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

165. Minutes of a National Security Council Meeting¹

Washington, June 29, 1982, 11 a.m.–noon

SUBJECT

• Law of the Sea

PARTICIPANTS

• The President
• The Vice President

• State

  • Deputy Secretary Walter J. Stoessel
  • Under Secretary James L. Buckley

• Treasury

  • Secretary Donald T. Regan
  • Mr. Marc E. Leland

• OSD

  • Deputy Secretary Frank C. Carlucci
  • Dr. Fred C. Ikle

• Justice

  • Attorney General William French Smith

• Interior

  • Secretary James G. Watt

• Commerce

  • Secretary Malcolm Baldridge

• Labor

  • Secretary Raymond J. Donovan

• Transportation

  • Secretary Andrews L. Lewis, Jr.

• Energy

  • Deputy Secretary W. Kenneth Davis

• CIA

  • Mr. William J. Casey

• OMB

  • Mr. William Schneider

• USUN

  • Mr. Kenneth Adelman

• JSC

  • General John W. Vessey, Jr.

• CEA

  • Mr. Murray Weidenbaum

• OPD

  • Mr. Ed Harper

• LOS Representative

  • Mr. James Malone

• White House

  • Mr. Edwin Meese III
  • Judge William P. Clark
  • Mr. Richard G. Darman
  • Adm John M. Poindexter

• NSC

  • Mr. Michael Guhin
  • Col Michael Wheeler

MINUTES OF MEETING

Mr. Clark outlined the areas of consensus—on not signing the LOS convention and on trying to get some allies to come along with us—and the issues for consideration:

1. Should we decide not to sign the convention now or later?

2. Should we participate in the remaining conference process?

3. Should we encourage improving the convention?

He asked State for its assessment of the chances for getting some alternative deep seabed mining arrangement outside the convention.

Deputy Secretary Stoessel noted that the chances do not look good. The FRG is waivering; the UK is uncertain but might go along; Japan and France are negative. He said we should make an effort to see if key allies will come along with us, and we should also make a last effort with allies to see if improvement in the convention is possible.

Mr. Casey asked about the views of industry, particularly the deep seabed mining consortia.

Mr. Malone noted that some are very interested in and want an alternative to the LOS convention.

Mr. Meese said that we need to take a more aggressive posture, use whatever leverage possible toward an alternative arrangement, and get there first outside the convention. The more aggressive we are, the more others may reconsider their interests in the convention. We should not accept mining under the convention as inevitable but try to shape the future.

Secretary Watt supported that.

Mr. Clark noted that the first issue concerns whether to make the decision now or later on signing the convention.

Secretary Lewis said that the convention has some value and provisions of interest to us, and we should be in the rest of the process rather than have it go ahead without us. He added that we should try to improve the present convention and that a decision against signing now could hinder or impact adversely on that process.

Deputy Secretary Stoessel said that we should say soon that we do not plan to sign and certainly before the Drafting Committee in July. This would not preclude a further effort to improve the convention.

Secretary Lewis said he agreed on timing.

The President summarized the consensus that we should make the decision now on not signing the convention but not release a statement until we consult with our allies.

Mr. Clark turned to the issue of whether the US should participate in the remaining conference process.

Deputy Secretary Stoessel said that we should continue to participate but at the expert level.

Mr. Adelman supported participation in the Drafting Committee.

Deputy Secretary Carlucci said we should take part.

Secretary Watt opposed any participation in the process.

Secretary Donovan also opposed any participation on grounds that it would be unproductive and send a wrong signal.

Attorney General Smith supported State on participation, but added that it all relates to where we are on an alternative arrangement: if we are to participate, we should make clear our fundamental position against the deep seabed mining parts of the convention.

Secretary Baldrige said that a statement against signing will avoid any misreading of our intention. The benefit of participation may not be big, but we should be there to protect our interests in non-seabed provisions, including our important interests in not having the convention interpreted or changed in a way that would conflict with our law on fisheries. We have nothing to lose by participation.

Secretary Lewis concurred with State.

Mr. Schneider said that some would see participation as undermining our rejection of the convention.

