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

143. Action Memorandum From the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs (Malone) to Secretary of State Haig¹

Washington, March 5, 1982

SUBJECT

• Reciprocating States Agreement

ISSUE

Should the US sign the Reciprocating States Agreement with the UK and the FRG at the earliest possible time or postpone signature until a date certain (e.g., mid-May)?

ESSENTIAL FACTORS

The Deep Seabed Hard Mineral Resources Act of 1980² authorizes the negotiation of agreements with other countries to permit mutual recognition of deep seabed mining licenses. In response to this legislation, the United States has been negotiating a Reciprocating States Agreement with the UK, FRG, France, Italy, Japan, Belgium and the Netherlands since August 1980. The Agreement would create an interim regime for deep seabed mining among the parties.

Agreement was reached on a text with France, the UK and the FRG in January 1982.³ At the last minute, France refused to sign because of failure to negotiate an agreed minute of interpretation which the French hoped would have the effect of limiting the size of mine site applications.

The negotiation of the Reciprocating States Agreement was carried out separately from the concurrent law of the sea negotiations. However, because of the inherent relationship of an interim regime to an eventual treaty and, particularly, the accident of close timing of the resumption of the LOS Conference on March 8, the conclusion of the Reciprocating States Agreement negotiations has now become an issue in the LOS negotiations.

The President of the LOS Conference has strongly urged that the Reciprocating States Agreement not be signed prior to the conclusion of the LOS Conference. Many members of the G–77 have criticized the Agreement, arguing that signing it would be inconsistent with the President’s commitment to work with other countries to achieve an acceptable treaty and would spoil the negotiating atmosphere at the Conference. France, out of concern for G–77 criticism of the Reciprocating States Agreement and in the hope that we will be more yielding in the future, wishes us to delay signing. The UK and the FRG have asked the US to delay signing so as to improve the atmosphere in the LOS Conference. The FRG has informed us that it would sign now, however, if the UK signed. The UK has not stated whether it would sign a reciprocating states agreement at this time. Its position was most recently communicated in a letter from Prime Minister Thatcher to President Reagan.⁴

US strategy at the LOS Conference is to establish a strong coalition among the industrial nations to support the significant changes we are seeking to the seabeds provisions.

The issue facing us now is whether we try to persuade the FRG and the UK to sign at the earliest possible date (which would be some time during the LOS Conference) or wait until the Conference is over.

Signature of the Agreement now with only the FRG and the UK might be perceived as a sign of disunity among the industrial nations as only three out of a potential eight countries would sign. This could weaken our leverage in the negotiations at the Conference. If we sign the Agreement in the next few weeks, this will probably provoke strong reaction from the G–77 and others (including possibly France and Japan). I believe, however, that by delaying the internal processing of applications until after the end of the resumed LOS session, signing now will not significantly affect my ability to achieve the President’s objectives in the Law of the Sea negotiations. EB feels that the failure of the G–77 to make an important issue of reciprocating states during the intersessional is evidence that a reciprocating states arrangement will not cause great difficulty at the Conference.

If the US agreed to delay signature now, there is no guarantee that the G–77 as well as the FRG and the UK would not seek a further delay in May, particularly if a further session were scheduled in August.

On the other hand, indications that the US was considering postponement of signature of the Agreement now have provoked strong criticism from the US deep seabed mining industry, key elements in Congress and conservative groups. The mining industry feels that early signature would best promote the continued viability of the pioneer US mining industry and would establish the basic legal framework for an alternative mining regime which might later be expanded to include other parties. They believe that delay in signature may be interpreted at the LOS Conference as a signal of lack of US determination to protect our seabed mining interests and that the Agreement may never be signed if further concessions are made to the G–77. The industry would not oppose a delay in processing applications.

The Department of Commerce is scheduled to “close the window” on March 5 for receipt of applications by pioneer miners.⁵ By statute, Commerce has the mandate to decide on such timing. We have asked the UK, France and the FRG to coordinate the closure of their windows with us, but they may not be willing to do so without a guarantee that the US will give equal priority to their pre-enactment explorer applicants. L points out that closing the window now, prior to signing an Agreement with, and designating as a reciprocating state, each State which has pre-enactment explorer applicants (i.e., the UK, the FRG and France) could give rise to legal challenges by US applicants when we later make such designations and seek to recognize the rights of pre-enactment explorers from reciprocating states. It may be necessary to amend the Deep Seabed Hard Minerals Act to remedy this problem. To avoid this problem with the UK and FRG, we have obtained agreement from Commerce to delay closing the US window, if you decide to sign the Agreement now. However, this would not affect the French and Commerce is unwilling to postpone closing until the end of the resumed session of the LOS Conference.

