Foreign Relations of the United States, 1969–1976, Volume E–3, Documents on Global Issues, 1973–1976

32. Memorandum From the President’s Assistant for National Security Affairs (Scowcroft) to President Ford¹ ²

Washington, August 9, 1976

SUBJECT:

• Third UN Law of the Sea Conference U.S. Delegation Negotiating Instructions

Introduction

Delegates to the Third UN Conference on the Law of the Sea resumed negotiations in New York on August 2 for a seven week session that is expected to determine whether or not the Conference can be brought to a successful conclusion. If progress is made at this session, a final negotiating session plus a signing ceremony could be held in Caracas early next year. The importance of gaining rapid support for U.S. positions in the Conference is highlighted by the fact that 45 countries have now declared extended fisheries protection zones of varying types and U.S. Congressional support for unilateral seabed mining legislation is mounting. This memorandum reviews the key, unresolved issues in the context of the U.S. delegation’s instructions for the current negotiating session.

Background

Some progress was made during the March-May 1976 New York session. Secretary of State Kissinger, on your instructions, delivered a speech on April 8 before the U.S. United Nations Association outlining key U.S. law of the sea positions and reminding his audience of pending seabed mining legislation. At the opening of this session, Secretary Kissinger sent a message to the President of the Conference and other Foreign Ministers emphasizing the importance the United States attaches to realizing needed progress in the current session. (He also plans to attend the current session during the week of August 30).

The rules and institutions to regulate deep seabed mining will again be the most contentious issue at the UN Conference. At stake is U.S. access to deep seabed nickel, copper, manganese, and cobalt, for which we are now heavily import dependent. The United States has already agreed to the creation of an unprecedented supranational International Seabed Authority (ISA) with the power to exploit seabed resources on its own through its arm the Enterprise. The Enterprise would have one seabed claim banked for its future use for every claim mined by governments or private industry. In addition, the U.S. has agreed to several measures which protect land-based producers of these minerals, including 1) a 20–25 year interim production control for seabed nickel, which we believe will have no effect on market forces; 2) ISA participation in commodity agreements for seabed minerals that are non-binding on member nations; and 3) an as yet unspecified adjustment assistance scheme.

The U.S. concessions an seabed mining have disarmed the vocal land-based producers of these minerals, but radicals in the LDC Group of 77 are expected to continue to seek total control over seabed mining by ISA, which they hope to control. In addition, several industrialized countries fear U.S. competition with their land-based or potential seabed mining capabilities (Canada, France, USSR, Japan) and will press for country quotas on available seabed mine sites. Both these attempts to limit U.S. access will be strongly resisted by U.S. negotiators.

Several other major seabed mining issues must be settled in New York before a mutually acceptable final text can emerge:

• —The provisions in the current Revised Single Negotiating Text guaranteeing U.S. firms non-discriminatory access to minerals under reasonable conditions with security of tenure must be strengthened;
• —In return for guaranteed access, U.S. negotiators are considering proposing a UN guaranteed loan (for which the U.S. liability would be 25%) to finance initial operations of the Enterprise;
• —The U.S. will seek voting protection in ISA’s executive organ (the Council) commensurate with our economic interest in seabed minerals;
• —Mandatory profit sharing that will allow U.S. firms to make a reasonable profit without requiring a U.S. tax credit remains to be negotiated.

No new negotiating instructions are required at this time regarding these seabed mineral issues.

U.S. negotiators are relatively satisfied with the current status of negotiations in the committees concerned with territorial seas, strategic straits, economic zones, pollution, scientific research, and dispute settlement. Our main objective during the current New York session will be to preserve and expand the security gains that we have already made. Specifically, the Delegation will:

• —clarify the nature of innocent passage through the 12-mile territorial sea;
• —ensure no dilution in provisions for freedom of transit through international straits;
• —resist attempts to redefine the economic zone as something other than high seas with certain resource and pollution control rights reserved for the coastal state;
• —finalize provisions on navigation through archipelagos;
• —consider mediating between landlocked and geographically disadvantaged states who want extensive rights in their neighbors economic zones and coastal states who are resisting the granting of such rights;
• —actively oppose a provision which would grant “territories under colonial domination and other dependent territories” (such as Puerto Rico) sole rights to the resources in their economic zone;
• —support compulsory and binding dispute settlement for all cases involving interpretation of treaty provisions; and
• —negotiate the regulations which will govern U.S. scientific research efforts in the economic zones of other coastal states.

