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

122. Memorandum From the United States Delegation to the Third United Nations Conference on the Law of the Sea to Multiple Recipients¹

New York, April 13, 1981

SUBJECT

• United States Law of the Sea Policy Review

As you are aware, the Reagan Administration has decided to conduct a comprehensive review of U.S. interests in the oceans and the extent to which they are, or may be, protected by a Law of the Sea Treaty. Among those interests are those of our industrialized country allies, and the Administration wishes to be particularly sensitive in its review process to your views. In particular, the advantage of solidarity among the industrialized countries within and outside of formal multilateral negotiating forums is a matter of considerable importance to this Administration. Accordingly, it is our intention that the delegations to whom this memo is addressed be as fully incorporated as possible into our review process at all stages.

The purpose of this memorandum is to provide background on the methodology of our review process and to share with you the interests and objectives we have identified.

Methodology

The review will be carried out in several phases, of which only the first is now under way.

Phase 1. Identification of those United States and allied interests that are significantly affected by the Law of the Sea, and the establishment of our objectives;

Phase 2. Evaluation of the extent to which the Draft Convention accommodates U.S. and allied interests and objectives;

Phase 3. Determination of the nature of the amendments that would be essential to conform the treaty to U.S. and allied interests and objectives;

Phase 4. Assessment of the negotiability of a treaty that would be consonant with U.S. and allied interests and objectives;

Phase 5. Analysis of the no-treaty alternative in light of U.S. and allied interests and objectives;

Phase 6. Determination of actions required to promote and protect U.S. and allied interests and objectives in the no-treaty scenario;

Phase 7. Assessment of the manageability of the no-treaty alternative in terms of U.S. and allied interests and objectives;

Phase 8. Comparative analysis of the treaty and no-treaty options;

Phase 9. Decision on whether to proceed with the treaty or no-treaty alternative; and

Phase 10. Decision on strategy to implement decisions.

We believe it is essential that in the prosecution of the policy review, the foregoing elements be treated as entirely discrete. In the past, the identification of U.S. and allied interests and objectives has been confused with opinions concerning negotiability. Perhaps this has been the product of a strong presumption in favor of the treaty approach. Such a presumption does not exist in this review. In the course of the review, it may be desirable to treat several of these phases together in a single paper. This has not yet been determined.

U.S. and Allied Objectives

A general catalog of U.S. and allied objectives under four main headings has been prepared: Security Objectives, Economic Objectives, Foreign Policy Objectives and Scientific Research and Marine Environment Objectives. The catalog is not necessarily complete and merely reflects the conventual [conventional?] wisdom of all previous administrations dating back to 1960, when the prospect of a new treaty on the law of the sea was first given consideration.

It is not likely that these objectives will undergo significant change in the course of the policy review process. The purpose of the review is to determine relative priorities of these objectives and the extent to which they will or can be accommodated in a comprehensive law of the sea convention. Additionally, the policy review process will study carefully the alternative measures which may be taken if the convention is found to be unsatisfactory, or if a judgment is made that it cannot be improved so as fully to protect our priorities. The following is a listing of the objectives we have identified to date.

Security Objectives

—free or “unimpeded” transit of international straits;

—free or “unimpeded” transit of archipelagoes, and flexibility to deploy fleets and carry out naval operations in substantial portions of those areas;

—an innocent passage regime that is clear and objective and circumscribes coastal State jurisdiction relating to the passage of foreign flag vessels, so as to prevent unreasonable interference;

—freedom of navigation in the 200-mile zones;

—freedom of access to, and navigation within and around, ice-covered areas, certain enclosed and semi-enclosed seas, and island areas;

—immunity of warships;

—avoidance of zones of peace, non-nuclear zones, security zones, and requirements for the notification or authorization of warship passage;

—overflight rights largely analogous to navigation rights (outside territorial seas);

—flexibility to carry out communications and surveillance activities;

—freedom to lay and maintain pipelines and cables outside territorial waters;

—free, guaranteed, or assured nondiscriminatory access to deep seabed minerals;

—ability to develop hydrocarbon resources of the continental shelf without interference or hindrance; and

—containment and discouragement of efforts to recognize or aid hostile “national liberation groups”;

Economic

—freedom of commercial navigation (as noted above) outside territorial waters and an acceptable innocent passage regime and pollution control regime;

—development of hydrocarbons of the continental shelf;

—development of deep ocean minerals, in accordance with market economics;

—domestic development of fisheries that are subject to Coastal State jurisdiction, and protection of the distant-water tuna fleet;

—development of ocean energy resources in relation to our global needs; and

—development of ocean technologies (subject to security interests).

