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

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

Washington, April 28, 1982

SUBJECT

• Law of the Sea: Strategy for the Final Week of the Conference

ISSUES FOR DECISION

Should the US participate in consensus adoption of the Convention?

Should the US make a public statement on our view of the merits of the seabed mining articles of the Convention?

ESSENTIAL FACTORS

Intensive negotiations on outstanding issues will dominate the final days of the LOS Conference. Ultimately, President Koh will recommend only those revisions in the text which he believes (a) will enhance prospects for US and allied participation in the Convention, and (b) will be acceptable to the Group of 77 and the Soviet Union. Koh would like to bring the US into the treaty but he believes the full US position is too much for the Group of 77 to accept. Accordingly, the US delegation does not expect to achieve satisfaction on most issues.

It is not possible to predict, however, how close a final treaty will come to the US bottom-line. The delegation will make every effort to improve the Convention in keeping with the President’s objectives. The continued US and allied potential to force a vote will encourage others to continue negotiations. It is likely that at the end of this week we will face a revised treaty produced at the last minute. The new treaty will likely contain improvements and changes which will require analysis. This situation requires us to make two decisions.

ANALYSIS OF OPTIONS

A. Should the US participate in consensus adoption of the Convention?

Three alternatives are available: (a) the US could join a consensus to adopt the Convention; (b) the US could decline either to join or oppose consensus adoption; and (c) the US could object to consensus adoption and insist on a vote.

Interim tactics aside, the delegation sees no sufficient advantage to be gained by forcing the Convention to be adopted by a vote. Voting would demonstrate the firmness of US views and convictions and would leave no inference of acceptance that would impact politically on the development of customary international law regarding seabed mining. On the other hand, voting could create some possible danger to navigation, overflight, and other security aspects of the Convention. It also would likely result in a public split with the allies, who probably would not vote against adoption of the Convention. This could have serious implications for the Reciprocating State Agreement.

Joining a consensus gives the wrong signal assuming the President’s objectives have not been met. Refusal to oppose consensus avoids risk to national security issues, preserves our ability to pursue other options, and preserves unity with our allies. Avoiding a vote would keep the door open for a Reciprocating States Agreement.

B. Should the US make a public statement of our views on the merits of the seabed mining aspects of the Convention?

A public statement on the seabeds provisions would leave no inference that the US was accepting the seabed mining provisions with possible resulting impact on customary international laws. The delegation sees no disadvantages to making a public statement along these lines.

RECOMMENDATION

1. The US should not force a vote and should not object to adoption of the treaty.²

2. The US should make a statement for the record³ that US failure to oppose consensus should not be construed as approval of the seabed mining provisions of the treaty as to which we continue to have serious reservations and on which a decision must be taken at a later date.⁴

1. Source: Department of State, Central Foreign Policy File, P820071–1471. Drafted by Malone. Sent through Buckley. A stamped notation on the memorandum indicates Haig saw it.
2. Haig initialed the approve option on April 29.
3. In telegram 132685 to all diplomatic posts, May 15, the Department transmitted the text of Malone’s April 30 statement. (Department of State, Central Foreign Policy File, D850202–0915) See footnote 3, Document 157.
4. Haig initialed the approve option on April 29.