24. Memorandum From the President’s Assistant for National Security Affairs (Scowcroft) to President Ford1 2
- 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.
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]
- Source: Ford Library, National Security Adviser, Presidential File of NSC Logged Documents, Box 33, IF/NS File for the President, 7600948—Instructions for Law of the Sea. Secret. Sent for action. Ford initialed his approval. NSDM 260 is published as Document 14. NSDM 288 is published as Document 18. Tab A is published as Document 25. Tabs B and C are published with this document.↩
- Scowcroft summarized the proposed instructions to guide the U.S. delegation to the March–May 1976 (New York) UNCLOS III session and recommended approval.↩