623. Memorandum From Arnold Nachmanoff of the National Security Council Staff to the President’s Assistant for National Security Affairs (Kissinger)1 2

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  • Peru—Fisheries Dispute

Lima 1694 (passed to San Clemente separately) reports that the Peruvian Government imposed a fine on U.S. tuna boat PURITAN which was seized yesterday. The Peruvian action constitutes a formal seizure and thereby brings into play the question of application of Section 3(b) of the Foreign Military Sales Act, which calls for suspension of FMS. Thus, we are now faced with an escalation of our fisheries dispute with Peru similar to that which occurred with Ecuador earlier this year.

On previous occasions, the GOP had avoided fining U.S. tuna boats and simply “invited” them to purchase licenses, thereby avoiding a formal seizure which would raise the question of FMS suspension. The decision to fine the PURITAN was taken at the highest levels of the GOP, apparently because it could not ignore this incident in light of (1) the Brazilian decree Monday implementing its 200-mile claim, (2) Ecuador’s vigorous enforcement of its claim, and (3) Peruvian resentment over U.S. tactics in the IDB in stalling a road loan for Peru.

As you know, concern over the possibility of further escalation and widening of the fisheries dispute resulted in your request on February 10 for a report from the Secretary of State of actions taken or planned to negotiate a practical settlement of the fisheries dispute with Ecuador and other South Pacific nations. Secretary Rogers rejected the initial draft report, which reflected a consensus to maintain the status quo, and a new options paper has been in preparation at State. However, the absence in Geneva of both the State and Defense legal advisors, and now the absence of John Irwin on leave has delayed submission of the report. My understanding is that Rogers and Irwin will favor an option which would involve the purchase of licenses under protest by U.S. fishing boats. Although Defense is opposed, that option probably would resolve our problem with Ecuador and Peru.

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Another factor which might have had a restraining effect on the Peruvians is the invitation to President Velasco for an official visit. However, last minute changes in the visit schedule (which is now on your desk) prevented our Ambassador from exploring the invitation with Velasco two weeks ago. Thus, we may have missed opportunities—by quick action on moving toward a practical settlement or by issuing the invitation for a visit—to prevent this current escalation of the fisheries problem with Peru.

We have indicated to the State Department that any decision to apply the FMS sanction to Peru must be cleared with the President. I have been assured that they do not plan to take any action at this time.

Legally, it will be very difficult not to apply the sanction to Peru ultimately unless we lift it for Ecuador. That would require a determination by the President either that a waiver of the provisions is “important to the security” of the U.S., or “he receives reasonable assurances” that future violations (i.e. seizures) will not occur. Since neither Ecuador nor Peru are likely to give public assurances that they will not enforce the their own laws, the only feasible option may be a national security waiver—which will not be easy to justify.

State is considering the possibility of simply delaying until after the OAS General Assembly meeting on April 14, in the hope of avoiding a public debate over the issue at the Assembly. They will indicate, if asked, that the situation is under review; although it will be difficult to maintain this position if there are further seizures. They hope that if a decision can be reached on a strategy for a practical settlement, the Secretary may be able to use the occasion of the OAS meeting—which he will be attending—to initiate negotiation with Peru and Ecuador.

For the present, I believe our best course is to:

delay any action on the FMS suspension for Peru;
speed up a decision on a strategy for achieving practical settlement of the fisheries dispute.

I will be exploring the situation further with the state Department and will let you know if I think any prodding by you will be necessary to get the options brought to the President quickly for decision.

  1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 793, Country Files, Latin America, Peru, Vol. 2, July 1970–13 December 1971. Confidential. Sent for information. The memorandum was sent by means of electronic transmission to Kissinger in San Clemente. Telegram 1694 from Lima has not been found.
  2. Nachmanoff recommended that the U.S. Government delay any action on FMS suspension and quickly devise a strategy for settling the fisheries dispute.