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

498. Memorandum From the Deputy Assistant Secretary of State for Politico-Military Affairs (Kitchen) to the Special Assistant to the Under Secretary of State for Economic Affairs (Schaetzel)¹

Washington, December 7, 1961.

SUBJECT

• Law of the Sea

Tuesday at lunch we discussed briefly the Law of the Sea and the question of our adoption of a proposal made by the Canadians in May that we join them and the British in an expanded survey to ascertain the attitude of certain countries toward a multilateral convention embodying the provisions of the U.S.-Canadian Proposal made at the 1960 Geneva Law of the Sea Conference. This question has been discussed at length, both within the Department and with other interested Agencies. While opinion within the Department is divided, the other Agencies concerned are universally against our going along with the Canadian plan.

On August 26, Deputy Under Secretary Johnson advised L that he did not believe that there was a sufficiently clear balance of advantage to the U.S. to justify our joining in the Canadian proposal for a survey. He indicated, however, that should L desire further to pursue the matter, a memorandum submitting the question to the Secretary should be prepared.² L opted to submit such a memorandum and it went forward to the Secretary on October 11.³ As far as I know this is where the matter stands today.

In my opinion, and I think everyone would probably agree with this, the countries most likely to react favorably to representations aimed at a Law of the Sea accord would be those where there is the least clear advantage for the U.S., i.e., countries that can be expected to meet our high seas’ security requirements with or without a signed convention. Conversely, the countries least likely to adopt a Law of the Sea formula agreeable to our interests are precisely those countries whose acquiescence would hold the greatest advantage for us.

It is my understanding that the proposed convention would not constitute a rule of International Law, even if the maximum conceivable number of countries signed, since it would not be the product of an International Convention bound by established rules of procedure. It would be a simple contract binding only upon the signatories in their relationships with each other.

It seems to me that acceptance of the Canadian proposal would cast us in the light of sponsoring a treaty. This role, even if we were only required to deal with those countries that share our inclinations on the Law of the Sea would require a de facto expenditure of a certain amount of political capital. On general principle, such an expenditure should be made on the basis of demonstrable evidence of significant advantages which the U.S. could reasonably expect in return for its efforts. The burden of proof should be placed upon those who advocate favorable consideration of the Canadian plan.

The opposition’s case is stated in the attached letters of May 25, 1961, to Under Secretary Bowles from Deputy Under Secretary of Defense Gilpatric and of July 25, 1961, to Deputy Under Secretary Johnson from Assistant Secretary of the Interior Briggs.⁴ Representatives of the Departments of the Interior and the Navy have stated orally, in terms as strong as those appearing in these letters, their sentiments against our joining in the expanded survey. In response to these representations it was clearly indicated that, should the disposition of the Department of State be to accept the Canadian proposal, an opportunity would be given the other Agencies concerned to make a final statement of their views before we moved to implement our decision. Such consultation was deemed prudent in view of the categorical opposition of Defense, Interior and Navy to such a course of action.

1. Source: National Archives and Records Administration, RG 59, Central Files 1960–63, 399.731/12–761. Confidential. In an attached note, dated December 8, Schaetzel asked Special Assistant Arthur A. Hartman to “(1) find out what, if anything, George [Ball] has said or done on this subject; and (2) find out where the original October petition to the Secretary stands.” He added, “I am persuaded that Kitchen is right, namely, that this is basically a part of a vendetta between Yingling and the Defense Department.”
2. See footnote 2, Document 496.
3. Presumably a reference to Document 496.
4. Documents 490 and 494.