Foreign Relations of the United States, 1961–1963, Volume XXV, Organization of Foreign Policy; Information Policy; United Nations; Scientific Matters

486. Aide-Memoire From the Canadian Embassy¹

Washington, May 15, 1961.

AIDE-MEMOIRE

The joint assessment of Canada and the United Kingdom of the prospects of a multilateral convention based on the “six-plus-six” Geneva formula is that the support of some twenty-one countries, not including the United States, would probably be forthcoming, provided sufficient additional support could be obtained, and the support of a further nine or ten countries could be fairly readily obtained with United States assistance. This would leave only approximately a dozen countries whose support would be required in order to bring the total up to a workable figure of forty-four or forty-five. This assessment is based on the information which follows.

Results To Date of the Preliminary Survey

I. Positive support for a convention at governmental level: Australia, New Zealand, Portugal, The Republic of Ireland, Spain, Switzerland, Greece and South Africa.

II. Favourable initial reaction final replies outstanding: Italy and The Netherlands.

III. Conditional approval: Denmark.

IV. Approval dependent on reactions of other states and/or degree of support forthcoming: Germany, Israel and Japan.

V. Qualified approval, owing to special problems: Pakistan and Turkey.

VI. Hesitant or non-committal: Sweden and Thailand.

In addition to the countries which have been canvassed, Norway can be expected to support a convention.

Arguments In Support of a Convention

The arguments in favour of a convention which have been presented to other countries, and which we hope will prove equally persuasive to the United States, are as follows:

(A) The proposed convention, especially if it numbers amongst its signatories the chief maritime and air transport nations of the world, and includes some of the more important fishing nations, would provide an important source of law from which a universal rule of law might gradually evolve.

(B) The general desirability of reaching agreement on the two important questions left unanswered at the 1960 Geneva Conference on the Law of the Sea (i.e. the breadth of the territorial sea and fishery limits) is underlined by the present uncertainty and the likelihood of a continued drift towards chaos in the Law of the Sea. The sooner therefore that a multilateral convention can be concluded the sooner this disturbing drift can be stopped. It is hoped that if a multilateral convention is concluded in time, enough countries will accede so as to fulfill substantially the same purpose as would have been achieved at Geneva.

(C) The initiative is in no sense a cold war project or an attempt to avenge the “diplomatic defeat” at Geneva. On the contrary, it is motivated by a desire to further the orderly development of international law, and in particular to complete the codification of the Law of the Sea so nearly achieved at the last conference.

(D) Support for a multilateral convention at this stage, rather than later, would still have a good chance of building on the large measure of agreement reached at the Conference and of avoiding the loss of effort put into it.

(E) A convention would provide an agreement to which new countries could adhere when they gain their independence, and would forestall the possibility of a twelve-mile convention being the first or even the only possible one in the field.

(F) The movement to a twelve-mile territorial sea would be slowed down and countries might be restrained from making more extravagant claims. Maximum freedom of the seas would thereby be ensured for security, navigational and commercial purposes.

(G) The existence of an agreement would help to prevent disputes arising out of incidents on the seas and would encourage countries with outstanding disputes to arrive at an early solution.

(H) The conclusion of a multilateral convention on the remaining questions in issue might further encourage states to ratify the Conventions adopted by the 1958 Conference.

(I) A further argument which can now be made is that the degree of support already obtained is encouraging.

Proposed Plan of Action:

The first question to be determined, should the United States authorities agree to join actively in the survey, would be whether further approaches should be restricted to likely supporters or should be made to the international community as a whole. The answer to this would seem to depend to a large extent on whether the next phase should be kept confidential.

Since it is still too early to be certain of our objective (i.e. enough support quantitatively to open the proposed multilateral convention for signature) it would seem better to maintain the confidential character of the canvass during the second phase also. Presumably the United States, like most of the eighteen countries already canvassed, would prefer that its views not become generally known at this stage. It may be also that a number of countries to be approached would find it easier to indicate support for the scheme if it were clearly understood that they would not be committed should it transpire that the multilateral approach had to be given up. (This, after all, is the position of Canada and the United Kingdom and would presumably be that also of the United States.) Finally, abandonment of the scheme, if it were publicly undertaken, would weaken the significance of the Geneva vote on the Canada-United States proposal.

The conclusions of Canada and the United Kingdom are that Canada, the United Kingdom and, it is hoped, the United States and certain of the countries already approached, should either individually or collectively, as may be agreed, approach another group of some twenty-five to thirty countries who may be expected to react favourably. By an agreed date, the results of this second stage in the canvass would be reviewed and a decision could then be made whether further efforts should be undertaken, or the whole scheme dropped for lack of sufficient support. In making this final decision, it would, of course, be necessary to balance the risks in eliciting a reaction from the twelve milers against the possibility of attracting countries which had been hesitant until the end, or which had not been approached, which might be prepared to join “the Club” later on. In approaches to all countries it would be clearly understood that an indication of support in principle would in no sense be a final commitment to sign the proposed convention, and that a final decision would be reserved until the extent of support from other countries is known. All countries concerned would have an opportunity to consider the results of the survey before either taking any further steps or making a final decision.