Mr. Meese asked whether participation could be limited to the non-seabed portions of the convention and whether we could make that clear. He said that we will not get improvements in the convention anywhere near meeting the President’s six objectives.

Mr. Malone said that such participation would be possible and would be essentially in a defensive posture on the non-seabed portions. This would avoid giving any wrong signals.

Deputy Secretary Davis said we should decide now on signing and then participate in the process. Of the areas to protect, oil rights are also important.

Secretary Regan said we should keep technical people there.

Mr. Casey agreed.

Mr. Harper supported Mr. Meese on how to avoid giving a wrong signal while still being able to monitor the situation.

Mr. Casey asked what US seabed miners will do.

Secretary Baldrige said that most US deep seabed miners will probably go under a foreign flag if the convention comes into force with key countries.

Secretary Lewis supported that view.

Mr. Weidenbaum said that others may get confused signals as that was what he was getting.

Mr. Meese supported participating in the process in a defensive mode but not in the deep seabed mining area.

Secretary Watt agreed and also said that we should not seek improvements in the convention.

Mr. Buckley confirmed that there will be no license to seek changes at the upcoming conference meetings.

General Vessey said we should participate.

The President asked about the implications of our refusal to sign on deep seabed mining and whether we could then go ahead outside the convention.

Mr. Meese said we would not be bound by the convention but it may become customary international law.

Mr. Darman agreed that the risk is that the convention will become customary international law in this sense as well and, if so, that would be enforceable in a US court. We have no practical choice of going it alone; we need a treaty or another group.

Mr. Malone said there are problems to getting an alternative regime but that is our only hope.

Attorney General Smith clarified that if we have not agreed, then US citizens are not bound in except in narrow circumstances.

Secretary Watt said mining firms would be very reluctant to go ahead outside the convention if it became customary international law.

Attorney General Smith agreed that would create uncertainty and such firms would be cautious.

The President summarized the consensus—that we should not sign the convention but should continue participation at a technical level to protect our interests in a defensive posture—and asked at what point we talk about seabed mining with our allies.

Mr. Meese said that there would be no participation in the seabed mining area at all and that he believes the regime will fall on its own weight. He outlined the agreed approach.

Deputy Secretary Stoessel supported seeking to improve the convention.

Mr. Meese disagreed and said that we should not hold out a false hope of improvements or signing if we got them since there is no chance of getting changes meeting the six objectives. We would send mixed signals by seeking or encouraging changes.

Mr. Malone said the chances for changes are slight and we should not prejudice chances for an alternative arrangement.

The President noted we should try to persuade our allies to join us.

Mr. Malone said we could ask our allies about improvements and then see, and do that at one round at the highest level.

Secretary Watt disagreed.

Mr. Buckley said the FRG, Canada, Australia, New Zealand and Norway believe changes can be made and, as a courtesy, we should at least go back to them to see if they can show us that. The gesture will improve our capacity to show them the problems in the convention and the bases for a Reciprocating States Agreement.

Mr. Meese questioned whether this thinking got us where we are in the first place. He said it will not change one item and any hope for us is not with the convention but in getting our allies to join with us in an alternative arrangement. We need to cut the convention idea off right now. Our allies will respect us.

Mr. Adelman said we have two agreed tracks: expert level participation in the process and political approaches toward an alternative arrangement.

Deputy Secretary Carlucci supported Mr. Meese.

The President said that Mr. Adelman stated it accurately—we should try to convince others to join us in not signing. If that fails, others will go without us.

Mr. Clark introduced the issue on signing the Final Act and participation in the Preparatory Commission.

Secretary Watt said we will need to persuade our allies not to sign the convention as their tendency will be to sign.

Mr. Meese said that the Final Act is a technical question and we can sign it without prejudicing anything.

The meeting ended at noon.

1. Source: Reagan Library, Executive Secretariat, NSC: Meeting File, NSC 00054 29 June 1982 (1). Secret. Sent to Poindexter under a July 13 covering memorandum from Guhin. The meeting took place in the Cabinet Room at the White House.