Foreign Relations of the United States, 1969–1976, Volume E–1, Documents on Global Issues, 1969–1972

351. Memorandum From Robert Osgood of the National Security Council Staff to the Senior Military Assistant to the President for National Security Affairs (Haig)¹ ²

Washington, July 23, 1969.

SUBJECT:

• Law of the sea, etc.

In extension of my remarks and my memo yesterday:

1. The differences between DOD and State on the fisheries conference, although they arise from differences of priority, now take the form of seemingly fine and esoteric points of language concerning U.S. negotiating positions at the CEP conference. In the final analysis they must be resolved by skilled draftsmen willing to reach a compromise. The chances are, this morning, about 85% that McKernan’s ad hoc committee can agree to a positions paper.

2. It is doubtful that the Under Secretaries Committee can facilitate the process of agreement at this stage of the game. The delegation leaves for Buenos Aires on July 28.

3. Nevertheless, the HAK memo to Richardson has proved to be a great incentive toward compromise. All members of McKernan’s committee prefer to resolve their differences in committee rather than at a higher level. All interpret the memo to mean that the formulation of negotiating positions should go to the Under Secretaries Committee only if there arise conflicts involving differences of priority that cannot be resolved in the ad hoc committee.

4. Although the delegation will leave with agreed language, the interpretation of that language in the give-and-take of the conference will inevitably raise again differences of view within the delegation.

5. Since the surveillance of the Under Secretaries Committee will at that time no longer exist, and since McKernan will be authorized to sign an agreement without the concurrence of the President or HAK, there is a real prospect that the vicissitudes of bargaining in Buenos Aires and/or compromises among the principals in Washington (who are unfamiliar with the intricacies of the issues between a law of the sea treaty and a fisheries agreement) will produce a treaty that HAK and his staff have not seen let alone approved in terms of the criteria of HAK’s memo.

6. To guard against this possibility the easiest and most proper solution would seem to lie in my suggested memo from HAK to the Acting Executive Secretary of State.

The delegation’s knowledge that HAK will get a chance to see the treaty before it is signed by McKernan will inert the same beneficent effect toward constructive compromise within our delegation that the prospect of review by the Under Secretaries Committee has exerted upon the drafting of the U.S. negotiating positions. It would greatly reduce the prospect that disagreements in Buenos Aires would have to be referred back to Washington.

If nonetheless, by some unlikely chance, HAK found himself in the position of disagreeing with State on the wisdom of McKernan’s signing the treaty, he would be in a position to call the Under Secretaries Committee to resolve the difference.

The request that HAK see any agreement before it is signed seems perfectly proper and not unusual. After all, the President has a right to qualify his delegation responsibility for signing agreements. Moreover, the request is consistent with the spirit and intention of HAK’s memo to Richardson and can be regarded as a practical implementation of that memo in the absence of any meeting of the Under Secretaries Committee on the fisheries dispute.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, NSC Institutional Files (H-files), Box H-253, Under Secretaries Study Memoranda, U/SM 50-54 [1 of 3]. Confidential. Published from an uninitialed copy.
2. Osgood explained the current state of Executive Branch interagency negotiations concerning Peruvian fisheries policy. He also suggested that the President’s Assistant for National Security Affairs Kissinger have the opportunity to examine any resultant bilateral agreement before it was signed.