SIG MEETING ON LAW OF THE SEA: SUMMARY OF CONCLUSIONS AND RELATED DOCUMENTS
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CIA-RDP84B00049R000400870001-7
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S
Document Page Count:
40
Document Creation Date:
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Publication Date:
December 9, 1981
Content Type:
MEMO
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8135669
CONFIDENTIAL December 9, 1981
(With SECRET Attachment)
Senior Interdepartmental Group No. 8
SUBJECT: SIG Meeting on Law of the Sea:
Summary of Conclusions and Related Documents
F.i curIp9 i~Cy'. :tr7~~
The Senior Interdepartmental Group (SIG) on Law of the Sea
met on November 24 to make final revisions to (1) SIG Memorandum
No. 8 and (2) a draft options paper to the President outlining
the option to withdraw from or continue the UNCLOS negotiating
process. The Summary of Conclusions for the November 24 meeting
is attached with the two documents in their revised form.
Also attached are two papers derived from the cleared lan-
guage of the SIGM: an Executive Summary (4 pages) and a quick-
reference summary of Option I (3 pages) which includes a pro-con
discussion and a list of recommendations for implementing the
Option if it is selected.
SIG member agencies are requested to review the attached
documents. Comments are invited to Mr. Otho Eskin, 632-2554, by
COB Thursday, December 10. If comments are not received, clear-
ance will be assumed. It is anticipated that these documents
will be formally transmitted to the NSC during the week of Decem-
ber 14.
NSC review completed - unredacted segments may be
declassified
Executive Secretary
Paul Bremer,'TII
Attachments:
1. Summary of Conclusions
2. Options Paper
3. SIGM No. 8
4. Executive Summary of SIGM No. 8
5. Pro-Con Analysis and Implementation of Option I
CONFIDENTIAL
(With SECRET Attachment)
GDS 12/9/87
State Dept. review
completed
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Senior Interdepartmental Group Memorandum No. 8
PARTICIPANTS: See Attached List
DATE AND TIME: November 24, 1981 3:00 p.m.
PLACE: Department of State, Room 7219
SUBJECT: Law of the Sea
SUMUARY OF CONCLUSIONS
Under Secretary Buckley convened the SIG on November 24
to review proposed changes to IGM No. 8 and the draft memorandum
for the President. Mr. Buckley proposed that only substantive
anu not stylistic changes to the papers be considered.
The SIG Representative of the Department of the Interior
expressed that agency's concern with two points.
-First, Interior believes that the paper presents an overly
optimistic view of the potential improvements that could be
achieved through renegotiation. other agencies view the
paper as adequately describing the level of difficulty in
renegotiation. Several of Interior's proposed changes to
the paper relating to this point were considered to be stylistic
and therefore were not incorporated.
. Second, the Interior Department felt that the paper did
not provide precise guidance on further negotiations. Interior
suggested that the tone of the paper indicated that the US
would not be firm in insisting on the changes it would require
in a renegotiation. Interior urged that there should be
firm objectives to guide a US negotiating effort. Ambassador
talone and other agency representatives expressed sympathy
for Interior's concern that there be firm guidance for US
negotiators but indicated their belief that Interior's comments
appeared to require that the US take a confrontational position
in the LOS negotiations. The Interior Representative stated
that Interior does not urge that the US take a confrontational
position with respect to the negotiations, and does not wish
to dictate negotiating tactics. On the other hand,.Interior
feels that internal papers should be precise with respect to
US objectives.
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The SIG agreed that the IG should be directed to begin
work immediately on detailed negotiating instructions and
proposed alternative amendments. The SIG requested that
draft instructions be available for its review in January.
Such instructions would be developed taking i}to~accouunterence
informal consultations with our allies and with key cof
leaders.
The SIG agreed that, with the following revisions, the
Memorandum to the President and IGE1 No. 8 woula be forwarded
to the NSC for consideration by the President.
Memorandum to the President, Pages 3 anC 7: The words
"although remote" proposed by Interior are stylistic and will
be deleted.
Memorandum to the President Page 4: The word "some"
proposed by Interior is stylistic and will be deleted.
e 4, Option II: Option
Memorandum to the President Pay
II will be revised to read as follows: "Continue participation neg in the Law of the Sea throughin ParttIV,lons,
five
changes satisfying the
Memorandum to the President, Page 6, B: The following
lanyuaye will be inserted in place of Treasury's bracketed
language: "Detailed instructions for achieving these objectives,
including US positions proposed thesSeniorc
treaty provisions will be
Interdepartmental Group which includes all the relevant
agencies. Any agency differences will be forwarded no later
than February 1 for decision by the President."
The SIG also indicated its view that, for the purposes
of decisions on the LOS instructions, the following agencies
should be involved: Commerce, Defense, CIA, Energy, Iior,
EPA, NSF, OMB, Transportation, Treasury, State, Labor, and
Justice.
Memorandum to the President, Pace 7: The penultimate
tick concerning the Republican Platform will be moved to the
preface.
I.1eraorandum to the President, Page 8, Section IV: The
Treasury Department proposed, and all agencies accepted, a
substitution of the word
iorl" Cfor the or,formin~red,itorialachangessed
by the Department of Inter
also will be made.
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Memorandum to the President, Page 8, last sentence:
The following language proposed by the Depart~aent of Defense
will be inserted at the end of the fourth objective: "and
will not set other undesirable precedents for international
organizations."
Meraoranaum to the President, Paye 2, Sub-paragraph. (1) :
The reference to the Department of Defense will be deleted
so as to indicate that this conclusion is accepted by all
agencies.
IGti, Page 18 and IGM, Page 28, parayra;~h 3: Language
changes proposed by the Department of Interior are stylistic
and will be deleted.
tler1.orandun to the President, Page 5, first Para ra h:
The words "principles which we find unacceptable" will replace
the word "rhetoric".
In all appropriate cases, the relevant portions of IGM
No. 8 will be revised to reflect changes made to the Summary.
After the SIG meeting, the Department of Interior
representative insisted tht the draft memorandum for the
President and IGM No. 8 include the attached statement provided
main
by to meeting. To
statne
Memorandum to the President, Pace 4, Section 3, Second
Paragraph The following sentence will be added: The
Department of Interior supports Option II in principle but
prefers that the option makes securing the five objectives
mandatory.
IGM, Page 18, Section 4, Parayraph2: The following
footnote will be added: "The Department of Interior wants it
understood that the negotiator should have the flexibility to
be confrontational should that be necessary to achieve US
objectives."
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December 3, 1981
Department of the Interior Position re Presidential Options
Memorandum on Law of the Sea
The Department of the Interior'believes that Option II
must contain a more definitive statement of the mandatory
nature of the Objectives, including a delineation of the
specific items of concern; that the flexibility inherent in
"non-confrontational" negotiations does not serve the need
to obtain a Convention which would have the support of the
Administration, the Senate, and the American people; and
that the absences of clearcut standards for an acceptable
Convention will frustrate the critical need for rapid review
of progress during the next session, as well as subsequent
analysis required in order that the Administration may promptly
undertake whatever action is deemed necessary for the protec-
tion of all U. S. interests after that session concludes,
Finally, the optimism expressed in the Memorandum on the
possibility of obtaining an acceptable Convention is not
warranted.
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December 4, 1981
DRAFT
MEMORANDUM TO THE PRESIDENT
Options For The Law Of The Sea
Should the United States seek to negotiate changes
consistent with US law of the sea objectives at the Third
United Nations Conference on the Law of the Sea or withdraw
from the negotiations?
I. BACKGROUND
Since 1973, the Third United Nations Conference on the
Law of the Sea has been negotiating a treaty which would
establish a legal regime covering military and commercial
navigation and overflight, deep seabed mineral resource
development, the extent and nature of coastal State juris-
diction, fisheries conservation and management, marine
scientific"research, prevention and control of ocean pollu-
tion, continental shelf rights, and the peaceful settlement
of disputes. The Conference was expected to conclude nego-
tiations and to open a treaty for signature in 1981.
Serious questions had been raised in the US, however,
concerning the adequacy of the Draft Convention, particularly
with respect to the regime it would establish for deep seabed
mineral. resource development. The Republican Platform stated,
"Multilateral negotiations have thus far insufficiently
focused attention on US long-term security requirements. A
pertinent example of this phenomenon is the Law of the Sea
Conference, where negotiations have served to inhibit US
exploitation of the seabed for its abundant mineral resources.
