2. Memorandum From the Acting Chairman of the Law of the Sea Task Force (Brower) to the President’s Assistant for National Security Affairs (Kissinger)1 2
- July–August 1973 Preparatory Meeting For the Law of the Sea Conference
A report prepared by the Interagency Task Force on the Law of the Sea regarding the July 2 to August 24, 1973, Geneva preparatory meeting for the Law of the Sea Conference is attached. The report contains negotiating recommendations as requested in your memorandum of March 16, 1973. The report is being concurrently submitted to the various agencies for comment and clearance. The Department of the Treasury reserves its position on the report pending instructions.
A Task Force report on the March-April 1973 meeting of the U.N. Seabed Committee is also attached.
The report containing recommendations is divided into seven sections, which I have outlined below. In view of earlier submissions on the Law of the Sea, additional background material has only been presented where new issues or additional facts are involved.
Section I. The Context of the Summer Session. This section presents the setting for the July–August Seabed Committee meeting, particularly with regard to the timing of the Conference. The report identifies key issues which need to be resolved in order to achieve a successful overall treaty package. A general grouping of states according to their national interests (coastal, developed maritime, landlocked/shelf-locked, distant water fishing developing) is outlined. It is suggested that our almost across-the-board interests should help us play a significant role in encouraging the emergence of a package accommodating our basic interests.[Page 2]
Section II. Objectives for the Summer Session. This section recommends four major objectives for the summer session: to begin to construct the outlines of a broad consensus compatible with the full range of basic U.S. interests; to form a broader common front of states with similar interests to demonstrate well in advance the futility of attempting to outvote the U.S., thus leaving adequate time for negotiation; to gain a better understanding of what may be acceptable to other states so that our instructions for the Conference can be formed in a manner that reduces the need for urgent high-level decisions in Washington during the Conference; and to ensure sufficient technical preparations so that the main issues are fairly clearly understood at the Conference and as many important issues as possible are settled in advance. On the straits issue, it is recommended that concentration be placed on the formation of a broad common front of states with similar interests, while continuing our dialogue with straits states and maintaining strong opposition to their innocent passage proposal. As to the question of coastal state resource jurisdiction, it is recommended that the U.S. work with the coastal state majority, in particular in private exploratory discussions with the moderate developing coastal states favoring a 200-mile resource zone on the substance of coastal state jurisdiction and on an overall Law of the Sea package involving the full range of U.S. interests. While maintaining our opposition to exclusive coastal state jurisdiction, we would not in those discussions indicate that we would oppose a 200-mile resource zone if our substantive interests were accommodated. At the same time, we would maintain close contact with the distant water fishing states and the landlocked/shelf-locked states that must eventually be brought along, and would remind the coastal states of that necessity.
Section III. Scientific Research. This section recommends that with respect to protecting our interest in maximum freedom of scientific research our major effort be to avoid a requirement of coastal state consent for research beyond the territorial sea and to demonstrate that developing and coastal state concerns can be accommodated without unnecessary restrictions on access. Scientific research conducted in areas of [Page 3]coastal state resource jurisdiction would be required to satisfy objective treaty standards. Compulsory dispute settlement procedures would assure the coastal state of compliance with these standards. To meet environmental concerns, the research vessel should meet exclusively international environmental standards, although coastal states could set higher standards for drilling. Low profile efforts would be made to limit the application of scientific research standards only to research concerning or affecting resources.
Section IV. Pollution. This section presents recommendations on vessel source pollution designed to support the U.S. position that vessel source pollution standards should be exclusively international. Measures designed to strengthen IMCO are outlined in order to respond to the need to demonstrate the adequacy of the system for promulgating international standards. To protect against abusive actions and ensure more responsible behavior, all pollution control actions undertaken pursuant to the LOS treaty would be subject to a satisfactory compulsory dispute mechanism to which immediate access can be had. It is suggested that existing rights, including those relating to the right of approach and port and flag state enforcement actions, be spelled out in the treaty. In recognition of the need for effective enforcement and the desire for coastal state pollution controls, a highly circumscribed coastal state enforcement right is recommended. The report recommends three pollution liability objectives, and ideas to achieve them are set out. Military vessels and aircraft would be exempt from the treaty’s pollution control provisions.
Section V. Provisional Application of the Treaty. This section presents recommendations on the provisional application of the treaty in the period between signature and its entry into force. The U.S. has already proposed such application for the deep seabeds regime and machinery. Provisional application of other aspects of the treaty, it is believed, would be in the interest of the U.S., provided it were done in a way which encourages prompt ratification of the treaty. Support for provisional application would be indicated in light of its effect on substantive objectives and relevant tactical circumstances.[Page 4]
Section VI. Seabeds Resources: The Intermediate Zone and the Continental Shelf Convention. This section discusses the relationship between our intermediate zone proposal and the exclusive economic zone advocated by certain states, and proposes that the five points in the President’s Oceans Policy Statement be made applicable to all seabed resources under coastal state jurisdiction beyond the territorial sea, but with our interim leasing policy continuing to apply only beyond a depth of 200 meters. Flexibility on whether revenue sharing should begin at 200 meters or at 12 miles (coupled with a grandfather clause) is recommended.
Section VII. Compulsory Dispute Settlement. This section recommends that major emphasis be placed on compulsory dispute settlement as a general principle applicable to all disputes arising out of the treaty. Acceptance of the principle of compulsory dispute settlement is regarded as essential to a successful Conference by the U.S. Government Departments and Agencies on the Task Force and affected industries.
Acting Chairman, Interagency
Task Force on the Law of the Sea
- Source: National Archives, RG 59, Central Files 1970–73, POL 33–8. Secret. Drafted by Camitta; cleared in L, L/OA, S/FW–COA, IO/UNP, SCI/EN, and at the National Science Foundation, the Council for Environmental Quality, and the Departments of Defense, Commerce, Transportation, Interior, and Treasury. Attachment 1, undated and unsigned, is not published. Nixon’s May 23, 1970 Statement About United States Oceans Policy is published in Public Papers: Nixon, 1970, pp. 454–456.↩
- Brower forwarded a report on the March–April meeting of the UN Seabed Committee and summarized for Kissinger the recommended negotiating positions for the July–August Law of the Sea Conference preparatory meeting.↩