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

123. Report of the United States Delegation to the Tenth Session of the Third United Nations Conference on the Law of the Sea¹

Washington, undated

March 9–April 24, 1981

ADDITIONAL COMMENTS ON REACTIONS TO THE U.S. REVIEW

The overall reaction was cautious, although some developing country representatives—like Venezuela—are evidencing very deep anger.

The Soviet Union clearly sought to capitalize on the situation. It was an excellent opportunity since the Soviet comments were relatively restrained, and while the Soviet Union threatened us with voting in private, her public posture was one of continuing support for consensus.

The reaction among US allies was mixed. France was highly enthusiastic in private, although its public positions were quite ambiguous, and her delegates have warned us that she will stop short of overt confrontation with developing countries. The German delegation in general sees our review as an opportunity to obtain improvements in the text, and its Economics Ministry’s enthusiasm for our review is evident to the entire Conference. At the other end of the spectrum, Australia and New Zealand have openly defended the existing package, Australia stating that she has vital national interests at stake in the treaty which the US action is undermining.

The UK tried to be supportive, but within the context of existing instructions that favored the early completion of the treaty based on the current text.² Japan was also ambiguous, although it is significant that she received instructions from Tokyo to support us on the procedural question of limiting the summer session to three or four weeks.

Apparently seeking to discourage the view that the legitimacy of Second and Third Committee texts can be maintained with or without a Convention, some delegations have begun to make statements denying that there is a consensus on some of the Second Committee texts relating to navigation and military uses of the sea.³ Although in much more mild and diplomatic form, one finds a similar theme in the opening statement by Secretary General Waldheim that one cannot expect the stabilization in the law of the sea represented by the current texts to be maintained if there is no Convention.⁴

The main underlying question preoccupying the delegates is, and will remain, whether to go ahead and vote through a Convention without U.S. support. The factors affecting this decision will include:

1. Foreign perceptions regarding the negotiability of any new U.S. proposals, and the credibility of an Administration commitment to support ratification of a treaty that accommodates its proposals;

2. Whether the Soviet Union and a significant number of Western States are willing to join the developing countries in such action; not only in terms of voting, but in terms of ratification;

3. The effect, if any, of such action by a large number of countries on bilateral relations between the US and any one of those countries.

COMMITTEE TWO

The meetings of Committee Two reflected a strong desire to put pressure on the U.S. not to propose changes in texts under the Committee’s mandate. This pressure was reflected in three ways.

1. Interventions by developing countries led by the Philippines, and stage-managed by Peru, to require prior authorization and notification for warships in the territorial sea, coastal State control of all installations and structures on the continental shelf, and similar kinds of suggestions aimed at restricting military activities. These interventions were stronger than in previous sessions.

2. Interventions by other maritime powers and the Eastern Bloc to the general effect that the fundamental elements of the Committee Two package had been negotiated and should not be reopened.

3. The summary by Chairman Aguilar to the effect that there existed in the Committee a practical consensus along the basic lines of the Committee Two package.⁵

Of particular note was the effort by Cape Verde, supported by a substantial number of delegations, for the establishment of a small working group to deal with the warship issue, and also the strength of the attack mounted by Amb. Arias-Schreiber of Peru. This attack was met head on with equal ferocity by the USSR, which took on Peru on both procedural and substantive grounds.

On the delimination issue, it was clear that no solution could be achieved at this session, despite strong efforts by President Koh to pressure a solution. The lack of political will on the part of the negotiators was laid in part on the nature of this particular session in the light of the ongoing U.S. review process. Neither side wished to proceed until such time as the U.S. was in a position to participate actively.

The Committee was held together, once again, by the strong and able leadership of Amb. Aguilar. Interventions in plenary on the record following his report were lengthy, followed the same lines as in Committee debates, and constituted a clear indication that many coastal State delegations were ready and willing to do battle on a number of military-related issues should the text be reopened.⁶ Peru stated that there was no consensus on certain contentious provisions such as Article 21.⁷ The U.S. stated that our views regarding navigation rights, including those of warships, and other uses of the sea related to international peace and security were well known, and that we reserved our position regarding any effort to alter these rights under customary or conventional law.

INFORMAL PLENARY

Participation

The most sensitive political question raised by the negotiations on participation is the proposal of the Arabs, at least formally endorsed by the Group of 77, that liberation movements recognized by the UN (in effect the PLO) be permitted to sign and become party to the Convention. We have received private hints that the Group of 77 might in the end drop this position if it were agreed that the PLO, which is an observer at the LOS Conference and other UN organs, would be permitted to retain its observer status at any organs set up by the LOS Conference, and if—as in the case of the recent Convention on the Law of War—the PLO were permitted to sign the Final Act of the Conference, perhaps on a separate page. The US delegation did not indicate whether it could accept such a result.

Dispute Settlement

During the tenth session, the Chairman of the Drafting Committee, Ambassador Beesley (Canada), asked his associate Armad deMestral (Canada) to explore the possibility of convening a small group which could do some advance work in order to facilitate the task of the Language Group and the Drafting Committee when dealing with the dispute settlement parts of the Convention. Messrs. Caflisch (Switzerland) and Allott (U.K.) prepared extensive lists of drafting changes required in the French and English texts, respectively. Professor Sohn (U.S.) was asked to join these exploratory talks.

It proved difficult to reach agreement on the composition of a working group on this subject and on the method of its creation. A preliminary exploration of the problems involved in coordinating the text resulted immediately in extensive debates on the character of the changes proposed (whether they were drafting or substantive). Consequently, it was quickly agreed that the task was more difficult than the proponents of this approach anticipated, and that no shortcuts are possible. The only solution would be to allot sufficient time for the discussion of dispute settlement texts at the next meeting of the Committee.

1. Source: Reagan Library, Bandow Files, Report of the U.S. Delegation to the Tenth Session to the Third U.N. Conference to the LOS, March 9–April 24, 1981. Confidential. The document is a classified supplement to an unclassified report of the U.S. Delegation. (Ibid.) Attached but not printed is a “Drafting Committee Report: January 12–March 2, 1981.”
2. Not further identified.
3. Documents regarding the Second Committee and Third Committee texts are scheduled for publication in Foreign Relations, 1977–1980, vol. XXV, Global Issues; United Nations Issues.
4. In telegram 822 from New York, March 17, USUN reported that Waldheim expressed that “any disappointments or delays we are facing will soon be overcome.” (Department of State, Central Foreign Policy File, D810124–1128)
5. In telegram 914 from New York, March 25, USUN reported that Aguilar broached the topic of voting on issues that could no longer be “completed, improved, or perfected.” (Department of State, Central Foreign Policy File, D810139–0761)
6. See footnote 5, above.
7. Article 21 refers to laws and regulations of the coastal State regarding innocent passage.