It is essential that we have a decision on the law of the sea at the
earliest possible date. We have reached the point when further delays
will undercut seriously our ability to implement any presidential
decision. Although the next session of the LOS Conference does not begin until March 8, it is crucial
that we have time to begin to lay the ground work for whatever strategy
is chosen. The Conference resumes work in the drafting committee on
January 18. Formal intersessional negotiations which would be crucial to
a renegotiation effort are scheduled to begin on February 24. Informal
contacts with conference leaders would have to be made before then.
Attached (Tab 2) is a draft paper we have prepared in response to
Ed Meese’s request. It has
not been circulated to other agencies but is now being cleared within
the State Department. We have been requested by S/S to submit a paper for distribution to the NSC by noon Friday, January 8.
If you agree, we will submit this paper, subject to whatever changes you
wish made and whatever changes are agreed to in the State clearance
process.
Attachment
Paper Prepared in the Department of State5
Washington, undated
SUBJECT
- LOS Conference
Strategies
Issue for Decision
Whether to adopt strategies based on the assumption that the US will
fail to achieve its objectives at the Law of the Sea Conference.
Background
After a year of inter-agency review, all departments and agencies,
including senior White House staff, have reviewed US interests,
objec
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tives and options
at the Law of the Sea Conference. The IG has forwarded an option paper to the White House,
which sets forth two principal options for Presidential
decision.6 The first is to withdraw from
the Conference and attempt to put in place an alternative regime to
the one being negotiated at the Law of the Sea Conference. The
second option is to continue to negotiate as effectively as possible
with a view toward improving the Law of the Sea treaty so as to make
it acceptable to the Administration and the Senate. All agencies
have agreed that the second option best protects US interests. The
Department of Interior believes however, that the second option
should contain a clearly delineated bottom line.
There is, however, a view held by some that it is impossible for the
US to achieve an acceptable treaty at the Law of the Sea Conference
and that particular attention should be paid to contingency
strategies.7 The purpose of this paper is to
address those strategies and to ensure that senior decision makers
have an opportunity to consider them in connection with the decision
memorandum which was prepared by the interagency group.
All agencies would agree that strategies need to be prepared if the
US fails to improve the treaty sufficiently to sign and seek
ratification. The precise issue addressed by this paper is whether
one could conclude now that the result of
further negotiation at the Law of the Sea Conference has a high risk
of failure and consequently whether to adopt and implement
immediately strategies to deal with that contingency.
Strategies on the Assumption that US Efforts
Will Not Adequately Improve the Deep Seabed Mining Provisions of the
Law of the Sea Treaty.
1. Immediate withdrawal from the Conference with our allies.
Commentary:
a. While no effort has been made at the highest levels to seek allied
withdrawal from the Conference, at this stage, all of our senior
experts and experienced observers believe this to be impossible. Our
allies have other law of the sea interests to protect and are
concerned with their relationships with developing countries. As a
result, they will simply not walk out.
b. If our allies could somehow be convinced to withdraw from the
Conference with us, the next step would be to try to set up an
alternative regime for seabed mining. However, the highest
probability is that
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most
of the rest of the world, including many Western countries, will
proceed to set up a comprehensive law of the sea treaty and an
international organization to regulate seabed mining. Mining rights
would be in serious legal doubt and mining would be unlikely to
occur until there was either a negotiated settlement between the two
competing regimes or final international ajudication. Our chances of
winning an international ajudication are highly problematical.
c. Walking away now would leave the Soviets at the table with the
Third World, giving them a windfall opportunity to influence the
Conference in ways adverse to national security and economic
interests.
2. Immediate withdrawal without our allies.
Commentary:
a. This action would almost certainly produce in 1982 an adopted
treaty more or less in its present form. We would then have to
persuade our allies not to sign it. This
might be easier to do than getting them to withdraw from the
Conference since, if we reject the treaty, the financial burdens
normally carried by the U.S. would have to be carried by our allies.
They might be reluctant to assume this burden. Nevertheless, the
other criticisms of strategy 1 still pertain and seabed mining might
not occur.