On this last issue of scientific research (discussed below) the NSC Under Secretaries Committee is in disagreement on the U.S. negotiating position.

Negotiating Instructions for the Current New York Session.

The Acting Chairman of the NSC Under Secretaries Committee has forwarded for your consideration the memorandum at Tab B which recommends that no changes to the current negotiating instructions be made at this time. All agencies on the Under Secretaries Committee, with the exception of the Department of Interior (Tab C), agree with this recommendation.

The existing instructions to the Delegation state that the U.S. objective is to avoid requiring coastal state consent for marine scientific research in the economic zone and on the continental shelf. Fallback authority is provided which would authorize acceptance of a regime allowing the coastal state to prohibit research which does not meet certain specified criteria, or acceptance of a regime which accepts coastal state consent but states that consent must be granted when certain criteria are met.

The United States, seeking the maximum freedom for scientific research against heavy Conference pressure for coastal state control, proposed a regime which would oblige the researching state to notify the coastal state of each scientific research project and to allow coastal state participation and access to research data. Last April, the U.S. modified this position and agreed to require coastal state consent in cases when the research related directly to exploration and exploitation of resources in the coastal state’s economic zone.

Developing countries did not find this U.S. concession adequate because they could not refuse scientific research projects on security grounds. The USSR thus proposed a new approach—now included in the Single Negotiating Text—which would require automatic coastal state consent for all scientific research in the economic zone and on the entire continental shelf unless the research 1) bears substantially on the exploration of resources, 2) involves drilling or explosives, 3) unduly interferes with coastal state economic activities in the economic zone, or 4) involves an artificial island.

The Interior Department seeks new negotiating instructions which would allow the U.S. Delegation to accept the Soviet proposal. Specifically, Interior asks authority for the U.S. to agree that:

• —coastal state consent be required for continental shelf research in cases when the economic shelf extends beyond the 200-mile economic zone; and
• —that undue interference with a coastal state’s economic activity in its economic zone be grounds for denying consent.

Interior argues that this would protect U.S. economic interests in our economic zone against undue interference and would establish consent regulations for the entire U.S. continental shelf.

All other members of the NSC Under Secretaries Committee disagree with the Interior position. They point out that:

• —our economic interests in the U.S. economic zone would be adequately protected by other treaty provisions;
• —the U.S. continental shelf extending beyond 200 miles is small and generally ice covered, thus gains for the U.S. would be minimal;
• —fallback authority already exists, if needed, to agree to a limited consent regime for the entire continental shelf; and
• —the provision as proposed by the Soviets could serve as a loophole allowing a coastal state to deny consent for virtually any project, thus severely limiting our freedom of the seas and jeopardizing important security interests.

In my opinion, the recommendation of the majority of the NSC Under Secretaries Committee to retain the existing negotiating instructions on scientific research is sound. I have attached a proposed NSDM (Tab A) which reaffirms existing negotiating instructions.

The NSDM also re-emphasizes other basic U.S. law of the sea objectives which are embodied in existing instructions. It emphasizes that quotas which significantly limit U.S. access to seabed minerals are inconsistent with existing instructions. It also underscores the importance of maintaining maximum high sea freedoms in the economic zone, which are consistent with and necessary for freedom of navigation.

The NSDM would also retain the designation of the Chairman of the NSC Under Secretaries Committee as the focal point for conference backstopping.

RECOMMENDATION

That you approve the NSDM at Tab A providing guidance to the U.S. Delegation for the forthcoming session on the UN Law of the Sea Conference.

APPROVE [GRF initialed]
DISAPPROVE ____________

1. Source: Ford Library, National Security Council, Institutional Files, Box 67, NSDM 336 (1). Secret. Ford initialed his approval. For Kissinger’s April 8 speech, see the source note to Document 27. Kissinger’s message to UNCLOS III President Amerasinghe is published in Department of State Bulletin, September 6, 1976, pp. 327–328. Tab A, as signed, is published as Document 38. Attached but not published at Tab B is the July 30 NSC Under Secretaries Committee Memorandum NSC–U/DM–109L from Habib to Ford. Attached but not published at Tab C is a July 21 memorandum from Frizzel to NSC Under Secretaries Committee Chairman Robinson.
2. Scowcroft summarized the instructions to guide the U.S. delegation to the August–September 1976 (New York) UNCLOS III session and recommended approval.