356. Telegram From the Delegation to the Conference on the Law of the Sea to the Department of State 1

1053. Law of Sea. Our telegrams 1023 and 1031.2 USDel continuing in conversations other delegates to take firm stand Canadian proposal offers only possibility successful conference solution territorial sea question. We explaining USDel proposal (our telegram 10413) which with minor drafting changes duplicates Canadian proposal as move to give latter maximum US support.

For Department’s information our proposal is in part tactical move to give UK Delegate control of proposal in event that should be necessary in confused and fluid procedural developments. We considered inclusion language similar to that suggested Department telegram [Page 679] 10274 but concluded would undermine Canadian proposal and that we should rely on possibility persuading Canadians move on their own in that direction in view adverse developments represented by UK proposal and vital importance enlisting maximum West European support. Sweeping Conservative Party victory March 31 should help in this. We will continue with increasing insistence to press Canadians to make suitable amendment at appropriate moment. Suggest Embassy Ottawa be requested inform Foreign Office our analysis situation and diminishing chances Canadian proposal as now drafted.

We also continuing discussions with West European delegates to achieve more objective assessment effects Canadian proposal and ways and means adverse effects can be mitigated.

It evident, however, that UK proposal has seriously damaged chances Canadian proposal. UK proposal gives West Europe more palatable alternative than latter and gives India and other states another card to play for expanded jurisdiction coastal state. If we take Sen’s statement at meeting yesterday (our telegram 1031) at face value, at minimum the possibility of India’s support of Canadian proposal has been lost and with it that of other states that would have followed Indian though Drew still hopes for Indian support. Beyond that, possibility exists that Sen knows UK proposal has little or no chance even as last resort compromise and that India’s co-sponsorship Mexican proposal and submission amendment to Article 49 designed lay basis conference compromise on flexible formula 3 to 12 miles territorial sea or 6 miles territorial sea plus 6 miles contiguous zone.

It obvious that UK proposal cannot compete with such proposals. We cannot avoid conclusion UK aware of this and that UK primary objective is to defeat Canadian proposal on theory that proposal offers only possibility successful conclusion and that conference failure with their gesture preferable to its adoption. This dangerous game since it will confuse and divide supporters 3 miles, seriously weaken thesis 3 miles essential for security and that fisheries jurisdiction and territorial sea questions separable, isolate US as last ditch defender of 3 miles, and opens door to adoption 12 miles or 6 and 6-mile formula either by conference or by unilateral action following failure of conference.

In view of these possibilities I recommend Department and Defense closely examine implications UK proposal with respect US and free world security considerations which are basic to our position. Although language UK proposal not clear, could be construed to say that existing rights on the high seas insofar as passage of aircraft and vessels, including warships, not affected within additional 3 miles. If [Page 680] this is not the intent, the concept could be made clear by drafting changes (such as substitution “navigation” for “passage”). The proposal would then affect only two of the stated freedoms of the high seas in Article 23 of ILC draft, namely fisheries and the laying of submarine cables.

We are still convinced that standing alone the UK proposal cannot compete successfully against other more far-reaching proposals. However, it could perhaps become a viable compromise if an additional 6 miles of exclusive fisheries zone were added at appropriate stage conference proceedings. It is obvious that such an amendment would make the proposal completely unacceptable to UK and to a number of West European states. It might, however, win some additional votes of delegates that for psychological and other reasons are adamant against voting for straight 3-mile territorial sea. UK Delegate has repeatedly argued that one of chief merits its proposal is that it avoids forcing delegates who emotionally and “fanatically” prejudiced against 3-mile rule from voting for it in return for fisheries contiguous zone.

Subject Department and Defense analysis UK proposal and its effects, I make foregoing suggestions only tentatively but it could be that in the end and only as last resort, UK proposal appropriately modified may offer basis for conference compromise and for final effort to stave off something worse.

  1. Source: Department of State, Central Files, 399.731/4–258. Confidential; Priority. Repeated to London and Ottawa.
  2. See supra , and footnote 2 thereto.
  3. Dated April 1. (Department of State, Central Files, 399.731/4–158)
  4. Telegram 1027, April 1, suggested that Article 3 might be amended with language along the following lines: “Territorial sea extends to three miles from baseline but without prejudice coastal state exercising exclusive rights with respect fishing up to twelve miles from baseline.” (Ibid.)