40. Memorandum for the Record1 2


  • Meeting on Law of the Sea


  • State:
  • The Secretary
  • Mr. Maw
  • Mr. Lord
  • Ambassador Learson
  • Mr. Katz
  • Mr. Oxman
  • Mr. Blaney
  • Mr. Newlin (notetaker)
  • Defense:
  • Secretary Ellsworth
  • Mr. French
  • Mr. Poor
  • Treasury:
  • Mr. Parsky
  • Commerce:
  • Secretary Vetter
  • Mr. Pollack
  • Interior:
  • Mr. Fisher
  • Mr. Ratiner
  • NSC:
  • Mr. Hyland
  • Mr. Clift
  • OMB:
  • Mr. Lynn
  • Mr. Ushik
[Page 2]

Secretary: I thought we should have a brief review with you as to where we stand on the Law of the Sea, and where we are likely to go in the weeks ahead. I am going to New York next week to talk to the delegation, and I was there for a day a few weeks ago. There is no danger I will do any damage, because my delegation will tell me what to say. We now have to decide the general direction we want to take on issues such as the Deep Seabeds, the Economic Zone and Scientific Research. Committees II and III, the outline of a solution is beginning to emerge. Actually, am not so sure about Committee II, there seems to be some new compromise.

Ellsworth: The problem is the juridical status of the Economic Zone. I didn’t know that there was any compromise proposed.

Secretary: There was nothing proposed to the other side. Just to the Department of Defense.

Ellsworth: We should be able to find a solution we can both buy.

Learson: There are two compromises in the air. One of them won’t sell.

Secretary: What is it?

Oxman: The Australian compromise. According to this, the Economic Zone is not high seas with respect to the exercise of rights of the coastal states. Australia is going to sound people out on this, but my guess is that it won’t work.

Learson: The next step is to get French to write some words that do the same thing in another way. We need to give the 77 the appearance of a victory. We can’t say that the Economic Zone is the high seas in so many words, but we can find some language that will do essentially the same thing. I think we can work this one out.

Secretary: So I understand then that there is really no dispute between the Department of Defense and the delegation?

Learson: That’s right.

Secretary: How about the specific language?

French: What we need is language that gives the 77 what they need cosmetically, but for all practical purposes give high seas status to the Economic Zone.

[Page 3]

Secretary: So I am correct in thinking that we are getting near to a conclusion?

Oxman: The key point is that the Department of Defense must be able to fiddle around with words on the spot. We’ve only got two weeks to move on this one.

Secretary: Is that the only outstanding issue?

Learson: It’s the only one that this group needs to focus on.

Secretary: How about Committee III, Scientific Research. As I see it, we’ve got Interior on the one hand and Defense, State, and I think all the others on the other.

Ellsworth: From our point of view, we have to be able to conduct certain kinds of experiments.

Secretary: I understand your interest on this one, and we are with you.

Fisher: We’re happy with the language of the RSNT, as it stands now.

Oxman: Well, as it is written now, it’s a consent regime.

Ellsworth: We could live with that, as long as scientific research is defined in such a way that we can do what we want. It is the definition that is important to us.

Learson: The text now talks of withholding consent in too many ways. It’s too restrictive

Secretary: What you really mean, is that it’s too broad, the restrictions are too broad.

Learson: Yes. It’s too broad when they begin saying that they can withhold consent when their economic activities are affected.

Secretary: But under the present text, we have to inform the coastal states of our scientific research. Is that agreeable to Defense?

Ellsworth: Not if scientific research includes the kind of research we conduct.

Oxman: Defense can’t even accept prior notice.

[Page 4]

Secretary: So what we are going to have is a situation where Defense is going to go around doing things that are illegal?

Oxman: No. The phrase is the text that other activities related to navigation and communication are all right, should cover Defense’s needs.

Secretary: So then we’re saying the Defense activity falls outside of scientific research. Well we have no objection to that. But how do you reconcile Interior?

Fisher: We still maintain our concerns.

Secretary: As a practical matter, either consent is automatic or it can be excluded. I don’t see how we can have both. I don’t see how there is a possibility of a compromise here that would satisfy both Interior and the others.

Oxman: The way it is now, you need consent for scientific research, which isn’t of the classified sort and consent for any resource research. The real issue is what to do about the language that says you need consent where economic activities are involved. Most agencies think the language as it stands now is too broad.

Ratiner: Interior likes that language.

Secretary: Ratiner is in cahoots with the group of 77.

Ratiner: Only on some issues, not on all.

Secretary: Does the group of 77 know?

Ratiner: No.

Secretary: So as far as Ratiner is concerned, we can accept the text as it is.

Maw: Interior can accept the modifications that State and Defense want.

Secretary: The only thing is, we don’t think those will fly. You guys live in a world of your own. The only thing that is clear is that Ratiner won’t lose.

Lord: You should know that the scientific community feels very strongly on this one.

Pollack: Yes. The scientific community does feel strongly. They feel that there should be no consent required for basic [Page 5] research. They don’t object to consent for resource-oriented research.

Secretary: If we can’t get what we want, can we accept this? Can we accept a consent regime?