Too much concern has been lavished on nations unable to
carry out seabed mining, with insufficient attention paid to
gaining early American access to it. A Republican Adminis-
tration will conduct multilateral negotiations in a manner
that reflects America's abilities and long-term interest in
access to raw material and energy resources."
In March, the US initiated a comprehensive review of
its law of the sea policy. The results of that review and
an analysis of the available options for pursuing US interests
in law of the sea are summarized in this memorandum. This
memorandum does not address the issue whether the US
should sign or ratify any proposed treaty.
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The next session of the Law of'the Sea Conference will
begin in March, 1982. The Conference expects to complete
work on the draft text and adopt the Law of the Sea Convention
at that session.
II. PRINCIPAL CONCLUSIONS OF THE INTERAGENCY REVIEW
In the course of the policy review, US interests and
objectives in the law of the sea have been examined. Against
them, the Draft Convention and "no-treaty" alternatives have
been weighed. In addition, the negotiability of improvements
to the deep seabed mining regime has been assessed.
The basic conclusions of the Interdepartmental Group
(IG) are that:
(1) The navigation and overflight provisions of the
Draft Convention are acceptable; any deterioration in the
language of these provisions would, however, render this
portion of the draft treaty unacceptable. These provisions,
while not ideal from the United States point of view, would
be beneficial as they would provide a foundation for the
exercise of important naval and air mobility interests in a
non-confrontational manner. This assessment is, in part,
predicated on the fact that the Draft Convention provides
for navigation and overflight freedoms, including transit
on, over,--and under international straits overlapped by
territorial seas and archipelagic waters. Without these
provisions, the assertion of the freedoms guaranteed thereby
would require a direct challenge to existing territorial sea
claims of 107 states, including many of our allies. Unless
international limitations are established, the proliferation
of excessive maritime claims almost certainly will continue,
thereby requiring costly levels of confrontation and certain
political-military risks to conduct routine peacetime military
operations. Ambiguities in the text regarding navigation
and overflight rights can be protected with interpretive
statements and appropriate exercise of our rights as we view
them.
The navigation provisions of the Draft Convention take
on particular importance for US commercial navigation interests.
A widely accepted treaty embodying the provisions of the
current Draft Convention would provide a more stable, predictable
regime of maritime jurisdiction and navigation rights that
are essential to the smooth flow of maritime commerce.
(2) The provisions of the treaty concerning marine
scientific research, the continental shelf, ocean energy
production, and marine environmental protection are generally
consistent with US interests and objectives. With respect
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to fisheries, the Department of State believes that US interests
would not be significantly affected one way or another by a
treaty, except for salmon and tuna where the .effect would be
adverse. The Department of Commerce believes that, despite
the treaty provisions on tuna and salmon which in the short
term provide less protection for the US than our current
legal positions, US fisheries interests would, in the long
run, be better served under a treaty.
(3) Major elements of the Draft Convention deep seabed
mining regime are clearly contrary to US interests and objectives.
(4) An effort to renegotiate the deep seabeds provisions
of the Draft Convention presents the only realistic possibility
of achieving a law of the sea treaty acceptable to the US.
Returning to the Conference is the only strategy or approach
that has been identified which could prevent deterioration of
the navigational provisions while offering an opportunity to
achieve an acceptable deep seabed mining regime under the treaty.
(5) The Conference is likely to open the Draft Convention
for signature in 1982, even if the US objects, unless the
Conference believes that by extending the deadline the US is
likely to sign and ratify the treaty. Most Conference
participants, including virtually all of our allies, are
prepared to complete the Draft Convention with relatively little
change. Sixty countries are required to bring the treaty into
force and there are more than one hundred and twenty developing
countries, many of whom have strong interests in bringing the
treaty into force. In the event the treaty enters into force,
it is impossible to assess with any degree of confidence exactly
who the parties to it might be and, therefore, what effect
entry into force would have on overall US interests if the
US were not a party.
(6) At one extreme, if a comprehensive treaty enters
into force and the United States is the only major nation
which is not a party to the treaty, commercial-scale deep
seabed mining under US licenses almost certainly would not
occur on an unsubsidized basis because of serious international
legal and political risks.
At the other extreme, in the unlikely event that the
treaty did not enter into force for many of the nations interested
in deep seabed mining (US, UK, France, FRG, Belgium, Japan,
Netherlands, and Italy), the USSR, certain major developing
countries, and other industrialized countries, and provided
that the US could induce them to join in an alternative.
regime, investment in commercial-scale deep seabed mining
under US and foreign licenses might occur under that regime.
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A variety of cases lie between the two extremes outlined
above. The IG cannot predict with a reasonable degree of
confidence whether commercial-scale investment would occur
under any such case. The various industrial-consortia hold
differing views on this subject.
The IG has reached the following additional conclusions
with respect to negotiability:
(1) It would be extremely difficult to satisfy all US
objectives listed in Part IV below with respect to the deep
seabed mining regime. Nevertheless, there is an opportunity
to seek and obtain substantial improvements to the Draft
Convention's provisions on the deep seabed mining regime.
Such improvements could increase US and Western allied influence
in the decision-making process while, at the same time, they
could neutralize the one-nation, one-vote Assembly and could
eliminate, reduce, or mitigate the practical impacts of
provisions which would otherwise result in the implementation
of the principles of the "New International Economic Order"
(NIEO). They could also provide an investment climate for
US industrial development without subsidization. However,
the improvements are unlikely to alter the fact that the
treaty would still be replete with NIEO rhetoric which could
still be employed by developing countries to promote their
aims in other negotiations.
(2)--Negotiations to improve the deep seabed provisions
can be conducted with little risk of retaliation against non-
seabed provisions important to the US.
III. OPTIONS FOR FUTURE US LAW OF THE SEA POLICY
The Interagency Group proposes two options for consideration:
Option I: Withdraw from the Law of the Sea Conference
prior to the next session
Option II. Continue participation in the Law of the Sea
Conference to secure, through negotiations,
the five objectives set forth in Part IV
The Departments of Commerce, Defense, Energy, Labor,
State, Transportation, and Treasury, and the Environmental
Protection Agency, and the National Science Foundation,
recommend Option II. Interior supports Option II in principle
but prefers that the option makes securing the five objectives
mandatory.
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A. Option I: Withdraw from the Law of the Sea Conference
prior to the next session
This option would represent a determination that the
draft law of the sea treaty cannot be renegotiated in a
manner that would satisfy US objectives.
Arguments In Favor of Option I:
-- would demonstrate an American resolve not to partici-
pate in multilateral negotiations in which the terms of the
draft agreement (a) do not fairly reflect US political and
economic interests and financial contributions or (b) contain
NIEO principles which we find unacceptable and which developing
countries could employ to promote their aims in other negotiations;
-- because of the extreme character of this action, it
might cause other countries, including US allies, to rethink
their commitment to the treaty and eventually decide not to
ratify the treaty;
-- avoids the risk that US interests in deep seabed
mining might be compromised further through continued
negotiation and might increase the effectiveness of a US
denunciation of objectionable provisions of the treaty;
-- would appeal to those Americans who feel that US
interests should not be subjected to majority votes by developing
countries in international organizations.
Arguments Against Option I:
-- would eliminate any realistic possibility of improving
the Draft Convention and would not capitalize on our currently
strong bargaining position;
-- could lead to the unravelling of important navigational
provisions to the detriment of US security interests and,
therefore, could reduce US ability effectively to assert its
minority view of navigation rights in-the face of adverse
coastal state claims;
-- would isolate the US from most other countries on this
issue and provoke substantial international controversy,
including severe criticism from US allies and others for walking
away from the negotiating table;
would be viewed as a major departure from the traditional
US practice of cooperating in efforts to reach multilateral
solutions to foreign policy issues thereby reducing US credibility
as a reliable participant in multilateral negotiations and
possibly affecting other US foreign policy goals adversely;
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-- would virtually eliminate any possibility of a US
flag deep seabed mining industry, unless the US could convince
its allies and other key countries not to ratify the treaty
and to join an alternative regime. Otherwise, investors
likely would operate under a foreign flag pursuant to the
treaty, unless fully indemnified by the government against
risk;
-- could result in US allies being unable to pursue and
implement a reciprocating states agreement with the US since
they would stay in the LOS negotiations and the US would be
seeking a permanent, alternative regime rather than a transi-
tional regime consistent with a law of the sea treaty;
-- would offer the Soviets an opportunity to criticize the,
US in international fora for using "high-handed" tactics;
-- would be opposed by those Americans who do not believe
the US should walk out of negotiations and who favor multilateral.
solutions to major world problems and an international rule
of law.
