191. Telegram From the Embassy in Jamaica to the Department of State1
11231. Subject: Concluding Sessions of UNCLOS III.
1. (U) On December 10, 1982, 140 countries signed the Final Act of UNCLOS III and 117 countries (plus UN Council for Namibia and Cook Islands) signed the UN LOS Convention. One hundred and forty-two states were present. Fiji has announced that it has ratified LOS Convention.
2. (U) Among those not signing were U.S., UK, FRG, Japan, Belgium, Italy, Israel, Spain, Ecuador, Luxembourg, Peru, South Korea, Switzerland, and Venezuela.
3. (U) During period of December 6–9, over 120 delegates took the floor to make general political statements. The vast majority welcomed the adoption of the LOS Convention and expressed their strong support for it. Many appealed to the US and to others to sign the convention. Few speakers made formal interpretive statements. A large number of delegates criticized those countries who sought to quote pick and choose unquote among provisions of convention they wished to accept. Many specifically attacked the seabed quote mini-treaty. Unquote
4. (C) Canadian Foreign Minister Macheachan gave strong pro-treaty statement. Canadians, at US urging, made some modifications in remarks on legal regime on navigation, but statement as a whole was still unhelpful. Macheachan made specific reference to quote new provisions on transit passage through international straits. Unquote In oblique reference to US, Macheachan said that if states may arbitrarily select those rights and responsibilities they will recognize or deny quote we will see the end not only of our dream of a universal, comprehensive Convention on Law of the Sea, but perhaps the end of any prospect for global cooperation on issues that touch the lives of all mankind. Unquote
5. (U) In the Soviet statement, Minister Gouzhenko stated that the US has charted a course to torpedo the convention, and to conclude separate agreements to carry out activities on the seabed violating the convention. Soviet rep stated that a country cannot choose a selective approach to the norms of international law.
[Page 539]6. (U) Statements by UK, FRG and France were generally helpful, particularly in pointing out defects in seabed regime.
7. (U) US Rep (Clingan) gave brief statement on the afternoon of December 9. Statement pointed out that seabed provisions of LOS Convention were unacceptable to US and do not serve the interests of the international community and stressed that alternative ways of preserving national access to deep seabed resources were necessary, just, and permitted by international law. US will consider specific interpretive statements and exercise of right of reply during 30-day period provided.
8. (U) At closing session, Conference President Koh made very hard-hitting statement directly singling out the US by name. He stated that quote The argument that, except for Part XI,2 the convention codifies customary law or reflects existing international practice is factually incorrect and legally insupportable. The regime of transit passage through straits used for international navigation and the regime of archipelagic sea lanes passage are two examples of the many new concepts in the convention. Unquote He later stated that the doctrine of the freedom of the high seas can provide quote no legal basis for the grant by any state of exclusive title to a specific mine site in the international area. Unquote There was no legal analysis to back up these statements. Full text of statement being sent by separate telegram.3
9. (C) US Del met on several occasions with representatives of Federated States of Micronesia and of Marshall Islands. Despite strongly voiced TTPI4 desire to sign convention, on December 10, Micronesian Reps signed only Final Act (not Convention) as observers. Soviets in their statement said quote We firmly believe that if the participation in the convention of self-governing associated states will entail a change in the status of the strategic Trusteeship Territory of the US-Pacific Islands (Micronesia) then any change in the status and the conditions of the Trusteeship Agreement should be sanctioned by the Security Council in accordance with Art. 83 of the UN Charter.5 Unquote TTPI statement on December 9 was moderate. Micronesian Rep stated that TTPI governments will sign Final Act and sign and ratify the Convention.
10. (C) The Greek Delegation requested an informal meeting with Amb Clingan to discuss proposed Greek interpretative statement on straits. The Greeks advised that their statement would be tabled upon [Page 540] ratification (they were noncommittal as to when this would occur). Clingan suggested that the Greeks consider tailoring their statement to Article 38.1.6 The Greeks are concerned only about overflight through the Kea and Euroea Straits (the corridor between Kea and Andros Islands and the mainland). They are fearful that Turkey will increase tensions in the Aegean with aircraft operating out of Istanbul, passing close to Athens. The Greek Delegation informally discussed their proposal with the Soviets who expressed no objection. Clingan was noncommital in the proposal, pointing out that the US would be analyzing all proposals to apply treaty provisions to specific geographic areas on a case-by-case basis.
