal state rights in pollution
discussions in Subcommittee III and resource discussions in
Subcommittee II. From the environmental point of view,
the threat of coastal state enforcement action could deter
would-be violators and could provide one method for dealing
with pollution violations by flag of convenience states (who
will hopefully become parties to the LOS Convention because
of resource control desires). The provision of efficient,
responsive compulsory dispute settlement procedures should
greatly lessen any danger of harassment of vessels by a
coastal state.
For environmental and economic reasons, the U.S. has
an interest in strictest possible enforcement of international
anti-pollution standards, and in the protection of navigation
from harassment.
Many maritime nations take extremely conservative
positions on. vessel pollution control. standards and enforcement
measures. it will be necessary to ensure that U.S. proposals
on pollution control do not produce an extreme negative
reaction and loss of support for other important U.S. LOS
objectives. Consequently, it will be necessary to discuss
these issues with others to ensure that they understand the
need for proposals on enforcement and other pollution pre-
vention issues both for protection of the environment and
to avoid claims of complete and exclusive coastal state
controls.
However, it can be argued that enforcement on the open
ocean is difficult and expensive due to the sheer size of
the areas involved, is ineffective since intentional
pollution is often done at night or when no enforcement craft
are in sight and is difficult, if not impossible, to detect
in bad weather. Dispute settlement procedures may not
eliminate the danger of harassment, but such procedures, if
reasonably effective, would provide coastal states with a
mechanism for'ensuring adequate flag state.and port state
enforcement actions.
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It is quite clear that no coastal state enforcement
system, even if adopted, would itself be sufficient. Violation
could occur even beyond any possible "enforcement zone" or
beyond the range of coastal state patrols. Warships and
other enforcement vessels already have a right of approach
and identification of merchant vessels; as a matter of
maritime custom, upon request the merchant vessel also in-
dicates its next port of call. Also, any state has the
right to inform another state or international organization
of the results of its observations. Finally, a state can
refuse entry into its ports for any reason, including a
request from another state. Accordingly, the U.S. should
propose to institutionalize this system. First, all merchant
vessels, upon request, must inform any warship or enforcement
vessel or aircraft of their next port of call, and such
other information as is required by international pollution
standards. Second, any flag or port state receiving notice
within a specified time from another state that has observed
a possible violation of international standards must under-
take an immediate investigation, keep the notifying state
informed, and permit participation by the notifying state in
the investigation if requested. Any state.party may also request
the participation of experts designated by IMO in the
investigation, who may file a separate report. A flag
state may also designate an observer. Third, if the merchant
vessel is bound tar a port of the observing state, its
warship or enforcement vessel or aircraft may in cases of
significant risk immediately notify the vessel that it will
be denied port entry unless the vessel submits to on board
inspection. A port state may confer similar authority on a
warship or enforcement vessel or aircraft of another state
if the two so agree. Fourth, a flag state should be obliged
to prosecute if an investigation reveals a probable violation
by its flag vessel and impose effective sanctions.
Another possibility, which will be studied further before
proposed, would be a voluntary system under which tankers
and other vessels could carry an IMCO-certified officer on
board to assure compliance with environmental standards.
A special marker or flag indicating his presence on board
might reassure coa ::al and port states, and deter unreasonable
actions on their pert. Special locks on valves might have
similar utility-.
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We believe a high degree of caution and circumspection
is necessary with respect to coastal state rights beyond the
territorial sea. However, it should be noted that a coastal
state may already take measures on the high seas to prevent,
mitigate or eliminate grave and imminent danger to its
coast and related interests after a maritime casualty (the
intervention principle). The problem is what can a coastal
state do in the absence of a casualty.
Two problems have been highlighted in the debate on
coastal state rights. First, it has been argued that a
coastal state simply cannot permit dangerous pollution to
occur simply because a vessel is beyond 12 miles from its
coast in circumstances where flag and port state action is not
a solution. This is the underlying logic of the intervention
principle. Second, there have been persistent complaints that
certain states that supply "flags of convenience" agree to
international standards but do not enforce them, and that the
coastal state may not be able to rely on adequate port state
action either. If these two problems are not addressed
constructively, there will continue to be a tendency in the
negotiations by other states to emphasize general coastal state
powers that are unnecessarily and dangerously broad. In this
situation, and particularly in view of our opposition to
coastal state standards, it is in the interests of the
United States to focus.vague demands for pollution jurisdiction
on precise enforcement issues ,~ .' and to avoid
the impression that a system of exclusively international.
standards leaves the coastal state powerless. Moreover, it is
in our interests to encourage reliance on flag states and
port states as primary enforcement agents, to ensure that
coastal state enforcement is an ancillary procedure, and
to bring pressure on "flags of convenience" to comply with
international standards.
Accordingly, we believe the United States delegation
should propose or support coastal state enforcement powers
beyond the territorial sea in the follr.,aing limited circum-
stances coupled with liability for abuse of these rights,
bonding procedures for. vessel release and compulsory
settlement of dispute:
- 1) The coastal state may take such reasonable
emergency enforcement measures as may be necessary to
prevent, mitigate or eliminate imminent danger of major
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SECRET 27.
harmful damage to its coast or related interests from
pollution arising from a particular occurence reasonably con-
sidered to relate to violation of international standards.
Should other delegations raise the question of limits in
connection with this point, we will respond that we do not
believe discussion of that subject would be productive before
substance i.s.decided and we are accordingly not prepared to
discuss the question of limits at this time.
2) Coastal states may take specified enforcenent
measures beyond the territorial sea if the dispute settlement
machinery finds that a pattern of unreasonable and
persistent failure to enforce internationally agreed
standards by a particular flag state has occurred. Such
measures shall be specified by the dispute settlement
machinery on an interim and emergency basis and shall
be limited to those measures essential to bring about
adequate flag state enforcement of these standards. The
dispute settlement machinery shall rescind the interim order
upon a showing by the flag state that it has taken adequate
measures.
Canada and others may raise these and other jurisdictional
issues at the 1973 IMCO Conference. We do not regard this as
desirable from the point of view of the IMCO Conference or
the LOS negotiations. We believe these enforcement proposals
may be sufficiently attractive to.allow us to convince
Australia, Canada and others to agree to oppose discussion
of jurisdictional issues at IMCO before we make any public
statements on enforcement in the Seabed Committee.
I. Intervention by Coastal States
The 1969 Convention Relating to Intervention on the High
Seas in Cases of Oil Pollution Casualties (not yet in force)
provides that a coastal state may take measures on the high
seas to prevent, mitigate or eliminate grave and imminent
danger to its coast and related interests after a maritime
casualty which may reasonably be expected to result in
major harmful consequences. The Convention also provides
for prior consultation with the flag state if practicable,
measures in proportion to the damage threatened and payment
of damages by the coastal state if it takes unreasonable
measures. U.S. ratification of the Convention is, awaiting
passage of implementing legislation.
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It is felt that the U.S. should continue to push for
expansion of the concept and should include such a concept
with appropriate safeguards in any set of proposals to be put
forward in the Law of the Sea negotiations. Expansion of
the Intervention Convention will have some effect in accommodati
coastal state desires and inclusion of such an expansion in the
Law of the Sea Convention could have the additional advantage
of gaining a greater number of adherents to the intervention
concept. The U.S.,Delegation would make it clear, however,
that it favored the continuation of negotiations on expansion
of the Intervention Convention in the IMCO forum, with the
Law of the Sea forum serving as a fallback if the negotiations
in IMCO are not successful, or merely serving-to lay out general
principles in this regard. For example, a similar principle
may be useful, and would be unobjectionable, with respect to
the seabeds.
J. Landbased Sources of Pollution
NSDM-177 of July 18, 1972, approved the Law of the Sea
Task Force recommendation that the U.S. attempt to avoid
negotiation of issues of land-based sources of marine
pollution in the Seabed Committee and the Law of the Sea
Conference. Although adequate protection of the marine
environment clearly necessitates effective action with respect
to land-based sources of pollution, it was felt at that time
that the law of the sea forum did not provide sufficient
time or expertise to adequately consider and negotiate such
issues.
We continue to believe that detailed discussion of land-
based pollution would be inappropriate and unproductive.
However, it became clear during the March meeting that many
countries want the Law of the Sea Convention to include
a general obligation to protect and preserve the marine environ.
ment. The United States shares this objective and has been
in the forefront of all international efforts to conclude
specific agreements and a general obligation to control
marine pollution. Consequently, we should negotiate and accept
a general obligation in the Law of the Sea Convention to
protect and preserve the marine environment from pollution
from all sources, including land-based sources, on the con-
dition that specific undertakings will remain for later
negotiation in other forums and that we will continue to
avoid specific time-consuming discussions of land-based
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pollution in the law of the sea context. Moreover, as a'
tactical matter, should the coastal developing countries press
too hard on the question of pollution from vessels, we could
respond with pressure for more definite obligations to
negotiate on land-based pollution. It is already clear
that this is anathema to the majority of developing countries.
K. State Responsibility and Liability
The United States fully accepts the principle that
States have a duty to ensure that any activities, public
or private, under their jurisdiction or control do not
substantially damage the environment of other States or
of areas beyond national jurisdiction. This duty is recognized
in Principle 21 of the Stockholm Declaration on the Human
Environment, and is reflected in part in the procedure
contained in the Federal Water Pollution Control Act for
the abatement of pollution endangering the health or
welfare of persons in foreign countries. In the LOS forum the
U.S. should reaffirm its support of this principle, and
should further propose that each State be r.equire& to provide
adequate recourse to foreign countries or citizens for the
abatement of any sources of marine pollution under its
jurisdiction, license or control which have a significant
adverse effect on their environment or resources. This
requirement might be carried out by granting access to
domestic courts or administrative bodies for abatement or
injunctive remedies.
The question of State liability for activities under
its jurisdiction is more complex. While a few international
legal precedents suggest that a State may, under some
circumstances, be liable for environmental damage caused by
continuing private allution sources under its jurisdiction,.
the prerequisites and limitations of this liability are very
unclear. The best that the participants in the Stockholm
Conference could agree upon was a general admonition in
Principle 22 that States should "co-operate to develop
further the international law regarding liability and
compensation ..." for the victims of such pollution damage.
While the LOS treaty cannot hope to resolve all of the issues
involved in this area, particularly with respect to land-
based sources, the United States should use this opportunity
to work toward a more effective international system for
compensation for all types of pollution from marine sources.
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At present, international agreements have been developed
with respect to two types of pollutants -- oil and radioactive
materials. In the case of persistent oils, the 1969 IMCO
Civil Liability Convention imposes unlimited liability on
shipowners for oil pollution damage caused in the territory
and territorial sea of Party States as a result of their
fault or privity, and liability in the absence of fault for
up to $144 per vessel ton or $15,120,000 per incident (which-
ever is lesser). This Convention is supplemented by the
1971 IMCO Compensation Fund Convention, which provides
additional compensation for a total of up to $32,400,000
(under both Conventions) for oil pollution damage not
recoverable under the Liability Convention. The IMCO
Legal Committee is presently studying the expansion of
these Conventions to pollutants other than oil.