B. Option II: Continue participation in the Law of the Sea
Conference to secure, through negotiations,
the five objectives set forth in Part IV
This option would commit the US to make a full effort
to achieve improvements in the deep seabeds provisions of
the Draft Convention sufficient to produce a treaty that
could be signed and ultimately ratified by the US. Detailed
instructions for achieving these objectives, including US
positions on and proposed amendments to specif-ic treaty
provisions will be developed for review by the Senior
Interdepartmental Group which includes a2:1 the relevant
agencies. Any agency differences will be forwarded no later
than February 1 for decision by the President.
To implement this option, it would be essential that the
US state its commitment to the multilateral treaty process.
The US would have to indicate that, if the renegotiated text
meets its objectives, the US Executive Branch would promote
ratification. This commitment would not prejudge the decision
on whether to sign and ratify the final treaty text. That
would depend on a later decision on whether it meets US
objectives. If this option is selected, the US negotiating
strategy would be designed to minimize the risk that retaliatory
measures would be taken involving attempts to amend provisions
of the treaty which are favorable to US national security
needs, while at the same time pursuing strategies and tactical
decisions which could result in a success under Option II.
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Improvements consistent with US objectives in other areas
also may be sought if opportunities arise and if they could be
achieved without risking the unravelling of military navigation
and other important interests.
This approach carries no assurance that further negotiations
would satisfy US objectives. In the event that the US was
successful in achieving its objectives and decided to ratify
the law of the sea treaty, this would entail an appropriation
by the US upon entry into force of at least $300 million for
financing the Enterprise and an annual appropriation by the
US of $5-10 million for the administrative expenses of the
Authority until it became self-financing. Whether ratified or
not, costs which are not now quantifiable would be incurred.
Arguments in Favor of Option II:
-- presents the only realistic possibility of achieving
a law of the sea treaty that would be acceptable to the US or
capable of obtaining the Senate's advice and consent. Returning
to the Conference is the only strategy or approach that has
been identified which could reduce the risk of deterioration
of the navigation provisions while offering an opportunity
to achieve an acceptable deep seabed mining regime;
-- would take maximum advantage of the negotiating
leverage now available to the US because of the review, would
establish an optimum posture for achieving an acceptable
treaty, and could attract allied support;
-- would be less likely than Option I to result in an
unravelling of the navigation provisions;
-- would give the US greater credibility in any attempt to
persuade its allies not to participate in a .treaty, if the
final text is unacceptable;
-- would avoid the controversy and potential adverse
effects on other foreign policy areas which would be associated
with withdrawal from the Conference;
-- would mean that, if after further negotiations in
which the US participates, the US decides not to sign or ratify
the treaty and the treaty enters into force, the treaty is
still likely to be improved and would benefit American companies
which may decide to operate under the flag of a treaty party;
-- offers an opportunity to repair the very risky
investment climate;
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Arguments Against Option II:
-- may still result in a treaty which the US could not
sign or ratify;
-- involves returning to the negotiations and perhaps
gaining concessions, though inadequate, which likely would
increase the political pressure, both foreign and domestic,
upon the US to sign the treaty and, if the US acceded, to
accept similar regimes in the future;
-- would require US acquiescence in a negotiation involving
(1) the supervision and regulation by an international organi-
zation of the development of deep seabed minerals; and (2) the
creation of an international entity (the Enterprise) to mine
deep seabed resources in competition with private or State
entities.
IV. US OBJECTIVES UNDER OPTION II
If Option II is selected, the US negotiating effort will
be designed to establish a deep seabed mining regime which
satisfies the following objectives. Satisfying these objectives
would among other things, minimize the impact of NIEO principles
which could create adverse precedents for other negotiations.
Our objectives lead to a regime which:
- First, will not deter the development of any deep
seabed mineral resources to meet national and world demand.
- Second, will assure national access to deep seabed
mineral resources by current and future qualified entities
so as to enhance US security of supply, so as to avoid mono-
polization of deep seabed mineral resources by the operating
arm of the International Authority, the Enterprise, and so
as to promote economic development of the resources.
- Third, will reserve for the US a decision-making
role in the deep seabed institution which fairly reflects
the relative weight of US political and economic interests
and financial contributions, and effectively protects them.
- Fourth, will not allow for amendments to enter into
force without the approval of the US, including advice and
consent of the US Senate, and will not set.other undesirable
precedents for international organizations.
- Fifth, will be such as to make it likely to receive
the advice and consent of the Senate if the President decides
to support ratification. (To this end, the regime will not
contain provisions that would create serious political and
commercial difficulties, including provisions for the mandatory
transfer of private technology, and participation by and
funding for. national liberation movements.)
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L)eceGiL) L '*, 4.701
INTERDEPARTMENTAL GROUP MEMORANDUM NO. 8
Policy Study: Law of the Sea
Should the United States seek to negotiate changes
consistent with US law of the sea objectives at the Third
United Nations Conference on the Law of the Sea or withdraw
from the negotiations?
The Third United Nations Conference on the Law of the Sea
was convened in 1973, after six years of preparatory work, for
the purpose of establishing a widely accepted and comprehensive
legal regime for the oceans. The US has been a major partici-
pant in these negotiations. A key US objective has been to
protect US military interests, specifically to halt extension
of coastal State control over ocean areas, and to preserve
and strengthen the rights of passage and other uses of the
oceans. At the same time, the United States sought to create
an international legal and economic regime for seabed mineral
exploitation that would give US companies secure tenure and
assured rights to conduct deep seabed mining activities.
In ten negotiating sessions of the Conference that have
taken place to date, more than 150 States have achieved
negotiated compromises with respect to most issues, including
coastal State jurisdiction, navigation and overflight rights,
fisheries conservation and management, marine scientific
research, prevention and control of ocean pollution, conti-
nental shelf rights, and the peaceful settlement of disputes.
Until last March, the Conference also was close to
agreement on most questions relating to the control and
management of deep seabed mineral resources and there was
consensus that a final treaty should be adopted in 1981.
Final agreement on these matters was prevented when the US
announced on March 2, 1981 that it would undertake a thorough
review of the Draft Convention on the Law of the Sea. Two
Conference sessions followed without further negotiations on
deep seabed issues. At the last session in Geneva, August
3-28, however, there was substantial discussion of the problems
in the text which the US had identified during the US policy
review.
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The Conference schedule calls for conclusion of the
negotiations in a final eight-week session commencing March 8,
1982. There-may be several weeks of advance intersessional
discussions. A treaty is very likely to be open for signature
by the end of next year, with or without US agreement, although
under certain limited circumstances this timetable could
slip. Most Conference participants, including the developing
countries, the Soviet Bloc, and virtually all of our allies,
now are prepared to accept the Draft Convention with relatively
little change.
Assured US access to deep seabed minerals has been a
consistent but elusive goal in the negotiations. Deep seabed
minerals offer a potentially important alternative source of
strategic minerals--cobalt and manganese--in addition to
nickel and copper. Other minerals of potentially even greater
value are only now being identified in the deep seabed.
Current world demand and metals markets do not justify
commercial-scale development at this time. Nevertheless,
multinational consortia have invested substantial amounts to
develop technology and to prospect for attractive ore bodies.
When economic, factors become favorable, deep seabed riining
is likely to be an important source of minerals. Consequently,
the US has sought to protect its future interest in deep
seabed minerals by seeking a legal regime that will allow
mineral exploration and exploitation under reasonable terms
and conditions. So far it has failed.
Unfortunately, since 1967 doubts have increased concerning
the legal rights to mine deep seabed ore bodies outside a
universally accepted treaty. While the US and some European
states and Japan continue to assert the right to mine the
deep seabed as a high seas freedom subject to reasonable
regard for the rights of others, this legal claim is regarded
by many countries as contrary to international law. This
controversy does not extend to the issue of exclusivity of
mine sites. Both sides agree that exclusivity can be legally
achieved only through international agreement.
