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

117. Briefing Memorandum From the Deputy Special Representative of the President for the Law of the Sea Conference (Aldrich) to the Deputy Secretary of State (Clark)¹

Washington, February 20, 1981

SUBJECT

• Law of the Sea

I. Background

A. Origins. The Third United Nations Conference on the Law of the Sea starts its Tenth Session on March 9. The Conference had its origins in two separate initiatives in the late 1960’s. One was a joint U.S.-Soviet initiative to preserve freedoms of navigation, overflight, and maneuver from continually expanding coastal state claims of jurisdiction, and the other was a developing country initiative for the internationalization of the oceans and seabed beyond whatever limits might be placed on coastal state jurisdiction.

B. The Threat to Navigation. Following the failure of the Second U.N. Conference in 1960 to agree on a six-mile territorial sea limit² and refusal of most developing coastal states to become Parties to the 1958 Geneva Conventions dealing with fisheries, the continental shelf, and the territorial sea,³ it became clear that a majority of states would soon claim 12-mile territorial seas, and it seemed likely that some claims would continue to expand toward the 200-mile limits already asserted by Ecuador and Peru. Expansion of territorial seas from three to twelve miles would mean that 116 straits with a high seas corridor would become overlapped by territorial seas, in which the customary right was merely one of “innocent passage”—on the surface only for submarines—and with no right of overflight. Among the straits thus affected would be Gibraltar, Bab el Mandeb, Hormuz, and Malacca.

C. The “Package Deal” Solution. In these circumstances, the major maritime powers realized that the best way to preserve their military and commercial rights would be to seek agreement to the necessary rights as part of a “package deal”—a treaty establishing comprehensively the law of the oceans, with enough benefits in it for coastal and straits states so that they would be induced to become Parties to it and accept its limitations on the reach of their jurisdiction.

D. Internationalization Pressures. At the same time the developing countries were beginning to press for the internationalization and demilitarization of ocean space, and particularly of the seabed under the high seas. The demilitarization pressures were contained by the adoption in 1971 of the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed. The internationalization pressures led to a 1970 U.N. General Assembly resolution declaring the seabeds the “common heritage of mankind,” to the establishment in that year of a U.N. Seabeds Committee and ultimately to the Third U.N. Conference on the Law of the Sea.⁴

II. Status of the Negotiations

A. Non-Seabeds. We have largely succeeded at the Conference in our efforts to negotiate good provisions protecting our non-seabeds interests, including free transit rights through, over, and under straits, and the maintenance of high seas freedoms of navigation, maneuver, and overflight in 200-mile economic zones, as well as resource jursidiction, pollution control, scientific research, and dispute settlement.

B. Seabeds. The seabeds negotiations have proved extremely difficult and have not yet resulted in an acceptable text, although we have achieved significant improvements in that text during the past three years. We have continued to insist that, regardless of the value of the non-seabeds provisions, we could not ratify a treaty that failed to provide the United States and its nationals assured access to seabed resources on reasonable terms and conditions and, therefore, that we would continue to negotiate as long as necessary to produce a ratifiable result.

C. Risk of Retaliation. There are some risks in our deliberate approach. Although the Conference has thus far worked largely by consensus, voting remains possible. If the Conference should decide that the United States is the stumbling block to the successful completion of the negotiations, retaliation against our navigation and other non-seabeds interests could be quick and disastrous.

D. Deferral of Negotiations of the Detailed Seabed Regime. Since 1978 we have pursued a strategy aimed at simplifying the seabeds text as much as possible and making it acceptable in the sense that, when properly implemented by rules and regulations, it provides assured access.⁵ The detailed rules and regulations on the seabeds regime would then be negotiated after the Treaty is opened for signature in a Preparatory Commission that would meet essentially full time for several years. This strategy, if successful, would protect the non-seabeds provisions against retaliation, would increase our leverage in the detailed seabeds negotiations, and would defer until the Preparatory Commission finishes its work (probably 1984 or 1985) any final decision on the acceptability of the resulting seabed regime and the submission of the Treaty to the Senate. Even if it proves impossible to negotiate a satisfactory, detailed seabed regime, the non-seabeds provisions in the Treaty would greatly strengthen our legal position under customary international law.

E. Seabed Minerals and Exclusive Rights. Seabed minerals are of long-term strategic importance, although no one can be certain how long it will be before their recovery and processing will be economical. The richest known concentrations are in the Pacific between Hawaii and Mexico in water nearly three miles deep. Manganese nodules contain nickel, cobalt, manganese, and copper, and represent a major potential resource of the first three metals. A seabed miner requires an exclusive right to an appropriate mine site before he can make the major investment required (at least $1 billion). Since no single state can give such an exclusive right, the only apparent alternative to a satisfactory regime in the LOS Treaty would be a mini-treaty among all states interested in mining. Such a mini-treaty would be considerably more extensive and confrontational than the reciprocal regime we have begun to work out pursuant to our recent seabed mining law, but a mini-treaty could be built on that foundation in the event of failure of the LOS Conference. The industry enthusiastically supports the reciprocal regime idea. However, a mini-treaty would doubtless be challenged—perhaps harassed—by the Third World and probably the Soviets. Whether investment would occur under such conditions seems questionable.

F. Industry and Congressional Attitudes. The companies investing in seabed mining technology and exploration are vocally negative about the results of the negotiations to date. While they appreciate the need for a treaty regime, their R and D money is drying up, and they see their very existence threatened by the prolonged period of uncertainty stretching ahead of them. One of our top priorities at the coming session is a special set of protections for pioneer investors designed to give them greater certainty of rights. The American companies involved (U.S. Steel, Lockheed, Kennecott, and SEDCO are the leaders) probably hope ultimately for a Government insurance program to cover the remaining risks and to permit them to compete with subsidized Japanese, German, and French firms. There is considerable Congressional skepticism and concern about the seabed regime in part caused by the industry. Moreover, concentration of the negotiations in recent years on seabeds issues has tended to cause the importance of the non-seabeds issues to slip from Congressional and public view.

1. Source: Reagan Library, Guhin Files, LOS (Law of the Sea) Background (1). Confidential. Drafted by Aldrich. Cleared by Taft, Verville, Cohen, and Wulf. Taft initialed for all.
2. See Foreign Relations, 1958–1960, vol. II, United Nations and General International Matters, Document 428.
3. See Foreign Relations, 1958–1960, vol. II, United Nations and General International Matters, Document 372.
4. Reference is to UN General Assembly Resolution 2749, Dec. 12, 1970.
5. Documents regarding the Carter administration’s seabeds strategy are scheduled for publication in Foreign Relations, 1977–1980. vol. XXV, Global Issues; United Nations Issues.