INTERAGENCY REPORT ON THE LAW OF THE SEA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83M00914R001000100015-8
• Release Decision: RIFPUB
• Original Classification: S
• Document Page Count: 12
• Document Creation Date: December 21, 2016
• Document Release Date: June 17, 2008
• Sequence Number: 15
• Publication Date: June 15, 1982
• Content Type: REPORT

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Interagency Report on
The Law of The Sea
ISSUE
June 15, 1982
In the wake of the adoption of the Law of the Sea
Convention on April 30, 1982 over US objection, how should
the US pursue its oceans interests, particularly in navigation
and overflight and seabed mining?
BACKGROUND
Results of the Conference
At the conclusion of its final session on April 30, the
UN Conference on the Law of the Sea (LOS) adopted a comprehen-
sive convention by a vote of 130 to 4 (US, Israel, Turkey,
and Venezuela). Seventeen countries abstained, including
the UK, FRG, Italy, Benelux, Thailand, and the Soviet bloc
except Romania.
We did not achieve changes that satisfy any of the
objectives for the deep seabed mining regime set forth in
NSDD 20 of January 29. The text adopted by the Conference
contains eight minor changes to the seabeds provisions,
including an assurance of a permanent seat on the Council
for the US (if the US ratified the Convention and continued
to be the largest consumer of seabed minerals) but the text
otherwise remains essentially the same as that reviewed
earlier. The text did not include the many changes supported
by the US, including those assuring adequate protections of
workers' safety and labor, standards.
Consequently the SIG assessment of December 1981 remains
the same. The navigation and overflight provisions of the
Convention, although in part troublesome, are acceptable in
their present form. Other non-seabeds provisions are, with
certain limited exceptions, generally consistent with US
.interests. The deep seabed mining regime contains major
elements contrary to US interests.
We were unable to effect significant improvements in the
Convention, because of unyielding resistance on the part of
the Group of 77, which in effect refused to enter into serious
negotiations on any of the major US concerns, lack of coopera-
tion by the Soviet bloc, and the perception by many western
countries and allies that their interests are well served by
the overall text or something close to it even if the deep
seabed mining provisions are deficient. Some US allies,'
State Dept. review completed.
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however, worked closely with us (FRG, France, UK, Belgium
and Italy). The effort of a group of eleven countries (includ-
ing Canada, Australia, New Zealand, the Nordic countries and
Switzerland) to develop compromise proposals and encourage
genuine negotiations on some of the issues of concern to
the US failed.
The negotiations at the session did produce a resolution
on Preparatory Investment Protection (PIP), designed to allow
pre-existing seabed miners to make a transition to the Treaty
regime. Intended originally to give priorities for mine sites
and production to the five existing pioneer consortia (two
US-led, two with major US participation and one all-French),
the resolution widened the field of pioneers beyond those
five to include national entities from Japan, India, the
USSR, as well as some developing country entrants if they
are able to meet certain financial qualifications by January
1, 1985. The pioneer miners would still be subject to the
provisions of the Convention that we were unable to change
and, in this sense, PIP does not resolve any of our major
problems with the Convention.
We were able at the Conference to block any significant
adverse changes in the non-seabeds provisions of the Conven-
tion that serve US interests. Amendments to restrict the
use of straits and require prior notification/authorization
for warships to pass through territorial seas were defeated
or withdrawn.
The following stages remain on the LOS schedule:
-- Drafting Committee: In July and August the final
text will be readied for submission to the Conference.
-- Informal Plenary: In a brief three-day meeting in
September the Drafting Committee changes will be
approved and the Final Act will be prepared for
signature.
-- Caracas: In December, the Final Act will be signed
by Conference participants authenticating the text of
the Convention. At that Session, interpretative
statements giving national views of the meaning of
textual provisions will be made. The Convention
-will then be opened for signature.
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-- Preparatory Commission: After 50 countries have
signed the Convention, the Preparatory Commission will
meet (probably in 1983) to begin preparing the rules,
regulations and procedures governing seabed mining
as well as to administer PIP and prepare for the
operations of the International Seabed Authority and
the Law of the Sea Tribunal.
Prospects for Signature and Ratification
We anticipate that virtually all countries participating
in the Conference, including our allies, will sign the Final
Act as this is a legal certification of the accuracy of the
text.
