36. Memorandum of Conversation1 2

Subject:

  • Secretary’s Luncheon for LOS Conference Leadership
    DATE, TIME AND PLACE: August 13, 1976, 1:15–3:30 p.m. USUN.

PARTICIPANTS:

Conference Leadership
  • Minister Evensen, Acting President
  • Ambassador Aguilar, Chairman, Committee II
  • Ambassador Yankov, Chairman, Committee III
  • Mr. Engo, Chairman, Committee I
  • Ambassador Beesley, Chairman, Drafting Committee
  • Mr. Zuleta, Special Representative of the Secretary General
  • Mr. Hall, Executive Secretary
  • Ambassador Rathray
U.S.
  • The Secretary
  • Mr. Maw
  • Mr. Lord
  • Ambassador Learson
  • Mr. Oxman
  • Admiral Minter
  • Ambassador Clingan
  • Mr. Ratiner
  • Mr. Leitzel
  • Senator Pell
  • Congressman McCloskey
  • Mr. Burton (Notetaker)

The Secretary: My purpose in attending the session of the Conference at this time is to underline the importance the [Page 2] United States attaches to the Conference and to educate myself. We might have a general discussion of the remaining issues before the Conference. We attach great importance to the success of this session. If it drags on too long, there will be many acts of unilateral legislation that will make it hard to progress further. There are few issues left and, if we settle most of them here, we can finish in a session beginning next March. Would you like to begin?

Minister Evensen: With pleasure. The main difficulties are in Committee I, and in plenary with respect to compulsory dispute settlement and the final clauses. There are one or two problems remaining in the Second Committee and one problem remaining in the Third Committee. The success of this Conference is important in order to solve the legal status of 5/7ths of the surface of the world, as well as to enhance the stature of the United Nations. We must have a new document at the end of this session. Up to now, we have had single negotiating texts and it is of paramount importance to elevate the text one way or another. It would be good if there were consensus to have a joint basic text, and this might be achievable.

The Secretary: I am not quite sure I understood the distinction between a single negotiating text and an elevated text.

Minister Evensen: I am not sure anyone knows. The single negotiating text is very informal. A new consolidated text would coordinate the parts and be a bit more formalized in stature.

The Secretary: How could the text be more formal without there being agreement?

Minister Evensen: It could, first, coordinate the parts; and, second, appear as a draft convention with the preamble and final clauses. The President might be able to do it with some help. This would be essential for some developing countries who are afraid that doubts about the success of the Conference will lead their governments not to allow them to attend further sessions.

The Secretary: How would one do that?

Minister Evensen: I do not know yet but there are many ways in which it might be done. I am undertaking consultations to find the best method.

The Secretary: Are there five weeks left in this session? I would think it would take two to three weeks to prepare such documents.

[Page 3]

Mr. Engo: I am not sure.

Minister Evensen: I think so. We took the step last session to begin to identify overlaps among the parts. This would help in the task. The chairmen of the three committees would have to get together on that point. We have a drafting committee but the discussions in our committee are such that there should be no change from what comes out of it. We must devise a means of producing the consolidated text. The Committee I workshop will be sending reports to Committee I as a whole. Any new consensus in the group would be reflected in those reports. The major question would be how to incorporate this in the text.

The Secretary: Will the rest of the Conference come along if Committee I agreed.

Mr. Engo: When the Committee I text goes to the drafting committee, they may try to improve it through changes for clarification. This would be resisted because the issues in Committee I were too delicate and political and those who are involved draft very carefully. The Second Committee might be amenable to changes in the drafting committee, and at some stage we will have to assemble a package. Each committee has the same representation; and the delegation from the Cameroon makes sure that their spokesman in each Committee say the same thing, but I am not quite so sure that other delegations are in that position.

The Secretary: My difficulty was finding out what the American delegation is doing (laughter).

Mr. Engo: I do not envy what they have to face. Many delegations have an attitude of hard-lining it. These are a vocal minority and there is a large silent majority. I have to find out what the motivations are and whether these states want a convention.

The Secretary: Are there delegations that do not want a convention?

Mr. Engo: I cannot put my finger on a delegation, but there are some who seem to belong to the pre-Caracas session. This may be a strategy either to destroy the progress or to move positions toward their own. In Committee I, the attitudes are going back and forth. The problem is more complex now than when the major question was “who may exploit the area.” The developing countries see the Authority as their only hope and want it to be strong. The developed countries have to understand both sides. The people want to see it work, although I am not in the chair all of the time now and have to defer to an updating by those who are present.

[Page 4]

The Secretary: Do the developing countries want an assurance that the Enterprise will work, or what do they really want?

Mr. Engo: That is part of it. The Enterprise should not just be a name, and if the developing countries would provide the financing it would help.

