Foreign Relations of the United States, 1981–1988, Volume XLI, Global Issues II

115. Memorandum From the Director of Marine Science and Technology Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, Department of State (Wulf) to the Assistant Secretary of State-Designate for Oceans and International Environmental and Scientific Affairs (Malone)¹

Washington, February 13, 1981

SUBJECT

• Draft Review Paper for the Tenth Session of the Third UN Conference on the Law of the Sea

An interagency group is preparing a review paper² for the Tenth Session of the Third UN Conference on Law of the Sea (LOS) scheduled to convene in New York on March 9 for six weeks. The LOS Conference, with some 150 countries participating, has been underway since 1973, preceded by five years of preparatory meetings. Stemming from dissatisfaction with the provisions on seabed mining, the options under consideration are:

a) to scuttle the Conference based on the conclusion that the Draft Treaty is unacceptable and cannot be made acceptable;

b) to continue negotiating along existing paths and, if successful, conclude substantive negotiations at the New York session. (Subsequently, a comprehensive review would be undertaken to decide whether to sign the Treaty. If we do sign, another review would be undertaken—after the Preparatory Commission finishes its work—as part of the decision-making process on whether to ratify.); or

c) to continue negotiating along existing paths but, regardless of the outcome of the March session, insist that there be a further substantive negotiating session to provide an opportunity to seek further changes. (A review would be undertaken following the March session to identify further changes needed in the text.)

A meeting of principals to discuss the USG position for the New York session is presently contemplated for February 26 or 27.³

Currently, no agency publicly advocates scuttling the Conference (option a). Supporters of an additional negotiating session (option c) argue that since time is insufficient prior to the New York session for the new Administration to undertake a comprehensive review, a further negotiating session is necessary to ensure that the new Administration will have options other than accepting or rejecting the entire treaty. It is unclear, however, what changes would be sought in the Draft Convention which are not included already in our negotiating instructions for New York.

Supporters of concluding the negotiations in March (option b), if negotiations proceed on schedule and we achieve the positions set forth in our instructions, argue that a further negotiating session is not likely to result in further improvement in the seabed mining provisions, but is more likely to result in erosion of the non-seabed texts which are generally considered closed. All agree that the non-seabed texts protect and advance U.S. interests, particularly those pertaining to freedom of navigation and overflight for military and commercial vessels and aircraft.

Since the review paper identifies, and our New York instructions⁴ contain, necessary changes to the seabed texts upon which all agencies agree, supporters of option (b) are concerned that advocates of another session will use that opportunity to seek changes so fundamental as to be tantamount to scuttling the Conference. While the objectives of keeping options open is desirable, it should not be pursued if the costs are to sacrifice the remainder of the treaty, especially since those who would undertake the review at the working level are likely to be the same people who now assert that there is inadequate time for a comprehensive review.

Based upon statements made by working level agency representatives at interagency meetings and upon obvious agency interests, the following lineup can be surmised:

Supporting option (b)—Defense, Commerce,⁵ Energy, Transportation, EPA, and within the Department, Ambassador Aldrich and the Legal Advisor’s Office.

Supporting option (c)—Treasury, OMB, and possibly Interior, and within the Department, EB.

OES has taken a broader view of U.S. LOS interests than EB and some of the economic agencies that have confined their attention almost exclusively to seabed mining. Consequently, OES has traditionally supported development of a LOS Treaty. While we have not been called upon to state an explicit position, I have generally supported option (b).

The attached draft of the Review Paper is being revised but the revision, which does not significantly alter the substantive issues, will not be available until early next week.

1. Source: Reagan Library, Bandow Files, Bandow Paper for the Tenth Session of the Conference on the Law of the Sea, Feb 13, 1981. Secret. Drafted by Wulf. Sent through Busby.
2. A draft of this paper is attached but not printed.
3. See Document 118.
4. Not further identified.
5. Malone circled the word “Commerce” and wrote “who will handle” in the right-hand margin.