127. Memorandum of Conversation1

SUBJECT

  • Law of the Sea Conference

PARTICIPANTS

  • The Secretary
  • The Deputy Secretary
  • Under Secretary Stoessel
  • Under Secretary Buckley
  • Under Secretary Kennedy
  • Assistant Secretary James Malone
  • Director of Policy Planning—Paul Wolfowitz
  • Legal Advisor (Designate) Davis Robinson
  • Deputy Director PM Leslie H. Brown
  • Executive Assistant Sherwod Goldberg
  • Special Assistant to the Secretary L. Paul Bremer
  • Eugene Douglas, Policy Planning Staff
  • Otho E. Eskin, OES/LOS

The Secretary said the U.S. was in an extremely sensitive position in the law of the sea negotiations. He observed that the law of the sea had been raised with him by 26 chiefs of state and heads of government and the only one sympathetic to the U.S. position have been the West Germans and the Belgians and maybe the Soviets. He quoted the Soviet Foreign Minister as saying “For God’s sake, be careful.”2

The Secretary referred to his talks with leaders of the ASEAN states. Even China had complained.3 Everywhere, he said, we are in the dog house.

Assistant Secretary Malone expressed the view that in the last analysis the Soviets would take a middle ground.

Turning to the delegation instructions, the Secretary said that they were negative in character.

Mr. Malone replied that the presentation of the U.S. position would not be hard line but would instead be up beat. He said he would make it clear the U.S. wants to continue to be part of the negotiating process.

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The Secretary said we are approaching the negotiations with the aim of reaching agreement on a treaty but we have a serious problem. We do not want to have another SALT II. The President has insisted that there be a thorough review.

The Secretary asked about the State Department’s assessment of the navigation provisions.

Mr. Malone replied that some problems have been identified, specifically there are some ambiguities in the regime in the Economic Zone. He noted that the Joint Chiefs agreed with that analysis.4

The Secretary asked what PM’s assessment of the navigation provisions was. The Secretary asked whether the problem of clarifying the navigation texts would be aired at the August session of the Conference.

Mr. Malone said that the US would seek to concentrate on deep seabed issues at the Conference. He recognized the risk that if navigation issues were discussed, this could lead to unravelling the navigation text.

The Secretary asked what Mr. Malone would do if the rhetoric leads to a revolution in the conference.

Mr. Malone replied that in general other nations want the U.S. to be a party to the treaty and will probably try to cooperate, knowing that if a crisis is avoided the chance for a successful treaty will be improved. The Soviets want the treaty because of the navigation provisions and will probably be of assistance.

Turning to the notes prepared by Mr. Malone for the meeting outlining objectives,5 the Secretary observed that there seemed to be a contradiction. Exploring negotiating changes, preventing the treaty from unraveling and keeping the text from being formalized made sense. The Secretary asked about the objective of avoiding a commitment to negotiating a LOS treaty while continuing in the process.

Mr. Malone agreed that was the difficult part.

The Secretary observed that not only is the U.S. prepared to continue to take part in the process, the U.S. wants to take part. The Secretary directed that the U.S. delegation pull off before it causes a crisis at the Conference.

Mr. Malone agreed to that.

Turning to the specific instructions,6 the Secretary made a general observation that they seemed too negative. He said he would like to see the U.S. delegation proceed with good will.

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Mr. Malone indicated that he would be flexible when he presented the U.S. position.

The Secretary stated that he was happy that no major substantive modification of the navigation texts will be sought. Mr. Malone pointed out that DOD’s position on these provisions was not yet certain.

The Secretary said he found the third general objective too negative. The Secretary characterized the language in the draft treaty on permanent seats in the Council as “insane” and directed that the language of the delegation instructions not be softened.

On the instructions regarding the powers of the Authority, the Secretary urged that the delegation not state the U.S. position in those terms in the negotiations.

Mr. Malone said he would not present these points in the language of the instructions.

The Secretary stated that the language in the instructions on strengthening institutional safeguards was “dynamite.”

The Secretary directed that the two paragraphs on powers of the review conference and specifications of organs for every function be preceded by “seek to.”

The Secretary agreed to the instruction on participation of liberation organizations and said he understood that the question of fair labor and safety standards would be sorted out.

On the access issue, the Secretary expressed the view that it appeared the Delegation was attempting to revise the entire seabeds section. The Secretary asked whether Mr. Malone had experts who could judge the doability of these objectives.

Mr. Malone said there were three members of the delegation who had participated in the negotiations since the very beginning.

The Secretary asked whether they were comfortable with the instructions.

Mr. Malone said they were satisfied it was possible to explore the prospects for finding compromise solutions.

The Secretary asked what was behind the moratorium issue. Mr. Malone explained that it was a reaction to the passage of U.S. deep seabed mining legislation.

