OPTIONS FOR THE LAW OF THE SEA
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Document Number (FOIA) /ESDN (CREST):
CIA-RDP84B00049R001503800015-4
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RIFPUB
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S
Document Page Count:
8
Document Creation Date:
December 21, 2016
Document Release Date:
April 2, 2009
Sequence Number:
15
Case Number:
Publication Date:
December 11, 1981
Content Type:
MEMO
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December 11, 1981
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 Adrainis-
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.
NSC review completed.
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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. The Department of Interior does not
support Option II as presently drafted.
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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
UIEO 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 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 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. The US delegation is to
regard the fulfillment of these objectives as mandatory.
Satisfying these objectives would among other things, minimize
the impact of NIEO principles which could create adverse
precedents for other negotiations. Our objectives would be
a treaty 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 treaty would 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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