Foreign Policy

—protection of our interests in the composition, organization, and procedures of the Law of the Sea Conference;

—establishment of international disputes settlement fora in which our interests are accorded fair and equitable treatment, and by which state sovereignty is not compromised;

—establishment of resource-related institutions that conform with the material realities of the international economy, including the real interests of producers and consumers;

—maintenance or improvement of the effectiveness of the environmentally-oriented international institutions, such as IMCO;

—promotion of the health of the international economy, assuring significant benefit for the economic welfare of industrialized country interests;

—protection of the Western Alliance through the Law of the Sea;

—achievement and maintenance of a position of advantage of the Western Alliance vis-à-vis the Warsaw Pact in the Law of the Sea;

—protection of the interests of the Western industrialized nations and encouragement of realism in the North-South dialogue, as it relates to the Law of the Sea;

—containment and discouragement of “national liberation groups” in the Law of the Sea context (in accordance with our security interests, as noted above);

Scientific Research and Environmental

—freedom of marine scientific research outside the territorial sea;

—protection of the marine environment, subject to essential navigation interests; and

—protection of marine mammals.

The Administration is anxious to ensure that this policy review process is fair and impartial and does not reflect any predisposition toward priorities or methods of achieving the priority objectives. Possible decisions could range from a decision to maintain the status quo and conclude the draft convention as quickly as possible to a decision based on a diametrically opposed view.

During the course of the review we will consult widely with the industrialized countries as well as the developing countries, with leading members of the American Congress, with our public advisors and with members of affected industry groups. This will be a thorough and painstaking process and will take considerable time. The probability that this process will be completed and final decisions taken prior to the fall of 1981 is very low.

Certain main undercurrents of thinking in the Reagan Administration should be emphasized because they will bear directly on the policy review process. These considerations lie in the following broad areas:

A. Is the treaty the best way to secure the freedoms of the seas upon which maritime powers depend for their national security, their collective security and their transportation requirements? We will weigh the question of whether customary international law is a superior or inferior vehicle for protecting those freedoms. In that connection, we will also want to examine closely whether there has been any change in our military requirements during the past decade in respect of how we use the oceans, and whether it would be necessary even under the convention as drafted to take unilateral or multilateral measures to ensure that freedom of the seas would not be eroded by our agreement to the provisions of the draft convention.

B. We will wish to study carefully the extent to which multilateral conferences in the last decade and international organizations created pursuant to multilateral treaties reflect a realistic understanding of the economic and political strength of the United States and its allies. This Administration has observed a drift in UN Conferences and negotiations toward the collective assertion of political and economic power by the developing countries. It is important to determine whether this drift has been in our collective best interest and whether, if it is not, it can be redirected.

C. The basic tenents of the North/South dialogue which have been advanced by the developing countries may not be consistent with the economic well-being of the industrialized and (possibly even most) developing countries. There is a widespread view that more economic benefit to more countries will accrue under a system which encourages productivity and economic efficiency than under a system of forced wealth transfer. We will want to evaluate this view carefully since the Draft Convention on the Law of the Sea is a major step in the direction being pursued by the developing countries in the North/South dialogue.

D. We have a heightened appreciation of the vulnerability of the industrialized countries to the control of critical natural resources by others. We intend to review with care the extent to which deepsea mining can provide a secure, uninterrupted supply of certain critical raw materials. We are also deeply concerned with the potentially vast and still unknown resources to be found beneath the surface of the seabed. We will want to examine carefully whether such resources should be subject to any international regulatory system pending both their identification and a better understanding of their value to our economies.

E. We will examine carefully the extent to which the economic interests within 200 miles of any nation’s coast can be fully protected in the absence of a comprehensive convention.

F. We will pay particular attention in our review to the question of whether the problems addressed in the text of the treaty can be also solved through a series of bilateral and multilateral undertakings ranging from navigational questions to fishing, deepsea mining, scientific research and pollution control. This inquiry will be in addition to the question of whether many of these interests can be accommodated under customary international law.

While we wish to emphasize that our review does not proceed from a predisposition regarding the treaty, it should also be clear that there is considerable scepticism in the Reagan Administration about the fundamental underlying assumptions upon which the present Draft Convention is premised and about the extent to which such underlying assumptions, if found to be erroneous, should continue to guide our foreign policy in the oceans.

We will value your views and suggestions on a continuing basis during the course of this review, and we will have a special interest in adjusting our decisions so as to enhance the prospects of solidarity within this group of industrialized countries.

1. Source: Department of State, Law of the Sea—Third UN Conference, 1970–1983, Lot 87D452, LOS Output. Confidential. Sent to the heads of delegations of the United Kingdom, France, the Federal Republic of Germany, and Japan.