The Secretary: Would that break the impasse?

Mr. Engo: It would help a great deal.

The Secretary: Is this attainable at this session?

Mr. Engo: I think so. I am asking the developing countries to assemble what are the issues of most importance to them. There has been criticism about my text, but mostly by people who don’t seem to have read it. I hope it is possible for the developing countries to say what they are really willing to do.

Senator Pell: I think your text is a step forward. Without a double access system, we could find it hard to accept it and would never get it through the Congress.

Mr. Engo: At this stage the developing countries are not saying that there should be no access for developed countries, either firms or States. It is the modality of the access system that is important. They realize that the technology is necessary for it to work, and I think that they still have the old idea in mind that the developing countries want the licensing system. They want more than that and the developed countries need not worry that they will not participate. But the Authority should have the power to directly exploit and to control the situation. Multi-national corporations and states will conduct activities.

The Secretary: How could they exclude the developing countries if we have the banking system for the Authority?

Mr. Engo: The Authority should be involved in the unbanked area. Which are the LDCs that would get banked sites? A majority would prefer that only the Enterprise get banked sites, or that the LDCs would get them only when the Enterprise does not use them.

The Secretary: I see no objection to giving the Enterprise a first choice.

[Page 5]

Mr. Engo: Let me comment on the so called automaticity approach to access. The Eastern countries are firm on a system, and the developing countries do not accept the fact that if one entity finds 30 sites, it should get them all.

The Secretary: The Eastern countries should have no complaint about monopoly (laughter). What would follow if one country found 30 sites?

Mr. Engo: This is linked with the question of production controls. If one entity finds 30 sites, does it get them all? How does this affect production controls?

The Secretary: As I understand it, once you get a site, you have to work it within a set time period: three years, isn’t it, so no one would apply for 30 sites.

Mr. Engo: It is not three years.

Mr. Ratiner: It is a period of years but the number had been left blank in your text.

The Secretary: No one would apply for 30 sites.

Mr. Engo: Now this country is wealthier than that, Mr. Secretary. It does relate to the question of production controls.

The Secretary: I think that is a fair concern. Should production be limited on existing sites or only on new sites? The question is unavoidable.

Mr. Engo: The developing countries are also concerned about decision making. At the level of the Council, the European Community supports a collegial system.

The Secretary: It is complicated. Ambassador Learson has explained it to me three times and I always understand it when it is explained to me, but then I forget.

Mr. Engo: Then you can understand the problem with the developing countries. After you have the machinery, there should be a straight voting system.

The Secretary: Does that mean a simply majority?

Mr. Engo: I am thinking more along the lines of two-thirds.

[Page 6]

Ambassador Yankov: You give the impression that the Conference is only dealing with the Enterprise.

The Secretary: How can the deadlock be ended?

Mr. Engo: As has been suggested in the General Committee, all of those concerned should put their cards on the table. The developing countries must tell me what their real interests are.

The Secretary: Is it possible for you to reach an elevated text at this stage?

Mr. Engo: It is possible if we get the political will. I must know from both the developing countries and the developed countries what their real interests are.

The Secretary: Let’s move to the Second Committee.

Ambassador Aguilar: The Second Committee is in a different position. We have negotiated the fundamental issues and the Revised Single Negotiating Text is a good reflection of, not only my own perception, but is more or less a negotiated text. If it were voted now, it would be accepted by the great majority for 90% of it. We still have some difficult issues, such as the legal status of the Economic Zone. So far, the Second Committee has only had a general debate.

The Secretary: Is it a legal or a practical problem?

Ambassador Aguilar: It is political.

The Secretary: In what way is it political?

Ambassador Aguilar : It relates to the so-called creeping jurisdiction problem and concerns for the rights and duties of coastal states that are not clearly spelled out. The concern is that this would lead to greater Coastal State jurisdiction that will threaten freedom of communication. I think the views in the Committee on this issue are fairly evenly divided. We should avoid academic discussion and spell out the rights and duties.

The Secretary: Are you making an effort to define that?

Ambassador Aguilar: I think that we will see a deadlock if we try to resolve the whole issue. All powers in connection with communication, and not spelled out, should be for the international community. All rights related to resources, and not spelled out, should go to the Coastal State. I am unhappy that the debate is not leading anywhere.

[Page 7]

Ambassador Aguilar: The Committee also has the question of landlocked and GDS rights in the Economic Zone.

The Secretary: What is GDS?

