Foreign Relations of the United States, 1969–1976, Volume E–1, Documents on Global Issues, 1969–1972

352. Memorandum From Robert Osgood of the National Security Council Staff to the Senior Military Assistant to the President for National Security Affairs (Haig)¹ ²

Washington, July 24, 1969.

SUBJECT:

• Law of the sea, etc.

The ad hoc committee for the CEP conference succeeded in covering up its differences sufficiently to get an agreed negotiating position. Nonetheless, the delegation members from State and DOD who are mostly interested in the law of the sea treaty fear that all the suppressed issues will arise again in Buenos Aires, where they will be outmaneuvered or their relatively uninformed principals in Washington will make crucial and unwise concessions leading to McKernan’s signature of an agreement. They are sure that McKernan is determined to keep HAK out of the act and that he has every procedural right to do so under the instrumentality authorizing him to sign an agreement. Consequently, they would like to make signature of the treaty contingent upon HAK’s concurrence in some form.

I have told them that the Under Secretaries Committee will be monitoring the conference but that it is up to them to see that unresolvable differences get reviewed by the Committee rather than bargained away, and that HAK cannot be put in the position of asking, in effect, for a veto power over McKernan or Richardson.

Nevertheless, I agree with you that it would be highly improper for McKernan to sign an agreement (even if it has the formal concurrence of all the agencies specified in Circular 175’s authorization) without letting HAK see it first. Therefore, I have written the attached letter. It is equally important I think, to get a similar informal assurance from the Executive Secretary of State.

Attachment
Letter From Robert Osgood of the National Security Council Staff to the Special Assistant to the Secretary of State for Fisheries and Wildlife (McKernan)

Washington, July 24, 1969

Dear Don:

I appreciated the opportunity to sit as an observer of the deliberations of your committee to prepare our position for the fisheries conference with the CEP countries. Let me express my admiration for the skill, tact, and fairness with which you conducted these deliberations in the face of some substantial underlying differences of approach advocated by strong minds. I hope that you will be as successful in forging a constructive agreement with the CEP representatives.

Of course, your committee cannot and should not try to tie down every point in advance; so a number of controversial issues among our delegation members may be reopened during the give-and-take of the conference. This represents a problem for the uninitiated in Washington who are trying to comprehend the subtleties of the basic issues. Henry Kissinger wants me to be cognizant of the negotiations in Buenos Aires so that I can alert him to issues that may raise the question of priority between the law of the sea treaty and resolution of the fisheries problem. Hopefully, such issues can be resolved satisfactorily in Buenos Aires, since no one wants to throw these intricate matters into the Under Secretaries Committee. In any event, I assume that Kissinger, as a member of the Under Secretaries Committee and in accordance with his memorandum of July 12 to Richardson, will have the opportunity to examine any agreement before it is signed. I shall keep my eye out for that contingency but not hold my breath.

My best wishes to you.

Cordially,

Robert E. Osgood

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 381, Subject Files, Seabeds, Volume I, May 1970, (2 of 2). Confidential. After the penultimate sentence, Osgood inserted a handwritten note that read: “But I shall not send it. Instead, I have communicated its message to McKernan on the telephone. He assured me that HAK would have an opportunity to see the agreement before it is signed. He also assured me that he would keep me informed, through a special secretariat in his office, of the conference developments.” A handwritten notation by Osgood on the attached letter reads: “Not sent. Communicated telephonically.” Department of State Circular 175, December 13, 1955, outlined procedures for the negotiation and signature of treaties and other international agreements. See Arthur W. Rovine, Digest of United States Practice in International Law 1974, (Washington: U.S. Department of State, 1975), pp. 199-215.
2. Osgood noted that the concerned Executive Branch agencies had agreed on a negotiating position for upcoming fisheries talks with Peru and assured Haig that the President’s Assistant for National Security Affairs Kissinger would have a chance to review any bilateral accord produced.