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

135. Memorandum of Conversation¹

Washington, December 21, 1981

SUBJECT

• Law of the Sea

PARTICIPANTS

• Edwin Meese III
• Edwin Gray
• William Niskanen
• Adm. Bud Nance
• Richard Darman
• Martin Anderson
• James Jenkins
• Kenneth Cribb
• Dennis Blair
• James L. Malone
• Theodore Kronmiller

Ambassador Malone briefed Ed Meese, Dick Darman, Marty Anderson, and Bud Nance, among others, concerning the status of the Law of the Sea. (See briefing outline.)² Following the formal presentation, there was an exchange, as reflected below.

Meese—What are the chances of obtaining all U.S. objectives?

Malone—There is a reasonable chance of obtaining considerable improvements, but I can’t guarantee that we can get absolutely everything.

Anderson—What is the chance of removing the one-nation, one-vote and mandatory technology transfer provisions?

Malone—On a scale of 10, 6 for changing the decision-making formula to remove the difficulties presented by the one-nation, one-vote provisions.³ The U.S. could get a guaranteed seat on the Council.

Darman—The point is U.S. influence.

Meese—Would the U.S. have a veto?

Malone—The chances are quite slight.

Anderson—Zero?

Malone—Close to that. Concerning technology transfer, however, there is a very good chance of deleting its mandatory character.⁴ We may return to “best efforts”. The indications are that we have a 50% chance of succeeding in this area.

Meese—What happens if we withdraw and everyone else signs?

Malone—It is possible that, with real political clout brought to bear at the highest levels, we could probably get some of the allies out. However, they would be loathe to leave the Conference. Even the FRG would be reluctant. It might be better if we negotiated until the navigation provisions were firmly in place and then backed away from ratification.

Meese—Is it true that the new organization (ISA) would have its own ability to raise funds?⁵

Malone—Yes, from royalties or other forms of payments by the companies carrying out mining.

Meese—Doesn’t the organization have its own Assembly, Secretariat, etc?⁶

Malone—Yes.

Meese—Could the Authority enforce its own regulations?

Malone—Yes, through sanctions.

Darman—States would be bound to use their own legal systems to enforce, as well.

Meese—If the U.S. did not become a party, would it be bound?

Darman—No, unless a U.S. court judged that the treaty was international law.

Malone—Some of the text’s provisions codify existing law and we would be bound to them. Some of the text does not and we would not be bound to that.

Darman—This would be a judgment call.

Meese—Suppose we are outside the treaty and U.S. miners work the same area as do other miners authorized by the organization.

Malone—If we are alone, it is doubtful that our companies will proceed in that manner.

Darman—Uncertainty will prevent prudent investors from moving ahead under such circumstances.

Malone—Because of financial and legal uncertainties, this is a hypothetical that does not exist.

Anderson—What we have is a “wet global negotiation”. The issue is whether the U.S. gets involved in an agreement which is inimical to our own best interests. I am appalled that we are still in this process. Why not set down clear conditions on what we are prepared to discuss, as we did in the global negotiations context?⁷ Such conditions would include no transfer of technology and no concession of our rights. If we go in and there is no prospect of change, we face in a year or two greater difficulties to get out. We may get stuck. The odds are so small that we can achieve a satisfactory result, why bother discussing it?

Malone—I can’t promise a satisfactory result. I give it a 50% chance.

Darman—“I think that surely the odds must be much lower.” “I am in complete sympathy with Marty,” but feel that we need two tracks, including one which protects us if we do not ratify. This would mean a satisfactory reciprocating States regime, with more countries out of the treaty and fewer major countries in it. If the allies think that all our bets are on the treaty, it will reduce the odds for going down the other track.

Malone—We may participate until some of the treaty is in more certain shape and decide not to ratify, or string the negotiations out over more time. But the risk is of another administration making the final decision.

Darman—If we are tough and the negotiations are strung out, there is an effective moratorium. That is in their interests, not ours. It is very likely that the negotiations will get strung out, so it is important to work a second track.

Malone—Reciprocating States are moving along well. The single remaining significant problem is the French “cap”. If we get over that hurdle politically (by decision of Cheysson and Mitterrand)⁸ we can get the negotiations concluded by the first part of January. Of course, these negotiations are a focal point of Group of 77 attention. The 77 fear reciprocating States.

Darman—Reciprocating States improves our negotiating leverage.

Malone—I agree, if we get it in place, we will have unity among the mining states.

Darman—(Explains reciprocating States to Meese.)

Malone—Of course we have to recognize that the LDC’s fear might give them the incentive to put the LOS treaty in place. That is the view of some. I believe that if we indicate that we will return to the Conference, reciprocating States will give us greater leverage.

Darman—It appears that the Administration is still driven by navigation worries. This is legitimate, but the main reason for a similar view in the past has been the assumption that no State Department or President would be willing to do what we have done with Libya.⁹ So we should now be driven less by navigation considerations in this Administration.

Malone—There is more interest in the Pentagon in seabed mining than before.¹⁰ Access to strategic minerals is regarded as very important. There is less “paranoia” over navigation rights. The treaty only gives us a “marginal edge” and we will still have to assert our rights under it. This we are willing to do.