A number of international agreements have been negotiated
to provide compensation for the discharge at sea of
radioactive materials. The most notable of these is the
1962 Brussels Convention on the Liability of Operators of
Nuclear Ships (not an IMCO product), which imposes liability
on the ship's operator regardless of fault for up to
roughly $120 million. This liability is guaranteed by the
flag state of the nuclear vessel in the event that recovery
cannot be obtained from its operator or insurer.
While the United States is not a party to these
Conventions, it does support the conclusion of international
agreements allocating the burdens of compensation for
specific pollutants in a manner which takes into account the
c conomic realities of tie particular industry so long as
adequate compensation is provided. However, these particular
agreements at best cover only part of the possible range
of pollutant damage from marine sources, and the United
States should attempt in the LOS forum to produce a more com-
prehensive regime applicable to all merchant ships, commercial
seabed installations and other activities at sea which can
harm the environment.
The U.S. should have three basic objectives: (1) to
assure that there is a source of compensation for all
pollution damage; (2) to allocate the burden of compensation
in such a way as to maximize incentives for potential
polluters to observe safe practices; and (3) to avoid undue
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? SECRET map,
disruption of any existing or planned international arrange-
ments for compensation for damage from particular pollutant
sources.
The following are ideas to achieve these objectives which
should be explored cautiously and will be studied. First, ship-
owners and seabed licensees should be required to assume
liability for pollution damage resulting from their failure
to observe international pollution and navigation standards,
backed by appropriate financial insurance or other guarantees.
If necessary to achieve agreement,.the U.S. could agree to
limitations on this liability which do not substantially
detract from the observance of international standards,
such as a proportionate reduction of liability for the
claimant's negligence, acts of third parties and acts of God,
or relatively high monetary limitations.
Second, States should adhere to appropriate existing
international agreements, or negotiate new ones, providing
additional compensation for specific types of pollutants.
These agreements might directly impose additional liability
on the owner or operator (as the 1969 Civil Liability and
1962 Brussels Conventions do), or create funds from assess-
ments on shippers, shipowners, or receivers (as the 1971
Fund Convention does).
Third, States licensing any vessels, seabed installa-
tions or other activities at sea could take appropriate
measures through domestic legislation to arrange for the
assumption of liability for any damage for which compensation
cannot be recovered from either of the above sources. These
measures could involve reliance on the private sector to
insure or self-insure, Government acceptance of an
insurance function with the shipowners or seabed licensees
paying premiums, or reliance on funds created from assessments o:
shipowners or seabed licensees, shippers or receivers of
the cargo.
It is clear that such a regime would require detailed
rules on liability and procedure which could not possibly
be fully negotiated in the LOS treaty. It may, however, be
u:.oful to have the basic outlines of this system written
into the pollution articles with their implementation to be
worked out in such other negotiations as may prove appropriate.
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V. Provisional Application of the Treaty
The United States has proposed provisional application
of the deep seabeds regime and machinery to cover the period
between treaty signature at the end of the Law of the Sea
Conference and entry into force upon deposit of sufficient
instruments of ratification. This proposal has been well
received at home and abroad, and the UN Seabed Committee
approved by consensus a U.S. proposal for a study on precedents
for such action. Only China indicated doubts about the pro-
posal, and said it was "not helpful."
In the course of discussion,?some foreign representatives
have said that in principle this proposal need not be limited
to the deep seabeds aspects of the treaty, and should apply
to other aspects as well. We believe provisional application
of the treaty would be in our interests, but we should be
careful to do this in a way that encourages signature and
prompt ratification of the treaty. The U.S. coastal fishing
industry would favor immediate implementation of increased
coastal state fishing rights in the treaty, and other coastal
fishing nations would doubtlessly hold the same view. More-
over, provisional. application of the treaty system would be
preferable to unilateral action by coastal states to resolve
their fisheries problems during the period between signature
and ratification, as such actions might differ from the treaty
provisions and could jeopardize the treaty settlement.
from a legal and technical point of view, provisional
application of other aspects of. the treaty is likely to
be simpler than provisional application of a new deep
seabeds regime and machinery. Moreover, since many aspects
of the new treaty are likely to be regarded as constituting
new norms of international conduct (if not law) by many
states, particularly where the result is favorable to their
interests, the practical effect of providing for provisional
implementation is unlikely to be very different from what would
occur in any event in many cases---and could have the salutary
effect of reducing misunderstandings and disputes during the
period between signature and ratification.
As with our seabeds proposal, our views on provisional
application are of course contingent on a timely and
successful Conference from our perspective; we will accordingly
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wish to approach the question of provisional application in
a manner consistent with our interests in promoting signature a
prompt ratification of the entire treaty package. Moreover, we
will approach the question of broader provisional application
in a way that promotes the chances for acceptance of our existi
provisional application proposal for the seabeds, and in this
connection will have to take into account the sensibilities of
'distant water fishing states. Thus, while we believe that
the United States Delegation should be prepared, where it
would be helpful, to propose or support provisional.. application
of other aspects of the Law of the Sea Treaty package as
appropriate, we will do so in the .light of its effect on our
substantive objectives and relevant tactical circumstances.
VI. Seabeds Resources: The Intermediate Zone. and the
Con _tinen _tal S- 1
NSDM-62 constituted a basic policy decision, reflected
in the President's Ocean Policy Statement of May 23, 1970,
that United States interests were best served by an
extension of coastal state control over resources to a broad
area coupled with greater treaty limitations on the e.>erci.se
of that control than exist in the Convention on the Con-
tinental Shelf.
the mechanism chosen was to stop the application of the
Continenti?1 Shelf Convention at a depth of 200 meters (beyond
a 12--mile territorial sea), and to establish a trusteeship
or intermediate zone beyond this embracing the remainder of
the continental margin. The new treaty limitations would
apply only to the intermediate' zone.
The President's Statement was deliberately vague regarding
the precise balance between coastal and international elements,
leaving us room to move either way. For negotiating reasons,
we presented a highly internationalized version of the
proposal in our draft seabeds treaty. Since then, in accordanc
\)ith our instructions, and while insisting upon the "five
points" specified in the President's Statement, we have
orally indicated rccept:Lveness to a shift in the balance
toward fuller coastal state rights. Coastal states, and
the U.S. oil industry, have been pleased with these moves.
Moreover, we have indicated that we could accept a mileage
outer limit for. the intermediate zone, if the balance of coasta
and international elements is adequate. (we are authorized
to specify a figure of 200 miles, but have not yet done
so for taciical reasons.)
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Recognizing that the primary issue between us and the
states supporting an exclusive economic zone or broad
application of the Continental Shelf Convention (the result
is identical) relates to the "five points", we presented our
views on this matter in the following way on August 10, 1972:
:'Coastal Resources Generally
"Mr. Chairman-, in order to achieve agreement, we are
prepared to agree to broad coastal State economic jurisdiction
in adjacent waters and seabed areas beyond the territorial sea
as part of an overall law of the sea settlement. However,
the jurisdiction of the coastal State to manage the resources
in these areas must be tempered by international standards which
will offer reasonable prospects that the interests of
other States and the international community will be protected.
It is essential that coastal State jurisdiction over fisheries
and over the mineral resources of the continental margins
be subject to international standards and compulsory settle-
ment of disputes.
"Seabed Resources -- Coastal Areas
"We can accept virtually complete coastal State resource
management. jurisdiction over resources in adjacent seabed
areas if this jr -isdiction is subject to international
treaty limitations in five respects:
"1. International treaty standards to prevent unreasonable
interference with other uses of_ the ocean. A settlement
based on combining coastal State resource management jurisdictic
with protection of non-resource uses can only be effective if
the different uses are accommod..ted. This requires inter-
nationally agreed standards pursuant to which the coastal State
will ensure, subject to compulsory dispute settlement, that
there is no unreasonable interference with navigation over-
flight and other uses.
"2. International treaty standards to protect the ocean
from poll.uti_on. As a coastal State, le do not wish to
suffer pollution of the oceans from seabed activities anywhere.
We consider it basic that minimum internationally agreed
pollution standards apply even to areas in which the coastal
State enjoy-s resource jurisdiction.
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I~ 113. International treaty standards to protect the integrit,
of investment. When. a coastal State permits foreign
s under its resource
2 - ---
natio.-nals to-make investments in area
t
s
management jursidiction, the integrity of such investmen
should be protected by the treaty. Security of tenure and
a stable investment climate should at-tract foreign inveent
and techno _ogy ` o ar65 coastal States.
~lieut st"h protection in the treaty, investment may well
go elsewhere.
national community
revenues for inter
of
Sharin
"4
__
.
g
.
purposes. We continue to believe that the equitable dis-
h t be assured if
"5. Compulsory settlemento c ~s
standards such as nhase I described are necessary to protect
certain non--coastal and international interests, and thu:.
render agreement possible. Accordingly, effective assurances
that the standards will be observed is a key element in
achieving agreement. Adequate. assurance can only be provided
by an impartial procedure for the settlement of disputes.
These disputes, in the view of my delegation, must be settled
ultimately by the decision of a third party. For us then
the principle of compulsory dispute settlement is essential."
tnibution of benefits from the seab,:.~us ec_ n es
treaty standards provide for sharing _6nnrS of -the revenues,
from continental. margin minerals with the international
community, particularly for the benefit of developing countries.
Coastal States in a particular region should not bear the
entire burden of assuring equitable treatment for the landl.ocke^
and shelf-locked States in that region, nor should they bear the
entire burden for States with narrow shelves and little petrole,,
potential off their coast. The problem is international and
the best solution would be international.. We repeat this offer
as part of an overall. settlement despite our conclusion
from previous exploitation patterns that a significant portion
of the total international revenues will. come from the
continental margin off the United States in car'` ,y years.
We are concerned about the opposition to this idea implicit
in the position of those advocating an exclusive
economic zone.
l' notes International
it is accordingly clear that the only important
difference between an exclusive economic zone (or the
continental shelf regime) and our intermediate zone is the appl
cation of These five points. This., however,. is not clear
to other states, particularly those that still see the pro-
posed 200 meter boundary between the continental shelf and
the intermediate zone as the "limit of national jurisdicton,"
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and who see a dep.'.h limit that varies greatly in distance
from the coast as highly inequitable. (Indeed, it is
likely that if the U.S. wishes to preserve the distinction
between the two zones, we would at the least have to accept an
alternative mileage limit (e.g. , 50 or 100 miles) for the
inner zone as well.) Moreover, the U.S. two-zone proposal is
in form incompatible with the idea of a single economic zone
supported by many coastal states, and the inner zone is inco::'cati'
with our own genera! position on-coastal state jurisdiction
over living and non-living resources: namely that international
treaty standards and compulsory dispute settlement procedures
are essential. Accordingly, in substance this change wo.ild
be more compatible with our fisheries objectives than our
current proposal., and the merger of 2 zones of seabed resource
jurisdiction into one single zone is unlikely to affect our
problems with fisheries zones one way or the other, although
we will continue to point out that the differences between
seabeds and fisheries problems require different treatments
of those problems.
