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

166. Memorandum From the Deputy Ambassador to the United Nations (Adelman) to the Counsellor to the President (Meese)¹

Washington, June 29, 1982

RE

• Law of the Sea Treaty Follow-Up

As we discussed after the NSC meeting,² the LOS follow-up should consist of a) high-level political Presidential emissary; and b) a strong, clear Presidential statement of principle.

A. Presidential Emissary

This should be a former Cabinet officer of high stature who can speak to Heads of Governments, and not LOS experts. The former do not know much about the LOS Treaty and do not like what they know. The latter (experts) are hopeless; they have been negotiating this thing for ten years and cannot be reached.

The emissary should be direct from President Reagan (photo beforehand in the paper is necessary) who will discuss only the alternatives to LOS Treaty and not improvements therein.

Finally, the emissary should concentrate on countries which abstained on the UN vote over LOS or voted no, such as Britain, Italy, Belgium, Germany, Thailand, Turkey, Venezuela.

B. Presidential Statement

The Administration was clobbered on the infant formula controversy,³ even though we had the legal and health arguments in our favor. We must not take tremendous heat on LOS for nothing. Our statement must be simple, clear, and of principle.

This can do considerable good, since we have a strong case and are not alone. The countries voting “no” or abstaining in the UN vote are small in number (21) but big in power. They consist of 60% of the world’s GNP and 64% of contributions to the UN.

Points to be made in the statement:⁴

1. The US is not against the LOS Treaty. We are simply but strongly against the sea-bed mining provisions of it, and thus cannot sign.

2. We are against these provisions primarily because they go against economic development. The Treaty has a bias against production (by production limits and up to 70% tax rate on net receipts). They discourage the creation of new wealth, which we support more than the distribution of existing wealth.

3. These provisions dampen creativity and ingenuity. The mandatory transfer of technology goes against our Constitutional guarantees of patents and protection of scientific discovery. Those who invent and create must instantly share the fruits of their labors with those who do not.

4. The LOS Treaty amendment procedure is blatantly unconstitutional. The Treaty can be amended in 20 (or 25) years without any further Senate ratification. In essence, we would be signing away Senate perogatives by signing this treaty.

5. The Treaty manifests the infuriating and unnecessary politicization of international organizations. For it provides income to the PLO and SWAPO and other so-called liberation movements. The PLO, SWAPO, et al. are not experts at deep-sea mining, nor should they reap the benefits thereof.

6. The “common heritage of mankind” in this Treaty has the exact opposite meaning given that phrase by its founder, John Locke. He believes that potential wealth (deer, fish, or minerals) were owned by everyone until an individual mixed his labor with that non-owned entity, at which time it became his private property. (See Second Treatise of Government.)⁵

7. Some businesses are pleased with the Treaty and others are not. The President made his decision in spite of some businesses who wanted him to sign. The Administration is not doing this for commercial reasons in support of big business but for principled reasons in support of free enterprise, initiative, and risk-taking.

8. Those saddest with the decision will be, not parts of mankind who will benefit from US and others exploration and exploitation in the future, but that small part who has made this negotation a career.

The easiest way to kill the entire project would be to mandate that no-one who was in the negotiating process can be employed by the Enterprise or the Authority. This massive, international bureaucracy in sea-bed mining stands in direct contrast with other parts of the Treaty on navigational rights, overflight, pollution, etc. which have no gigantic machinery.

This brings us back to the start. We have to reject the entire LOS Treaty although we object only to its sea-bed mining parts.⁶

1. Source: Reagan Library, Meese Files, Law of the Sea. No classification marking.
2. See Document 165. No record of a discussion after the NSC meeting has been found.
3. Reference is to a 1981 vote regarding a proposed UN code outlawing the promotion of infant formula.
4. For text of the July 9 statement, see Public Papers: Reagan, 1982, Book II, pp. 911–912.
5. Reference is to Two Treatises of Government by John Locke.
6. At the bottom of the page, Adelman wrote: “Ed—I’ll be happy to help draft, but this should be the guts. Ken.”