US firms have been leading partners in the multinational
consortia engaged in deep seabed mining development. In
recent years, however, these companies have reduced their
proportionate participation. It appears that, in order to
operate under the Draft Convention, firms would need government
subsidies and incentives, although a rise in metals prices
could alter that view. In the absence of US subsidies, US
co.-. anies could well participate in foreiyn entities operating
under a law of the sea treaty.
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II. CONCLUSIONS OF THE INTERAGENCY REVIEW
Principal Conclusions
In the course of the policy review, US interests and
objectives in the law of the sea have been examined. Against
them, the Draft Convention and "no-treaty" alternatives have
been weighed. In-addition, the negotiability of improvements
to the deep seabed mining regime has been assessed. The
basic conclusions of the Interdepartmental Group (IG) are:
(1) The nav-igation and overflight provisions of the
Draft Convention are acceptable; any deterioration in the
language of these provisions would, however, render this
portion of the draft treaty unacceptable to the Department of
Defense. These provisions, while not ideal from the United
States point of view, would be beneficial as they would provide
a foundation for the exercise of important naval and air
mobility interests in a non-confrontational manner. This
assessment is, in part, predicated on the fact that the Draft
Convention provides for navigation and overflight freedoms,
including transit on, over, and under international straits
overlapped by territorial seas and archipelagic waters.. With-
out these provisions, the assertion of the freedoms guaranteed
thereby would require a direct challenge to existing terri-
torial sea claims of 107 states, including many of our allies.
Unless international limitations are established, the proli-
feration of excessive maritime claims almost certainly will
continue, thereby requiring costly levels of confrontation
and certain political-military risks to conduct routine
peacetime military operations. Ambiguities in the text re-
garding navigation and overflight rights can be protected
with interpretive statements and appropriate exercise of our
rights as we view them.
The navigation provisions of the Draft Convention take
on particular importance for US commercial navigation interests.
A widely accepted treaty embodying the provisions of the
current Draft Convention would provide a more stable, pre-
dictable regime of maritime jurisdiction and navigation rights
that are essential to the smooth flow of maritime commerce.
(2) The provisions of the treaty concerning marine
scientific research, the continental shelf, ocean energy
production, and marine environment protection are generally
consistent with US interests and objectives. With respect
to fisheries, the Department of State believes that US interests
would not be significantly affected one way or another'by a
treaty, except for salmon and tuna where the effect would be
adverse. The Department of Commerce-believes that, despite
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the treaty provisions on tuna and salmon which in the short
term provide less protection for the US than our current
legal positions, US fisheries interests would, in the long
run, be better served under a treaty.
(3) Major elements of the Draft Convention deep seabed
mining regime are clearly contrary to US interests and-objec-
tives.
(4) An effort to renegotiate the deep seabeds provisions
of the Draft Convention presents the only realistic possibility
of achieving a law of the sea treaty acceptable to the US.
Returning to the Conference is-the only strategy or approach
that has been identified which could both prevent deterioration
of the navigational provisions while offering an opportunity
to achieve an acceptable deep seabed mining regime under the
treaty.
(S). The Conference is likely to open the Draft Convention
for signature in 1982, even if the US objects, unless the
Conference believes that by extending the deadline the US is
likely to sign and ratify the treaty. Most Conference
participants, including virtually all of our allies, are
prepared to complete the Draft Convention with relatively
little change. Sixty countries are required to bring the
treaty into force and there are more than one hundred and
twenty developing countries many of whom have strong interests
in bringing the treaty into force. In the event the treaty
enters into force, it is impossible to assess with any degree
of confidence exactly who the parties to it might be and, therefore,
what effect entry into force would have on overall US interests
if the US were not a party.
(6) At one extreme, if a comprehensive treaty enters
into force and the United States is the only major nation
which is not a party to the treaty, commercial-scale deep
seabed mining under US licenses almost certainly would not
occur on an unsubsidized basis because of serious international
legal and political risks.
At the other extreme, in the unlikely event that the
treaty did not enter into force for. many of the nations
interested in deep seabed mining (US, UK, France, FRG, Belgium,
Japan, Netherlands, and Italy), the USSR, certain major
developing countries, and other industrialized countries,
and provided that the US could induce then to join in an
alternative regime, investment in commercial-scale deep
seabed mining under US and foreign licenses might occur
under that regime.
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A variety of cases lie between the two extremes outlined
above. The IG cannot predict with a reasonable degree of
confidence whether commercial-scale investment would occur
under any such case. The various industrial consortia hold
differing views on this subject.
The IG has reached the following additional conclusions
with respect to negotiability:
(1) It would be extremely difficult to satisfy all US
objectives listed in Part II(k) below with respect to the
deep seabed mining regime. Nevertheless, there is an oppor-
tunity to seek and obtain substantial improvements to the
Draft Convention's provisions on the deep seabed mining
regime. Such improvements could increase US and Western
allied influence in the decision-making process while, at
the same time, they could neutralize the one-nation, one-vote
Assembly and could eliminate, reduce, or mitigate the practical
impact of provisions which would otherwise result in the
implementation of the principles of the "NNew International
Economic Order" (NIEO). They could also provide an investment
climate for US industrial development without subsidization.
The improvements are unlikely, however, to alter the fact
that the treaty would still be replete with NIEO rhetoric
which could still be employed by developing countries to
promote their aims in other negotiations.
(2) Negotiations to improve the deep seabed provisions
can be conducted with little risk of retaliation against non-
seabed provisions important to the US.
B. military Navigation and Overflight
The navigation and overflight provisions of the Draft
Convention are acceptable; any deterioration in the language
of these provisions would, however, render this portion of
the draft treaty unacceptable to the Department of Defense.
These provisions, while not ideal from the United States
point of view, would be beneficial as they would provide a
foundation for the exercise of important naval and air mobility
interests in a non-confrontational manner. This assessment
is, in part,.predicated on the fact that the Draft Convention
provides for navigation and overflight freedoms, including
transit on, over, and under international straits overlapped
by territorial seas and archipelagic waters. Without these
provisions, the assertion of the freedoms guaranteed thereby
would require a direct challenge to existing territorial sea
claims of 107 states, including many of our allies. Unless
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international limitations are established, the proliferation
of excessive maritime claims almost certainly will continue,
thereby requiring costly levels of confrontation and certain
political-military risks to conduct routine peacetime military
operations. Ambiguities in the text regarding get
overflight rights can be protected with interpretive statements
and appropriate exercise of our rights as we view them.
In view of the negotiating environment, any effort to
reopen non-seabed-portions of the text to achieve improvements
likely will result in changes that would be adverse to our
military security interests. As it is probable that there
will be a widely accepted convention, with or without US
participation or support, it is important that our strategy
be directed to avoiding this result.
C. Commercial Navigation
The interests of commercial navigation are well served
by the Draft Convention, which provides a significantly better
measure of predictability and stability than does existing
international law. A stable, predictable regime of maritime
jurisdiction, navigation rights and regulation of marine
pollution is essential to the smooth flow of maritime commerce
which is vital to the economy of the United States.
A treaty that incorporates the existing provisions of
the Draft Convention relating to commercial navigation, but
to which the US is not a party, would also be beneficial to
commercial-navigation, but would result in less stability and
predictability for commercial navigation than would a treaty
to which the US is a party. Also, the provisions of the
Draft Convention would provide a better climate for investment
in? marine transportation, particularly transportation of oil,
than would alternate arrangements.
D. Commercial Aviation
The interests of commercial aviation are well served by
the Draft Convention. Because jurisdiction over airspace is
predicated on the jurisdictional status of the waters below,
the clarification of maritime jurisdiction, particularly
limiting the territorial sea to twelve miles and in ensuring
the right to overflight of straits and archipelagoes, is
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important to US international commercial aviation.* A treaty
that incorporates the existing provisions affecting commercial
aviation, but to which the US is not a party, would also be
beneficial to commercial aviation.
E. Fisheries
US interests in coastal and continental shelf fisheries
and protection of the fisheries environment are generally
well served by the Draft Convention, and US fisheries research
interests would be marginally better off with the Draft
Convention.