The application of the points in the President's Oceans
Policy Statement to a single zone starting at the territorial
sea would be highly desirable from the point of view of U.S.-
environmental, navigation, economic and research interests.
From a negotiating point of view, it amounts to telling the
proponents of the single 200 mile (or continental margin)
zone that we can support their structure for jurisdiction on
the seabeds if they support the substantive points in the
President's proposal. This approach also givesus the
flexibility to eliminate undesirable aspects of the Continental
Shelf Convention (e.g., on scientific research), retain the
desirable aspects, and use the "new" developing country con-
cept of an economic zone to avoid the direct issues of
justifying changes in the Continental Shelf Convention.
Since a large number of countries have already issued
exploration and exploitation rights under the continental
shelf regime, it should be a relatively simple matter to
ensure confirmation of coastal state permits and leases
already issued in this area.
Whether we continue a "two-zone" approach or shift to
a "one-zone" approach, we probably must for technical
reasons present new draft articles on these points this
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summer; essentially putting our August 10, 1972, speech into
textual form. we believe that, subject to the remarks on
revenue sharing, we should have the flexibility to propose
either or both approaches in the light. of tactical circumstances.
The question of how to handle our revenue sharing
proposal under a single--zone approach is a highly delicate
one in view of the. importance of the landlocked and shelf-
locked states, which strongly desire to share in benefits
from the continental margin. We believe that any require-
ment of revenue sharing by coastal states that emerges from
the Conference is likely to be quite modest, but we wish
the pressure to come from other coastal states to reduce
the amount. Accordingly, we have indicated flexibility
on the question of amount after our initial substantial
proposal, and intend to retain that posture and will not
propose a specific formula in any new articles at the
summer session.
. In this situation, the total revenue sharing obligation
is unlikely to be unacceptably large to the U.S. whcther it
applies from 12--miles or from 200 meters, or from any other
line. IM,oyeover, the larger the area to which it applies;, the
smaller the percentage is likely to be. Thus, wee see at_ least
two alter- ,atives in connection with the application of the
President's five points. One would be only to apply four
of them to the area between 12 miles and 200 meters, with
revenue sharing continuing to apply beyond 200 meters. The
other would be to apply all five points from 12 miles, but
include a grandfather clause excluding all revenues received
on.areas leased before a fixed date.. Again, many coastal
states would be expected to support grandfather clauses in
this regard. Moreover, should the U.S. leave the fixed date
blank for now, it could well stimulate accelerated continental.
shelf leasing around the world prior to the end of the
Conference. We believe it would be best to have the flexibilit?
to take either approach this summer after consultations with
the U.K. and other states.
The interim policy portions of the President's May 23,
1970, statement would continue to apply only to the area
beyond 200 meters depth. Thus, all leases issued landward of
200 meters before provisional or permanent entry into force of
the treaty will not in any ~-ray be-qualified.- However, we
consider it to be-'of critical importance that the United States
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SECRET 38.
continue to indicate its adherence to that policy for areas
beyond 200 meters in all relevant documents. The President's
Energy Policy message and the Interior Department's notice of
tract nominations beyond 200 meters have expressly adhered
to that policy. Other states will interpret any deviation
from it as a decision by the U.S. that coastal states already
have exclusive jurisdiction well beyond 200 meters, and that
there is no need to agree to international standards proposed
by the U.S. as a quid pro-quo. Since leases may be issued
beyond 200 meters before the Conference, they should, in view
of the President's Ocean Policy Statement and our instructions
in NSDM-62, be formulated in coordination with the Law of
the Sea Task Force. In the event of disagreement, a supple-
ment to this report would of course be submit4.ed.
VII. Compulsory Dispute Settlement
Proposals for compulsory dispute settlement has been a
basic part of U.S. proposals on fisheries and seabed re-
sources for some time. One of the objective's stated in
President Ni_xo::'s Ocean Policy Statement of;. May 23, 1970, is
"peaceful and compulsory settlement of disputes." For
the seabeds, t ,e have 'proposed a permanent tribunal. For
fisheries we have proposed ad hoc commissions.
The U.S. Government Departments and Agencies on the Law
of the Sea Task Force and affected industries regard accelatane:
of the principle of compulsory dispute settlement as essential
to a successful Law of the Sea Conference, as affording
vital protection against abuse of coastal state or other
authority that will emerge from the Conference, and as a critic
device in persuading states to accept a settlement that
includes such authority coupled with treaty standards and
limitations. Similar considerations apply to the functioning
of the deep seabeds organization.
For similar reasons, this report recommends compulsory
dispute settlement procedures in connection with scientific
research and pollution from vessels.
Secretary Rogers has already stated that:
This Administration is committed to strengthening the
role of international adjudication in the settlement
of international disputes. We are taking specific
steps to carry out this policy.
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REPORT ON THE MARCH/APRIL, 197 3 , MEETING OF THE
U.N. SEABED COMMITTEE
Summary
The U.N. Seabed Committee completed its fifth
session in preparation for the third U.N. Conference on
the Law of the Sea which is scheduled to commence in
New York with a two week organizational session during
November/December 1973. The substantive phase of the
Conference will take place in Santiago, Chile over an
eight week period starting in April, 1974. The latest
preparatory meeting lasted from March 5 to April l 6 and
was characterize:: by a business-like atmosphere and slow
but perceptible progress. it now seems clear that the
commitment to holding the Conference on schedule is
increasing. The preparatory committee is generally
moving beyond general debate and procedural wrangling to
structured discussion on specific issues in working
groups and informal drafting groups. Thus far these
groups are preparing for presentation at the, Conference
draft treaty articles with alternative or bracketed
texts where differences exist on the seabed regime and
Machinery and marine pollution. While the debate and
the prep.-ration of articles have ,:,erved to focus and
sharpen position;, the difficult negotiations and
accommodations still li_n ahead. At this meeting, the
United States continued to press for acceptance of the
positions it had proposed at previous sessions of the
Committee. In support of this objective, the United
States delegation Made several statements and circulated
two working papers. There follows a brief report on the
highlights of this session.
Procedural Developments
An important feature of the March/April meeting
was the consensus which emerged on a variety of procedural
matters which facilitated the negotiations and opened the
way for more intensive work and drafting. Early in the
session, the Main Committee agreed on the allocation of
subjects and issues contained in the list of subjects and
issues adopted last summer. Under this arrangement,
Subcommittees I and III wi_11 consider items specifically
within their mandate and Subcommittee II will discuss
all other items on the list except for "peaceful uses"
which will be dealt with by the Main Committee.
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In the future, the De;'artment of State will examine
every treaty we negotiate with a view to accepting,
wherever ap,,ropr_iate, the jurisdiction of the Inter-
national Court of Justice with respect to disputes
arising under the treaty. In a treaty in which we or
the other government cannot accept the Court's juris-
diction, we will urge the inclusion of other appropriate
dispute settlement provisions.
We intend to place major emphasis on compulsory dispute
settlement at the summer session as a general principle
applicable to all disputes arising under the Law of the Sea
Treaty.* We have recruestod an outside study on procedures
for dispute settlement to be ready for our use this summer.
Taking into account special problems that may require
separate procedures (e.g., fishing disputes, investment dis-
putes between a private party and a state), we may after re-
viewing the study propose the creation of a Law of the Sea
Tribunal, specialized commissions, arbi.tral panels, or a
combination of these. As in our seabeds proposal, there
could be provision for referral of questions of international
law to the International Court of Justice. We expect to
reach decisions on these machinery questions before the dele-
gation leaves for Geneva. In the event of major disagreement,
a supplemental report will be submitted.
* Dispute settlement procedures must respect the sovereign
immunity of state aircraft, twwar_ships, and other government
non-commercial vessels, and accordingly any action involving
them can be directed only to the government of the flag
state, and not to or against such aircraft and vessels. More-
over, we will leave our options open regarding the application
of cc..:LDulsgry dispute settlement in. the territorial sea and
strai-Ls. The approach of accommodating straits state interests
by placing certain treaty obligations on the flag state might
be considerably more attractive if accompanied by compulsory
dispute settlement procedures, but this should be ascertained
in the course of our 'traits discussions. Should it appear
that a change of position might enhance overall straits ob-
jectives, appropriate new instructions will be requested.
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Subcommittee I will prepare draft treaty articles on the
international. regime and machinery for the seabed;
Subcommittee III will deal with preservation of the marine
environment and scientific research; and Subcommittee II
will be handling issues such as the territorial sea, the
contiguous zone, straits used for international navigation,
the continental shelf, exclusive economic zone beyond the
territorial sea, coastal state. preferential rights or
other non--exclusive jurisdiction over resources beyond
the territorial sea, the high seas, the rights of land-
locked countries, shelf-locked countries and broad-shelf
states, archipelagos and natural and artificial islands.
Two new working groups were established at the March/
April session so that there are now four in existence. The
first working croup had been created in March 1972 to
deal with the seabed regime and machinery. Towards the end
of last summer's meeting, a second working group was
established in Subcommittee III to consider preservation
of the marine environment. This session, a third working
group of the whole was established in Subcommittee II
under the Chairmanship of Ambassador Kedadi of Tunisia to
consider the ter..rit-ori_al. sea, contiguous zone, straits,
continental shelf, exclusive economic zone and preferential
state rights - not necessarily in that order. The remaining-
Subcolmi_ttee II items on the list of subjects and issues
would be dealt with after the working group had completed
its discussion on these issues.
While it consumed most of the first three weeks of the
session to reach agreement on the formation of a working
group in Subcommittee II, the selection of a Chairman,
and the basic division of subjects for its consideration,
the achievement of this arrangement marked the overcoming
.of a major psychological obstacle as Subcommittee II had
long been the focal point of delaying tactics by those who
viewed time as being on their side. The selection of an
African Chairman was strongly resisted by the Eastern
European block which felt that it should have the Chairman-
ship. The .strength of the group of 77 on procedural
issues was once again demonstrated--by their ability to
secure one of their members to head this important working
group. As part of the compromise on this matter., the
Eastern European bloc was given a chairmanship of a second
working group in Subcommittee III.
On the last day of the larch/April meeting, the
Chairman of the Seabed Committee, Ambassador Amerasinghe,
circulated a paper on the administration and organization
of the Conference. lie stated that he intended to initiate
a series of informal consultations prior to the summer
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meeting in order to determine which arran meats would be
appropriate; mentioning specifically such questions as
Conference officers, a representative of the Secretary
General, tho decision-making procedures, and voting. On
the voting issue he suggested that the Committee articles
might be adopted by a simple majority and that 6.t the
plenary stage a 2/3 majority might be appropriate.