RECOMMENDATION

OES and EB⁶ recommend that the US make every effort to have the Agreement signed at the earliest possible date because they consider that this will demonstrate to the LOS Conference strong US resolve to pursue its seabed mining interests. We feel this will put us in the best posture to carry out the President’s instructions at the LOS Conference. Signature now will be a tangible sign of solidarity among some of the industrial states, which will strengthen the US negotiating position in the LOS negotiations and avert sharp criticism from the Congress. Failure to sign will break our commitment to the seabed miners. If signature is at the earliest possible date, then OES and EB would recommend that processing the applications be postponed in order to mitigate legal problems, enhance our ability to bring the other countries in later and perhaps reduce G–77 criticism.

EUR and EA recommend that, in order to avoid damaging our chances for achieving the President’s objectives in the LOS negotiations and to secure greater cooperation at the Conference from our major allies, the US accede to French, UK and FRG requests to postpone signature of the Reciprocating States Agreement until after the resumed session of the LOS Conference. These Bureaus recommend further that, if this option is chosen, the following steps be taken: a) seek a commitment from the UK and the FRG to sign the Reciprocating States Agreement during May after the session on a date certain (e.g., May 14, 1982); b) make a major effort to bring in the French, the Belgians and the Italians so they can sign on that date; c) make an effort to resolve the problems with the Japanese (who feel they are discriminated against in the Agreement as their national mining company cannot qualify as a preenactment explorer due to operation of the US law); and d) as a further quid pro quo for delaying, seek a strong commitment from the French and the UK to support the US in the LOS negotiations (the FRG already supports the US).

OPTIONS:

Option I—Seek to sign the Agreement with the UK and the FRG at the earliest possible date, but delay processing of applications until after the resumed session of the LOS Conference.⁷

Option II—Delay signing the Reciprocating States Agreement until after⁸ the LOS Conference.⁹

1. Source: Department of State, Marine Law and Policy Division, Subject and Country Files, Law of the Sea, 1981–1982, Lot 92D622, 40.85 Seabed Mining Negotiations—March 1982. Confidential. Drafted by Eskin on March 3 and cleared in OES, EB, L, EUR, and EA. Sent through Eagleburger and Buckley. A stamped notation on the memorandum indicates Haig saw it.
2. P.L. 96–283, approved June 28, 1980.
3. See Document 142.
4. In telegram 56062 to London, March 3, the Department transmitted the text of Thatcher’s letter, in which she wrote: “We want to sign this agreement with you and the FRG. But signature in the week before the resumption of the Conference will make it more difficult to get the necessary delegations to negotiate on your concerns and so to obtain a generally acceptable international regime of the kind we both want.” (Department of State, Central Foreign Policy File, D820114–0869) Reagan responded in a March 29 letter to Thatcher: “As you know, we have considered it important to conclude an interim Reciprocating States Agreement as soon as possible and regret that your country and the Federal Republic of Germany decided not to sign the agreement prior to the conclusion of the current Law of the Sea session in New York. The United States remains committed to the agreement as an interim measure, pending entry into force of a Law of the Sea treaty acceptable to our countries. We hope that your government, as well as other like-minded states, will enter into the arrangement in May, shortly after the close of this Law of the Sea session.” (Reagan Library, Guhin, Michael A.: Files, 03/23/1982–03/24/1982)
5. An unknown hand wrote the phrase “this has been delayed at least until Monday” (March 8) to the right of this sentence.
6. An unknown hand drew a carat between the words “EB” and “recommend” and wrote the phrase “and T [illegible].”
7. Haig initialed the approve option on March 6.
8. Haig underlined the word “after.”
9. There is no indication of approval or disapproval of Option II. At the bottom of the page, Eagleburger wrote: “AH: I fail to see why you cannot at least wait until after the Mitterrand visit, using that visit to try to persuade Cheysson of our position. If the French still say no, then go ahead thereafter. LSE.”