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

126. Action Memorandum From the Special Representative of the President for the Law of the Sea (Malone) to Secretary of State Haig¹

Washington, July 22, 1981

SUBJECT

• Instructions for the U.S. Delegation to the Resumed Tenth Session of the Third U.N. Conference on the Law of the Sea, August 1981

Attached are instructions to the United States Delegation to the resumed Tenth Session of the U.N. Conference on the Law of the Sea (UNCLOS III), which begins August 3 in Geneva. The delegation is instructed to seek three goals:

—Preserve the fullest possible range of options for pursuing U.S. Law of the Sea objectives. These options will be forwarded to the President for decision in the fall following the completion of the policy review. The option to continue negotiations in UNCLOS III, as well as a number of non-UNCLOS options will be presented.

—Obtain the most accurate and complete assessment possible of the negotiability of improvements in the current text. The improvements contemplated are listed in section III of the instructions. They include an extensive list of potential improvements in the seabed mining provisions, which should be the primary focus of the delegation’s work in Geneva. Potential improvements in other portions of the text, with the exception of the navigation provisions, are to be discussed informally. The delegation will indicate that, though they are still being reviewed, no significant substantive problems have been identified in the navigation provisions.²

—Seek to induce a climate in the Conference that will allow us to achieve maximum improvement in the text should the President decide to continue negotiations in UNCLOS III.

These instructions have been cleared by the NSC Interagency Group on the Law of the Sea, and contain no disagreed language. There are therefore no options presented for your decision.

RECOMMENDATION:

That you approve the attached instructions.³

Attachment

Draft Paper Prepared in the Department of State⁴

Washington, undated

INSTRUCTIONS FOR THE U.S. DELEGATION TO THE RESUMED TENTH SESSION OF THE THIRD U.N. CONFERENCE ON THE LAW OF THE SEA (UNCLOS III) AUGUST 1981

I. Background

The Senior Interagency Group on Law of the Sea decided on March 2, 1981⁵to conduct a policy review that would identify U.S. objectives in the Law of the Sea (informal text) of September, 1980 to determine its compatibility with those objectives, and elaborate options for the achievement of those objectives. The U.S. Delegation to the Tenth Session of the Third U.N. Conference on the Law of the Sea, which took place in New York in March and April 1981,⁶ was instructed to prevent conclusion of negotiations until the review was completed. Negotiations were not concluded, but a resumed Tenth Session was scheduled for Geneva in August 1981.

Several tasks mandated by the Senior Interagency Group have been largely accomplished. U.S. objectives have been identified, and the Draft Convention is being measured against them. Information concerning the negotiability of desired changes in the text gained at August session will be incorporated into the analyses of the options for the President. The time-table for the review calls for the options to be presented for decision in the late fall.

II. Instructions for the August Session

The Delegation should seek to achieve the following at the Resumed Tenth Session:

1. Preserve the full range of options for pursuing U.S. Law of the Sea objectives. The Delegation should prevent steps from being taken that would make an acceptable treaty on the Law of the Sea impossible to achieve. In particular, the Delegation should make every effort to avert formalization or other prejudicial changes in status of the Draft Convention. The delegation should oppose changes to the negotiating text that would unravel it, or other changes running counter to U.S. objectives. However, specific changes favorable to U.S. interests may be accepted by the Delegation if they do not adversely affect the delegation’s overall ability to achieve changes fundamental to U.S. interests.

In order to preserve options outside the Conference context, the Delegation should not conduct itself in a manner that could be perceived as committing the U.S. to a comprehensive Law of the Sea treaty. The Delegation should continue to indicate that no decision for or against pursuing such a treaty has been made, but that the U.S. is committed to rule of law in international affairs.⁷

2. Obtain the most accurate and complete assessment possible of the negotiability of improvements, described below, to provisions of the Draft Convention. To that end, the Delegation is authorized to undertake detailed and intensive discussions with foreign delegations and the Conference leadership. The focus of this process should be on seabed mining provisions. The negotiability of changes that might be regarded as useful or necessary to the non-seabeds provisions may be discussed informally in discrete groups, and when the risk of damaging responses in those areas is minimal. In the case of navigation issues, which are most sensitive from a security standpoint, discussions, if any, should not go beyond the following points:

—the navigation provisions are still under review, and appear at this stage to be largely satisfactory.⁸

—(if necessary) We will consult with you bilaterally as the review progresses after the session.