Territorial Sea and Straits
In August 1972 the Soviet Union circulated a draft
article providing for freedom of transit through straits
used for international navigation and at this session
submitted a draft treaty article providing for a 12-mile
territorial sea. In contrast to the US and Soviet
position on a special regime for straits used for inter-
national navigation, eight States (Spain, Morocco,
Phili_ppiner, Indonesia, Greece, Cyprus, Yemen and
Malaysia) proposed draft articles concerning the territorial
sea and straits. These articles do not recognize any
special right of transit in straits used for international
navigat.on different from the doctrine of innocent passage
in the territorial sea. Moreover, they def_r_ne the concept
of innocent passage in a more restrictive and subjective
manner than presently exists under international law. The
proposal represented a coalition between hard--line strait
states and archipelago states ; however the draft was also
supported by Peru, Sri Lanka and Cyprus. It was reported
that Egypt, while supporting the draft in the Coi-,imittee,
did not consider the draft had gone far enough. The
United States expressed deep dissatisfaction with the
draft articles and reiterated its strongly held position
that US vital interests require agreement on a 12-mile
territorial sea coupled with free and unimpeded transit
through and over straits used for international navigation.
We stre ssed that the question of straits transit must be
considered separately from that of passage generally in
the territorial sea. The UK firmly endorsed the US
position hut reserved comment on the question of strict
liability for damage caused by vessels or aircraft in
violation of certain IMCO or ICAO :Ctandards. The Soviet
Union also spoke in support of its straits proposal,
which differs from our own in that it would only apply
to those straits which connect areas of the high seas,
thereby exempting Tiran and a part. of Pemba Channel. France
and Kuwait also supported .free transit although Kuwait
made it clear that freedom of transit did not, in its
view, include freedom of overflight. Thailand and Zaire
indicated that innocent passage would be inadequate for
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their individual geographic circumstances while a number
of other states, including Madagascar and Tunisia, spoke
in favor of the concept of innocent passage. Both
Norway and Denmark endorsed the concept of a special
regime for straits different from that of passage in the
territorial sea.
Four archipelagic states (Philippines, Fiji,
Mauritius and Indonesia) introduced a draft paper on
archipelagic principles. These principles would give an
archipelagic state' sovereignty over the waters within the
archipelago. The territorial sea would be drawn from
the baselines delimiting the enclosed "archipelagic waters."
Innocent passage would be permitted in such waters through
scalanes designated by the archipelagic state.
The acceptance of a 12-mile territorial sea continued
to gather support at this session although many states are
tying, their agreement on 12 miles to a satisfactory
settlement on a broad coastal state economic jurisdiction
beyond 12 miles. This broad coastal jurisdiction was
often expressed in terms of an economic zone-or a
patrimonial sea. Interestingly, the clustering of states
favoring 12 miles may be having effects on the negotiating
posy.uione C of states claiming broader territorial sea
breadths. Nigeria, for examp1ce, stated that although it
had a 30-mile territorial sea, it would be willing
seriously to consider acceptance of a 12-mile territorial
sea if that were embodied in a general convention. Even
Peru and Chile .,poke favorably of Uruguayan legislation
which designates two zones within the "territorial sea".
Under the legislation, in the first 12-mile zone, the regime
of innocent passage` would be applicable. In the second
zone of 12 to 200 miles, there would be freedom of
navigation and overflight.
in the discussions on the subject of the territorial
sea, it emerged that a number of countries were. concerned
about the jurisdictional issues affecting islands. Turkey
and Greece engaged in an extended exchange which related
to the troublesome problem of the Greek islands off the
Turkish coast. A number of other states such as Italy,
Tunisia, Denmark and Venezuela also expressed concern with
this problem. Part of the difficulty relates to the question
of how much resource jurisdiction these islands should be
given in light of the fact that they are often on the
continental shelf .of another state. States with foreign
islands off their coasts may have sonic interest in narrow
territorial sea limits. For example, foreign islands,
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which are clearly entitled to a territorial sea under
international law, could lead to a disproportionately
large loss of territorial sea area which otherwise would
.to the coastal State.
Resource Zones and Fisheries
Venezuela, with Mexico and Colombia as co-sponsors,
introduced draft treaty articles based on the Santo
Domingo Declaration. The.articles provide for a 12-mile
territorial sea and the equivalent of-an exclusive economic
zone beyond this territorial sea up to 200-miles. In the
patrimonial sea area, there would be freedom of navigation
and overflight. In commenting on the articles, Ambassador
Castenada of Mexico made a special point of emphasizing
that coastal State rights were limited to specific
functions in the patrimonial sea. Australia expressed
support for a 200-mile fisheries zone, as well as an
exclusive economic or patrimonial sea,. the breadth of
which was undelimited. Ambassador Harry also appeared to
endorse the Santo Domingo articles as a basis for
discussion. Several delegations noted the similarity
between the Santo Domingo articles and the Kenyan draft
proposal which provides for an exclusive economic zone.
The United States delegation spoke on several occasions
in support of the. species approach on fisheries. We also
m-ide a detailed statement and circulated a working paper on
t;e special management problems of tuna and anadromous
fisheries. The Japanese and Soviets continued strongly to
resist zonal. approaches on fisheries. The Japanese, in
particular, spoke against coastal State management of
salmon. The Soviets offered developing countries assistance
in improving their fisheries capabilities. Tanzania
rejected coastal States preferential rights for coastal
stocks as inadequate and endorsed the exclusive economic
zone approach. Liberia also spoke in favor of the Kenyan
proposal for an exclusive economic zone although the
Liberians suggested that there should be international
standards for navigation.
Marine Pollution
The working group on marine pollution in Subcommittee
III met on fifteen occasions during the March/April session.
It began discussion of proposals formally submitted by
Australia, Canada, USSR and Malta regarding the preservation
of the i-cia'rine environment and the prevention of marine
pollution., These discussions focused on the following
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subjects: a general obligation to preserve and protect
the marine environment; a general obligation of states to
adopt measures to prevent pollution of the marine
environment irrespective of the source of pollution; an
obligation of states to adopt measures to prevent pollution
of the marine environment irrespective of the. source of
pollution; an obligation of states to prevent damage
from marine pollution; a particular obligation of states
to adopt specific measures in connection with certain
sources of marine pollution and their relation between
such measures and generally accepted international
standards; and international cooperation and technical
assistance. In addition, the working group considered
the right of states to exploit their own resources in
conformity with the obligation to preserve and protect
the marine environment as well as a number of relevant
subjects contained in' the proposals that were discussed.
Much of the substantive work at the March/April session
was accomplished in a small, informal working group. This
informal working.-group, in which the United States played
an active role, met and consulted twelve times and
produced a number of texts based on the draft proposals
before the Szz}::committee, as well as on the comments of
the working group members.
The United States submitted a draft working paper on
the need for exclusively international standards for the
control of pollution from ships and during the later
stages of the March/April session, the working group
began a preliminary discussion of. these issues. The US
position of exclusively international pollution standards
for vessels was opposed by the majority of nations in
the working group including Canada, Australia,-Ghana,
Kenya, Malta, Peru, Trinidad and Tobago, India, Egypt,.
Tanzania, and New Zealand. A number of objections
focused on the inability of existing international
regulation-making organizations to be responsive to
coastal states needs in a timely manner a~: well as the
desires of coastal states to have the right to enforce
environmental standards. Our position was supported by
the USSR, the UI:, Norway, Japan, Greece, Denmark and
Liberia.
Scientific Research
The new working group on scientific research which
was established at the end of the March/Apri_l session,
will begin its deliberations in July under the Chairmanship
of the Polish representatives. This working group will
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also deal with the issue of transfer of technology to
developing countries. The United States spoke on the
benefits derived from obtaining world-wide geological
knowledge obtained from freedom of scientific research
in the oceans. The President of the National Academy
of Sciences delivered an address on the need to
maintain freedom of fundamental oceanographic research.
An exhibit of the Deep Sea Drilling Project, sponsored
by the N. tional. Science Foundation, was displayed in.
the UN Conference area. In addition,. the Voods Bole
Oceanographic Institute made a research vessel available
for a tour by all Seabed Committee Delegates.
The Soviet Union, with the co-sponsorship of the
Ukraine, Poland and Bulgaria, submitted draft treaty
articles on marine scientific research. Their fourteen
articles reflect a position of maximizing the freedom of
scientific investigations in the oceans other than in
the territorial sea or on the continental shelf. They
provide that scientific research shall.. not be subjected
to unjustified interference, nor shall scientific
research itself cause unjustifiable interference with
traditional high seas activities. The representative of
Malta also introduced draft articles on scientific
research which were intended to avoid abuse by either
commercial ventures or coastal. State controls. The
articles go into copsid_erable detail and contemplate a
rel.ationsh.ip betweeri the international institutions to
be established and the conduct of scientific investiga-
tions in the oceans.
In other statements, Chile suggested that scientific
research needed to be carefully controlled within national
jurisdiction and that it also be regulated in the area
beyond national jurisdiction. Mexico and Colombia's
positions were more moderate on the subject. The UK
indicated that it was unnecessary to negotiate on
.scientific research and that only deep drilling in the
seabed presented pollution dangers which needed to be
regulated.
Seabeds
The principal US initiative at the 24arch/April
meeting was -a proposal for the provisional entry into
force of th international regime and machinery for deep
seabed development. Provisional entry into force under
the US proposal would enable our mining companies to
begin exploitation of manganese nodules under- a provisional
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regime that protects their rights after agreement at the
Conference was reached but before the Convention received
the necessary number of ratifications to enter into force.
The United States proposal was well-received. Over 20
delegations spoke to the Proposal and, of these, 17
expressed interest in pursuing the concept. No state was
opposed, although the PRC indicated that the approach was
"not helpful". As a corollary to its initiative on
provisional application, the United States also proposed
a study by the Secretary General of past instances where
multilateral regimes have entered into force on a
provisional basis. This study suggestion was unanimously
approved by the Main Committee and will be prepared by
the Secretariat for the, use of the Seabed Committee at
the July/August session.
Negotiations on 'an international regime for the seabed
have progressed further than those on any other subject in
the Seabed Committee and this r,-momentum was maintained at
the recent session. The working group of Subcommittee I
continued to function effectively under the Chairmanship
of Christopher Pinto of Sri Lanka. During the fourth week,
the second reading of_draft treaty articles on seabed
regime principles was completed and consideration was
shifted to articles on the international machinery for the
Seabed.
in the working group discussions on the preparation
of alternative draft treaty article texts, the Soviet
Union, Canada, and Australia indicated that they had
"no objection" to giving the Authority the power to
exploit the area when the Authority was financially and
technology capable of doing so, and, in the Soviet view,
as long as the rights of states to exploit the area were
protected. From an opposite perspective, Latin American
supporters of the Enterprise concept indicated that
their position did not contemplate exclusive exploitation
by the Authority. Chile and Peru acknowledged that deep
seabed mining would not have significant adverse economic
effects on developing countries during its early years,
although they supported empow,wcri_ng`the Authority to
control economic implications for developing countries
pro,-I.tcers as a precautionary measure. These concessions
may demonstrate the emergence of a willingness to reach
compromises, at least in some areas, in the process of
drafting alternative texts. The merging of positions in
this matter should substantially reduce the time it will
take to make decisions at the Confe-once.
