56. Memorandum From the Executive Secretary of the Department of State (Eliot) to the President’s Assistant for National Security Affairs (Kissinger)1 2
Subject:
- Fisheries Dispute with Ecuador, Peru and Chile
My memorandum of May 18 brought to your attention a scenario which the Department believes may produce the framework of an eventual solution to the fisheries dispute with Ecuador, Peru and Chile. The Ecuadorean Government now has agreed to receive an explanation of the Brazilian Fisheries Agreement from Ambassador Donald L. McKernan, who conducted the negotiations with Brazil and the 1969–70 negotiations with Ecuador, Peru and Chile. Ambassador McKernan will go to Quito on an informal, private basis, and begin his talks there on July 3.
In these talks, Ambassador McKernan, in addition to explaining the Brazilian Fisheries Agreement, will explore the prospects for a similar type of solution to the fisheries dispute on the West Coast of South America, either bilaterally with Ecuador or in a new quadripartite conference. Such a solution would be an interim arrangement pending broader multilateral agreement on the law of the sea issues involved and would accordingly set aside any juridical differences regarding territorial sea breadth and fisheries jurisdiction under international law. It would have as its basis a mutual interest in conservation of the tuna resource. If the conversations reveal some other basis for an end to seizures, or an acceptable limitation on them, it also will be explored.
The new Ecuadorean Government believes as strongly as did the previous one that the first step to be taken to improve U.S.-Ecuadorean relations, including formal agreements or arrangements to resolve the fisheries dispute, is for the United States to [Page 2] lift the Foreign Military Sales suspension. Consequently, Ambassador McKernan must be in a position to inform the Ecuadorean Government of the terms on which the suspension will be lifted, as well as the timing.
According to NSDM 147 of January 4, 1972, the President has expressed his willingness to lift the Foreign Military Sales suspension if the U.S. receives reasonable assurances against seizures. We now propose to attempt to negotiate a significantly different type of solution than that described in NSDM 147. In NSDM 147, the President approved our proposal to seek an arrangement whereby U.S. willingness to seek legislation to reimburse fishermen who, before being seized, bought licenses under protest, would be conditioned on Ecuadorean willingness (a) to support publicly our law of the sea positions on freedom of navigation and overflight beyond 12 miles and free transit through international straits and (b) to refrain from seizures in the period before any new legislation took effect. We think our willingness to lift the suspension if we receive reasonable assurances should still apply. We assume that the President would remain as willing to lift the suspension, if we receive reasonable assurances against seizures, in the context of the new solution described above, as he was in the context of NSDM 147. In this connection, we would interpret a willingness to enter into negotiations for such a solution as equivalent to “reasonable assurances.” If, therefore, Ambassador McKernan’s discussions reveal reasonable prospects for resumption of negotiations, either bilateral or quadripartite, or some other basis for resolving the seizure problem, we will, following consultations with Congress and the industry, recommend lifting the FMS suspension on the basis of reasonable assurances. We would then begin fishery negotiations and at the same time start to discuss a new MAP program. Ambassador McKernan would so inform the Ecuadoreans.
The significant differences between the type of solution we now are seeking with Ecuador and the one being pursued in January under NSDM 147, and the fact that broad Law of the Sea issues were not included in the U.S. position for the March negotiations with Brazil, lead us to recommend that those portions of NSDM 147 which instructed us to obtain Law of the Sea concessions from Ecuador not apply in any negotiations [Page 3] which might develop from this new scenario. The team which visited Ecuador in January had no success in obtaining public GOE support for our proposal for free transit of international straits and freedom of navigation and overflight beyond 12 miles. The Ecuadoreans repeatedly emphasized their view that the subject of straits was not appropriate for interim agreement and that Ecuador’s position on straits was negotiable only in connection with satisfaction of its other objectives at the 1973 Law of the Sea Conference. In view of Ecuador’s firm position on this point, the Department believes that our continued insistence on linking broader law of the sea issues, particularly our navigational objectives, to a solution of the fisheries dispute will jeopardize any chance of achieving the latter.
In view of Ambassador McKernan’s departure for Ecuador on July 2, we would hope to receive as promptly as possible any particular comments or suggestions you might have with respect to the scenario described in this memorandum.
- Source: National Archives, Nixon Presidential Material, NSC Files, Box 799, Country Files, Latin America, Latin America (General), Vol. 6, July 1971–1974. Confidential. R.T. Curran signed above Theodore Eliot’s typed signature. The May 18 memorandum from Eliot to Kissinger has not been found. NSDM 147 is Document 312. In a January 2 memorandum to President Nixon, Kissinger argued that the United States should seek Law of the Sea concessions from Ecuador, see Foreign Relations, 1969–1976, vol. E–1, Documents on Global Issues, 1969–1972, Document 418.↩
- Eliot recommended against attempting to obtain Law of the Sea concessions from Ecuador, because such concessions might jeopardize resolution of the fisheries dispute.↩