However, the Draft Convention would reduce our present
authority under US domestic law over our valuable salmon
resources beyond the 200-mile limit, would erode our.position
favoring international management of highly migratory tuna
throughout their range, and would negatively affect our
ability to preserve our large and efficient distant water
tuna fleet. The Draft Convention also lacks adequate
mechanisms to deal with the failure to reach agreement on
"straddling stocks" existing both within 200 miles and. beyond,
and "transboundary stocks" which migrate between the 200
mile zones of two or more countries, which could lead to
future conflict or even "creeping jurisdiction".
The Department of State believes that US interests
would not be significantly affected one way or another by
a treaty, except for salmon and tuna where the effect would.
be adverse. The Department of Commerce believes that, despite
the treaty provisions on tuna and salmon which in the short
term provide less protection for the US than our current
legal positions, US fisheries interests would, in the long run,
be better served under a treaty.
*~here is question regarding the jurisdiction for airspace
over the 200-mile exclusive economic zone for civil aviation
purposes. The Chicago Convention provides for coastal state
jurisdiction in airspace over the territorial sea and
applicability of international rules in airspace over the
high seas. While the Draft Convention provides for freedom
of overflight over the economic zone, it does not explicitly
provide that the Chicago Convention "Rules of the Air" apply.
Since the negotiating history does not indicate an intent to
change the jurisdiction for regulation of civil aircraft
overflying the economic zone from that for the high seas, the
applicability of the "Rules of the Air" to airspace over the
economic zone should be made explicit through an interpretive
statement at the appropriate time.
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F. Continental Shelf Resources
US interests in development of continental shelf
hydrocarbon resources will be well served whether there is a
treaty or whether the US is a party to the treaty. If the US
is not a party, no obligation will exist to share revenues
from production on the shelf beyond 200 miles. However, the
greater degree of clarity provided under the treaty as to the
outer limits of the shelf beyond 200 miles is desirable to US
firms operating on the outer shelf of the US or of other
states despite the obligation to share revenues at a modest
rate.
G. Marine Scientific Research
US interests in freedom of marine scientific research
are poorly served by existing international practice which is
steadily worsening. US interests would also be poorly served
by the Draft Convention, but, since the Draft Convention
basically-codifies existing practice, it-would have the
advantage of deterring further erosion. In addition, the
Draft Convention would provide some standardization for the
conduct of marine scientific research that could reduce the
potential for arbitrary or capricious behavior by coastal
states. US participation would aid our scientists.
H. Marine Environment Protection
US environmental interests are well served by the Draft
Convention. Over the past decade, international standards for
the protection of the marine environment have been developed with
the full participation of, and often at the behest of, the US.
These standards would be implemented on a wor],d-wide basis
by reference in the Convention, and would generally promote
a sound balance of environmental and maritime interests.
Also, both the uniform enforcement regime and the system of
safeguards provided for in the Draft Convention are very
important to operators of commercial vessels, particularly
tankers, and to maritime labor unions.
A treaty that incorporates the existing provisions
related to protection of the marine environment, but to which
the US is not a party, would also generally enhance the level
of global protection of the marine environment. However,
some effective enforcement rights and some safeguards for
commercial navigation not presently recognized under customary
international law, but provided for in the Draft Convention,
would not be available to the US and its commercial vessel
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operators unless either the US becomes a party or these
provisions evolve into customary law. Also, if the US does
not participate, US leadership in marine environmental
protection will be less effective, particularly in fora such
as the Intergovernmental Maritime Consultative Organization.
I. Political/International
US interests in global-stability would be better served
by US participation in the negotiations and accession to the
treaty. If widely ratified, the treaty would establish a
generally-shared legal framework relating to activities in
the oceans which would provide for stability and predictability
in international relations, assist in narrowing the scope of
bilateral disputes, and ensure that coordination with allies
in crisis situations is not hampered by different views
concerning sovereignty and jurisdiction. Failure to participate
would be viewed negatively by our allies and the developing
countries.
The US interest in maintaining a position of leadership
in multinational negotiations may be jeopardized if the US
withdraws from negotiations in which it has played a major
role for more than a decade. In addition, failure to
participate in negotiations could have an adverse effect on
other unrelated foreign policy areas.
On the other hand, certain aspects of the Draft Convention
i.e., the establishment of the Authority as now structured
and other elements of the deep seabed regime, are undesirable
precedents which will create difficulty for us in other
multinational negotiations.
J. Dispute Settlement
The general US interest in promoting international
dispute settlement mechanisms for the resolution of international
disputes is furthered by the Draft Convention. However, one
may question whether the establishment or a Law of the Sea
Tribunal, dominated by developing countries, is in the interest
of the US. It is clear that the Draft Convention would not
require certain issues of importance to the US, such as those
relating to military activities, to be submitted to binding
dispute settlement. However, because of ambiguities in the
text, it is difficult to determine with precision all other
issues which would be subject to binding dispute settlement
should the US become a party.
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K. Deep Seabed Mining
1. Objectives for Evaluation of the Deep Seabed
Regime Provisions
The US objectives in a deep seabed mining regime are a
regime which:
First, will not deter the development of deep seabed
mineral resources to meet national and world demand.
Second, will allow national access to deep seabed mineral
resources by current and future qualified entities so as to
enhance US security of supply, so as to avoid monopolization
of deep seabed mineral resources by the operating arm of the
International Authority, the Enterprise, and so as to promote
economic development of the resources.
Third, will reserve for the US a decision-making
role in the deep seabed institution which fairly reflects
the relative weight of US political and economic interests
and financial contributions, and effectively protects them.
Fourth, will not allow for amendments to enter into
force without the approval of the US, including advice *and
consent of the US Senate, and will not set other undesirable
precedents for international organizations.
Fifth, will be such as to make it likely to receive the
advice and consent of the Senate if the President decides to
support ratification. (To this end, the regime will not
contain provisions that would create serious political and
commercial difficulties, including provisions for the mandatory
tranfer of private technology and participation by and
funding for national liberation movements.
2. Evaluation of the Seabed Regime Provisions of
the Draft Convention
The IG has reviewed the Draft Convention and does not
believe that it meets these objectives. For example, the
Draft Convention:
(1) artificially limits deep seabed mineral production
and provides for discretion and discrimination
if there is competition for limited production
allocations;
(2) discourages private investment in deep seabed
mineral production because of: lack of certainty
in the granting of mining contracts, mandatory
technology transfer requirements, and burdensome
financial requirements;
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(3) creates a privileged supranational competitor --
the Enterprise -- whose advantages could make it
extremely difficult, if not impossible, for private
ventures -- absent national subsidies -- to compete.
A supranational monopoly over deep seabed mineral
production could thus result;
(4) fails to provide grandfather rights for existing
investment in deep seabed mineral development;
(5) establishes a decision-making system so structured
that US and other potential deep seabed mineral
producers and consumers will be unable. effectively
to influence important policy and operational
decisions;
(6) provides for a review conference which, after five
years of negotiation, may adopt amendments to the deep
seabed mining regime that would automatically
enter into force for the US upon approval by two-
thirds of the States Parties.
(7) allows participation by and funding for liberation
groups.
3. Guidelines For Seeking Improvements In The Draft
Convention To Satisfy The US Objectives Enumerated
in Section II(k)(1) above.
The IG has agreed that the following guidelines should
be used as the basis for the US negotiating effort. The IG
realizes, however, that all of these guidelines cannot be
satisfied to the fullest extent and has, therefore, estab-
lished priorities among them. The IG believes that if the
priority guidelines were substantially satisfied and progress
made in the other areas listed, the Convention which emerged
could meet the five objectives set forth above.
The following six guidelines indicate the kind of
improvements to which the group attaches the highest priority:
1. The procedures and decision-making system of the
Authority should enable the US, in concert with a few allies,
(1) to ensure that qualified deep seabed miners of manganese
nodules and other deep seabed minerals, current and future,
receive contracts and are allowed to mine; (2) to achieve
acceptable rules and regulations applicable to development of
all deep sewed minerals; (3) to insulate deep seabed miners
from politically motivated interference from the Authority;
and (4) to block adverse decisions on important financial/
budgetary questions concerning the Authority and the Enterprise.
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'"'he, attainment of this objective would not only repair many
of the defects outlined in the previous sections, but could
also facilitate the attainment of most of the following
objectives.