As for the substantive step of signing the Convention
itself, we anticipate that the requisite 50 countries to
establish the PrepCom will sign it shortly after it is opened
for signature. The developing countries will sign early and
in large numbers. Among our close friends, France, Japan,
Canada, Australia, and New Zealand, together with the Nordic
countries, are likely to be early signatories. The UK, FRG,
Belgium and Italy may wait to sign until they can gauge
better the degree of support for the Convention world wide.
Wp expect the Soviet Union and eastern bloc countries to be
among the early signatories.
With sixty ratifications necessary to bring the Conven-
tion into force and with over 120 developing countries, we
expect the Convention eventually to enter into force. It is
not possible to say how many countries will eventually ratify
the Convention. Many nations which sign may await the outcome
of the PrepCom to determine the viability of the seabed
provisions. A US decision against signature, an effort to
establish an alternative seabed regime, the uncertainty
regarding rules and regulations to be prepared by the PrepCom,
and the burdensome seabed regime may cause some important
allied governments to hold off a decision on ratification
which may, in turn, deter certain developing countries.
Some developing countries may have difficulty ratifying the
Convention for their own domestic, political reasons as well.
The advantages of the non-seabed provisions, a willing-
ness to "grin and bear" the deep seabed mining regime, a
concern not to sour relations with developing countries on
this, and domestic pressures are key elements in the ratifi-
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cation calculus of our allies. In the absence of strong US
diplomatic pressure, virtually all western countries are
likely in time to join. Even with US pressure, many may
participate in the Convention. Ultimate ratification by the
Soviet Union is not clear if the US and its allies stay out,
but it probably would accede if our allies did, thus isolating
the US.
Navigation and Overflight
The US participation in the Third UN Conference on the
Law of the Sea stemmed primarily from the US security interest
in halting or slowing the extension of state claims to mari-
time jurisdiction. We were and remain particularly concerned
about the breadth of the territorial sea, navigation and
overflight through straits, the type of jurisdiction a coastal
state could exercise in a 200-mile zone, and the archipelago
concept whereby island states seek to include within their
territory large maritime areas by drawing lines around their
outermost islands.
The package deal in the navigation and overflight provi-
sions in the LOS Convention, if properly interpreted, meets
these concerns and is consistent with US interests. A signi-
ficant element of the package deal was that we would recognize
the 12-mile territorial sea (abandoning the 3-mile position)
if freedom of navigation and overflight was assured within
the some 115 straits worldwide which would then be overlapped
by 12-mile territorial seas. Under historical rules of
innocent passage through a territorial sea, overflight would
be subject to the consent of the coastal state and submarines
would be required to transit on the surface. Given the
critical importance of straits, such restrictions would
unacceptably reduce air mobility and subsurface flexibility
and nondetectability. To avoid this, the LOS Treaty provides
for the freedom of "transit passage" in, under, and over
straits, while recognizing residual territorial sea rights
in the straits state. Whether such a "package" approach will
be followed by straits states and others remains to be seen.
Many states have already taken action extending jurisdic-
tion to the 12-mile territorial sea, but not with regard to
freedom of transit through straits or the right of innocent
passage of warships through the territorial sea. Other
states have asserted jurisdiction broader than would be
authorized by the Convention. Many commentators, including
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the American Law Institute, regard the text in these areas
as reflective of customary international law. Recently,
the International Court of Justice regarded the 200-mile
exclusive economic zone (which we do not presently claim or
recognize) as having been established in international law.
If the Convention comes into force, even without us, our
interests in insuring stability and limiting coastal state
claims would be served in this respect. With or without a
treaty in force, we will need to exercise our rights firmly
as some coastal States will likely assert even more expansive
claims. Except in some limited respects relating to the
exclusive economic zone, it is unrealistic to expect that we
could influence state practice to coalesce around anything
other than the principles in the LOS Treaty. Accordingly,
we have an interest in insuring that those navigation and
overflight principles remain viable.
The US should not immediately announce its willingness
to abide by all the jurisdictional elements of the text,
particularly as they bear on navigation and overflight.
Furthermore, as a matter of leverage, we should not formally
give up our present position without attaining some benefits,
particularly the benefit of seeing state practice develop
toward navigation and overflight principles set out in the
text. Therefore, we should not, as a formal matter, immedi-
ately recognize the 12-mile territorial sea, the 200-mile
exclusive economic zone, the archipelagoes claimed by island
States, or other special forms of coastal State jurisdiction
bearing on navigation and overflight which we do not already
recognize. In the long term, however, our navigation and
overflight program should be designed to protect our rights
and direct the practice of states toward our interpretation
of the navigation and overflight principles of the text.
