128. Memorandum From Secretary of State Haig to President Reagan1
SUBJECT
- The Law of the Sea Conference
The next session of the Law of the Sea Conference begins in Geneva on Monday, August 3. The principal U.S. objectives are (a) to keep open the draft treaty pending your final decision on the U.S. approach to the treaty, (b) to buy time until other elements of our policy toward the developing countries can be announced and take hold, and (c) to assess carefully the negotiability of needed improvements.
On the basis of our analysis of the draft treaty text, it is clear that many of the key provisions dealing with the deep seabed mining regime are incompatible with basic policies and principles of the Administration and would present problems in the Congress which would render the treaty unratifiable.2 In Geneva, the delegation will seek to prevent the Law of the Sea Conference from breaking up in a way prejudicial to U.S. interests or resulting in a major crisis which would bring the negotiations to a halt and subject the U.S. to strong criticism.
The U.S. delegation will seek to concentrate the work of the Conference on the area of principal concern to us: the provisions of the treaty dealing with the deep seabed. Although U.S. interests could be improved by changes in the navigation texts we should pursue these issues outside the Conference setting, in more manageable bilateral and limited multilateral contexts.
It is impossible to predict with certainty what the negotiating environment will be in Geneva. Our best estimate at this time is that many key countries in the negotiations want a Law of the Sea treaty and want the United States to be a party.
Still, there are risks which must be recognized. At a minimum we can expect sharp criticism of the U.S. Law of the Sea policy. Some delegates, chiefly in the so-called Group of 77 may well attempt to [Page 389] isolate the U.S. with the tactical objective of holding U.S. demands to a minimum. Once started however, the isolation tactic may not be controllable. Should a large number of delegates become persuaded that the United States stands alone and in opposition to the treaty and is not prepared to negotiate in good faith, then our ability to prevent a move to formalize the text would be substantially dependent on the assistance of our allies and the neutrality or aid of the USSR. In such a situation, it is by no means clear to what extent we can count on the support of certain key friends and allies who, in general, may be reluctant to oppose the majority of Third World nations. Clearly, the Soviets could exploit such a situation to our disadvantage and gain political favor with the developing countries. The Soviets have recently informed us that they will support the existing treaty text.
There is thus a risk that we might fail to control the process, and either an unsatisfactory treaty will be adopted or the Conference may break up, with the United States being held responsible. A collapse of the Conference could result3 in publicity critical of the United States and could sharply affect the character of other multilateral negotiations in which the United States is taking part. However, there is no risk-free way we can hold the treaty open, pending your final decision.
While it is not clear how our substantive interests in oceans law might be affected by formalization of the treaty without U.S. participation, it raises the risk that some states may retaliate in ways which might adversely affect certain navigational and other rights which we have claimed.
Although the U.S. delegation will attempt to manage the negotiations in a manner which takes account of the foregoing risks, the inherent uncertainties in the process raise the possibility that those navigational interests which we have thus far secured may be jeopardized through renegotiation or breakdown of the whole Conference.
- Source: Reagan Library, Executive Secretariat, NSC: Subject File, Law of the Sea (LOS) (1981) 3/30/81–12/7/81. Secret. Sent under an August 6 covering memorandum from Allen who wrote: “A key objective is to keep the process open pending your decision on the interagency review to be completed later this year. While we can expect some sharp criticism at the conference, our delegation has been clearly instructed on the need to avoid having the conference either break up or adopt an unsatisfactory treaty without us.”↩
- An unknown hand underlined the phrase “would render the treaty unratifiable.”↩
- An unknown hand underlined the phrases “thus a risk that we might fail to control,” “unsatisfactory treaty will be,” “break up, with the United States being held responsible,” and “Conference could result.”↩