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

161. Notes of an Intergovernmental Meeting¹

Washington, May 25, 1982

Eskin The sign, no sign section will be dropped.²

When asked if any agency was in favor of signing the treaty, there was no response.

Cohen and Guhin defer the decision, since RSA is in a very delicate stage and an early USG announcement may make the Allies reluctant to join US

This week’s Geneva meeting will be decisive on RSA³—we should get a feeling of who is coming w/US.

It is probable from EBs point of view that Brits, FRG, Belgium and Italians will join us.

TK: it is a good idea to consult w/ our allies bedfore making a public announcement of our decision.

Colson: timing of the announcement:

demonstrates leverage and leadership

if RSA fails, the US must know where it is going w/its oceans policy.

query whether we want to wait for Prep Com stage, when rules and regs will be developed which could be beneficial to our seabed interests. Our allies will probably be there and their interests are similar to ours in the seabed area.

Guhin: the paper does not need a no sign-sign option—it should be a discussion of where we are, where we are going.

1. EB outline good, and a recommendation line at the end of the paper for the President which will just ask “approve”, “disapprove” on a no-sign option.

2. timing of the announcement—factors to consider—RSA and Allies.

3. participation in future conference proceedings describe what the steps are, what they mean, the pros and cons of each.

Keating: need to get into thinking about an alternative regime in absence of LOS treaty.

contingency planning on this has been done.

Kronmiller: Will it be bad faith to participate in drafting committee even after a Presidential decision has been made but not announced?

In NY we stupidly said on the record that a “no” vote re: adoption of the convention is not a “no” vote on whether or not we will sign.

Verville: not a sign of bad faith to participate in drafting committee “conference participants participate because they are part of the process.”

Calengaert: President needs to know that the timing of the announcement is important.

confusing signals can come about if we announce and then continue to participate in all conference proceedings.

but isn’t it bad faith, to continue to participate after a decision has been made but not announced, and it leaks out.

. . . the delicacy of the RSA negotiations at this point.

we want to pressure the Allies to stay out.

Kronmiller: can we get a surrogate?

Verville: surrogates don’t work, its a bad concept.

Drucker: Drucker in agreement w/Verville. cites as example the Wood-Pinto papers (Milt drawing on his experience as part of drafting committee)⁴

The Brits come the closest to the US but they are not all that good. Ex: Art. 60 (3)⁵

The US interests are not the same as the UK interests. minor stuff is taken care of in drafting, but things do slide by, can’t count on surrogates or Alan Beesley⁶ in the chair.

(discussion took place on the procedures of drafting committee) there is no vote in informal plenary for drafting committee matters

/At the language group level, the no objection rule exists

Attendance in Drafting committee:

Pro: protect US interests from adverse textual changes; rebut and repell changes US chairs the english language group; Tom Clingam very important

Con: “bad faith” to participate since we all really know what the decision will be.

domestic political consequences

We will have a negative vote in September Plenary, so no need to be in drafting committee in July–Aug, since we can vote it down in Plenary.

We don’t get any positives in drafting committee, only keep out the negatives; therefore Sept. Plenary should be sufficient (Alex Holser)

Harlow: We will have higher visibility if we attend Sept/Plenary than if we attend summer drafting.

Options:

GO TO ALL	GO TO NOTHING	GO TO DRAFTING	GO TO SEPT PLENARY BUT NOT DRAFTING
L	OES	L, DOD	DOI, DOD
	DOI

(the group shifted on these categories, no consensus existed Kronmiller did not push the group to a decision)

Colson: Soviets will make the most of USG completely walking away from the Conference.

Colson suggests we can explain it away to the conservatives attendance in drafting committee by calling it a marginal exercise, to make marginal changes.

we are tryinig to score small political points against the UN by walking out and telling the UN it can stick-it

Harlow: (very surprisingly) interpretive statements are not of much import at this point.

We should have someone in Caracas to react to changes.

read things into the record and orchestrate the interpretive statements

A complete walk-away is very dangerous.

(L AND DOD HAVE SAID THEY WILL RE-DRAFT THE NON-SEABEDS PORTION OF THE PRESIDENT’S PAPER

Discussion took place: re: what is and what is not customary international law. The ALI paper discussed.⁷

Bill Frye: FWPCA Coast Guard can police out to 200 miles to exert pollution regulations; economic costs associated w/ this activity.

TK: someone in OES is working on an expanded liability scheme to supplant the vessel source oil pollution section on the text dealing w/port, state, coastal enforcement.

Colson: Will State cease to send protest notes to other countries who claim LOS text material?

ex: Brits are soon to claim 12 miles—should State follow through and send protest note?⁸

ex: small Pacific island drafts an archipelagic legal regime identical to LOS—if we protest—it affects our bilateral relations w/that country.

Harlow: increase of exercise of rights program

Colson: USG in a position of challenging other govt of other countries who act consistently w/the treaty.

TK: we don’t want USG legal theory on some functional LOS areas to be prejudicial to others ex: fisheries. END.

1. Source: Department of State, Marine Law and Policy Division, Subject and Country Files, Law of the Sea, 1982–1983, Lot 85D105, LOS—S/IG. No classification marking. The minutes indicate it was an “Afternoon session.”
2. See the attachment to Document 162.
3. In telegram 152230 to multiple recipients, June 3, the Department summarized the May 26–27 Reciprocating States meeting in Geneva. (Reagan Library, Guhin, Michael A.: Files, LOS [Law of the Sea] Reciprocating States Agreement [4])
4. In telegram 247 from New York, February 2, USUN mentioned Wood-Pinto proposals involving Annex III of the treaty. (Department of State, Central Foreign Policy File, D820056–0079)
5. Article 60 (3) of the treaty discusses the rules surrounding the construction of artificial islands.
6. John Alan Beesley, Canadian diplomat and chair of the conference drafting committee.
7. Not further identified.
8. Not found.