Efforts in the Subcommittee I working group to
produce agreed text:-, on Article XIV (Due Regard to the
Rights, etc. of coastal states) were unsuccessful. The
clear implication of the resulting debate was that in
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conflicts between coastal States and the international community,
coastal. St: tes should receive priority. Moreover,
developing coastal State dominance was reconfirmed during
the debate on Article XIX (Access to and from the Area) in
which the landlocl-,aad and shelflocked participation was
neither effective nor cohesive.
Position of China
The representativOs of th( People's Republic of China
were far_ more active in this session of the UN Seabeds
Committee than prec.viously. The PRC has become increasingly
involved since joining the Committee in March, 1972. At
this session, they made five major statements on the Law
of the Sea which were clearly intended to appeal to the
developing countries and to oppose the US and Soviet
proposals. They tended to endorse the more extreme
positions of the "Third 1?1or:Ld" and they were one of the
few delegations to sneak out strongly against the "super-
powers", although their attacks were directed principally
against the Soviets. They attacked the four. Geneva
Conventions on the Law of the Sea on the basis that most
countries had not participated in their formulation.
They asserted that coastal S~:a.tes could unilaterally set
their limits for the territorial sea and for economic
zones. They maintain that pure science does not exist and
that coastal State consent would be mandatory within
national. jurisdiction. The Chinese charged that the two
superpowers wanted narrow limits to dominate the oceans
militarily and to plunder the resources of the oceans
without regard to the interests. of developing coastal
Sta.tes.. In spite of the PRO desire to play a leading
role in the Law of the Sea deliberations, there was
little evidence at this session that they were exerting
great influence among the developing countries. The
Soviets tended to escalate the political nature of the
confrontation by having the head of their Delegation
respond to the Chinese attacks. The United States took
a low--key approach in responding to the Chinese charges.
On the few occasions when we did reply, we stated that we
regretted the tone of their remarks which we did not
find helpful in advancing the work of the Committee.
Other Dovel-op ents
The landlocked and shel.f-locked block did not appear
to be functioning as effectively at the March/April
session taking into account their rather remarkable display
of cohesiveness and discinline at the last UN General
Assembly. however the group did meet regularly and they
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did stagger the presentation of statements which promoted
the agreed objectives of their group. Some of their
difficulties may have resulted from the wide range of
issues which must necessarily be covered during Seabed
Committee meetings.
The United States continued to work closely on seabed
questions with the Group of Five which includes the US,
the USSR, Japan, the UK and France. It was agreed that
the Group of Five would meet before the summer meeting of
the UN Seabed Committee. . (These discussions have now
been scheduled for the latter part of May and early part
of June in London.) The Group of Five will be considering
not only seabed matters but also other issues such as a
coordinated position on straits, marine pollution,
scientific research and tactics at the summer meeting. The
Group of Five coordination on contentious issues in the
working group in Subcommittee I once again proved very
useful. We intend to continue to work more closely with
these delegations in the months ahead on certain issues.
Technology transfer continues to be an issue raised
by many developing countries in relation to scientific
research. As mentioned above, during the concluding
days of the March session, a working group on scientific
research was establ i_shed which subsequently had the issue
of technology transfer added to its mandate. Although
general debate on scientific research in Subcommittee III
has concluded, it is anticipated general debate on
technology transfer will continue' before it is dealt with
in the working group.
Congressional Participation
Senators Stevens and Pell and Congressmen }Milliard aid
Fraser attended portions of the March Seabed Committee
meeting. Congressional interest appears to be increasing
on the Law of the Sea negotiations. In this regard, the
House of Representatives overwhelmingly passed a
resolution endorsing the objectives of President Nixon's
Oceans Policy Statement of May 23 and commended the work
of the US Delegation to the Seabed Committee. A parallel
resolution is pending in the Senate.
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Tab D
1. Statements by U.S. Representatives
involving economic analysis of law
of the sea issues.
Statement by Eliot L. Richardson
Before the Coriunittee on Interior
and Insular Affairs, U.S. Senate.
May 1970. Mr. Richardson explained
the basis for the President's May 23,
1970 oceans policy statement.
Statement by Dr. Vincent E. McKelvey
Before the Asian-African Legal
Consultative Committee, Twelfth Session,
Colombo, Ceylon, January 20, 1971.
This is an explanation of the resource
management system contained in the draft
U.S. proposal for the international
seabed area.
Statement by Dr. Vincent E. McKelvey,
Subcommittee I, U.N. Seabed Committee,
March 1A 1 Q1 ) "mhr5 c4-.,+?nr.r.?F- .?..+..++-4-
on deep seabed mining operations and the
location of manganese nodules.,
Statement by John R. Stevenson,
Subcommittee I, U.N. Seabed Committee,
March 25, 1971. This'statement discusses
the U.S. draft proposal for the international
seabed area.
Statement by Dr. Vincent E. McKelvey,
Subcommittee I, U.N. Seabed Committee,
March 25, 1971. This is a discussion of
the potential mineral production from
areas beyond the 200-meter isobath.
Statement by John R. Stevenson,
Subcommittee III, U.N. Seabed Committee,
March 25, 1971. This statcijcnt discusses
preservation of the marine environment
and oceanographic research.
Statement by Ambassador Donald L. McKernan,
Subcommittee II, U.N. Seabed Committee,
August 17, 1971. This statement was
delivered in conjunction with the distribution
of a background paper on the nutritional
importance of fish, their behaviorial
ApprTfiq
"kjOc
ff,q~~S lop 99P
and trends in fish production.
 Statement by John R. Stevenson,.
U.N. Sr- Tied Committee, August 18, 1.971.
Appro 1 goE elggf&01 a -RW@O~(~w c@Q0120010-0
behind the U.S. resource and non-
resource proposals.
Statement by John R. Stevenson,
Subcommittee I, March 6, 1972.
This statement discusses the scope
and basic provisions of the regime for
the deep seabed.
Statement by John R. Stevenson,
Subcommittee I, U.N. Seabed Committee,
March 21, 1972. This statement
concentrates on the status, scope,
function and powers of international sea-
bed machinery.
Statement by Ambassador Donald L. McKernan,
Subcommittee II, U.N. Seabed Committee,
March 29, 1972. This statement focused
on the economic interest of coastal States
in offshore fisheries.
Statement by Ambassador Christopher H.
Pr17.7.1ir;c ~?1 cenim;tree T U.N. C.,`.t.. A n..,,,...;4-
4-July 26, 1972. The statement comments upon the
v..' ~.-... ........1. 2 It 1 L l.1_ 9
Z;C:Cv.xu u~..viMcviuic r.aLIP-Li.C&ILA011S ~4UU~ r1C%I CXL4U
by the U.N. Secretariat.
Statement by John R. Stevenson,
Subcommittee III, August 2, 1972. This
statement analyzes legal principles dealing with
marine pollution.
Statement by Ambassador Donald L. McKernan,
Subcommittee II, U.N. Seabed committee,
August 4, 1972. This statement accompanied
the introduction of the revised U.S. draft
fisheries articles.
Statement by John R. Stevenson,
U.N. Seabed Committee, August 10, 1972. This
statement covered the general policy of the U.S.
on ocean resources. V
Statement by John R. Steven*3on,
Subcommittee I, U.N. Seabed Committee,
August 14, 1972. This statement reiterated
the U.S. opposition to a proposed moratorium
on deep seabed exploration and exploitation.
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Letter to Senator J. William Fulbright
from Charles N. Brower, March 1, 1973.
This letter supplemented by an extensive
appendix provides Executive Branch
views on pending interim mining
legislation.
Statement by John Norton Moore,
U.N. Seabed Committee, March 19, 1973.
This statement proposes consideration
of provisional entry into force of the regime
and machinery applicable to deep seabed
development. _
Statement by Ambassador Donald L. McKernan,
Subcommittee III, U.N. Seabed Committee,
April 2, 1973. This statement accompanied
?a U.S. working paper on vessel source
pollution.
Statement by Howard W. Pollock,
Subcommittee II, U.N. Seabed Committee,
April 4, 1973. This statement provided
a detailed explanation of the U.S.
fisheries proposal. and accompanied U.S.
~ ork i r,~, paper. on anadromous and highly
migratory fisheries.
Letter to Congressman Donald M. Fraser from
Charles N. Brower, drafted April 11, 1973.
This letter supplies data on the value to the
U.S. economy of certain interests that might
be affected by the law of the sea agreement
(fishing industry, oil production, deep seabed
manganese nodules, and oil shipments).
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 7Appr ) 1 R 4 tai@'26oi lAp b~ 5t 0800120010-0
Economic Issues.
Mineral Resources of the Sea beyond
the Continental Shelf, E14449/Add. 1. Prepared'by
the U.N. Secretary General, 1968.
Report of the Economic and Technical
Working Group, Ad Hoc Committee to Study
the Peaceful Uses of.the Sea-Bed and Ocean
Floor Beyond the Limits of National
Jurisdiction, A/7230. 1968.
Study on the Question of Establishing in Due
Time Appropriate International Machinery for
the Promotion of the Exploration and
Exploitation of the Resources of. the Sea-Bed
and the Ocean Floor Beyond the Limits of
National Jursidiction, and the Use of These
Resources in the Interests of Mankind,
A/7622, 1969. 80 pages.
Economic Considerations Conducive to Promoting
the Development of the Resources of the Sea-bed
v
a ii" Vl:l:u,l 1' r .1U.J Ti . - ....,,,., 1VV1 D .i(~l"~.+ t.-+7-ttr L i-tc . 3 1 LL ~_ ? -I +++*'1
-
1ri crl i r+-i. on in the interests of Mankind,
_Tt
Preliminary Note By the Secretariat,
A/AC. 138/6. 1969.
Report of the Economic and Technical Sub-
Committee U.N. Seabed Committee, A/7622,
1969.
Study on international Machinery, Report of
the Secretary-General, A/AC. 138/23, 1970.
This study analyze the various types of
international machinery for development of
seabed mineral resources. 63 pages.
Possible Methods and Criteria for the Sharing
by the International Community of Proceeds and
Other Benefits Derived from the Exploitation
of the Resources of the Area Beyond National
Jurisdiction, Preliminary Note by the
Secretariat, A/AC. 138/24.0 1970. 6 pages.
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 Approved For lease 2001/08/31: CIA-RDP80BO149 00800120010-0
Report of Economic and Technical Sub-Committee,
U.N..Seabed Committee, A/8021, 1970.
Possible Impact of Sea-Bed Mineral Production
in the Area Beyond National. Jurisdiction on
World Markets, with Special Reference to the
Problems of Developing Countries: A
Preliminary Assessment, Report prepared by the
U.N. Secretary-General, May 28, 1971,'A/AC.
138/36. 96, pages.
Additional Notes on the Possible Economic
Implications of Mineral Production from the
International Sea--;Bed Area, Report prepared
by the U.N. Secretary-General, May 12, 1972,
A/AC. 138/73. 34 pages.
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3. Reports Prepared by the National Petroleum
Council.
"Petroleum Resources Under the Ocean Floor."