Oxman: Well, it isn’t really a consent regime.

Secretary: Who decides?

Oxman: We insist that there has to be a dispute settlement mechanism.

Parsky: Is that ok with the scientific community?

Pollack: The scientific community could buy it if we can restrict the areas in which consent could be withheld.

Learson: The present situation is governed by the 1958 convention. The text in the RSNT is better than that. Among other things it says that approval is tacit if a request for consent is not disapproved within two months.

Oxman: At the present time every state which has gone the 200 miles has instituted a full consent regime.

Secretary: Are we sure that the Navy’s activities are excluded from these consent regimes, or is that only the US idea?

Oxman: Most countries aren’t going to bother trying to make the distinction, but at some point we are going to have to make our own position public.

Ellsworth: But the Soviets don’t think that military activity is covered

Secretary: What if they had to give up all their activity within 200 miles of the US?

Ellsworth: They’ll just go ahead and do what they want.

Secretary: Well, I wont contest it, but I think it’s a mistake to assume that other countries don’t understand what we’re doing.

Learson: One consideration is that we specifically want to avoid a security clause.

Secretary: What I’m afraid of is that we’ll be hit with charges that what we’re doing in the 200 mile zones is illegal.

[Page 6]

Oxman: We would be more vulnerable without the text, even in its present form.

Secretary: Well, we ought to let the agencies that really have an involvement take the lead on this one.

So, we agree that Committee I is the most difficult. The RSNT is being substantially challenged. We have to see if we can split Committee I from Committees II and III. Is that possible? If we can, then we could delay having to push on Committee I. The danger of course is that if people suspect what we are doing, they’ll put pressure on us to change Committees II and III. So the best thing to do now is to try to finish up on Committees II and III and to split Committee I off later. Now, to look at Committee I. We have a big lead in technology. We can go out there and start mining now. What’s going to happen when people begin to split the oceans up the same way people split the world into colonies in the 19th century? What will happen is that a big percent of the international community will challenge us, so shouldn’t we be using our technological advantage to get a settlement now. What we need is to insist on a double access system; access by the enterprise and access by private groups. There are two concerns. The LDCs are worried about one thing, and developed countries about another. The LDCs are worried that the enterprise will never get started and they won’t get anything. The developed countries are worried that we’ll get a monopoly. The LDCs don’t care about that, they just want their share. The developed countries, however, are worried that in ten or fifteen years we will have an overwhelming lead. So you’ve got a coalition between the developed and the LDCs—one worried about access, and the other worried about quotas.

We have had some preliminary talks with Treasury about how we might finance this thing. I think we can make same progress on that. In addition, there is the Mexican proposal on having a review clause in 25 years for the deep seabeds. That is certainly not a novel idea. We’ve got that kind of thing in the SALT agreement and others. We want to see if we can’t put these two ideas forward at this time. We also ought to begin interdepartmental examination of what we can do on the quota concept, to see if there isn’t some sort of a quota scheme with which we could live. This, however, we don’t need to put forward at this time. Jerry, you are being uncharacteristically silent.

Parsky: As I understand it, what we are talking about now is no change to the access system: only working up some way of financing the enterprise.

Secretary: That’s right. The access system is not negotiable. What we want is an answer to the LDCs when they say that the [Page 7] banked rights are meaningless, since the LDCs, through the Enterprise, won’t be able to mine them. We want to be able to counteract this by showing that the enterprise will function.

Parsky: Well, we feel strongly about the access system. What we don’t want are joint ventures in the private side. We do support moving ahead with a proposal on financing the enterprise.

Secretary: Are there any objections to this thinking?

Learson: No, but we want to be very frank about this. The probability of getting what is in the text now on access is very, very, very low. What we have to do is to decide what we can accept, but recognizing that we are not going to get the text as it is now. I don’t want any misunderstanding on that.

Secretary: OK. We can’t get the present text. I don’t see any possibility of changing the access system, but I do see areas where we do have some flexibility. One is in finance. We can spell out concrete ways that we could help finance the enterprise and get it going. Learson told me about a scheme whereby some US firms could enter into joint ventures with the Enterprise. That way the “common heritage of mankind” would in fact be developed. We have to use some imagination here.

There is also the possibility of looking at a review clause along the lines of the Mexican proposal. There’s not much more to discuss on that.

Finally, we can begin thinking about the quotas—new quota regime. What we need is one concept of how it would work. I don’t know what that would be. I have the idea from talking with the Soviets that we might get their agreement on some sort of quota system that would not be too restrictive, but I really don’t know. We don’t need to get into this now, only later. Jerry, couldn’t a small group of you and us and maybe Interior examine what we could do on this?

Parsky: Vin has already mentioned the joint venture idea to Bill. I think it might be useful to have a session with the companies. It’s ok to have joint ventures on the Enterprise side of the fence, but what we can’t have, and what they might be looking for, are joint ventures with the Enterprise joining in with the private companies on the private side.

Secretary: That we can’t accept.

[Page 8]

Parsky: That’s right. We can accept joint ventures on the bank side.

