12. Memorandum NSC–U/DM–109B From the Chairman of the National Security Council Under Secretaries Committee (Rush) to President Nixon1 2
- Recommended Instructions for the U.S. Delegation to the Third United Nations Conference on the Law of the Sea
Pursuant to NSDMs 225 and 240, attached is the Report of the Interagency Task Force on the Law of the Sea on this subject.
The Report and the individual agency comments reflect thoughtful high level attention to this important matter.
The present memorandum identifies the principal unresolved issues and in some instances indicates my own recommendations. Your decisions are requested with respect to the agreed recommendations and the unresolved issues.
I. The Importance of the Conference
The United States has vital political, strategic, economic, environmental and scientific interests in [Page 2]the oceans. These interests can best be protected—and in some cases can only be protected—by a comprehensive multilateral oceans treaty to be negotiated at the Third United Nations Conference on the Law of the Sea, which begins its substantive work in Caracas on June 20, 1974.
United States interests include:
- —safeguarding our strategic capabilities;
- —worldwide access to fossil fuels and hard minerals;
- —assuring freedom of navigation and trade;
- —orderly exploitation and conservation of the oceans’ living resources;
- —protection of the marine environment; and
- —access to the oceans for scientific research.
Establishing an acceptable and orderly legal regime for the oceans will lessen the possibility of conflict and confrontation and further your policy of building a structure for peace. Success in achieving this goal will depend on our ability to present negotiating positions that safeguard U.S. interests and are likely to promote agreement by other nations.
II. Recommendations Concerning Principal Unresolved Issues
A. The Deep Seabeds
One of the most important choices to be made concerns the structure of the International Seabed Resource Authority. Our present position is to support a nondiscretionary access system (option B) which would assure access by U.S. firms to deep seabed minerals under reasonable conditions. Almost all agencies, [Page 3]including State, Defense, Commerce and Interior, support this position and strongly oppose a shift to an approach whereby the international authority would be limited to functioning as a claims registry, information center, and consultative forum which could make recommendations to contracting parties (option C). CIEP, however, favors a shift to option C.
It appears that in light of the high degree of agreement on option B as the primary position, the question of a fallback takes on added importance. Treasury, FEO and OMB support option B, but also support option C as a fallback. Treasury and FEO’s support of option B is contingent upon the delegation being instructed to move stepwise to corresponding elements of option C whenever specific features of option B cannot be agreed upon.
CEQ prefers option A providing for an international authority with broad flexibility to regulate deep seabed mining so long as the U.S. and other countries which can be expected to supply the technology and capital exercise sufficient voting control to protect their interests. EPA supports both options A and B while State, Transportation, and Interior favor fallback authority to move to option A.
Ambassador Stevenson recommends giving the delegation the limited authority to move somewhat beyond option B in the direction of option A if we achieve the essence of what we want under option B but there are some matters that cannot be fully agreed at this time. This authority would be conditioned on achieving adequate arrangements for promptly initiating deep seabed production.
I support option B, and oppose a shift to a claims registry, information center and consultative forum approach. In my opinion, such a shift could seriously lessen the chances of agreement without offering additional protection to U.S. deep seabeds interests. Moreover, the present policy has been endorsed by both [Page 4]Houses of Congress; any radical shift in direction could weaken Congressional support for our oceans policy. The question of a fallback position is one we will continue to explore with a view to finding a satisfactory solution.
The detailed rules and regulations governing the activities of the International Seabed Resource Authority are being developed within the Government and an agreed position on these rules will be achieved prior to departure of the U.S. Delegation to Caracas.
There is a separate but related negotiating option which would permit the international authority to exploit seabed resources provided that any direct exploitation is appropriately insulated to protect other licensees. There is a split between Interior, AID, and CEQ which favor the authority to utilize this option if needed and Treasury, FEO, Commerce, OMB and CIEP, which oppose this option. Treasury cannot accept the option as even an ultimate fallback.
The principal considerations in deciding this issue seem to be an assessment of the extent to which it is or is not possible to create an international operating arm which would not interfere with national licensees and tactical considerations as to the best way to negotiate a nondiscretionary system for commercial access to seabed minerals. I oppose this option. The delegation should report back from Caracas for further instructions before any further consideration is given to it.
There is also a question as to whether the authority’s administrative expenses should be provided by funds generated by licensed exploitation activities or by state contributions. State and Interior support the former approach and Commerce, Treasury, FEO, OMB and CIEP support the latter approach.
Several agencies have raised questions concerning whether the recommendation for deep seabed revenue sharing is sufficiently focused. The Task Force will [Page 5]continue to study the relevant base and percentage to determine a more precise figure or range. I believe that it would be useful for the delegation to have the authority recommended. This authority would not be exercised without consultation with the Chairman of the Task Force and the senior representatives of the agencies concerned. To sharpen the issues before Caracas, I have asked that a working group of the Task Force be formed to clarify the alternatives.
