183. Memorandum From the Executive Secretary of the Department of State (Bremer) to the President’s Assistant for National Security Affairs (Clark)1


  • Law of the Sea Resolution at the UN General Assembly: Financing of Preparatory Commission

You asked for our review of available options for dealing with a draft resolution on Law of the Sea (LOS) recently tabled at the UN General Assembly which requires financing the LOS Preparatory Commission (Prepcom) out of the regular UN budget.2

Our preferred option is to amend the resolution to require voluntary funding of the Prepcom by states signatory to the Convention. We are making intense efforts in New York and capitals with governments who might help us obtain such an amendment.3 In our démarches, we are emphasizing our strong view that it is wrong and wholly inappropriate to ask the UN to fund the costs of a separate treaty organization, especially since some UN members will not sign the LOS Convention or participate in the Prepcom. We are also stressing the danger that LOS proponents will seek a permanent UNLOS bureaucracy in Jamaica, the host for the Prepcom, at great cost to the UN budget.

UN and LOS officials are also concerned about excessive spending for the Prepcom. They are bringing pressure on Jamaica to delete language from the draft resolution providing for additional UN services for the Prepcom and for a separate Secretariat in Jamaica. They want to limit costs by using existing resources wherever possible. The UN [Page 523] LOS staff estimates that Jamaica’s ambitious plans for the Prepcom could cost $20 million, whereas if the resolution is revised to give the UN Secretariat more discretion over funding, Prepcom costs could be as little as $1 million. In any case, costs of the Prepcom will be significant.

A second, fall-back option, proposed by the Netherlands, is to seek an amendment to the draft resolution that would authorize payment of Prepcom costs from the UN budget, but as a loan to the LOS Authority to be repaid when it is established. This device would support the principle which we are asserting that it is wrong to expect the UN to fund other treaty organizations. There is precedent for this.

There is a real possibility that efforts to amend the resolution to either require voluntary funding or a repayable loan by the UN for Prepcom costs will fail and that some kind of resolution will pass by which the UN budget will incur the costs of the Prepcom.

In this event, our past practice concerning resolutions with financial implications that are adopted against our wishes would be to vote against the resolution, express our strong objections, and continue to work to limit expenditures for the Prepcom, but take no further action.

In this unique situation we might want to consider departing from past practice. We could express our opposition more emphatically to this inappropriate use of UN funds by withholding from our contribution to the UN budget an amount proportionate to our share of the Prepcom costs. This would underscore the seriousness of our opposition to the LOS treaty and to the inappropriate use of UN funds for the Prepcom. (We are at a critical point now in attempting to persuade the UK, the FRG and other allies not to sign the treaty.)

Such withholding would have no tangible effect on Prepcom funding, since nations cannot earmark portions of their contributions. More importantly, withholding raises serious legal questions under Article 17 of the UN Charter which provides that “the expenses of the organization shall be borne by members as apportioned by the General Assembly.” With the exception noted below, such a withholding would be a departure from our past practice of paying our share, even though the UN budget finances various activities we vote against, and insisting that other nations also do so. Our withholding would also undermine our traditional position against Soviet withholding from the UN peacekeeping budget (a position which the Soviets ignore however).4 [Page 524] We would also have to consider U.S. domestic law, including the Anti-Impoundment Act, in weighing the option of withholding.5

Pursuant to legislation initiated and passed by the Congress, the U.S. has made one exception to the principle of collective responsibility and the practice of full payment of our share, despite an ICJ opinion that states members are obligated to pay their assessments.6 Under this legislation, we withhold small portions of our assessed share equal to a pro-rata share of UN budget support for the Committee on the Inalienable Rights of the Palestinian People and the Special Unit on Palestine in the Secretariat.7

We need not make a decision on the withholding option unless efforts to amend the LOS resolution fail. Ambassador Kirkpatrick does not believe it would be desirable or effective to threaten explicitly withholding as a means of negotiating language in the LOS resolution that would meet our objections, although she believes we should put others on notice that such funding by the UN of non UN activities causes us very serious problems and could force us to consider withholding in response. She also believes that further and careful legal analysis of this issue is needed, and that if we decide to pursue this option we should consult with the Congress before proceeding. In the meantime, we are exploring withholding in detail with our lawyers and USUN so that we can reach a prompt decision, if necessary, in the event our efforts to amend the LOS resolution fail. General Assembly consideration of the resolution may come late this week.

L Paul Bremer, III
  1. Source: Reagan Library, Guhin, Michael A.: Files, LOS (Law of the Sea) UN (United Nations)(1). Confidential. Drafted by Wilcox on November 15 and cleared in L, IO, and OES.
  2. See Document 181.
  3. In telegram 313516 to multiple recipients, November 6, the Department instructed Embassies to lobby their host governments against the resolution. (Department of State, Central Foreign Policy File, D820576–0470)
  4. Beginning in 1956, the Soviet Union began to withhold money for peacekeeping operations financed by the United Nations.
  5. The Congressional Budget and Impoundment Control Act of 1974 sets rules regarding executive branch requests for the rescinding of funds approved by Congress.
  6. The International Court of Justice issued its opinion in 1961 in response to Soviet withholding from the peacekeeping budget.
  7. Congress began withholding funds for the Committee on the Inalienable Rights of the Palestinian People in 1980.