Secretary: That’s right. I was only talking of joint ventures on the bank side.

Learson: That’s right. That’s all that we want. But there is some talk among the LDCs of having joint ventures on both sides.

Ratiner: We’re certainly not volunteering anything like that, but the 77 are heading in the direction of joint ventures on our side too. If the head of the conference were to write up something now, it’s 99 percent sure that he would put in language that would permit joint ventures on both sides.

Secretary: What if I said to him in my talk that that would be the end of the conference. That we simply couldn’t go along with that.

Learson: That would be very helpful.

Secretary: Then everyone would say they were up against that son of a bitch. Well, at least we agree that we can’t accept joint ventures on the private side.

Ratiner: They want to pressure us to move on financing the enterprise. I think that when we do move on that one the other side will soften on the question of access. The one thing that they won’t agree to is a system where they automatically have to issue contracts to all comers. We’re going to have to give them some kind of cosmetic possibility of turning down applications.

Secretary: Conceivably we could agree to something if the criteria were well enough spelled out in advance.

Ratiner: Yes. And also if we had dispute settlement in this area.

Secretary: Jerry, what do you think?

Parsky: I thought that was already in the text.

Ratiner: They want new criteria.

Parsky: What they really want is equity participation on our side.

Ratiner: That’s right. If they had their way, they would have 51 percent of all the Enterprise’s activity and 49 percent of all the private contractor’s.

[Page 9]

Parsky: If the Secretary is going to talk about financing, he should also say that the private side has to be free.

Secretary: That’s right. This is not the time to consider fallback on our side on this issue. What we want to do is make the bank side attractive enough to them so that they will accept a cosmetic solution on the other side.

Katz: What we really want is for access to be automatic.

Secretary: Jerry do you want to come up with me to New York on the 1st?

Parsky: I’ll have to check on that. But I will try to arrange it. I would like to come.

Ellsworth: Let’s get back to the idea of a link between Committee I and Committees II, III, and IV. We’ve raised the idea before that the delegation ought to have flexible instructions, so that they could break. II, III, and IV off, but the delegation always says that they don’t need it. They claim that they are moving ahead well enough as it is. Earlier in this meeting you mentioned the possibility of dealing separately with II, III and IV. It is our view that they should be able to do that.

Secretary: As I understand it, that’s essentially what they are doing now.

Ellsworth: What we see is that international practice and theory on transit through straits and international water is subject to certain erosion. So we think agreement on these points in this convention is essential. Therefore, what we would like to do is move ahead and tie down Committees II and III. We shouldn’t have to hold them hostage to movement on deep sea mining, which some of us think is blue sky anyway.

Secretary: My perception of our interests is that we should move and try to settle on Committees II and III, and not tie movement and agreement there to Committee I. Is that correct or not?

Oxman: Yes. We are trying to resolve II and III in the next two weeks. What we would like to be able to do is freeze them.

Secretary: The problem is that if we make if apparent to the others that we are trying to pin down II and III, before moving on I, they will try to get more out of us on II and III. If that happens, we would have to decide how to handle it.

[Page 10]

Learson: You have to bear in mind that the mandate for the conference is a complete package, not just parts of it.

Secretary: If the President of the conference were able to say at the end of this session, that Committees II and III were agreed, that would be a big step forward. I will talk to Amerasinghe, and I wish someone would try to see whether Evensen could be kept there in New York until I get there. He did say that he had ideas that he wanted to talk to me about.

Ellsworth: Both the Conference President and the US President would like to say that the LOS negotiations were not a failure.

Secretary: I don’t know about the Conference President, but I know about the US President.

Vetter: Has Mexico spelled out how they want this 25-year revision to work?

Secretary: No, and I want you to know that I have promised them nothing.

Vetter: This would be a real inhibition to private companies. They wouldn’t like the idea at all of thinking that their investments could be jeopardized by review at the end of 25 years.

Secretary: Jules, what do you think?

Katz: That’s the reason that we would want to have it written our way. We would particularly want to put language in that provided for a grandfather clause.

Ellsworth: I’m talking now privately and not in a Defense capacity, but I’ve had lots of experience in major, private international financing, and I think it’s a lot of bullshit to think that the companies won’t go ahead if they think they can get some big money fast.

Secretary: Please don’t use that kind of language around here.

Ellsworth: Strike that from the record.

Secretary: Why is it bullshit?

Ellsworth: If the companies see a prospect of big money fast, they find a way to come up with the money even with the 25 year review clause.

[Page 11]

Vetter: The problem is that we’re not talking about fast money. It will take at least ten years to get started.

Oxman: There is no question of not putting in a grandfather clause. We would never be able to see a text that didn’t have one.

Secretary: We’re better off in some ways without a legal structure than a bad one that could act to our disadvantage. Does everyone agree then, on the basics?

(No negative comment)

  1. Source: National Archives, RG 59, Central Foreign Policy Files, P820118–0912. Secret; Nodis. The meeting took place in the Secretary’s Conference Room.
  2. Kissinger met with selected Executive Branch representatives to discuss strategy on key Law of the Sea issues.