11. (C) AMB Clingan met with Indonesian FonMin Mochtar and Amb Djalal in attempt to determine the position of the GOI on US offer to discuss the possibility of recognizing the Indonesian claimed archipelago provided that US navigation and overflight rights are recognized by Indonesia as being derived from international law rather than Indonesian consent. FonMin Mochtar was noncommital although he indicated that it may be too soon to pursue discussions. Clingan pointed out that the US did not anticipate a change in the operation of US forces and was willing to use the treaty provisions as the basis for an understanding because we view those provisions as articulating existing maritime practices. Clingan gave Mochtar a small map of the Indonesian-claimed archipelago, annotated with potential sealanes. Clingan concluded by once again urging prompt consideration by Indonesia of the US offer for consultations.
12. (C) US Del met with Spanish Reps for brief and very general discussion of straits issue. It was clear that Spanish Del had no specific instructions on straits and it appears new government has not yet focused on question. US and Spanish Reps agreed on need to work closely in future on this issue.
13. (C) In military-to-military consultations with the Soviets on December 7, efforts were made to convince USSR of the pitfalls of a contractual approach to the navigation and overflight provisions of the draft treaty.7 RAdm Harlow and Navy General Counsel O’Neill pointed out that, if key strait states refuse to sign, the contract theory becomes a trap. Only by maintaining that the navigation and overflight provisions reflect customary international law can the right of transit passage be fully protected as against nonsignatory bordering states. It was also pointed out that the customary law argument is bolstered by the maritime practice of both the US and USSR and is consistent with [Page 541] the long-standing Soviet position regarding rights of navigation and overflight through straits. The points appeared to be sinking in as the meeting progressed, and Soviets agreed to consider the issue further. From what they divulged during the course of the discussion concerning the nature of their intended plenary statement, the actual plenary statement two days later appeared to have been altered to some degree away from the contractual approach. The consultation could thus be viewed as a success and the Soviets expressed the desire for continued consultations of this nature in the future.
14. (C) Canadian delegation has gone ahead with its efforts to prepare for PIP applications through adoption of a memorandum of understanding (MOU).8 Canadians held meeting on December 3, and are scheduled to hold a second on December 11. US Reps met with Canadian delegation members to discuss Canadian plans. Canada understands that US is not in UNCLOS process but they do not understand that UK and FRG may be out also. In bilateral discussions Canadians made clear that Soviets would insist on MOU being limited to treaty signatories and Canadians would agree to that. Current Canadian draft MOU reflects this limitation. Canadians hope to draw all deep seabed mining consortia into their MOU process through representation by Netherlands, France, Japan, and perhaps others. Canadians hope to move forward as quickly as possible in hope of signing MOU at Prepcom session in March. US Reps informed Canadians that since MOU was based exclusively on PIP and potential signature of LOS Convention, there was no purpose in continued US involvement and US would not be represented at December 11 or subsequent meetings. Comment. Some other dels, including some on Canadian Delegation (protect) are highly skeptical that anything serious can be produced by the Canadian group. End comment.
15. (C) At Japanese hosted G–5 lunch December 8, there was little of substance discussed. There was, however, general agreement among five that Group had served useful purposes and that nations in Group continue to have common marine concerns despite differences on LOS Convention. Therefore, it would be desirable for Group to continue to meet from time-to-time. (Drafted: OES/Eskin; approved: DCM/WRWarne).
- Source: Reagan Library, Guhin, Michael A.: Files, LOS (Law of the Sea) Follow-On Review (16). Confidential; Immediate. Sent for information to Ottawa. Sent to Jakarta, Paris, London, Bonn, Moscow, Brussels, Rome, Luxembourg, Quito, Lima, Seoul, Bern, Caracas, Tokyo, Ankara, Athens, Madrid, Suva, USNATO, and USUN New York. Printed from a copy that was received in the NSC Message Center.↩
- Part XI established an International Seabed Authority to permit mining and distribute royalties for activity that occurs outside any state’s EEZ.↩
- Not found.↩
- Reference is to the Trust Territory of the Pacific Islands.↩
- Article 83.1 of the UN Charter refers to the relationship between the Security Council and strategic areas, including trusteeships.↩
- Article 38 of the Law of the Sea Treaty refers to the right of transit passage through straits used for international navigation.↩
- No record of this meeting has been found.↩
- In telegram 8953 from Ottawa, December 21, the Embassy reported on a conversation with Canadian diplomats, in which the proposed memorandum of understanding on seabed mining was discussed. (Department of State, Central Foreign Policy File, D820662–0038)↩