Ambassador Aguilar: “Geographically disadvantaged states.” I should say the “so-called geographically disadvantaged states.” (Laughter) The committee has to focus its attention here, and there is a good mood to make an accommodation. Another question is that of the continental shelf. I was optimistic on this one at the last session. Many favored first, the retention of the continental shelf notion and, second, a redefinition of the shelf from the Geneva Convention with respect to the outer edge of the margin. It would be convenient to define precisely the limits between the continental shelf and the international seabed area. The final question is the right of access to the sea, and transit rights for the landlocked. This issue was discussed this morning and the group accepted that there should be a small group to draft a solution to the issue. Other issues concerned delimitation between economic zones, continental shelves, etc., and straits. As I was telling Ambassador Clingan earlier, it will be difficult to avoid the issue of the straits. I think it is necessary to give the others their day in court, and this will be difficult to avoid because the president included this in his document as among the key issues. There is also much pressure from some delegations, such as Yemen, Oman, and other Arabs. There are other questions such as the transitional provision and the rights territories have under foreign domination or colonial occupation.

Mr. Engo: There should be no dispute about that.

The Secretary: We do not have any. Can substantial progress be made?

Ambassador Aguilar: I think so. A consolidated text would be a great step.

The Secretary: What about Committee III.

Ambassador Yankov: I will say what could emerge from my committee this session. They put the most talkative people in Committee I, and the people in my committee are very “to the point,” and make concrete proposals. It is often said that we are not three conferences but one conference with three committees. If you read the record, however, it looks [Page 8] like there are three conferences. Committee I is still on procedure.

Mr. Engo: I take exception to that.

Mr. Ratiner: I resent that.

Mr. Engo: When you are ready with the text, we will be ready.

Ambassador Yankov: We must produce a paper that will be the basis of compromise, or there will be so many unilateral actions that the conference will turn from a progressive development conference into a conference that merely ratified what had been done. In my committee, the issue is scientific research—whether it should be a consent regime, or a mixed regime, or freedom of scientific research. The Revised Single Negotiating Text is almost what could be acceptable realistically. The developing countries want an absolute consent regime, while some of the developed countries want freedom of scientific research. The second critical area is marine pollution, but here the Revised Single Negotiating Text could be considered as a whole to be acceptable. The third issue in my committee is the transfer of technology. My impression is that instead of a dialogue on the issue, there were two parallel monologues. The developing countries thought that the developed countries did not care, because the initiative was always with the developing countries. The developed countries have not produced a single text on the subject. I think that by the end of this month my committee will produce a sensible compromise.

The Secretary: For us to consider a consent regime at all, it would have to spell out very clearly when consent is mandatory. The present text is too vague and amounts to a total consent regime.

Ambassador Yankov: We have tried since Geneva to produce a text with a distinction between pure and applied research, or resource oriented and non-resource oriented research, but it has not worked. Some, such as the Canadians, think that such a distinction is impossible.

Mr. Beesley: We do think that it is impossible to make such a distinction, but we would be prepared to go along with it as a political matter.

The Secretary rose for a toast. (The transcript of a recording of that toast is attached hereto).

[Page 9]

Minister Evensen: Permit me to make a toast. (He expressed his gratitude to the Secretary for the opportunity to meet him under very pleasant circumstances, in a relaxed atmosphere where they could talk freely.) We are in the midst of a gigantic task of extraordinary complexity, but it is a task that is also exceedingly simple because it is so important that we must succeed. The alternative to success would, in many respects, be devastating and would create tensions of a magnitude we cannot foresee. A race for colonial empires in no man’s land or no man’s waters, would be a great step backwards for the cause of world peace.

The problem of the deep ocean floor cannot be solved unilaterally or by those who have the technology. The dreams and aspirations of the developing countries should count considerably in our stand here. The fisheries questions are so burning that they must be solved on a global basis. In Committee III, we must find global solutions to the problem of marine pollution, which so threatens mankind. The international community is organized and we have the responsibility of finding a sensible administration of the common heritage of mankind—the oceans and the seabeds. The great powers have special responsibilities here, and so does the Group of 77 because of its voting strength. We meet not only as representatives of countries, but as representatives of mankind, and we should remember that a drop of honey catches more flies than a barrel of vinegar. The leadership of the conference may have some influence and should talk with perhaps some optimism, which is one factor in creating the spirit and will of cooperation. (He also thanked those present and offered a toast to the success of the conference.)

  1. Source: National Archives, RG 59, Central Foreign Policy Files, P820121–0508. Secret; Nodis. Kissinger’s toast was circulated as Department of State Press Release USUN (91) 76, which can be found in the National Archives, RG 59, Central Foreign Policy Files, P820121–0517. Ambassador Kenneth Osbourne Rattray of Jamaica was Solicitor General of the Attorney General’s Department and a member of the Jamaican UNCLOS III Delegation.
  2. Kissinger and other representatives of the U.S. delegation discussed Law of the Sea matters with UNCLOS III officers.