24. Memorandum From the President’s Assistant for National Security
Affairs (Scowcroft) to President
Ford
1
2
Washington, March 1, 1976
SUBJECT:
- Instructions for the U.S.
Delegation to the New York Session of the Third UN Conference on the Law of the
Sea
The third substantive session of the Third UN Conference on the Law of the Sea is scheduled to convene
in New York on March 15, 1976, for an eight week period. The Chairman of
the NSC Under Secretaries Committee has
forwarded you the report of the Committee at Tab B indicating that the
NSC Interagency Task Force on the
Law of the Sea has reviewed the existing instructions for the Law of the
Sea negotiations, recommending that they remain in force as the basic
guidance for the U.S. Delegation to the
New York session of the UN Law of the Sea
Conference. This recommendation is concurred in
fully by the fifteen U.S. agencies
that have participated in the NSC
Under Secretaries Committee’s work on the law of the sea, including
State, Defense, Treasury, Commerce, Interior, Transportation, and
the Office of Management and Budget.
The following paragraphs review for your information U.S. objectives in the Conference, our
position on principal issues in the negotiations and problems requiring
Conference resolution before agreement can be reached in 1976 on an
international oceans treaty. The NSDM
for your approval at Tab A would reaffirm the existing instructions for
the Law of the Sea Conference and emphasize areas in the negotiations
principally national security issues (freedom of navigation) and marine
resources (the regime for the deep seabed)—which will require careful
attention by the U.S. Delegation.
U.S. Objectives in the
Conference
As a major ocean user, the United States has important interests at stake
in the Conference, including the safeguarding of U.S. strategic [Page 2]
mobility and capabilities; freedom of navigation for U.S. naval ships and commercial shipping;
worldwide access to fossil fuels and hard minerals; orderly exploitation
and conservation of marine resources, including coastal and high-seas
fisheries; protection of the marine environment from pollution; and
access to the oceans for scientific research (including defense
research).
The forthcoming New York session is central to the success or failure of
the Law of the Sea Conference. The oceans interests of the United States
can best be protected—and in some cases can only be protected by a
comprehensive multilateral treaty on the oceans. However, many nations—
including the United States—are moving toward unilateral action to
protect their strategic and economic interests in the oceans. Most
recently, this has taken the form of national claims to fisheries
jurisdiction in the 200-mile economic zone in advance of agreement on
this issue in the Conference. Mexico and Iceland declared such zones
this year. Both houses of the Congress have passed 200-mile interim
fisheries legislation. Our objective is to delay enactment of this
legislation until after the New York session of the LOS Conference, with an implementation date
in 1977, to allow a final opportunity for this issue to be settled
favorably in the Conference. The NSDM at Tab A underscores the
importance of timely international agreement on the law of the sea
in light of the growing unilateral pressures.
Success in the New York session will depend on the necessary
accommodation of differing positions among the participants and, in
turn, on our ability to advance our negotiating positions so as to
command majority support by other nations while safeguarding U.S. interests. Virtually all agencies have
indicated that the existing instructions on the law of the sea
negotiations provide the U.S. Delegation
with a realistic negotiating position and sufficient flexibility to
realize substantial progress at New York consistent with protection of
fundamental U.S. oceans interests.
The Conference—Developments, Problems and
Issues
The first substantive session of the Conference was held during the
summer of 1974 at Caracas; the second session was held at Geneva during
the spring of last year. At the close of the Geneva session, a single
negotiating text prepared by Conference Committee chairmen covering all
Conference issues was distributed. While not formally agreed to by the
delegates, the [Page 3] text comes close
to meeting U.S. objectives on a 12-mile
territorial sea, a 200-mile economic zone with broad coastal state
jurisdiction over the living and non-living resources of our coastal
margin areas, free and unimpeded transit of straits used for
international navigation, freedom of navigation in the economic zone,
and a reasonable archipelago regime.
Problems and issues that remain to be resolved during the forthcoming
negotiating session, together with the U.S. position thereon, are summarized for your information
at Tab C. The most difficult of these is the structure and functions of
the new international organization dealing with the resources of the
deep seabed, principally, the manganese nodules, beyond national
jurisdiction. Until recently, our position differed greatly from that of
the LDCs.
The U.S. objective in the negotiations on
the deep seabed is to obtain a system which guarantees
non-discriminatory access by U.S. firms
to deep seabed minerals under reasonable conditions coupled with
security of tenure, and with fair and reasonable rates of return of
investment to deep seabed mining operators. Within this framework, we
have sought to accommodate the often conflicting interests of all
Conference participants.
Many developing countries in the Group of 77 have been seeking a strong
international organization, with broad discretionary powers. Under this
concept, individual states and their nationals would in effect be
excluded from deep seabed mining operations, except under the most
stringent and unattractive conditions.