2. The-production policies of the Authority should be
amended by elimination or relaxation of those production
limitations which discourage production by private enterprise
of deep seabed mineral resources and which could artificially
stimulate competition among. potential deep seabed miners.
3. The technology transfer provisions should be revised
to eliminate the mandatory nature of the transfer of private
technology.
4. The provisions on the review conference should be
revised so that any amendment to the deep seabed provisions
of the treaty must have the the consent of the US before
entering into force.
5. National liberation movements should not be parties
to the treaty nor share in any revenues controlled by the
Authority.
6. NIEO precedents should be minimized.
Beyond these, the group attaches considerable importance
to the following areas:
establishment of separation of powers between the
Assembly and Council to minimize the possibility that
the Assembly can interfere with the Council's exercise
of power entrusted to it;
-- minimization of the possibility that the Authority
may expand or abuse its powers;
-- substantial reduction or elimination of discriminatory
privileges of the Enterprise;
-- reduction of financial burdens on the US government
and private operators.
III. OPTIONS FOR FUTURE US LAW OF THE SEA POLICY
OPTION I: Withdraw from the Law of the Sea Conference
prior to the next session
OP_IG:: II: Continue varticioation in the Law of the Sea
Conference to secure, through necotiaticns,
changes satisfying the five objectives set
out in Part II(k)(1)
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The IG emphasizes that it is likely that, with or without
US participation, the Law of the Sea Conference will conclude
its work and open the treaty for signature sometime in 1982
and that the treaty will have an impact on international law
and practice. If Option II is chosen, however, and serious
renegotiation} efforts appear likely to succeed, it is possible
that the Conference will delay its work somewhat.
In presenting these options, the IG considered whether
either or both approaches realistically could result in
achievement of US objectives with respect to deep seabed
minerals. In this regard the success of Option I depends on
our ability to establish a viable alternative regime. The IG
cannot predict with any reasonable degree of certainty whether
it would be possible to establish an alternative regime that
would attract investment.
with respect to Option II, the IG has reached no conclusion
as to the negotiability of specific changes to the Draft Conven-
tion but has formed a general assessment of negotiability
based in large part on the results of the last session of
the Law of the Sea Conference. The IG has concluded that it
would be very difficult, though not impossible, to achieve
all US objectives. If renegotiation fails to meet US objectives,
the US could still decide not to sign the treaty.
In implementing either option the Republican Platform
should be recalled. The Platform stated: "Multilateral
negotiations have thus far insufficiently focused attention
on US long-term security requirements. A pertinent example
of this phenomenon is the Law of the Sea Conference, where
negotiations have served to inhibit US exploitation of the
seabed for its abundant mineral resources. Too much concern
has been lavished on nations unable to carry out seabed
mining, with insufficient attention paid to gaining early
American access to it. A Republican Administration will
conduct multilateral negotiations in a manner that reflects
America's abilities and long-tern interests in access to raw
material and energy resources."
Option I: Withdraw from the Law of the Sea Conference
prior to the next session.
This option would represent a determination that the
draft law of the sea treaty cannot be renegotiated in a
manner that would satisfy US objectives.
Arguments in'Favor of Option I
-- would demonstrate an American rescive not to participate
in multilateral negotiations in which the terns of the draft
agreement (a) do not fairly reflect US political and economic
interests and financial contributions or (b) contain NIEO
principles which we find unacceptable and which developing
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countries could employ to promote their aims in other negotia-
tions;
because of the extreme character of this action, it
might cause other countries, including US allies, to rethink
their commitment to the treaty and eventually decide not to
ratify the treaty;
-- avoids the risk that US interests in deep seabed mining
might be compromised further through continued negotiation
and might increase the effectiveness of a US denunciation of
objectionable provisions of the treaty;
-- would appeal to those Americans who feel that US interests
should not be subjected to majority votes by developing countries
in international organizations.
Arguments Against Option I
-- would eliminate any realistic possibility of improving
the Draft Convention and would not capitalize on our currently
strong bargaining positon;
-- could lead to the unravelling of important navigational
provisions to the detriment of US security interests and,
therefore, could reduce US ability effectively to assert its
minority view of navigation rights in the face of adverse
coastal state claims;
-- would isolate the US from most other countries on
this issue and provoke substantial international controversy,
including severe criticism from US allies and others for
walking away from the negotiating table;
-- would be viewed as a major departure from the
traditional US practice of cooperating in efforts to reach
multilateral solutions to foreign policy issues, thereby
reducing US credibility as a reliable participant in multilateral
negotiations and possibly affecting other US foreign policy
goals adversely;
-- would virtually eliminate any possibilty of a US
domestic deep seabed mining industry, unless the US could
convince its allies and other key countries not to ratify the
treaty and to join an alternative regime. Otherwise, investors
likely would operate under a foreign flag pursuant to the
treaty, unless fully indemnified by the government against
risk;
-- could result in US allies being unable to pursue and
implement a reciprocating states agreement with the US since
they would stay in the LOS negotiations and the US would be
seeking a permanent, alternative regime rather than a transi-
tional rey ime consistent with a law of the sea treaty;
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-- would offer the Soviets an opportunity to criticize the
US in international fora for using "high-handed" tactics;
? -- would be opposed by those Americans who do not believe
the US should walk out of negotiations and who favor multilateral
solutions to major world problems and an international rule
of law.
Option II. Continue participation in the Law of the Sea
Conference to secure, through negotiations,
changes satisfying the five objectives set forth
in Part II (k)(1) above.
This option would commit the US to make a full effort
to achieve improvements in the deep seabed provisions of the
Draft Convention sufficient to produce a treaty that could
be signed and ultimately ratified by the US. Detailed
instructions for achieving these objectives, including US
positions on and proposed amendments to specific treaty
provisions, will be developed for review by the Senior
Interdepartmental Group which includes all the relevant
agencies. Any agency differences will be forwarced no later
than February 1 for decision by the President.
To implement this option, it would be essential that
the US state its commitment to the multilateral treaty process.
The US would have to indicate that, if the renegotiated text
meets its objectives, the US Executive Branch would promote
ratification. This commitment would not prejudge the decision
on whether to sign and ratify the final treaty text. That
would depend on a later decision on whether it meets US
objectives. If this option is selected, the US negotiating
strategy would be designed to minimize the risk_ that retaliatory
measures would be taken involving attempts to amend provisions
of the treaty which are favorable to US national security
needs, while at the same time pursuing strategies and tactical
decisions which could result in a success under Option II.
Improvements consistent with US objectives in other areas
also may be sought if opportunities arise and if they could
be achieved without risking the unravelling of military
navigation and other important interests.
This approach carries no assurance that further negotiations
would satisfy US objectives. In the event that the US was
successful in achieving its objectives and decided to ratify
the law of the'sea treaty, this would entail an appropriation
by the US upon entry into force of at least $300 million for
financing the Enterprise and an annual appropriation by the
US of $5-10 million for the administrative expenses of the
Authority until it became self-financing. Whether ratified or
not, costs which are not now quantifiable, would be incurred.'
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Arguments in Favor of Option II
-- presents the only realistic possibility of achieving
a law of the sea treaty that would be acceptable to the US
or capable of obtaining the Senate's advice and consent.
Returning to 'the Conference is the only strategy or approach
that has been identified which could reduce the risk of
deterioration of the navigation provisions while offering
an opportunity to achieve an acceptable deep seabed mining
regime;
-- would take maximum advantage of the negotiating leverage
now available to the US because of the review, would establish
an optimum posture-'for achieving an acceptable treaty, and
could attract allied support;
-- would be less likely than Option I to result in an
unravelling of the navigation provisions;
-- would give the US greater credibility in any attempt to
persuade its allies not to participate in a treaty, if the
final text is unacceptable;
-- would avoid the controversy and potentially adverse effects
on other foreign policy areas which would be associated with
withdrawal from the Conference;
-- would mean that, if after further negotiations in
which the US participates, the US decides not to sign or ratify
the treaty-and the treaty enters into force, the treaty is
still likely to be improved and would benefit American companies
which may decide to operate under the flag of a treaty party;
-- offers an opportunity to repair the very risky invest-
ment climate.
