INTERDEPARTMENTAL GROUP MEMORANDUM NO. 8

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83B00140R000100080010-6
• Release Decision: RIFPUB
• Original Classification: S
• Document Page Count: 10
• Document Creation Date: December 22, 2016
• Document Release Date: May 5, 2009
• Sequence Number: 10
• Publication Date: November 19, 1981
• Content Type: MEMO

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DEPARTMENT OF STATE 8134038
SECRET
Washington, D.C. 20520
November 20, 1981
Members of the Interdepartmental group
on Law of the Sea (See Attached List)
SUBJECT: Interdepartmental Group Memorandum No. 8
NSC Review Completed.
Attached are the Interdepartmental Group Memorandum No.
8 and the draft options paper to the President indicating
changes proposed by the Departments of Defense, Interior, and
Treasury. Changes appear in brackets on pages 6,8,15,16,18,20,23,
26, and 28 of the memorandum and pages 3,4,6,`7,8, and 9 of
the draft options paper. In addition, written comments from
the Departments of Interior and Treasury are attached.
A Senior Interdepartmental Group meeting is scheduled
for Tuesday, November 24, at 3-4:30 p.m. in Room 1107 of the
State Department. The meeting will review these proposed
changes to decide the final form of the papers to be forwarded
to the NISC for consideration by the President.
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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 jurisdiction,
fisheries conservation and management, marine scientific
research, prevention and control of ocean pollution, continental
shelf rights, and the peaceful settlement of disputes. The
Conference was expected to conclude negotiations 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. As a result, 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.
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
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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.to the Dep~ -.
nom. 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
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.
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(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 [although
DOI--- remote] 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 and offer 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 who
the parties to it might be, or 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.
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
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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
DOI--- seabed mining regime. Nevertheless, there is an [some]
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 IG 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 neg~t"e--{to--c>b-taixnl n A~ A~
changes satisfying the five objectives set
forth in Part IV
The Departments of Commerce, Defense, Energy, Labor,
State, Transportation, and Treasury, the Environmental
Protection Agency, the National Science Foundation, and the
Council of Economic Advisors recommend Option II.
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
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draft agreement (a) do not fairly reflect US political and
econo~~ic interests and financial contributions or (b) contain
NIEO ncc which developing countries could employ to
promote their aims in other negotiations;
-- because of the extreme character of the deep seabed
provisions of the Draft Convention, 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;
-- 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
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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 negotiate changes satisfying
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.
Treasury-[Detailed instructions for achieving these objectives,
including U.S. positions on and proposed amendments to specific
treaty provisions, will be developed for review by the NSC
and, particularly with reference to the economic and-financial
aspects of the seabed mining provision, the relevant Cabinet
Council.]
To implement this option, it would be essential that the
US state its commitment to the multilateral treaty process.
The US would have to indicate that, if the renegotiated text
meets its objectives, the US Executive Branch would promote
ratification. This commitment would not prejudge the decision
on whether to sign and ratify the final treaty text. That
would depend on a later decision on whether it meets US
objectives. If this option is selected, the US negotiating
strategy would be designed to minimize the risk that retaliatory
measures would be taken involving attempts to amend provisions
of the treaty which are favorable to US national security
needs, while at the same time pursuing strategies and tactical
decisions which could result in a success under Option II.
Improvements consistent with US objectives in other areas
also may be sought if opportunities arise and if they could be
achieved without risking the unravelling of military navigation
and other important interests.
This approach carries no assurance that further negotiations
would satisfy US objectives. In the event that the US was
successful in achieving its objectives and decided to ratify
the law of the sea treaty as currently drafted, 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
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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:
DOI--- -- presents the only realistic [although remote]
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
both reduce the risk of deterioration of the navigation
provisions and offer 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;
DOI--- --[Delete paragraph] could be presented as implemen-
tation of the Republican Platform which 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 interest in access to raw
material and energy resources."
-- 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
organization 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 IG seeks endorsement that
DOI--- the US negotiating effort sth=ould_[must] be designed to
establish a deep seabed mining regime which satisfies the
following objectives. Satisfying these objectives would
among other things, minimize the impact of NIF.O principles
which could create adverse precedents for other negotiations.
A-A
DOI--- First, the treaty sho '? - st] not deter the
development of any deep seabed mineral resources to meet
national and world demand.
DOI--- Second, tare treaty -s-t] assure national
access to deep seabed mineral resources by current and future
qualified entities so as to enhance US security of supply,
so as to avoid monopolization of deep seabed mineral resources
by the operating arm of the International Authority, the
Enterprise, and so as to promote economic development of the
resources.
4
CA 1~k
DOI--- Third, the treaty shit-]d--fn=t] 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
DOI--- Fourth, tFe treaty she-uI Im-u-st] not allow for
amendments to enter into force without the approval of the
DOD--- US, including advice and consent of the US Senate, [and the
treaty__sJ1nu-?d not set other undesirable precedents for inter-
national organizations.]
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DOI--- Fifth, tYye treaty she&3d ust] 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,
DOI--- the treaty should [must] 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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