The next question to be decided would be whether some or all of the eighteen countries which have been canvassed should be asked to lend their active assistance during the second phase of the survey. Such countries as France, assuming her active support could be obtained with United States assistance, and Italy and Australia could give us considerable assistance, while it would be inadvisable to request support from lukewarm countries. It is therefore suggested that the second phase of the survey should be conducted by the United States, the United Kingdom and Canada, possibly with the assistance of additional countries as might be desirable in certain cases.

Another question to be decided would be the position we should take concerning the Brazilian amendment. It would be unrealistic to include some of the Latin Americans in the next phase of the survey, while hoping that they would not raise the question of the Brazilian amendment. (Thus far only Australia, Turkey and Japan have inquired concerning the amendment, but the support of Turkey is partly conditional upon its exclusion and that of Japan almost entirely so.) In our view the only sensible course we can follow is to continue to give a non-committal answer, as we have done thus far with the initial eighteen countries, and to defer final determination of this question until a later stage. A decision either for or against the amendment is bound to involve loss of some potential signatories. It will be a question of determining which is the least expensive course. It would be for consideration, in this connection, whether Argentina, Brazil, Uruguay and Iceland, which are known to be in favour of the Brazilian amendment, should be approached in the second phase of the survey or later.

As to the question of how many supporters would be required to warrant opening a convention for signature, it is the view of the United Kingdom and the Canadian authorities that this question should be left open for the time being. By an agreed date the results of our individual and joint efforts could be reviewed and decisions made as to the next steps to be taken. It might, for instance, be preferable to line up forty countries, including all key countries from a functional point of view, which are reasonably well distributed geographically than to obtain as many as fifty countries not including the important fishing or shipping countries and not well distributed geographically. The idea would, of course, be to obtain the requisite number both as to distribution and importance, and the next phase of the survey should be devised with this in mind. The main object at this time, however, should be to obtain more supporters; a decision can always be made at a later stage as to whether enough have been obtained to open a convention for signature.

As to which country should be approached, and by whom, the following suggestions are raised for consideration by the State Department, it being understood that should the United States authorities decide to support a convention, their support and their assistance in the survey would be in no way tied to a particular plan of action and that these suggestions are made, therefore, merely in hopes of lessening delays which might otherwise result and in order to present the United States authorities with a concrete plan of action. The list of countries which Canada and the United Kingdom would put forth for consideration by the United States is as follows: Argentina (USA), Austria (USA), Belgium (USA), Bolivia (USA), Brazil (USA), Ceylon (UK and Canada), China (USA), Colombia (USA and Canada), Costa Rica (USA), Cyprus (UK and Greece), Dominican Republic (Canada), France (USA), Guatemala (USA), Holy See (USA and Italy), Honduras (USA), Iceland (USA and Canada), Jordan (UK and USA), Korea (USA), Lebanon (USA), Liberia (USA), Luxembourg (USA), Monaco (France), Nicaragua (USA), Nigeria (UK and Canada), Paraguay (USA), Philippines (Australia and USA), San Marino (Italy), Tunisia (USA and UK), Uruguay (USA), Vietnam (USA).

As soon as the approach to the United States has actually been made, the eighteen countries included in the preliminary survey will be informed in broad terms that its results were sufficiently encouraging to justify an approach being made to the United States, and that the United Kingdom and Canada were proceeding accordingly. France, Belgium and Norway will be informed at the same time.

It is hoped that the United States authorities will agree that on the basis of the preliminary confidential survey already conducted, it would be well worthwhile to undertake a united effort to determine whether sufficient additional support for a multilateral convention based on the “six-plus-six” Geneva formula can be obtained to warrant the opening of such a convention for signature in Ottawa at a future date.

If the United States authorities agree with the course proposed, then it is suggested that three-way talks be held as soon as possible to discuss the nature and timing of the next steps in the survey.

1. Source: National Archives and Records Administration, RG 59, Central Files 1960–63, 399. 731/5–1561. Secret. A May 16 covering memorandum from Frank A. Mau (S/S-RO) to Jac H. Bushong (L) requested that the Office of the Legal Adviser prepare a memorandum by May 26 to Under Secretary Bowles recommending a course of action. Earlier on May 15 Assistant Legal Adviser Yingling sent a memorandum to Acting Secretary Bowles advising him that Canadian Ambassador Heeney would deliver the Aide-Memoire to him at 6 p.m. Yingling recommended that Bowles tell Heeney “that the Department will carefully consider the results and the views of his government thereon.” (Ibid.)