Prepared by the National Petroleum Council,
1969. 107 pages.
"Petroleum Resources Under the Ocean Floor -
Supplemental Report." Prepared by the National
Petroleum Council, March 4, 1971. 63 pages.
Environmental Conservation, the Oil and Gas
Industries, Volume Two. February, 1972.
Prepared by the National Petroleum Council.
This is a comprehensive study of environmental
conservation problems as they related to or
have an impact on the petroleum industry.
406 pages.
U.S.' Energy Outlook, A Report of the National
Petroleum Council's Committee on U.S. Energy
Outlook, December, 1972. This is a comprehensive
study of the Nation's energy outlook. 383 pages.
Law of the Sea, Particular Aspects Affecting
the Petroleum Industry, May, 1973. Prepared by the
National Petroleum Council. The study considers
the question of navigation in coastal waters and
international straits and the question of
security of investment in overseas and domestic
offshore areas. 90 pages.
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 ApprVMj:p Qq4 e12g4~iR1s 61~o 00 g20o10-0
I.ssues Concerning Law of the Sea
"Study of Outer Continental Shelflands
of the United States," Prepared by the
Public Land Law Review Commission,
Vols I and II. October, 1968. This
study is a comprehensive overview of the
total system which the Federal Government
has adopted with respect to the continental
shelf of this country. Approximately 1,500
pages.
Report of the SADOF Working Group on the Limits
of National Jurisdiction and the Regime of the
Deep Seabed. December 2, 1968. This inter-
agency study examined various alternatives for
U.S. policy taking into account economic
considerations. 91 pages.
Marine Science Affairs, 1967, 1968, 1969,
1970 and 1971. Reports of the President to the,
Congress on Marine Resources and Engineering
? Development. These reports include a number
ui dui(: a.ilaiy6e5 v~ i-id~ in science
acL:iviLies of tiiu Feder i Goveiumerit. -
Approximately 1,000 pages.
World Subsea Mineral Resources. 1969.
Dr. Vincent E. McKelvey and Frank H. Wang. This
discussion accompanied Miscellaneous Geological
Investigations Map 1-632 which displayed the subsea
mineral resources around the world.
Science and Environment, Panel Report of the
Commission on Marine Science, Engineering and
Resources. February 9, 1969. This report makes
a comprehensive investigation of the relationship
between ocean science and the environment.
344 pages.
Industry and TechnolocLy_, Panel Report of the
Commission on Marine Science, Engineering and
Resources, February 9, 1969. This report
concentrates on industry aid private investment in
the ocean. 309 pages.
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 Marine Resources and Legal--Political
Appr~ p00890120010-0
Panel eport of the Commi lion on Marine
Science, Engineering and Resources.
February 9, 1969. This report contains
extensive information on marine resources
and international law and institutions.
Our Nation and the Sea: A Plan for National
Action. Prepared by the Commission on Marine
Science, Engineering and Resources. 1969.
This report contains a number of detailed recommen-
dations on actions the United States should
take with'regard to the oceans. 305 pages.
"Seabeds Economic Implications Study",
prepared by James E. Akins, Department of
State with the assistance of the Departments
of Interior and Commerce. July 12, 1971.
This study was directed primarily at the economic
implications of the U.S. draft seabeds
proposal. 104 pages.
Final Environmental Statement-Proposed 1973
Outer Continental Shelf East Texas General
Oil and Gas Lease Sale. Prepared by R?reau
of Land Management, U.S. Department of the
Inte-r.-LOr rrr . Th'r .~V s EIS ccrta: ...r
14 V J.w YY . \+~+i ~lA J.1~ ~/i VtJVzL+\4
oil and gas leasing on the Outer Continental Shelf
of the United States in light of environmental,
natural resources, mineral, economic and other
factors. Approximately 800 pages.
Final Environmental, Impact Statement - Maritime
Administration Tanker Construction Program
N.T.I.S. Report Number EIS 730725-F. Prepared by
the Maritime Administration,Department of
Commerce. This EIS reviews the Maritime
Administration's Tanker Construction Program in
connection with pollution abatement specifications
designed to mitigate adverse environmental effects
which may flow from the construction and
operation of those tankers. Approximately 1,000
pages.
Summary Petroleum and Selected Mineral Statistics
for 120 countries, Including Offshore Areas,
Geological Survey Professional Paper 817. 1973.
Prepared by Geological Survey, U.S. Department of the
Interior. The report brings together, in statistical
form, available information on world-wide production,
reserves,. and resources, and certain other data
relevant to some of the principal fuels and.minerals
that either are produced or are likely to be produced
from offshore deposits, 149 pages.
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Alternative Rules and Provisions Governing
Exploration and Exploitation of Seabed
Mineral Resources Beyond the Limits of
National Jurisdiction. Law of the Sea Task
Force Regime Working Group. April 24, 1970.
This interagency study concentrated on
alternative regimes and rules for seabed mineral
development. 84 pages.
Regime for Peaceful Uses Working Paper on
International Machinery and Benefits. May 26,
1970. This' study was prepared by an inter-
agency working group which analyzed alternative
models of international agencies for the seabed
and the magnitude and apportionment of benefits
which might be anticipated. 60 pages of text
and 90 pages of annexed materials.
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5. Other Publications Concerning Economic Aspects
of the Law of the Sea
Economic Problems and Prospects for exploitation
of the resources of the Sea-Bed and its Subsoil,
December, 1970. Dr. Francis T. Christy. The
study concerns a resource economist's analysis of
the seabed and fisheries interests in the Law
of the Sea negotiations. 35 pages. .
"Ferromanganese Deposits on the Ocean Floor."
Edited by Dr. David R. Horn. January 20, 1972.
This report contains a comprehensive survey
of the location and genesis of manganese
modules. 293 pages.
"Fisheries of the United States, 1972", Current
Fisheries Statistics No. 6100, U.S. Department
of Commerce, March, 1973. This report contains
a comprehensive compilation of U.S. and world
fishery resources.
"Manganese Nodulesdeposits in the Pacific".
d e ..
_ i 7 '1? ?7- - 1-. 'i e 9 f%'7 '1
by ,~1i 'VaalVGJ.'. ' _ 11 U4I( 1 jL ' !\ l J U, 1J
This collection of materials covers
distribution of manganese nodules and various
aspects of their development such as land
based requirements, environmental impacts and ind-
ustrial evaluations of alternative resource
allocation plans. 220 pages.
Who is to Control the Oceans: U.S. Policy and
the 1973 Law of the Sea Conference. John R.
Stevenson. The International Lawyer, Vol. 6,
No. 3, July 1972. This article reviews
U.S. law of the sea policy, including the
rationale behind our position on economic issues
in'the oceans.
United States Ocean Mineral Resource Interests
and the United Nations Conference on the Law of the
Sea. Leigh S. Ratiner and Rebecca L. Wright,
The Natural Resources Lawyer, Vol. VI, No. 1,
Winter, 1973. The article concentrates on the
economic interests of the United States in the
context of the law of the sea negotiations.
43 pages.
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The Economic and Social Effects of the
Fishing industry - A Comparative Study.
1973. Prepared by the U.N. FAO Department
of Fisheries. This Study is based to a large
extent on a series of Fishery Country Profiles.
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6. National Security Council Memoranda/Decisions
NSC-U/SM 54C, March 12, 1970.
Mr. Richardson included two Memoranda to the
President in NSC-U/SM 54C. The first sets out
the issues concerning the seabeds and summarized
the major proposals. The second contained
recommendations by Mr. Richardson outlining
common ground between the agencies.
NSDM 62, May 22, 1970.
NSDM 62 established the basic U.S. policy on
the Convention on the Continental Shelf and
Seabeds.
NSSM 125, June, 1971
NSSM 125 was a comprehensive analysis of. the
goals and interests of the United States in
the Law of the Sea negotiations.
NSDt 122, i L I I Y 6 2, 1771.
NSDM 122 represented the President's review of
the discussions and options presented in NSSM 125.
It provided authority for the U.S. positions at
the July/August 1971 U.N. Seabed Committee
meeting.
NSDM 122: Implementation of U.S. Oceans Policy
and Progress of the Law of the Sea Negotiations,
October 14, 1971.
This memorandum was submitted pursuant to NSDM 122
and reported on the measures taken in implemen-
tation of NSDM 122 at the July/August 1971 U.N.
Seabed Committee session.
Report on Implementation and Proposed Modifications
of NSDM 62 and NSDM 122, February 22, 1972
This report proposed certain modifications in
the positions set forth in NSDM 62 and NSDM 122
for the purpose of law of the sea preparatory
negotiations during the March, 1972 U.N. Seabed
Committee meeting.
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 NSDM 157, March 13, 1972.
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NSDM 15T represented the President s approval
of the Interagency Task Force's February 22, 1972
report and specifically approved changes in the
U.S. position as set forth in NSDMs 62 and 122.
NSDM 157 Report', June 20, 1972.
This memorandum by the Interagency Task Force
contained negotiating recommendations as requested
in NSDM 157 for the July/August U.N. Seabed Committee
Meeting.
. NSDM 177, July 18, 1972.
NSDM 177 represented the President's approval of
the Interagency Task Forces recommendations of
June 20 as the negotiating instruction for the
U.S. Delegation to the July/August, 1972 U.N.
Seabed Committee meeting.
NSDM 177 Report, September 29, 1972.
This memorandum prepared by the Interagency Task
Fnrr.P in acco.r. clanee with NSDM 1 77 . Co t? i,rlecl
recommended instructions for the U.S. Delegation
'f'o the 77th U.N. Genera.. 2s-1-...1 Y. A- r~ ..rL - on, the July/August 1972 U.N. Seabed Committee meeting
was attached.
NSDM 196, October 31, 1972.
NSDM 196 provided instructions for the U.S. Dele-
gation to the 27th U.N. General Assembly.
Dr. Kissinger's Memorandum of March 16, 1973.
This memorandum endorsed the negotiating plans
recommended for the March/April, 1973 U.N. Seabed
Committee meeting.
June 1, 1973 Memorandum to Dr. Kissinger, June 1, 1973.
This memorandum contains negotiating recommendations
prepared by the Interagency Task Force as requested
in Dr. Kissinger's memorandum of March 16, 1973
for the July/August 1973 U.N. Seabed Committee
Meeting.
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 Approved Fe R" ?~ ~Q /3 d 8~~Q~Q@ 0( Q$OQ ~ @c
Aspects of the Law of the Sea
"Foreign Policy Implications of the Energy
Crisis", Hearings Before the Subcommittee
on Foreign Economic Policy of the House
Committee on Foreign Affairs, 92nd Congress,
2d Session (1972)
"Selected Materials on the Outer Continental
Shelf" Memorandum by Senator Henry M. Jackson
Chairman of the Committee on Interior and
Insular Affairs, 91st Congress, 1st Session
(1969) 47 pages.
"Outer Continental Shelf" Report by the
Special Subcommittee on Outer Continental
Shelf To the Committee on Interior and
Insular. Affairs United States Senate From:
Senator Lee Metcalf, 91st Congress, 2nd
Session (1970) 222 pages.