3. To the extent possible consistent with 1 and 2 above, seek to induce a climate which lends itself to achieving maximum improvement in the treaty text in further negotiations at the Conference, should we choose to engage in them.⁹ The Delegation should therefore work with U.S. friends and allies and other key Conference participants. Improvements could include either amendment of current provisions or their replacement in whole or in part by entirely new alternatives.

III. Pursuant to point 2 above, the delegation should assess the negotiability of improvements in the current text as identified below:¹⁰

A. Committee One (seabeds)

a. Institutional issues:

—guarantee a permanent seat for the United States on the Council and eliminate any real or perceived imbalance¹¹ in representation between the United States and the Soviet Union. The latter objective could be secured by eliminating two designated Soviet Bloc seats on the Council. Both objectives could be reached under a suitable system of weighted voting.

—give the United States, alone or with one or two other like-minded states, the power to block all important operational decisions of the Authority¹² (including those of a discretionary nature), while reducing the power of other groups with opposing interests to block decisions we favor;

—subject to the foregoing points, increase the capacity of the decision-making system for adjusting to changed circumstances;

—strengthen institutional safeguards so that the Authority,¹³ especially the Council, Assembly, Legal and Technical Commission, and LOS Tribunal and Seabeds Disputes Chamber, cannot make decisions detrimental to United States interests,¹⁴ and can not unilaterally expand or abuse their powers.

—eliminate¹⁵ the power of the Review Conference to adopt amendments that may be brought into force for the United States without our consent;

—assure¹⁶ that an appropriate organ is specified for every function of the Authority;

—eliminate the possibility that liberation organizations can participate in treaty organs or obtain benefits from seabed mining revenues distributed to the Authority, while assuring that entities with competences such as the EC and entities emerging from the TTPI can participate as appropriate in treaty organs.¹⁷

—explore provisions for the application of appropriate fair labor and safety standards to seabed mining.¹⁸

b. Access issues:¹⁹

—guarantee that all bona fide applicants receive seabed mining contracts;²⁰

—allow penalties to be imposed on seabed miners only after a positive vote in the Council, which²¹ we alone or with one or two like-minded states, could block;

—eliminate provisions that discriminate among seabed miners, including anti-density and anti-monopoly provisions;

—obtain assurances that the equitable rights of pioneer operators who have made investments prior to entry into force of the Convention are fully protected, in conformity with Title II of P.L. 96–283;²²

—eliminate any implicit moratorium on non-nodule development;

—reduce the production charge on gross revenues from seabed mining to allow or increase profitability of seabed mining.

c. Commodity policy issues:

—eliminate production limitations on seabed mining, and explore, if appropriate, an anti-subsidy provision;

—add a provision declaring that the overriding goal of the Authority is to encourage the development of seabed mineral resources;

—constrain Authority participation in commodity agreements by unambiguously requiring the concurrence of all major consumers and producers, including the U.S., and limiting Authority representation to Enterprise production;

—assure that temporary compensation for developing country land-based producers of seabed minerals does not become a permanent subsidy.

d. Technology transfer:

—eliminate mandatory transfer of technology to both the Enterprise and developing countries.

e. Parallel system issues:

—eliminate advantages of the Enterprise over private and state miners;

—increase the ability of industrialized countries to influence decisions and operations of the Enterprise;

—examine the feasibility of alternatives to the parallel system that do not include a supranational mining entity.