Arguments Against Option II
-- may still result in a treaty which the US could not
sign or ratify;
-- involves returning to the negotiations and perhaps
gaining concessions, though inadequate, which likely would
increase the political pressure, both foreign and domestic,
upon the US to sign the treaty and, if the US acceded, to
accept similar regimes in the future;
-- would require US acquiescence in a negotiation involving
(1) the supervision and reculation by an international organiza-
tion of the development of deep seabed minerals; and (2) the
creation of an international entity (the enterprise) to mine
deep seabed resources in competition with private or State
entities.
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IV. IMPLEIIEN~ATIOV OF OPTIONS
A. Implementation of Option I
The IG believes that, if option I is chosen, the following
would be required to implement it effectively.
1. A public relations effort should be carried out
which could include a White House announcement of the decision.
It should be designed both to obtain domestic political
advantaces and to minimize domestic and international
disadvantage such as the adverse editorial comments that
followed announcement in March 1981 of the US review of law
of the sea policy.
2. Contingency plans should be executed to protect US
non-seabeds interests outside a law of the sea treaty. These
plans are being prepared.
3. If the US wishes to attempt to persuade its allies
not to ratify the treaty, a high-level, and potentially
politically costly, effort should be made.
4. The US would have to develop a strategy for
establishing an alternative regime for commercial investment
in deep seabed mining.
The prospects for establishing. such an alternative regime
would be affected by decisions made-by US allies. Currently,
the IG believes that the prospects are virtually nil for
inducing the allies to withdraw from the negotiations with
the US. The US would then have to seek to induce.the allies
not "Co ratify the treaty.
If the US should succeed in donvincing its allies not to
ratify the treaty, an effort would have to. be undertaken to
establish an alternative regime for commercial-scale investment
in deep seabed mining. If such a regime were to be established
in the face of a law of the sea treaty that comes into force,
or is likely to come into force, companies nay require
financial protections from their governments. If the US
fails to convince its allies not to participate in the treaty
and decides to establish a unilateral regime under which its
nationals would invest in commercial-scale deep seabed mining,
the US would have to provide additional financial protections
for its miners, because of serious international legal and
political risks.
At one extreme, if a comprehensive treaty enters into
force and the United States is the only Major nation which is
not a Earl T to the treaty, commercial-scale deep seabed mining
under US licenses almost certainly would not occur on an
unsubsidized basis because of serious international legal and
political risks.
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At the other extreme, in the unlikely event that the
treaty did not enter into force for many of the nations
interested in deep seabed mining (US, UK, France, FRG, Belgium,
Japan, Netherlands, and Italy), the USSR, certain major developing
countries, and other industrialized countries, and provided
the US could induce them to join in an alternative regime,
investment in commercial-scale deep seabed mining under US
and foreign licenses might occur under that regime.
A variety of cases lie between the two extreme alternative
situations outlined above. The IG cannot predict with a
reasonable degree of confidence whether commercial-scale
investment would occur under any such case. The various
industrial consortia hold differing views on this subject.
B. Implementation of Option II
The IG believes that if Option II is chosen, the following
steps should be taken:
1. A public announcement should be made, committing the
US to the treaty negotiation process and setting forth US
objectives in further negotiations. Such an announcement
could communicate to Conference participants that the US has
serious concerns with the Draft Convention but that if US
objectives are fully satisfied, the US would sign and seek
ratification of the resulting treaty.
2. -The US must develop in accordance with the objectives,
an opening position which would not be confrontational* but
which at the same time would leave enough room to back away
and adopt acceptable fall-back positions. US positions on
specific provisions and changes and negotiating instructions are
being prepared. From the discussions held between the US
law of the sea delegation and key conference leaders at the
last session of the law of the sea conference in Geneva, it
was clear that the Conference was willing to make some changes
to the deep seabeds provisions to accommodate US concerns.
The extent to which US concerns would be. accommodated would
depend upon a number of factors, the most important of which
probably would be the developing.countries' perception of
the US position. They would weigh the extent and nature of
the US proposed changes against their desire to have US
participation in the treaty.
3. The allies should be consulted as soon as possible
since it would be essential to have their support. A number
of the allies are sympathetic to US concerns and would welcome
changes. But their judgment appears to be that, on balance,
*Interior wants it understood that the negotiator should have
the flexibility to be confrontational should that be necessary
to achieve US objectives.
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their interests are better served by preserving the non-seabed
provisions of the treaty in their present form even at the
price of accepting the deep seabed mining provisions.
4. A prior arrangement should be made with leading
developing countries on the outlines and parameters of the
negotiations and a commitment sought from them to support the
negotiating process.
5. The President of the Conference should be asked to
support US efforts.
6.* The US should develop an approach for dealing with
the Soviet Union. The Soviet Union and its allies also are
prepared to accept the present Draft Convention. The Soviets
consider the non-seabed parts of the treaty as the most
significant and are determined to protect them. To succeed in
negotiating improvements on most of the troublesome deep
seabed provisions, we do not need active support from the
Soviets, but the US would need at least some degree of
neutrality on their part. To the extent they perceive that the
US is moving toward acceptance of the treaty, they might be
be more likely to adopt a neutral attitude since they clearly
prefer US participation in a treaty. However, in light of
Soviet concerns that the changes the US wants to make may
threaten the non-seabed portions of the treaty, it is not
realistic to expect Soviet support for most of the US proposals
and they are likely to pressure the US to moderate its require-
ments. The Soviets are further concerned that the US will
try to do away with the three Soviet seats on the Council.
Reciprocating States Agreement
The US is engaged in intense negotiations with other
countries interested in deep seabed mining intended to conclude
early in 1982 a reciprocal agreement concerning recognition
of deep seabed mining licenses. These negotiations are
authorized by the Deep Seabed Hard Mineral Resources Act
and, in accordance with its provisions, must be regarded as
transitional to an acceptable law of the sea treaty. Under
the Act, the US will be required to begin accepting US deep
seabed mining applications and according priorities of right
to US deep seabed miners, with or without a reciprocating
State agreement, within a "reasonable" time after the September
1981 publication of US deep seabed mining regulations. Thus,
even in the absence of an agreement, the US will have to
make a decision early in 1982 concerning the unilateral
receipt and processing of deep seabed mining applications.
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MEMORANDUM TO THE PRESIDENT
Options For The Law of The Sea
Executive Summary
Should the United States seek to negotiate changes
consistent with US law of the sea objectives at the Third
United Nations Conference on the Law of the Sea or withdraw
from the negotiations?
Background,
Since 1973, the Third United Nations Conference on the
Law of the Sea has been negotiating a treaty which would
establish a legal regime covering military and commercial
navigation and overflight, deep seabed mineral resource
development, the extent and nature of coastal State juris-
diction, fisheries conservation and management, marine
scientific research, prevention and control of ocean pollu-
tion, continental shelf rights, and the peaceful settlement
of disputes. The Conference was expected to conclude nego-
tiations and to open a treaty for signature in 1981.
Serious questions were raised in the US, however, con-
cerning.-the adequacy of the Draft Convention, particularly
with respect to the regime it would establish for deep seabed
mineral resource development. A Senior Interdepartmental Group
has completed a review of the draft Law of the Sea Convention.
Principal Conclusions of the Interagency Review
Navigation and overflight provisions are acceptable.
Any deterioration, however, would render this portion of the
treaty unacceptable. A favorable treaty text is needed to
discourage the expansion of coastal State claims adverse to
our navigation interests.
Deep seabed mining provisions are clearly contrary to
US interests and objectives. The current text renders the
treaty unratifiable. Significant, though perhaps not fully
satisfactory, improvements can be negotiated with little risk
to other important elements of the treaty package.
Other provisions are, with certain exceptions, generally
consistent with US interests.
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Options for Future US Law of the Sea Policy
The Interagency Group proposes two options for consideration:
Option I. Withdraw from the Law of the Sea Conference riot
to the next session
Option Ii. Continue participation in the Law of the Sea
Conference to secure, through negotiations, the five
objectives set forth below.
Agency Recommendations
The Interdepartmental Group concluded that it would be
exremely difficult to satisfy all US objectives with respect
to the deep seabed mining regime. Nevertheless, there is an
opportunity to seek and obtain substantial improvements.
