POLICY STUDY: LAW OF THE SEA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP84B00049R000200290007-7
• Release Decision: RIFPUB
• Original Classification: S
• Document Page Count: 19
• Document Creation Date: December 21, 2016
• Document Release Date: July 23, 2008
• Sequence Number: 7
• Publication Date: December 11, 1981
• Content Type: REPORT

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December 11, 1981
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.
State Dept. review completed
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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 mining
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 io reasonable
regard for the rights of others, this legal claim is rg9arded
by many.countries as contrary to international law. This
controversy does not extend to the issue of exclusive?y 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
companies could well participate in foreign entities operating
under a law of the sea treaty.
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II. CONCLUSIONS OF THE INTERAGENCY REVIEW
A. 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 navigation and overflight provisions of the
Draft Convention are acceptable; any aeterioration 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.
(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, comraercia,.l-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 t:he 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 thera to join in an
alternative regime, investment in commercial-scale deep
seabed mining under US and foreign licenses right 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 "New 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 provisionss 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 navigation and
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 in
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. rt
There 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.
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
Hraft Con.ven.tion. would provide some standardization for the
coma :act of ma.rine scientific research that could reduce the
potential for arbitrary or capricious behavior by coastal
states.' U5 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 world-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 aid the system of
safeguards provided for in the Draft Convention are vety
important to operators of commercial vessels, particlxlarly
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
she 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 of 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 raining
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 treaty would 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.
IV
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 theca. 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 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.
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The 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 eliminationof 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
OPTION II: Continue participation in the Law of the Sea
Conference to secure, through negotiations,
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 Platfotm
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-term interests in access tb 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 resolve not to participate
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
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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 regime 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 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 stra.egies and tactical
decisions which could result in a success under Option III.
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 regulation 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. IMPLEMENTATION 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
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.
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
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
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 t-o make some changes
to the deep seabeds provisions to accommodate US concerns.
The extent to which US concerns would be accommodated mould
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 P1ineral rResources 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 198:2 concerning the unilateral
receipt and processing of deep seabed mining applications.
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