The Department of Defense, in conjunction with State and
Transportation, will conduct a review of how our positions
and programs should evolve in this respect.
Commercial navigation stands to benefit from the adoption
of the Convention even though the US is not a party. However,
the regime for commercial navigation will not be as predictable
and stable without US participation in the Convention. This
may lead to increased interference by coastal states with the
movement of vessels, particularly tankers and other vessels
carrying hazardous cargoes, primarily for reasons related"to
marine pollution. Although it is anticipated that such
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problems will generally have to be handled on a case-by-case,
country-by-country basis, concerned departments will review
this issue to identify potential problems and any preventive
measures that can be taken.
Alternatives to the LOS Convention for Seabed Mining
Establishment of a US-flag seabed mining industry outside
the Convention will probably require a viable alternative
seabed arrangement. Achieving that may well require, at a
minimum, that a few key allies (particularly the UK and FRG)
not ratify the LOS Convention and take action consistent with
the US approach. Even with a major US diplomatic effort it
is unclear whether the US can achieve that result. If our
allies ratify the Convention, and assuming continued US
opposition to it, our choice will be whether and how to
proceed unilaterally, depending on the costs and benefits
at the time.
At present, the LOS Convention is the only comprehensive,
though severely flawed, system purporting to cover all aspects
of oceans activity. Seeking an alternative framework could
be a lengthy process, requiring a sustained high-level effort
to convince as many countries as possible--but most particu-
larly some key allies--that (1) their seabed mining interests
would be better served by not ratifying the Convention and
by joining a different regime, and (2) their non-seabed
mining interests, which they consider to be generally well-
served by the Convention, will not suffer significantly if
they remain outside the Convention.
The alternative seabed regime we envision would cover
all seabed minerals. It would include provisions on reso-
lution of conflicting mine site claims, and allow each state
to exercise control over its nationals without regulation by
an international authority, significant revenue sharing, or
technology transfer requirements.
Pursuant to NSDD 20, we have sought to negotiate a Reci-
procating States Agreement (RSA) with the UK, FRG and France
which would be interim to an acceptable LOS Convention or an
alternative regime. Although a bilateral agreement with the
UK may be possible, an RSA with the other major potential
seabed mining nations is not achievable in the near term
and not achievable at all unless these countries stay out of
the LOS Convention. Although many of our allies also have
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problems with some of the seabed mining provisions in the
Convention, they do not find them as onerous or objectionable
as we do. They have insisted that any RSA they sign be
interim to the Convention with little, if any, semblance to
an alternative regime. It might be possible to negotiate a
"pre-RSA" which calls for cooperation on seabed mining issues
with the UK and the FRG. While such an agreement would not
permit reciprocal recognition of mine sites, it would represent
a sign of unity among the industrial allies.
The Commerce Department is under strong domestic pressure
from certain elements in Congress and two of the four mining
consortia to begin processing applications for seabed mining
licenses, unilaterally if necessary. Commerce has repeatedly
delayed the date for- receiving and processing applications
to accommodate our allies in the RSA discussions and has
decided to begin processing on June 21. Unilateral processing
of mining applications would not preclude subsequent conclusion
of an RSA, but it will initiate a process which, in time, could
make it more difficult to achieve.
If, in the end, we find ourselves isolated, we could
consider seeking to create conditions for US companies to
operate under US licenses, although other countries need not
recognize such licenses. Unilateral action would place US
miners in danger of having their sites legally and politically
challenged by applicants and their sponsors under the LOS
regime and therefore would make financing more difficult.
Moreover, to the extent that opportunities arise for the G-77
countries to retaliate against the mining consortia by deny-
ing them contracts in other areas, seabed mining may be more
costly. We would argue that our activities were justified
under the doctrine of high seas freedoms. It would require
that the US seek to resist all challenges--legal and political
--to that right, including the likely efforts of the United
Nations and the International-Court of Justice to deny that
such a right exists under current international law. To
encourage the large investments needed for profitable mining,
it may also be necessary to provide government-sponsored
"risk insurance" against legal and political challenges.
It is not clear that we could effectively meet the chal-
lenges if we are isolated. Even with risk insurance, some
and perhaps all of the US miners may well decide to conduct
seabed activities under foreign flag through the Convention,
if those entities gain access and find the regime economically
viable.