Meese—Doesn’t this treaty require that we surrender our national sovereignty?

Malone—Yes.

Anderson—Some things should not be negotiable.

Meese—When does the Conference begin?

Malone—March, but we need intersessionals.

Meese—I am perplexed. Suppose the world goes ahead without us. Assume we are alone.

Darman—In that case, we are “in terrible trouble”. There will be no U.S. investment—no U.S. mining.

Malone—I agree. At $1½ billion per site, our companies will not mine under our flag, if we are alone.

Darman—But they may mine under foreign flags under the treaty.

Malone—If enough of our allies and some key developing countries will join us, we can probably fashion a workable alternative regime.

Meese—Is it possible to get our allies out?

Malone—Possibly and we can get changes, but I cannot guarantee enough changes to satisfy us.

Darman—If we can’t persuade ourselves and our allies that we have a viable alternative, the LDCs have tremendous leverage.

Malone—I feel strongly that reciprocating States gives us leverage, but we must get important mining countries and LDCs on the outside.

Anderson—If we indicate that we are returning to the Conference, we are losing leverage. We will help ourselves if we indicate that we may not re-enter.

Darman—They will threaten to hurt us on navigation and we must be tough in that regard. We must say that we have many ways to protect our navigation interests.

Nance—Ships are one thing, planes are another. We have problems asserting our overflight rights.

Darman—In Libya, we fired.

Meese—“How did we ever get into this son-of-a-bitch anyway?”

Darman—We were principally driven by navigation concerns and our going-in position on seabeds was a free market model.

Malone—Then we began the concessions.

Meese—I am very much concerned that we are getting ourselves into a position that we have gone into to negotiate and then find that we have to pull out—or we have to sign. “There is no way the U.S. will ever gain from an organization that can, in effect, raise its own army.”

Malone—If we pull out now, our allies will not come along without major clout.

Anderson—We seem to be sliding toward an agreement being signed. I don’t like that. Why would they be more agreeable to going out with us after we have committed to the negotiations?

Malone—If we make the effort for improvements and fail, the argument is that they will then be willing to go with us—but they are not willing now.

Anderson—I don’t accept that.

Malone—The allies want to stay in.

Darman—We don’t have time for the U.S. to pull out with its allies. We need not option 1 or 2, but a strategy to preserve both options. We must develop tactics that will allow us to go either way. This would mean getting the allies, at least the FRG and one other. We should map out steps for an alternative, if no progress is achieved, and push on the other track. This is not an either/or proposition.

¹¹—I agree. There is no great cost to negotiating, unless we are forced to sign. We must have very clear instructions on non-negotiable items, like mandatory technology transfer. We must open other parts of the treaty to obtain negotiating leverage. We must have public arrangements with our allies to provide for an alternative regime, so that we have a viable option.

Meese—I see no way to go forward without discussing this with the President himself¹² and obtaining at least an interim decision. This must be discussed in a decision-making body.

Malone—There has only been a SIG so far. The NSC which was scheduled, now looks unlikely.

Anderson—I think there are so many economic, social, and phil-osophical issues that a full Cabinet meeting is necessary.

Darman—I agree. Historically, when we have gone to the NSC, the decision has been in favor of the Conference. On the economic side, alternatives have been preferred.

Meese—Maybe we do need a Cabinet meeting. It should be as early as possible in January.¹³ We need guidance quickly.

Darman—My idea requires great preparation.

Malone—We can modify the options.

Darman—. . . including the two-track approach. . .

Meese—I see four options:

—withdraw with our allies

—withdraw without our allies

—negotiate with the intent of preserving our options and then pulling out

—negotiate and then not sign

We should add alternative strategies and develop reciprocating States. We need a 3-to-4 page summary memo for the Cabinet.¹⁴

Anderson—We need a summary of key issues and background.

Meese—Ken Cribb will handle this.

NOTE: After the meeting it was decided to submit the paper by January 10 for a Cabinet meeting in mid-January.

1. Source: Reagan Library, Guhin Files, 12/19/1981–12/22/1981. Secret; Sensitive; Eyes Only. The meeting took place at the White House.
2. Not found.
3. See footnote 2, Document 114.
4. See footnote 8, Document 127.
5. See footnote 3, above.
6. See footnote 3, above.
7. Reference is to the October 1981 summit in Cancun. See “Reagan Issues Conditions For Global Negotiations,” The Herald-Journal (Spartanburg), October 23, 1981, p. 1.
8. In telegram 8356 from Geneva, August 18, USUN reported that the “French system also will not grant new entrants priority based on chronology of filing.” (Department of State, Central Foreign Policy File, D810387–0628)
9. In May 1981, the United States expelled 27 Libyan diplomats. On August 19, 1981, U.S. military aircraft shot down two Libyan fighter jets that had fired on them over the Mediterranean Sea.
10. See footnote 4, Document 121.
11. The name of this speaker is not listed in the transcript.
12. No record of this conversation has been found.
13. See Document 138.
14. See the attachment to Document 136.