Since the summer of 1975, however, the lesser
developed countries (LDCs) have informally indicated a willingness
to compromise on many of their extreme positions relating to the
regime for the deep seabed. We attribute their increased
flexibility to their concern that if they do not move some distance
toward the U.S. position, we might well
move ahead in 1976 with unilateral deepsea mining legislation—a step
which would not be in the overall interests of the LDCs. Whether the
LDCs follow-through and commit themselves formally to a position of
flexibility and reasonableness will not be known until the New York
session is well underway. For this reason, the
NSDM at Tab A recognizes the
evolving situation in the Conference on this issue and calls for the
U.S. Delegation to submit any
requests for proposed new instructions or revisions to current
instructions relating to the regime for the deep seabed via the
NSC Under Secretaries Committee
for consideration.
[Page 4]
Protection of our national security interests—in particular, retention of
the maximum degree of freedom of navigation, including unimpeded transit
through, under and over straits used for international navigation—is a
fundamental U.S. objective in the
Conference. Your NSDM guidance to the Delegation reaffirms the
importance attached to gaining international acceptance of
provisions accommodating U.S.
national security interests on freedom of navigation and other
reasonable uses of the seas.
I recommend, as in the past, you assign responsibility to the Chairman,
NSC Under Secretaries Committee for
backstopping the Law of the Sea negotiations and that you direct the
Chairman of the U.S. Delegation to report
to you on the results of the negotiations upon conclusion of the New
York session of the Conference. The NSDM at Tab A would do this.
RECOMMENDATION
That you approve the NSDM at Tab A
providing guidance to the U.S. Delegation
for the forthcoming session of the UN Law
of the Sea Conference.
APPROVE [GRF initialed]
DISAPPROVE _________
[Page 5]
Tab B
Memorandum NSC–U/DM–1091 From the Deputy Secretary of
State (Ingersoll) to
President Ford
Washington, February 13, 1976
Subject:
- Draft Instructions for the New York Session of the Law of the
Sea Conference
On October 10, 1975 you directed me to submit for your consideration
any recommended changes to the current instructions to the United
States Delegation for the next session of the United Nations
Conference on the Law of the Sea to be held in New York, March 15 to
May 7, 1976.
The NSC Interagency Task Force on the
Law of the Sea has reviewed the existing instructions for the Law of
the Sea Conference in NSDM 288
dated March 24, 1975, NSDM 260
dated June 24, 1974 and other consistent NSDMs in the light of the
negotiations at the Geneva session and anticipated developments. No
new instructions are considered necessary at this time to enable the
US Delegation to carry out the
resolve to help successfully conclude the Conference in 1976, if
possible. The Members of the Under Secretaries Committee concur that
no new instructions are necessary at this time although there are
several issues which could require future referral to you.
If any issues arise which require your decision, these issues,
together with options and the recommendations of the Under
Secretaries Committee will be forwarded to you.
Robert S. Ingersoll
Chairman
[Page 6]
Tab C
Report
Washington, undated
U.S. Position on Principal Issues in the Law of the Sea
I. Background
1976 is probably a decisive year for the law of the sea (LOS) negotiations. Pressures are
mounting world-wide for unilateral claims to coastal ocean areas and
resources due to the slow pace of the multilateral negotiations. The
third substantive session of the Conference meets in New York from
March 15–May 7 with the possibility of another 6–8 week session
later in 1976 if the Conference so decides.
The U.S. is attempting to achieve an
acceptable treaty protecting its vital interests, including:
- —maintaining freedom of navigation and other uses in the
emerging 200-mile coastal economic zones and in that part of
the high seas beyond—for submarines, surface vessels,
military aircraft and oil tankers—and unimpeded transit
through, over, and under straits used for international
navigation;
- —providing effective management of living and non-living
coastal resources;
- —protecting the marine environment;
- —facilitating oceanographic research;
- —ensuring access to deep seabed mineral resources under
reasonable conditions; and
- —establishing procedures for peaceful, third-party
compulsory dispute settlement.
To achieve these objectives, the U.S.
is coordinating closely with the U.S.S.R., the U.K.,
Japan, France and the FRG to develop
common positions and agreed tactics.
II. Present Situation
The main accomplishment of the Conference so far has been the
production of an informal single negotiating text on almost all
issues, presented in a personal capacity by the [Page 7] responsible officers of the Conference.
The U.S. wants to revise or amend the
single text without recourse to voting. Our intersessional efforts
with other nations have concentrated on the development of an
acceptable package of amendments.
III. Major Issues
- A.