The Departments of Commerce, Defense, Energy, Labor,
State, Transportation, and Treasury, the Environmental
Protection Agency, and the National Science Foundation
recommend option II. The Department. of the Interior supports
Option II in principle but prefers that the option makes
securing the five objectives set out in the options paper
manadatory.
US Objectives Under Option II
If Option II is decided upenInterdepartmental
be
Group believes that if the US negotiating effort designed to establish a deep seabed mining regime which
satisfies the following objectives. Satisfying these objectives
would, among other things, minimize the impact of New Inter-
national Economic Order principles which could create adverse
precedents for other negotiations. Our objectives lead to a
regime which:
- First, will not deter the development of any deep
seabed mineral resources to meet national and world demand.
- Second, will assure national access to deep seabed
mineral resources by current and.future qualified entities so
as to enhance US security of supply, so as to avoid monopolization
of deep seabed mineral resources by the operating arm of the
International Authority, the Enterprise, and so as to promote
economic development of the resources.
- Third, will reserve for the US a decision-making role
in the deep seabed institution which fairly reflects the relative
weight of US political and economic interests and financial
contributions, and effectively protects them.
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- Fourth, will not allow for amendments to enter into
force without the approval of the US, including advice and
consent of the US Senate, and will not set other undesirable
precedents for international organizations.
- Fifth, will be such as to make it likely to receive
the advice and consent of the Senate if the President decides
to support ratification. (To this end, the regime will not
contain provisions that would create serious political and
commercial difficulties, including provisions for the mandatory
transfer of private technology, and participation by and
funding for national liberation movements.)
Guidelines For Seeking Improvements In The Draft Convention
The Interdepartmental Group has agreed that the following
guidelines should be used as the basis for the US negotiating
effort. The Group realizes, however, that all of these guide-
lines cannot be satisfied to the fullest extent and has,
therefore, established priorities among them. The Group
believes that if the priority yuidelines were substantially
satisfied and progress made in the other areas listed, the
Convention which emerged could meet the five objectives set
forth above.
The following six guidelines indicate the kind of
improvei'nents to which the Group attaches the highest priority:
1. The procedures and decision-making system of the
Authority should enable the US, in concert with a few allies,
(1) to ensure that qualified deep seabed miners of manganese
nodules and other deep seabed minerals, current and future,
receive contracts and are allowed to mine; (2) to achieve
acceptable rules and regulations applicable to development of
all deep seabed minerals; (3) to insulate deep seabed miners
from politically motivated interference from the Authority;
and (4) to block adverse decisions on important financial/
budgetary questions concerning the Authority and the Enterprise.
The attainment of this objective would not only repair many
of the defects which have been identified but could also
facilitate the attainment of most of the following objectives.
2. The production policies of the Authority should be
amended by elimination or relaxation of those production
limitations which discourage production by private enterprise
of deep seabed mineral resources and which could artificially
stimulate competition among potential deep seabed miners.
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3. The technology transfer provisions should be revised
to eliminate the mandatory nature of the transfer of private
technology.
4. The provisions on the review conference should be
revised so that any amendment to the deep seabed provisions
of the treaty must have the the consent of the US before
entering into force.
5. National liberation movements should not be parties
to the treaty nor share in any revenues controlled by the
Authority.
6. New International Economic Order precedents should
be minimized.
Beyond these, the Group attaches considerable importance
to the following areas:
-- establishment of separation of powers between the
Assembly and Council to minimize the possibility that the
Assembly can interfere with the Council's exercise of power
entrusted to it;
-- minimization of the possibility that the Authority
may expand or abuse its powers;
substantial reduction or elimination of discriminatory
privileges of the Enterprise;
-- reduction of financial burdens on the US government
and private operators.
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Analysis of Pros and Cons
and Implementation of the
Option to withdraw
from the LOS Conference
The Interdepartmental Group has concluded that a decision
to withdraw from the Law of the Sea Conference would demonstrate
an American resolve not to participate in multilateral negotia-
tions in which the terms of the draft agreement (a) do not
fairly reflect US political and economic interests and finan-
cial contributions or (b) contain NIEO principles which we
find unacceptable and which developing countries could employ
to promote their aims in other negotiations.
Because of the extreme character of this action, withdrawal
from the Conference might cause other countries, including US
allies, to rethink their commitment to the treaty and eventually
decide not to ratify the treaty. The Option avoids the risk
that US interests in deep seabed mining might be compromised
further through continued negotiation and might increase the
effectiveness of a US denunciation of objectionable provisions
of the treaty. The Option would appeal to those Americans
who feel that US interests should not be subjected to majority
votes by developing countries in international organizations.
On the other hand, the option to withdraw would eliminate
any realistic possibility of improving the Draft Convention
and would not capitalize on our currently strong bargaining
position. It could further lead to the unravelling of
important navigational provisions to the detriment of US
security interests and, therefore, could reduce US ability
effectively to assert its minority view of navigation rights
in the face of adverse coastal state claims.
This Option would isolate the US from most other countries
on this issue and provoke substantial international controversy,
including severe criticism from US allies and others for
walking away from the negotiating table.
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It would be viewed as a major departure from the tradi-
tional US practice of cooperating in efforts to reach multi-
lateral solutions to foreign policy issues thereby reducing
US credibility as a reliable participant in multilateral
negotiations and possibly affecting other US foreign policy
goals adversely.
Withdrawal from the Conference would virtually eliminate
any possibility of a US flag deep seabed mining industry,
unless the US could convince its allies and other key countries
not to ratify the treaty and to join an alternate regime.
Otherwise, investors likely would operate under a foreign
flag pursuant to the treaty, unless fully indemnified by the
government against risk.
This action could result in US allies being unable to
pursue and implement a reciprocating states agreement with
the US since they would stay in the LOS negotiations and the
US would be seeking a permanent, alternative regime rather
than a transitional regime consistent with a law of the sea
treaty.
Withdrawal from the Conference would offer the Soviets
an opportunity to criticize the US in international fora for
using "high-handed" tactics and would be opposed by those
Americans who do not believe the US should walk out of
negotiations and who favor multilateral solutions to major
world problems and an international rule of law.
If Option I is selected, the Interdepartmental Group
believes that the following actions should be undertaken.
A public relations effort should be carried out which
could include a White House announcement of the decision.
It should be designed both to obtain domestic political
advantages and to minimize domestic and international
disadvantage such as the adverse editorial comments that
followed announcement in March 1981 of the US review of law
of the sea policy.
Contingency plans should be executed to protect US
non-seabeds interests outside a law of the sea treaty. These
plans are being prepared.
If the US wishes to attempt to persuade its allies
not to ratify the treaty, a high-level, and potentially
politically costly, effort should be made.
The US would have to develop a strategy for establishing
an alternative regime for commercial investment in deep
seabed mining.
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The prospects for establishing such an alternative regime
would be affected by decisions made by US allies. Currently,
the IG believes that the prospects are virtually nil for
inducing the allies to withdraw from the negotiations with
the US. The US would then have to seek to induce the allies
not to ratify the treaty.
If the US should succeed in convincing its allies not to
ratify the treaty, an effort would have to be undertaken to
establish an alternative regime for commercial-scale investment
in deep seabed mining. If such a regime were to be established
in the face of a law of the sea treaty that comes into force,
or is likely to come into Force, companies may require
financial protections from their governments. If the US
fails to convince its allies not to participate in the treaty
and decides to establish a unilateral regime under which its
nationals would invest in commercial-scale deep seabed mining,
the US would have to provide additional financial protections
for its miners, because of serious international legal and
political risks.
At one extreme, if a comprehensive treaty enters into
force and the United States is the only major nation which is
not a party to the treaty, commercial-scale deep seabed mining
under US licenses almost certainly would not occur on an
unsubsidized basis because of serious international legal and
politic'a'l risks.
At the other extreme, in the unlikely event that the
treaty did not enter into force for many of the nations
interested in deep seabed mining (US, UK, France, FRG, Belgium,
Japan, Netherlands, and Italy), the USSR, certain major
developing countries, and other industrialized countries,
and provided the US could induce them to join in an alter-
native regime, investment in commercial-scale deep seabed
mining under US and foreign licenses might occur under that
regime.
A variety of cases lie between the-two extreme alter-
native situations outlined above. The IG cannot predict
with a reasonable degree of confidence whether commercial-scale
investment would occur under any such case. The various
industrial consortia hold differing views on this subject.
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