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International Legal Implications
LOS Conference President Tommy Koh has said he would
seek a General Assembly Resolution requesting an advisory
opinion from the International Court of Justice (ICJ) on the
legality of an RSA if such an agreement is adopted. The US
could not prevent the Court from issuing such an opinion.
Although the opinion would be advisory in nature and not
binding on states, it would be widely regarded as an authori-
tative statement of international law.
In addition, there is the possibility that another state
might seek to bring the US before the Court. In order to
avoid the compulsory jurisdiction of the Court and a possible
binding adverse judgment, the US would have to rely on the
Connally Reservation to the US acceptance of the compulsory
jurisdiction of the Court and assert that this is a matter
"essentially within the jurisdiction of the United States".
Such an assertion would likely be legally and politically
controversial since others would argue that the question of
the legality of activity on the high seas is a question of
international law and is not essentially within the domestic
jurisdiction of the US. Such an assertion could also result
in the Court finding the Connally Reservation invalid either
as asserted or in toto. The Court might either proceed to
decide the case over our objection or decide that the US had
not in fact acceded to the Court's compulsory jurisdiction.
Although the US can currently make credible legal.
arguments in support of its position on the merits of seabed
mining outside of the Convention, widespread acceptance of
the Convention and its entry into force would make the US
case more difficult. The likely outcome of any proceeding is
placed further in doubt in view of the composition of the 15-
member ICJ, which has 9 members from developing and Communist
states.
Fisheries, Continental Shelf, Marine Pollution and
Marine Scientific Research
We had also been prepared to accept other provisions of
the LOS Convention text relating to fisheries, the continental
shelf, marine pollution and marine scientific research as
part of the overall package. Recognizing that the Convention
contains desirable elements, there were aspects which-we 4o
not like and which we only accepted in the negotiating context.
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At this stage, we do not believe that we need to take a formal
position on these provisions of the Convention. Many of our
non-seabeds interests are protected by the Convention even
though the US does not sign it. To the extent they are not
protected, we may be able to protect our interests through
bilateral or regional approaches to the various issues rather
than through the LOS Convention.
vie are likely to find that in some instances, particu-
larly in fisheries, we will want to continue to do things
arguably not consistent with specific provisions of the LOS
Convention. Specifically, we would want to maintain our
requirement that foreign nations fishing off our coast
provide us with commensurate economic benefits for US fishery
interests.. Further, we would want to maintain our positions
on salmon and tuna to ensure the protection of these resources
and our affected industries. We should seek to develop
favorable conditions for conduct of US marine scientific
research in foreign coastal waters, improving whenever possible
on restrictive provisions of the Convention and being prepared
to consider acceptance of coastal state jurisdiction over
marine scientific research out to 200 miles in order to
achieve this objective. The interested agencies will keep
these and other related problems under review.
w
ISSUES FOR DECISION
There are five major issues: (1) whether the United
States should sign the LOS Convention as adopted by the
Conference; (2) when should. that decision be made; (3) whether
the United States should participate in the concluding phases
of the LOS Conference or stay out; (4) should the United
States sign the Final Act and participate in the Preparatory
Commission; and (5) how should we deal with the possibility
of improving the LOS Convention between now and the closing
of the Conference in December.
Issue 1: Should the United States decide to sign the
LOS Convention as adopted by the Conference?
A decision not to sign would (1) be consistent with the
fact that the Convention does not meet any of the seabed
objectives set forth in NSDD 20; (2) give us some chance of
establishing an alternative seabed mining regime, even though
that will be very difficult; (3) not preclude our benefiting
from some of the navigation provisions of the Conventi-on,-? if
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the US is successful in influencing the practice of States
in a direction consistent with the US interpretation of the
text; and (4) be welcomed by those in Congress and industry
who oppose the Convention.
The disadvantages of a decision not to sign are that if
we are not successful in developing support for an alternative
regime, the US (1) could find itself isolated in the law of
the sea with few, if any, supporters; (2) would encounter
substantial criticism and may possibly face an adverse Inter-
national Court decision; (3) could well have no US-flag
seabed mining industry; and (4) could face increased challenges
to its exercise of navigation rights to the degree that the
US acts inconsistently with the LOS seabed provisions. Stay-
ing outside the Treaty could also detract from our ability
to benefit from provisions meeting our interests by maintain-
ing they represent customary international law and would
reduce US influence in the development of seabed mining
rules and regulations (which may affect the availability of
seabed minerals to world markets).