"The Law of the Sea Crisis"
A Staff Report on the United Nations
Seabed Committee. The Outer Continental.
Shelf and Marine Mineral Development,
P c pa ed at L'iie Requt.:s'L of -SHE. iiy M. Jca.C;r,
Chairman Committee on Interior and Insular
Affairs, 92nd Congress, 1st Session (1972)
327 pages.
"Science, Technology,' and American Diplomacy"
Exploiting the Resources of the Seabed -- Pre-
pared by George A. Doumani (Science Policy.
Research Division Congressional. Research
Service, Library of Congress) Prepared for
the Subcommittee on National Security Policy
and Scientific Developments of the Committee
on Foreign Affairs, U.S. House of Representatives
(1971) 152 pages.
"The Law of the Sea Crisis an Intensifying
Polarization" A Staff Report on the United
Nations Seabed Committee the Outer Continental
Shelf and Marine Mineral. Development. Pre-
pared at the request o:9 Henry M. Jackson,
Chairman, Committee on Interior and Insular
Affairs (Part 2) 92nd Congress, 2nd Session
(1972) 57 pages.
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 Approved Fqr eIopmen/t8ot Iarc1 #4ineral esou0rces of
the Deep Seabed" Hearing before the Sub-
committee on Minerals, Materials, and Fuels
of the Committee on Interior and Insular
Affairs, 92nd Congress, 2nd Session on
S.2801. A bill to provide the Secretary of
the Interior with Authority to promote the
conservation and orderly development of the
Hard Mineral resources of the Deep Seabed,
pending adoption of an international regime
therefore. (1972) 77. Pages.
"Law of the Sea"
Hearing before the Subcommittee on Oceans
and Atmospher_eof the Committee on Commerce,
United States Senate, 92nd Congress, 2nd
Session on the Law of the Sea (1972) 137 pages.
"International Conference on Ocean Pollution"
Hearings before the Subcommittee on Ocean
and Atmosphere of the Committee on Commerce,
92nd Congress, 2nd Session on International
Conference on Ocean Pollution (1972) 126 pages.
"1972 Survey of Environmental Activities of
International Organizations" Prepared at
the Direction of Honorable Warren G. Magnuson,
Chairman for the Use of the Committee on
Commerce United States Senate, 92nd Congress,
2nd Session (1972) 187 pages.
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Tab E
:13n CO G 111". 0
1s'r ti t:6S!Uh`
c
f.' ri ?ti 1
! 1! q , / H
IN T-111, ROUSE OF
PEBRUARY S, 197,11
llr. FrAS-:r (for 1 is._lj', )Jr. Ymr.r.-.\-;n, 'Mr. i1A CELL. MY. Btxi 1A'r, \1r
Mr. /,m:wcr:r, 1(r.. Si:uaaa..-~c-, .fir. J1 Aattr,j?ON, .llir. ],i?c-t:tx.\X-,
M).. i:osi'N17I.1L, 'Mr. 1?1(oo-'11?'tlir.1), Mr. Ih?rrt:, Mr. Cox.~nt.t:, '11ncl 11r.
11ot;c. ) su mtittc-d the following resolution; which W;ls referred to flit-
Cou,tuiit11,11 luallagcllleiit, of 'Stich
8 1111grato1'y Species as {1111a.
SEC. `?. The Rouse of I1cprescllt,ttives commends 1:11c
1.0 sited States delegation to the Seabed Cornnlitte preptir-
1.1 hi for l.lle Law of t e S,--,a Confcreiice for its execllcnt work,
1. 2, X11(! 6?1~P.1'lll P!1 (1'(1C t1 e ttellt(t'~t{fr~It n n~~ti{t.~nn to ..-{'...1 .~~t~.~. r...t~..
.. ~ .._ __ d..~.... .. t... .........u.. to
13 for early af;rcement. on ;n. ocean treaty einhotlt'i11g (]I(' golds
X1 stated ill section 1..
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 DEPARTM ENT OF STATE
pP80BO1495 040800120010-0
roved For Release 20a1(Q~Q//j, o?cI4 a 140,
Deputy-Secretary Kenneth Rush, The Chairman of
the Undersecretaries Committee
FROM: ,Charles N. Brower, The Acting Chairman of the
r.Law of the Sea Task Force and Acting Legal Adviser
SUBJECT: Treasury Department Comments of June 15, 1973,
Concerning Law of the Sea
I have reviewed the memorandum of June 15, 1973, from
the Deputy Secretary of the Treasury on the law of the sea
(Tab B) in the light of the Law of the Sea Task Force Report
of June 1, 1973 (Tab A), which contains recommended instruc-?
tions for our delegation to the U.N. Seabed Committee meeting
beginning July 2. The Task Force Report received the con-
currence of the Secretary of the Interior, the Acting Secretary
of Defense (who also forwarded the concurrence for the Joint
Chiefs of Staff), the Chairman of the Council on Environmental
Quality, the Administrator of the National Oceanic and At-
.-o-s- cri c Tr~mi n C'F"Y7i`l /'ln for the T1r. p rFinr~t~}- of (`nrtm~-rorl itci
well as the Departments of State and Transportation and the
National Science Foundation. Accordingly, Mr. Moore and I
have coordinated this memorandum and its attachments with all
of those agencies, which have consistently shared the views
expressed herein.
I. Summary and General Considerations
While this memorandum concentrates on the problem
requiring most urgent resolution, namely the recommendations
.on page 6 of the Treasury memorandum, I have attached as
Tab C our preliminary responses to some of the specific
substantive points which are raised in the body of the
Treasury memorandum. Tab D is a table of contents to the
supporting economic studies and analyses which have been
conducted during the past five years by the Government or
outside the Government, to the extent those studies have
been used in our policy formulation process.
The President's Oceans Policy Statement of May 1970,
the comprehensive report upon which it was based, the many
NSSMs, NSDMs, and Presidential as well as other statements
which have followed it, elaborate in considerable detail
our national objectives in the Law of the Sea Conference,
their importance and our methods for achieving them. In
essence, the Treasury memorandum questions some, of those
earlier policy decisions, rather than the recent Task Force
Report which concentrates on means to implement them. In
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-- 2 -
doing so, it does not consider what our real options are
either in the negotiations or in the absence of a timely
and successful conference. It is my opinion that failure
to carry through with our current and recommended positions
and strategies from the very start of this summer's
session would result in major damage to our oceans interests
in the context of the Law of the Sea negotiations as well
as other contexts. in view of the consistent repetition
of those policies by'the President, the Secretary of State,
and others, their. endorsement this spring by the House
of Representatives by an overwhelming vote, and favorable
action by the Senate Foreign Relations Committee, it would
also havea serious adverse effect on our strong credibility
in the Law of the Sea negotiations. Even if the adoption
of the Treasury recommendations were the only way to
assure timely re-evaluation of specific interests, which is
not the case, the price in terms of likely foreign inter-
pretations of our actions taken more months before the Law
of the Sea Conference would be unacceptably high. It
would be a costly, mistake to send signals either of internal
conf?c i on or of a loss of interest in assuring CnnferPnr.
results compatible with our interests.
It is widely accepted that the Law of the Sea Conference
can only succeed if there is a comprehensive settlement of
all the major issues involved. Our ability to protect any
of our interests is, for substantive as well as negotiating
reasons, tied to our positions on the whole range of issues.
Earlier NSSMs and NSDMs have-catalogued and discussed these
interests, but it is useful to bear in mind that they-include
fundamental military security interests affecting our global
defense posture; fundamental economic security interests
in the movement of energy and other materials and the use of
-the seas as a direct source of energy, raw materials and
food; interests reflected by increasing domestic pressures,
which affect our foreign policy, to act unilaterally against
Soviet, Japanese, and other fishing vessels off our coast
and with respect to the deep seabed, to act against the
desires of an overwhelming number of countries in the deep
seabeds; avoiding restriction on scientific research in the
oceans that provide the basis for our own and other countries'
abilities to use the oceans in new tind more effective ways;
and protection of the oceans from serious degradation in the
not-too-distant future as predicted by prominent scientists
if seaborne commerce and economic development in other
countries as well as the U.S. continue to increase at
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3 --
projected levels without adequate environmental control.
With the rapid development of technology, our stakes in
the oceans throughout the world are becoming so high that,
in the absence of agreement on an ocean order that
accommodates our interests, we may have to choose between
abandonment of major interests and diversion of significant
military, economic, and political resources to their
protection.
The many conclusions which we have reached during our
five years of negotiations on this subject have been
arrived at after a most thorough analysis of the military
and economic security interests of this nation. They have
been reviewed and adjusted at least twice a year by the
President and senior officials of concerned Departments
and agencies. I am satisfied, as are' my colleagues who join
in this memorandum,that our overall objectives and tactics
have been and continue to be in conformity with the best
interests of the United States.
Nevertheless, it is always prudent to reassess Sour
objectives on a continuing basis and accordingly,' it is
1[ly view tlld4 rred:ilil Y's general 1'Vl:~liiui~i::ncai on to +:: gin k
selective review of the economic policy interests affected
by our negotiating position in LOS be accepted, without any
alteration in existing instructions or those requested
for the July/August meeting before or during that meeting.
In-accordance with existing instructions from the President
on the organization for dealing with Law of the Sea matters,
the review suggested by Treasury of the economic implications
of LOS positions should be conducted by the Law of the Sea
Task Force. It will not be practicable or desirable to
conduct such a review in Washington during the summer months
when virtually all personnel connected with the Law of the
Sea negotiations will be in Geneva. For the purposes of
that review, the Task Force should seek the assistance of
the White House offices concerned with domestic and
international economic policy. A report would be forwarded
to you well in advance of the Santiago Conference.
While I support the Treasury recommendation for a
selective economic study, I and my Colleagues in the other
agencies I have referred to believe that Treasury's
recommendations, insofar as they would affect our negotiating
position at the July/August meeting, should not be adopted.
To do so would entail serious risks of degrading the U.S.
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IWW
bargaining position at the very time the Law of the Sea
negotiations are beginning to build the momentum necessary
to achieving an overall political settlement of highly
contentious issues upon which the success or failure of
this Conference will depend.
What Treasury recommends would be seen by other coun-
tries as a change in the President's commitment to help
establish a new and equitable Law of the Sea that would
accommodate the basic interests of all nations. While
the President's Oceans Policy was carefully designed to
protect fundamental United States interests, it was just
as carefully designed to assure that other nations would
view it as an attempt to assist the many newly emerged
States in the world to achieve greater equality than had
been the case in the previous era of colonial domination.
Those aspects of the President's Oceans Policy such as
revenue sharing and international management of deep seabed
resources which have created this emerging developing
country view of what they consider to be our enlightened
foreign policy have been repeated in each of the President's
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which was sent to Congress on May 3 of this year.
Even the Soviet Union and those other developed
States which take a more conservative approach toward the
law of the sea than we do, understand that our overall
approach is 'designed to further carefully coordinated
comznion navigation interests, and have tried to reinforce
our image for this reason. They will not understand
apparent U.S. withdrawal from a tacit --.although
increasingly explicit -- coordinated negotiating strategy.