B. The Coastal Seabed Economic Area
The principal differences with respect to the coastal seabed economic area relate to delimitation of the outer boundary of the area and to sharing of revenues from the area.
All agencies accept the recommendation that at least tactically the delegation should maintain a low profile on the question of an outer boundary beyond 200 miles. On the merits, however, NSF seems to lean toward a position that it would be in the U.S. interest to draw the boundary at 200 miles; Commerce wants it drawn beyond 200 miles, Treasury, FEO, OMB and CIEP strongly recommend the end of the continental margin for U.S. economic jurisdiction. Interior would to see further study of the question.
Since all agencies accept the recommendation to maintain a low profile on this issue, it would not appear necessary to make a final determination on the merits at this time. It would, however, be helpful to establish a Task Force working group on this issue to analyze the competing considerations and to make recommendations on whether the delegation should actively work for a 200-mile or broader boundary and where the precise outer boundary should be located. Until such a review is completed NSDM 225 will continue to provide substantive guidance on this question. [Page 6]NSDM 225 stated that the President had considered the Under Secretaries Committee Chairman’s memorandum, which contained an understanding that the U.S. should seek in these negotiations to obtain an outer limit for the Coastal Seabed Economic Area of 200-miles or the edge of the continental margin, whichever is further seaward, and that the delegation may decide how best to obtain this objective. NSDM 225 approved the recommended instructions for the delegation.
The second principal difference with respect to the Coastal Seabed Economic Area is whether there should be revenue sharing from the area and, if so, from what part and at what rate. All agencies except OMB and CIEP support revenue sharing from the Coastal Seabed Economic Area. There are further agency differences, however, as to whether revenue sharing should begin at a 12 mile territorial sea (option 2), or 12 miles or 200 meters whichever is further seaward (option 3), or whether it should be authorized at a higher rate beyond 200 miles. Treasury and FEO support for some sharing is contingent upon getting something of a commensurate value from our negotiating partners, and they proposed a new text for the revenue sharing section of the draft instructions. They believe that any revenue sharing initiative should be subject to further guidance from Washington.
Revenue sharing serves a variety of important considerations in the negotiation including serving as a device to promote agreement between broad and narrow boundary proponents. Revenue sharing was an element of your oceans policy statement of May 23, 1970. It has been endorsed by both Houses of Congress and the United States has consistently supported revenue sharing in the preparatory negotiations. Moreover, to change our position at this late date could seriously undercut our credibility in the negotiations.
I believe that the delegation should have authority to adopt any of the approaches recommended in options 2, 3, and 4. It should be made clear that U.S. support for revenue sharing in the Coastal Seabed Economic Area is dependent on reciprocal support for the fundamental [Page 7] U.S. objectives in the Conference. Approval of these three options should also be premised on the condition that determination of a precise rate would only be arrived at after full consultation with the Chairman of the Task Force and the senior representatives of the agencies concerned.
It seems unlikely that revenue sharing will be agreed from areas landward of the 200 meter depth curve. Nevertheless, it is important that the conditions established for the Coastal Seabed Economic Area—other than revenue sharing—should begin at the seaward limit of the territorial sea.
C. Vessel-Source Pollution
Jurisdiction to control vessel-source pollution has been a particularly difficult issue. Satisfactory resolution of this question is vital for the protection of U.S. navigational interests. Reflecting the importance of the issue, agencies are divided on the minimum acceptable positions.
State favors all four options. Treasury and FEO also favor all four options but propose some additional specific instructions for the delegation which would direct the delegation to work closely with Canada in any effort to achieve an overall settlement on marine pollution issues. Ambassador Stevenson favors all four options with the understanding that options 2, 3, and 4 are essentially fallback options. CIEP opposes all four options. Defense believes that the national interests are best served by continued opposition to a zonal approach but is willing to accept as a fallback a narrow pollution zone in which the coastal state has enforcement authority only of internationally-established discharge and dumping standards provided that coastal states, in return, relinquish claims to impose unilateral standards. All other agencies accept option 1 which provides that coastal states can enforce international discharge and dumping standards in a zone extending to a maximum breadth of 50 nautical miles from the coast, [Page 8]subject to an exemption for vessels and aircraft entitled to sovereign immunity and certain other conditions for the protection of shipping. Commerce agrees to option 1 if necessary to agreement and if the zone provisions are nondiscriminatory; Transportation supports it only if its exercise would attain widespread maritime state agreement.
Commerce and Transportation oppose the fallback authority in option 2 to extend this area to 100 miles. And Commerce, Transportation, NSF and Defense oppose option 3 which would extend this authority to setting standards for discharge and dumping as well as enforcing such standards. State, Treasury, FEO and Ambassador Stevenson support option 4 while Commerce gives qualified support and Interior, Transportation, CEQ and EPA oppose the option, which would generally allow the U.S. to support exclusively international vessel construction standards for pollution prevention for foreign ships entering ports.