B. Committee II (fisheries, continental shelf, etc.)

—clarify fisheries provisions (particularly those relating to anadromous fish and tuna and the rights of land-locked and geographically disadvantaged States) to ensure conformity with U.S. policies, as reflected particularly in the Magnuson Fishery Conservation and Management Act;²³

—eliminate continental shelf revenue sharing;

—eliminate or clarify the requirement to remove completely abandoned shelf installations;

—clarify provisions relating to the delimitation of maritime boundaries between opposite and adjacent States to protect affected U.S. interests;

—clarify the role, powers, and composition of the Boundary Commission.

—establish clearly that the Antarctic continental shelf is not part of the “Area”.²⁴

C. Committee III (Marine science and pollution): Recognizing that the work of Committee III has been officially closed, the USDEL should not take the initiative to reopen formal discussions on marine scientific research, but should explore informally with other Delegations the negotiability of improvements to the text regarding marine scientific research in the economic zone, with emphasis on the following:

(a) Elimination of the requirement that clearance requests be submitted to the coastal State six months in advance;

(b) Elimination or sharp reduction in the requirements imposed on researchers in Article 249, especially paragraph 1(d) thereof;²⁵

(c) Limiting the right of and setting a time schedule for a coastal State to request supplementary information regarding a clearance request it has received; and

(d) Strenthening the implied consent provisions by assuring that lack of a coastal State response to a clearance request can be deemed equivalent to their consent for such research.

D. Dispute settlement:

—improve the process for selection of judges for the LOS Tribunal and Seabeds Dispute Chamber to better protect our interest in a fair dispute settlement process;

—adopt compulsory conciliation as a major method of dispute settlement;

—clarify the entire dispute settlement text through a major drafting exercise.²⁶

1. Source: Reagan Library, Guhin, Michael A.: Files, LOS (Law of the Sea) Third Conference (2). Secret. Drafted by Meyer on July 20 and sent through Clark. A stamped notation on the memorandum indicates Haig saw it. The original is incorrectly dated June 22. Haig wrote in the upper right-hand margin “Public approach—preempt—OK.”
2. Haig placed three checkmarks to the right of this sentence.
3. There is no indication of approval or disapproval of the recommendation. Below this sentence, an unidentified hand wrote “discussed at meeting 7/27. Secretary has requested another paper by 7/30 setting priorities on objectives as well as a memo to the President on our approach.”
4. Secret.
5. See Documnet 118.
6. See Document 123.
7. In the right-hand margin next to this sentence, Haig wrote, “Too negative.”
8. Haig placed a checkmark next to this sentence.
9. In the right-hand margin, Haig drew a line to this sentence and wrote, “Too negative.”
10. Several of these improvements are aimed at different aspects of basic problems, and therefore overlap. [Footnote is in the original.]
11. Haig drew a checkmark next to this sentence.
12. Haig highlighted this phrase and wrote and underlined the word “explain” in the right-hand margin.
13. Haig highlighted this phrase.
14. Haig highlighted this phrase and wrote, “or anyone else’s—” below it.
15. Haig wrote the word “address” above “eliminate.”
16. Haig wrote the words “seek to” above “assure.”
17. Haig placed a checkmark next to this phrase.
18. Subject to inter-agency review prior to the August session. [Footnote is in the original]. Haig placed a checkmark next to this phrase.
19. Haig highlighted the phrase “Access issues.”
20. Haig highlighted this phrase and wrote the word “strengthen” above the word “guarantee” and added an “s” to guarantee.
21. Haig highlighted the phrase “allow penalties to be imposed on seabed miners after a positive vote in the Council, which.”
22. Title II of P.L. 96–283 (The Deep Seabed Hard Mineral Resources Act) refers to “Transition to International Agreement.”
23. Public Law 94–265.
24. “This issue should be explored only after consultations with other Antarctic Treaty Consultative parties and further interagency consideration.” [Footnote is in the original.]
25. Article 249, paragraphs 1(d) and 1(e) refer to duties researchers must carry out when undertaking marine research while in a State’s Exclusive Economic Zone or on a coastal State’s Continental Shelf.
26. In a July 27 memorandum to Carlucci, Ikle summarized the instructions to the delegation. (Washington National Records Center, OSD Files: FRC 330–83–0103, Box 46, 801.2 [June–9 Nov] 1981)