At best, they will regard this as an unwelcome sign of
confusion; at worst they may conclude (despite what we
may say) that in fact we are withdrawing support for our
joint objectives after years of careful building of a
strong working relationship. There is reason to believe
that ultimate Soviet attitudes toward the Conference will
be strongly influenced by their assessment of U.S.
trustworthiness, determination, and skill. We are now
the unquestioned leader of the confidential "Group of
Five" maritime powers (U.S., U.S.S.R., U.K., France,
Japan), and that leadership would also be badly
prejudiced by failure to speak frankly, thoroughly, and
credibly on the substance of all major issues to that
group.
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'The Treasury recommendations, if adopted, would imme-
diately cause confusion with regard to the United States
position in what is widely x'egarde:d to be one of the most
important and complex multilateral negotiations ever to
have been undertaken. it has become apparent that many
developing countries, and particularly the key leaders of
that group, increasingly look to the leadership and
statesmanship of the United States in these negotiations.
They believe that only the United States will help to
find the kinds of accommodations between themselves and
the Eastern and Western European blocs which will produce
an equitable treaty. This is probably true. If we now
appear to falter in our public negotiating position, the
sudden loss of. leadership in these negotiations could have
devastating effects. We have not in recent years been
accorded the respect of world peacemaker in any major
multilateral negotiation affecting the fundamental interests
of almost every country in the world.
IT. Specific Comments on the Treasury Recommendations
I now turn to the five points which Treasury recommends
o;i pacge G of its 111emoi;a1idu11l.
A. "The primary task of the delegation should be
to gain a better understanding of what may be
acceptable to other states and to attempt to
fathom their position on certain crucial
.issues." -
This has been one of the primary tasks of our Delega-
tion since 1967 when these negotiations began. It is a
process which until quite recently has not been very
reliable because most countries were stating maximum
bargaining positions. The bargaining positions of the
majority (coastal developing countries) fall into two
categories on the substantive issues raised by Treasury.
Some would be regarded as unacceptable or undesirable
by all agencies. Others are similar to positions suggested
or implied by the Treasury recommendations, but which we
have thus far strongly resisted. Put briefly, the
majority desires a mostly unrestri,i.ned coastal State
control as possible far out to sea in order to control
the activities of the maritime powers and their nationals.
To the extent we might decide at Santiago to eliminate or
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weaken the international restraints we hope to place on
coastal States, continued pursuit of our current policies
will not prejudice our ability to do so, and would in
fact enhance the bargaining value of such "concessions".
As far as can be determined, only with respect to the
deep seabeds is our position closer to that of the
developing countries than Treasury might believe desirable.
While the deep seabed issue is more fully discussed later
in this memorandum, it should be noted that the issue is
of considerable ideological importance to developing
countries and its resolution is unlikely to affect our
energy posture in this century, if ever; U.S. temporizing
would have an explosive effect out of all proportion to
what we might seek to accomplish, and would undoubtedly
invite retaliation on this and other issues.
in this connection, we must bear in mind that States
will not, and, as intelligent negotiators, cannot normally
indicate final positions on crucial disputed issues until
the negotiations approach their conclusion, which at the
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the Conference. However, as nations approach the Conference
itself, they are stating new positions which are increasingly
responsive to the positions of others and increasingly
reliable indicators of their true positions. Were we to
agree with Treasury's recommendations, we might never know
the extent to which coastal developing countries might in
fact be prepared'to accommodate themselves to objectives
our delegation has been instructed to characterize as
fundamental for some years. Moreover, in order to achieve
a better understanding of the true positions of others,
me must do two things. First, we must begin to explore
without commitment potential solutions to major problems.
Second, we must foster a climate in which less important
issues will in fact be resolved through the process of
negotiation and accommodation. It is precisely for these
reasons and with these objectives in mind that the Law
of the Sea Task Force submitted its report to you on
June 1, 1973.
If we fail to carryout the actions recommended in
that report from the very start of the July/August meeting,
it is my opinion that we will probably substantially
reduce the chances for successfully achieving our objectives
at a Law of the Sea Conference to the great detriment of
our economic and military interests in this negotiation.
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B. "Although the U.S. delegation may discuss them
at a general level, it should refrain from intro-
ducing draft articles dealing with the continen-
tal margin, revenue sharing, and the functions
and powers of the International Seabed Authority.
Pending further instructions, the delegation's
role in general. should be one of collecting
information and analyzing the various political
blocs developing within the Conference."
The comments in number A above are applicable to the
latter sentence. With respect to the specific issues, the
following observations apply:
a. Draft articles on continental margin
The United States Delegation introduced a draft treaty
on the seabeds on August 3, 1970 in pursuance of NSDI, 62.
That draft treaty called for the creation of a trusteeship
zone over the continental margin in which both coastal states
and the international organization to be created would have
important roles in connection with resource activity as well
as other uses of the area. The President chose from among
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several years of exhaustive study and public debate, in
which detailed attention was paid both to military and
economic security, including in particular the need for'
secure sources of petroleum. In his covering memorandum
recommending the solution ultimately chosen, Under Secretary
Richardson explained that it would give us flexibility to
emphasize the coastal or international elements as the
negotiations progressed while maximizing the potential
bargaining advantages to us of any such shift.
Our basic negotiating objective was to achieve certain
important restraints on coastal State jurisdiction set
forth in the President's Oceans Policy Statement of May 23.,
1.970. Our more internationalist trusteeship zone treaty
proposal was a tactical decision designed to give us nego-
tating flexibility so that after two or three years of
negotiation the original President's Oceans Policy would
still be viable. Thus, on August 10, 1972, in a speech
regarded by many countries as a welctome "concession"
by the United States, the head of the U.S. Delegation indi-
cated that the United States could accept virtually complete
coastal State resource management jurisdiction in the
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continental margin subject to the principles enunciated
in the President's Oceans Policy statement. This "con-
cession" was offered only after it had become widely apparent
in the negotiations that there was general support for a
12-mile territorial, sea with guaranteed freedom of naviga-
tion in the area beyond it, and this was clearly understood
by others. Unfortunately, however, it seems that the August
10 statement has not yet been clearly understood by all
countries as willingness on our part to abandon the original
trusteeship zone approach in favor of more expansive coastal
State rights subject only to a few limitations. This must
be clarified at once in order to avoid backsliding by these
countries toward positions in which they would seek to
control navigation as well as their economic interests in
a broad area adjacent to their territorial seas. Moreover,
as the Seabeds Committee is fairly close to precise textual
debate and drafting on this issue, we must be able to in-
sure the inclusion of alternative texts reflecting our
current public position; our original articles cannot
serve this purpose. We cannot slow the preparatory pro-
cess without sending very damaging signals, nor can we
rely on others to protect our position since it in part
reflects unique and, in some cases, sensitive interests.
Ybe .! imi. t".a i ons, on coast.=.t State. rights we sce'.' ~{ ':a w
are of direct importance to our military and economic in-
terests are designed to prevent the coastal State from con-
trolling or impeding navigation in areas under its economic
jurisdiction, to require the coastal State to assume obli-
gations to respect contracts with foreign investors for
the exploration and exploitation of hydrocarbons off its
shores, and to ensure that all nations will observe inter-
national pollution standards in the exploration and exploi-
tation of seabed resources designed to protect the oceans
and our own coasts from safety and pollution practices
which may be dangerous. With respect to the last of
these, I would note that pollution resulting from oil
drilling off a foreign country might not only damage
..our own environmental interests, but could also result
in public reaction adversely affecting our own offshore
oil development program. We have already received, for
example, indications of Congressional concern with Mexican
drilling near the border with Texas. Finally, to assure
continuing and effective monitoringeand enforcement of
.these restraints on the coastal State, we proposed com-
pulsory settlement of disputes.'
It is now essential to make our position clear by
introducing draft articles which will substitute for those
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on the trusteeship zone which we'have already introduced.
These new draft articles can then be evaluated by other
delegations as the new United States package with respect
to seabed resources. Hence, the objectives which these
international restraints on coastal State jurisdiction
would serve -- protection of freedom of navigation, pro-
tection of U.S. oil investments overseas, and protection
of the environment -- would be seriously and unjustifiably
jeopardized by our failure to introduce treaty-articles
this summer.
The President's Oceans Policy Statement, subsequent
statements by him and by the Secretary of State in foreign
policy reports to Congress, all statements on the conti-
nental margin by the heads of our delegation, House Resolu-
tion 216 passed on April 2, 1973 (attached at Tab E), and a
virtually identical Senate Resolution which was favorably
reported on June 25, 1973, by the Senate Foreign Relations
Committee, have expressly reaffirmed our willingness to
support a system under which all coastal States share some
revenues from seabed resource development in continental
margin areas under coastal State jurisdiction with the inter-
national community, to be used primarily to promote the
of uevelop.ing COUrt.Cr1eS. 't'his pro-
pvsa.i alluwr?d a to influence the developing countries who
regard the existing law of the sea as manifestly unjust to
them, and who realize (whether or not they wish to share
revenues themselves) that this was an extraordinarily states-
manlike attempt to correct the situation. Even if viewed as
an -offer of unspecified amounts of money in order to protect
our manifold'interests in the -law of the sea, it is seen in
sharp contrast to the positions of those who are offering
nothing. It is, in my view, important, if not essential,
to maintain that offer -- not necessarily for its own
sake but because it keeps us in a favorable posture in
the negotiations. Our delegation has used and can use
this proposal in numerous ways to further many U.S.
objectives related and unrelated to the continental mar-
gin, and it is one reason we have been able to build a
broad consensus of support at home for all our negotiating
objectives, no one of which is popular with all the groups
concerned. Similarly, it permits us to head off, but
keep alive the threat of, a completely disruptive battle
by landlocked and shelf-locked State't over limits at
least until the negotiations are approaching a satisfactory
conclusion.
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If revenue sharing from the continental margin is
included in a final treaty, it will be a de minimus
financial obligation that we (and other coastal States)
will have assumed as part of a proposed package settlement
that, for our part, protects our vital military and economic
security interests for decades to come. While landlocked
and shelf-locked countries (who have close to a blocking
third) like the proposal, as would be expected, the majority -
the coastal States that are not shelf-locked -- are not at
all happy with it. At the very least, it would be fool-
hardy in this situation to discard a useful proposal in the
negotiations that, in the and, the majority may be willing
to pay a price of direct or indirect benefit to us for
eliminating or reducing to very small proportions. Precise
formulae for revenue sharing provisions, if they are to be
included in this treaty, will probably not be discussed
until much later in the negotiations, but we agree that
we should consider the nature and extent of revenue sharing
as a'matter of priority in the course of the study to be
conducted. All that is necessary now is for the United
States to keep this vague and undefined offer alive.
No detailed negotiation on the issue is likely to occur at the
summer session of the Seabed Cbrnmittee. But, to appear to
qo back on the commitment through a failure to reaffirm
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