-
Freedom of Navigation
The single text is basically satisfactory on straits and
archipelagoes. The U.S.
should resist efforts, particularly by Spain and some Arab
States on straits and by Indonesia and the Philippines on
archipelagoes, to further restrict navigation and
overflight. With respect to freedom of navigation in the
200-mile zone, there is a great danger that a large number
of developing countries will push very hard for greater
rights. The U.S. will
endeavor wherever possible to limit coastal State
jurisdiction to resource control, i.e., to prohibit
“creeping jurisdiction.” For example, the U.S. will continue to seek high
seas rights for other uses in the zone to protect our SOSUS system for the
detection of submarines.
- B.
-
Marine Resources
Coastal nations will acquire exclusive jurisdiction in the
LOS treaty over coastal
fisheries and offshore petroleum in their 200-mile zones.
Difficulties remain with respect to where the outer limit of
the continental margin will be where it extends beyond 200
miles, and whether there will be revenue sharing in the area
beyond 200 miles. Many coastal States would include, in
addition, exclusive rights over all living resources,
including tuna, and the right to prohibit other countries
from establishing installations on the continental shelf.
The U.S. and others have
insisted upon coastal State duties to the international
community as a corollary to new coastal State rights,
including a coastal State obligation to license foreign
fishing in the zone when the coastal State is unable to
harvest the stocks; an exception to coastal State rights
over living resources to enable international management of
highly migratory species such as tuna; and host State
control over anadromous species such as salmon, even in
areas beyond the zone.
- C.
-
Marine Pollution
The U.S. will seek to balance
international and coastal State interests in the regulation
of pollution of the marine environment. Many coastal States
seek broad powers to set and enforce environmental standards
throughout a 200-mile zone adjacent to their coasts. This
would be a particular problem with regard to vessel-source
pollution, since such coastal State powers could seriously
hamper navigation in the zone. The U.S. supports international environmental
standards for seabed-source and vessel-source pollution and
has opposed pollution zones, although we have certain
fallback authority in that regard. One of the most vigorous
proponents of a pollution zone is Canada. Canada recently
indicated (i) support for U.S. straits objectives and (ii) not to insist
on coastal State standard setting in a pollution zone in
return for U.S. support for
greater coastal State jurisdiction with respect to pollution
from ships in ice-covered areas of the Arctic and a coastal
State right to set pollution standards in the territorial
sea outside of straits.
- D.
-
Scientific Research
The question is the extent of coastal State control over
marine scientific research in the 200-mile zone and whether
it is possible to distinguish between resource and
non-resource related research. Most coastal nations want to
require consent before research may be undertaken in their
economic zone. The U.S.
supports a system of scientific research within the economic
zone under which the research may be conducted if certain
obligations designed to protect coastal State interests in
the zone, including a sharing of data and participation in
the project by scientists of a coastal State, are fulfilled.
Beyond this zone, the U.S.
supports complete freedom of scientific research. At the
present time, a compromise seems to be emerging whereby
resource-related research is subject to coastal State
consent and non-resource related research is subject to
specified obligations.
- E.
-
Deep Seabeds
The single text provisions on the deep seabed are
unsatisfactory and a major breakthrough on this subject is
needed if the Conference is to succeed. Considerable [Page 9] diplomacy will be
required to cope with developing world demands for applying
“new world economic order” principles to the deep
seabed.
All States agree that a new international organization should
be created and that there will be a sharing of revenues from
deep seabed mining for international community purposes. We
believe that this is important to provide stability for the
exploitation of deep seabed minerals (manganese nodules
containing copper, cobalt, nickel, and manganese).
The single text largely reflects the view of the extremists
among the developing countries which support the concept of
a strong authority which would have the sole right to
exploit the area. Many countries strongly support giving the
international organization broad discretion to control every
aspect of deep seabed-related activities from scientific
research to marketing of the metals, including price and
production controls.
The U.S. position is that all
States should have assured access to exploit the resources
of the deep seabed. Under this approach, there would be no
discretion in the international organization to deny bona
fide applications or set price or production levels. Only a
small number of States have so far accepted all of the
U.S. positions in regard
to the nature and powers of the new organization. We are
exploring means of accomplishing a compromise on these
issues and have noted some recent developing country
interests (e.g., Brazil) in reaching an accommodation.
- F.
-
Peaceful Resolution of Disputes
Following the Geneva session, the President of the Conference
issued a single text based on the alternatives produced by
the informal working group on dispute settlement. Although
some of the hard-line Latins will attack the President’s
right to produce such a text, we are hopeful that the text
will serve as a basis for future negotiations and will
enable us to attain our objective of comprehensive and
binding third party settlement of disputes. Without
provisions for dispute settlement, the Law of the Sea treaty
will be subject to misinterpretation and abuse of
rights.