The Secretary asked about the problem associated with the anti-subsidy clause. Mr. Malone said the U.S. wants to avoid production limitations. He described the role of Canada and the involvement of Zambia, Zaire and Zimbabwe.7

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The Secretary said he understood everyone was concerned with mandatory technology transfer. Mr. Malone indicated there were two aspects: forced sale of technology and transfer of technology which has security significance. This kind of provision would be intolerable in the context of the North-South dialogue. Mr. Malone expressed the view that it would be possible to eliminate the “Brazil clause.”8

The Secretary asked what the problem was with the provision on anadromous and migratory fish. Mr. Malone explained that the texts are not entirely consistent with the US position. The US wants tuna controlled through regional arrangements. The existing texts are ambiguous and the U.S. would like to eliminate coastal states control.

The Secretary asked about the Committee III text. Mr. Malone stated that there is agreement that in this area there is no issue of overriding concern.

The Secretary asked about the next session of the LOS Conference. Mr. Malone said he thought that the first week would be devoted to organization of work and the second week would be used to take up the substantive issues. He said he thought if the U.S. could get through the second week without major problems the delegation could get through the remainder of the session without a crisis.

The Secretary stressed that he wanted to be sure that he and the Deputy Secretary were not surprised by developments at the Conference and wanted to know if a crisis was developing. The Secretary asked for a daily dialogue.

The Secretary said the President is not fully abreast of the law of the sea situation. He stated it was necessary for Meese and the President to know what the delegation was doing.

Mr. Bremer said it seemed that the U.S. had already received warning signs; the Soviets seemed to have concluded that the U.S. was isolated.

Mr. Malone disagreed, saying he believed the Soviets would play a middle ground role because they want a treaty and they want the U.S. to be a party to the treaty. However, if the Soviets concluded the U.S. was isolated at the Conference, they might try to get some political mileage out of the situation.

Mr. Bremer said he thought the Soviets had made their position very clear. Mr. Malone said the Soviets had backed off some what and indicated they would cooperate in some areas.

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The Secretary stated that the U.S. was zapping the treaty. He asked how the decisions were made on what issues were essential, what were nice, and what could be discarded. He said what was needed was a matrix; a priority listing of issues; what we have is a grab bag of agency issues.

Mr. Malone agreed to provide such a priority listing.9

The Secretary said that, in fact, some things are really not needed and it must be recognized that the LOS treaty cannot be perfect.

Mr. Malone noted that some elements of the present version of the LOS treaty are inconsistent with the philosophy of the Administration.

The Secretary observed that it would be hard for the President to walk away from the treaty which had been negotiated under three administrations.

Mr. Malone said the U.S. delegation objective will be to convince the other delegations that we are prepared to talk.

Mr. Douglas said the Conference would be a bomb. He urged that if it were possible, it would be desirable to avoid raising these issues prior to the Cancun meeting10 where some delegations will try to make trouble.

The Secretary stated that the President has not focused on the LOS issues. He went on to say that there was not a prayer of getting through all of the seabed issues in the proposed instructions without a disaster. That may be the right thing to do but not without the President’s decision.

The Secretary stated that we must remember the cost if the U.S. scuttles the treaty.

The Secretary asked for a list of the most important issues; specifically, an in-house review on what are the bedrock issues; what we can throw away, what can be traded off and what other countries can be persuaded to carry the burden of negotiating some of these issues.11

The Secretary asked also that Mr. Malone prepare a memorandum to the President telling him what was expected to happen in Geneva.12

  1. Source: Library of Congress, Manuscript Division, Alexander Haig Papers, Department of State, Day File, July 27, 1981. Secret. Drafted by Eskin on July 31. The meeting took place in the Secretary’s Conference Room at the Department of State.
  2. No record of this conversation has been found.
  3. In telegram 821 from New York, March 17, USUN reported on Haig’s talks with the Chinese. (Department of State, Central Foreign Policy File, D810124–1002)
  4. See Document 120.
  5. Not found.
  6. See Document 126 and the attachment thereto.
  7. In telegram 1041 from Kinshasa, January 29, the Embassy outlined Zairian concerns about the treaty and explained Zaire’s alignment with Canada, Zambia, and Zimbabwe on the issue of deep seabed mining. (National Archives, RG 59, Central Foreign Policy File, D810042–1112)
  8. The “Brazil clause” refers to access to privately-owned technology for any country that wishes to begin seabed mining.
  9. In telegram 7651 from Geneva, July 28, USUN transmitted the priority analysis. (Department of State, Marine Law and Policy Division, Subject and Country Files, Law of the Sea, 1981–1982, Lot 92D622, Law of the Sea—Cables 4/81–12/82)
  10. Reference is to the Cancun Summit on International Development Issues held in October 1981.
  11. See footnote 9, above.
  12. See Document 128.