I believe it is particularly important that the delegation have authority to negotiate a common position among the maritime powers which will fully protect our vital interests in navigational freedom. To achieve this it is important to be able at this time to move, the negotiations toward acceptance of the critical distinction between discharge and dumping standards on the one hand and vessel construction and manning standards on the other. This distinction also seems critical to satisfactory resolution of the straits issue.
For these reasons, I recommend that the delegation have authority to accept options 1, 2, 3, and 4 which together constitute a consistent package enabling the delegation to negotiate a common position with other maritime states. I do so, however, on the understanding that options 2 and 3 are fallback positions that should be played out (if at all), with the utmost care, and only if absolutely necessary to reach agreement.[Page 9]
D. Marine Scientific Research
The U.S. seeks to avoid coastal state authority to require consent for marine scientific research in areas of coastal state resource jurisdiction adjacent to the territorial sea. One of the most contentious issues is whether the delegation should have fallback authority to negotiate a qualified consent regime for marine scientific research in areas of coastal state resource jurisdiction. Under such an approach, coastal state consent would be required before research could be undertaken in areas of coastal state resource jurisdiction. The coastal state would be obliged, however, to grant consent if specified criteria were met.
Defense, Commerce, and NSF strongly support the present position and oppose this fallback. Treasury and FEO support the option and have reservations on the present position. Interior, CEQ, EPA, and State support both the present position and the option. State’s support is dependent upon several additional conditions including making every effort to obtain agreement on the present position, reaching agreement on coastal state resource jurisdiction separately from science, and being clear that being outvoted would not be preferable in terms of our principles.
I believe the delegation should have the authority of the option on marine scientific research if, and only if, the Chairman of the delegation determines in consultation with the Chairman of the Task Force and the senior representatives of the agencies concerned, and, subject to the additional State conditions, that failure to reach agreement on scientific research will prevent agreement at Caracas on the range of coastal resource issues, or on an otherwise acceptable comprehensive law of the sea treaty. The, fallback position would be discussed either publicly or privately only by the Chairman or Vice-Chairman of the delegation and only after the above determination and the tactical and substantive judgments under the option and additional conditions are made.[Page 10]
E. Separate Conference Problems
It is expected that the first week of the Caracas session will be devoted to procedural matters particularly to the adoption of Conference rules governing inter alia voting on treaty articles. This would continue the work of the December organizational session of the Conference, which did not reach agreement on rules of procedure. Several agencies have recommended that since these issues are of major importance for the Conference and the delegation was unable to resolve them in December under the. NSDM 240 instructions, the delegation should have additional instructions. Treasury and FM recommended that the delegation be instructed to suspend participation in the Conference and seek further guidance from Washington if a voting system consistent with certain minimum criteria is not agreed. Commerce has recommended that instructions provide that substantive negotiations be deferred until procedures satisfactory to the U.S. are established. OMB has called for recommendations from the Law of the Sea Task Force on minimum requirements the rules of procedure must meet to permit continued participation in the Conference.
The other agencies and Ambassador Stevenson believe that no new instructions are needed on the procedural issues. These issues have already been addressed in NSDM 240 prepared for the organizational session of the Conference and those instructions would continue in effect at Caracas. Our aim is to seek a balance between overly rigid procedures which would prevent a timely or successful Conference and overly relaxed procedures which risk premature voting on substance harmful to U.S. interests.
The Department of State is preparing a memorandum with respect to invitational issues which might [Page 11]arise in the Conference, such as “Provisional Revolutionary Government (South Vietnam)" participation. Prior to the December organizational session the Department initiated a successful campaign to avoid an invitation to the PRG or the GRUNK. The Department is reviewing whether additional initiatives are needed at this time.
- Source: National Archives, Nixon Presidential Materials, NSC Files, NSC Institutional Files (H-Files), Box H–243, NSDM 240, Recommended Instructions to UNCLOS III. Secret. The full (122 page) report and the two Comments sections are not published. The July 11, 1973 memorandum from Rush to Nixon is published as Document 3. NSDM 225 is published as Document 5. NSDM 240 is published as Document 9. The following NSDMs are published in Foreign Relations, 1969–76, volume E–1, Documents on Global Issues 1969–72, Documents 375, 405, 424, and 434. The memorandum summarizing the report of June 20, 1972 is published as Document 433. Nixon’s May 23, 1970 Statement About United States Oceans Policy is in Public Papers: Nixon, 1970, pp. 454–456. A summary of the Draft UN Convention on the International Seabed Area and accompanying statements by U.S. officials are published in Department of State Bulletin, August 24, 1970, pp. 209–218. The “1958 model” refers to the four separate conventions which resulted from the First United Nations Conference of the Law of the Sea, held in Geneva during 1958: the Convention on the High Seas, the Convention on the Territorial Sea and the Contiguous Zone, the Convention on the Continental Shelf, and the Convention on Fishing and Conservation of the Living Resources on the High Seas.↩
- Rush transmitted for Nixon’s consideration documents concerning the first (Caracas) session of UNCLOS III.↩