3. Negotiate with the intention of preserving our ideological
positions on NIEO issues and then
pulling out.
Commentary:
a. This approach would involve taking a public posture that lays out
our maximum ideological position. It would be designed to force the
conference to agree on a system that is consistent with US
principles. Such an approach would be perceived by most countries as
a US decision not to engage in serious negotiation. The conference
would undoubtedly conclude we are seeking to have our position
rejected so as to give us a viable excuse for walking out. In
practice this approach would be the equivalent of the second
strategy and is, therefore, subject to the same criticism.
b. This strategy would foreclose the option of improving the
treaty.
4. Negotiate with the intention of preserving our option not to sign
and participate in the treaty.
Commentary:
a. This approach would involve a maximum effort to negotiate a treaty
that meets US interests and minimizes objectionable NIEO principles. It would be designed
to preserve non-deep seabeds provisions that we support. It would
probably result in important improvements to the treaty, but they
could still fall short of acceptability to the
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US. Without a significant change in
present views, this is the only approach our allies appear to be
prepared to support.
b. This approach assumes that the US will decide later whether to
sign the resulting treaty. If we do not sign, a strategy could then
be attempted to discourage our allies from signing and to establish
an alternative regime. (See strategy 6).
c. This approach will enable us to conclude with our allies the
interim reciprocal regime which we have been negotiating. They have
made it clear that they would not sign such an agreement if the US
withdraws from the negotiation.
5. Negotiate with the intention not to sign.
Commentary:
a. This strategy could result in modest improvements to the treaty.
It is, however, subject to the criticism, should such a decision
become known in advance, of placing the US in a position of
negotiating in bad faith. No one believes that this decision could
be taken without the risk of it leaking or becoming obvious to other
negotiators, and it therefore could greatly impair the stature and
respect of the Reagan
Administration as perceived by other nations.
6. Negotiate at the Law of the Sea Conference in a serious effort to
make significant improvements to the treaty, while at the same time
negotiating with our allies to produce a reciprocating states regime
or mini-treaty, which could serve as an alternative, if our efforts
at the Conference failed to produce an adequate result.
Commentary:
a. The first stage of this strategy is being pursued right now
through the reciprocal regime negotiations. It has been made clear
to us by our allies that the US must be a bona
fide participant at the Law of the Sea Conference and must
be seriously and reasonably attempting to repair the law of the sea
treaty (i.e., that the US pursue Option II as described in the
decision memorandum).8 Moreover, our
allies have stressed that they are only willing to participate in a
reciprocating states regime that is interim to a law of the sea
treaty.
b. It is also open to question whether, if the Law of the Sea
Conference ultimately fails from our perspective, an elaborated
reciprocal regime or mini-treaty would adequately protect our deep
seabed mining interests. Most developing countries, the Eastern bloc
and many Western countries are still likely to create an
International Seabed
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Authority with regulatory power over deep seabed resources. This
strategy is therefore subject to the same criticism as preceding
strategies.
Conclusion
It may not be possible to protect fully US interests with any of
these strategies. Strategies 4 and 6 offer the best opportunities to
satisfy US interests. They are essentially similar but have been
presented separately for the purpose of highlighting analysis of our
ability to establish an alternative regime.
If our sole or primary interest is to avoid US participation in a
treaty which accelerates or enhances international acceptance of
NIEO concepts and we do not
place importance on the viability of our future capacity to mine
deep seabed resources under the US flag, and if we are not seriously
concerned with world opinion, then most of these strategies will
work. Strategy 5, however, would subject the US to the legitimate
criticism of negotiating in bad faith, would undoubtedly become
known, and should therefore be rejected.
Strategies 4 or 6 appear to be prerequisite to implementing any of
the other strategies. The other strategies will be equally available
after the next session of the Law of the Sea Conference and could be
addressed at that time. In any case, none of them except for
unilateral withdrawal could be implemented in the time remaining
before the Law of the Sea Conference begins in early March.
