Office of the Historian

120. Memorandum From the Chairman of the Joint Chiefs of Staff (Jones) to Secretary of Defense Weinberger1

Washington, March 20, 1981

SUBJECT

  • Law of the Sea Negotiations (U)

1. (C) The Administration, through the head of the US delegation to the Law of the Sea Conference, has announced that it intends to review the entire text of the Draft Convention on the Law of the Sea (Informal Text) (DCIT), particularly the deep seabed mining provisions.

2. (S) The Department of Defense has a vital interest in the Law of the Sea treaty. The Navy recently conducted a comprehensive legal and operational analysis of the DCIT.2 That analysis, which was reviewed by all Navy major fleet commanders, reaffirmed the established3 JCS position on the draft treaty. The Joint Chiefs of Staff support the draft treaty from a national security standpoint, if it is accompanied by interpretive statements clarifying certain articles and if those statements are supported by a significant portion of the world community, including the major maritime powers.

3. (U) The trend in customary international law is to restrict free transit of the oceans by expansion of the territorial sea from 3 to 12 nautical miles. This expansion of the territorial sea closes 116 straits to navigation except in innocent passage, which does not include submerged transit or overflight. The draft treaty would preserve the right of submerged transit and overflight through these key straits by a new regime called transit passage. A similar new regime also preserves navigational and overflight rights through archipelagoes, another area in which there is a trend in customary international law toward restriction of free passage.

4. (C) The position of the Joint Chiefs of Staff on the draft treaty rests on the fact that it would preserve navigational freedoms that would probably otherwise be lost.4 The treaty would also slow the [Page 360] proliferation of maritime claims and provide a legal foundation and a widely agreed standard against which maritime claims can be measured.

5. (S) The Law of the Sea negotiations have been marked by a series of delicately balanced compromises in which no nation has achieved all that it has sought. At the start of the present negotiating session, it was widely accepted that negotiations had been concluded with respect to the navigational articles covering matters of critical importance to US national security interests. Although those articles are not ideal, and a final JCS position cannot be taken until negotiations are completed, the Joint Chiefs of Staff believe that the navigational articles protect US national security interests. The Joint Chiefs of Staff further consider that the navigational articles in the present text of the draft are the best that can be achieved under the circumstances. The Joint Chiefs of Staff recognize that those aspects of the treaty dealing with seabed mining remain unresolved. However, the United States should not seek to reopen those navigational and other non-seabed articles of the draft treaty that have heretofore been considered resolved, and we should strongly resist any efforts by other nations to reopen those articles.

6. (U) The Joint Chiefs of Staff recommend that you forward a memorandum, substantially like that in the Appendix,5 to the President.6

For the Joint Chiefs of Staff:

David C. Jones
General, USAF
  1. Source: Washington National Records Center, OSD Files: FRC 330–83–0103, 801.2 (January–May 81) 1981. Secret. A stamped notation reads, “Office of the Secretary of Defense 24 Mar 1981.”↩
  2. An undated paper titled “Presignature Legal Analysis, Navy (PLAN)” is in the Reagan Library, Guhin, Michael A.: Files, LOS (Law of the Sea) Background (5).↩
  3. JCSM–441–77, 25 November 1977, “Interpretive Statement and Interagency Agreement To Support National Security Objectives in Law of the Sea Negotiations (U).” [Footnote is in the original.]↩
  4. Weinberger underlined the phrase “would probably otherwise be lost.”↩
  5. Attached but not printed is JCSM–441–77, dated November 25, 1977, entitled “Interpretive Statement and Interagency Agreement To Support National Security Objectives in the Law of the Sea Negotiations.”↩
  6. In an April 27 memorandum to Jones, Weinberger wrote: “In view of the conclusion of the latest session of the Law of the Sea Conference and DoD participation in the ongoing Administration review of the Draft Convention, I would prefer to defer judgment on sending a memorandum to the President until we see the outcome of that review.” (National Archives, RG 218, Jones Papers, Box 32, 546—Law of the Sea 18 Mar 18–11 May 82)↩