Issue 2: Should a decision on signing be made now or be
deferred?
There is agreement that an early decision not to sign
the Convention would be a clear signal that the Administra-
tion is adhering to the objectives embodied in NSDD 20; that
countries already expect that the US will not sign; and that
deferring decision would provoke some strong criticism from
conservative and other elements opposed to the LOS Convention.
There is disagreement, however, on what effect an early
decision and announcement will have on our efforts to conclude
an RSA with our allies and eventually develop an alternative
regime for deep seabed mining. Those favoring a decision not
to sign now, and an announcement after consulting our allies
on it, believe that this is the best way to counter pressures
on our allies to accede to the LOS Convention and that it
will not jeopardize our RSA efforts. Those favoring deferring
a decision not to sign believe that our ability to wean our
allies away from the Convention into an alternative regime
will increase over time and that an early US decision and
announcement will prematurely confront our allies with a
choice in which they are more likely to embrace the Convention.
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Issue 3: Should the US discontinue all further partici-
pation in the Law of the Sea Conference process
or take part in the Drafting Committee and
informal plenary and the Caracas Session?
The advantages of some participation are that it would
(1) provide the most effective and possibly only means of
assuring that no changes adverse to US interests were made in
the navigation and other non-seabed text of the Treaty during
the Drafting Committee and informal plenary; (2) enable us to
make interpretive statements on the text of the Treaty to
counter adverse interpretive statements as a basis for legal
arguments supporting US positions; (3) keep open the option
of participating in or observing the process of developing
rules and regulations, in which further precedents contrary
to US interests could emerge; (4) suggest that the US remains
committed to multilateral negotiations as a means of resolving
international political, economic and legal issues; and (5)
avoid the risk of incurring criticism for failure to protect
US navigation interests.
On the other hand, refusal to participate in the Conference
activities would clearly demonstrate US resolve not to asso-
giate itself with an agreement that contains elements incon-
sistent with important US principles and interests. Further,
participation at any level by the US at these meetings would
(1) be incorrectly seen by some as a weakening of our resolve
not to accept the Convention; and (2) provoke criticism from
conservative and other interests opposed to the Convention.
Some question the value o interpretive statements to protect
legal arguments.
There is again agency disagreement on what effects parti-
cipation in these meeting would have on efforts to conclude an
RSA and work toward an alternative seabed mining regime. Some
believe that participation will impede achieving an RSA and
and make it more difficult for our allies to move toward
alternative approaches. Others believe that not participating
will highlight US differences with the Convention in a manner
that could make it more difficult for our allies to join us
in an RSA or, particularly, anything that smacks of an alter-
native regime.
Issue 4: Should the US sign the Final Act at Caracas
and participate in the Preparatory Commission?
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Signature of the Final Act authenticates the texts of the
Treaty and resolutions adopted by the Conference; it is the
normal diplomatic practice for states participating in a
conference and does not prejudice a state's position regarding
signature of the Treaty. Signature of the Final Act would
allow the US to participate in the deliberations of the
Preparatory Commission as a non-voting participant. On the
other hand, signature might be misconstrued, particularly by
domestic groups, as evidence of lack of resolve not to sign.
Participation in the Preparatory Commission, even in a
non-voting capacity, could provide an opportunity to influence
the drafting of the rules to govern seabed mining which will
be applicable to US companies operating under foreign flag
as well as foreign firms, thereby contributing to our ability
to influence whether seabed minerals will be available to
world markets. Of course the rules could not be inconsistent
with the clearly unacceptable text even though some important
problems could be mitigated. Participation would however,
pose some of the same risks as those discussed in connection
with participation in the Drafting Committee and plenary. In
particular, it could lead others to conclude that our policy
toward the Convention is more than likely to change over
the long-run.
Decision on this issue could be delayed until fall when
we will have a better fix on our likely influence in LOS
forums.
Issue 5: Should the United States encourage efforts to
amend the text of the LOS Convention?
This is a false option.
Some other countries (e.g., France, New Zealand and
Norway)' have hinted that the LOS Convention may be amended in
a few areas favorable to the US. Some individuals outside
government have argued that US efforts now should concentrate
on getting such changes. All agencies, however, believe that
there is no chance of achieving US objectives, and that
encouraging such activity could undercut our RSA efforts.
The President's Special Representative for the Law of the Sea
Conference believes that there is no chance for improving the
Convention in any way and that exploring such "indications"
would damage the US ability to achieve alternative arrangements.
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