Attached is a Memorandum prepared by the Inter-Agency Task Force on the
Law of the Sea in accordance with NSDM
177 of July 18, 1972. The Memorandum contains recommended instructions
on the law of the sea item for the United States Delegation to the 27th
United Nations General Assembly. A report on the July-August meeting of
the U.N. Seabed Committee prepared by the Task Force is attached to the
Memorandum. The Memorandum is being concurrently submitted to the
various agencies for formal clearance.
Attachment
NSDM 177: Law of the Sea and the
27th U.N. General Assembly
The President directed in NSDM 177
that the Inter-Agency Task Force on the Law of the Sea report on
developments at the July-August United Nations Seabed Committee
meeting and submit recommended instructions on the law of the sea
item for the United States Delegation to the U.N. General Assembly.
The Task Force Report describing the summer meeting is attached. The
recommended instructions follow.
Introduction
The current law of the sea negotiations began in 1967 with the
formation of a U.N. committee to establish an international regime
for the seabed beyond national jurisdiction and a joint U.S.- Soviet
initiative with other countries to obtain international agreement on
a 12-mile territorial sea and a right of free transit through and
over international straits. These negotiations are now at a key
juncture.
In 1970, the 25th U.N. General Assembly decided in Resolution 2750C
to convene a Law of the Sea Conference in 1973 and charged the U.N.
Seabed Committee with preparing it. The Seabed Committee held its
fourth preparatory session this summer. The forthcoming General
Assembly is responsible for reviewing the preparatory work and is
authorized under the terms of the 1970 resolution to postpone the
Conference if it finds the progress of the Committee’s preparatory
work to be insufficient. Since the President’s Oceans Policy
Statement of May 23, 1970, the U.S. has strongly urged an early date
for the Conference. We originally favored 1972 but went along with
1973 when this matter was discussed at the General Assembly two
years ago.
The basic question to be decided by the 27th General Assembly is
whether a conference will or will not be convened in 1973 as
scheduled. Accordingly, the primary issue presented for decision in
this memorandum is what position the U.S. should take at the General
Assembly regarding the timing of the Law of the Sea Conference. The
General Assembly is expected to begin consideration of this item in
November.
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The 27th General Assembly will also have to decide the questions of
the location and agenda for a conference. Chile and Austria have
each offered to host the Conference. With regard to the Conference
agenda, the Seabed Committee this summer adopted a list of subjects
and issues which is expected to be the basis of an agenda.
The issue of invitations to the Conference may be raised at the 27th
UNGA. The USSR may insist that East Germany be
invited to the Conference, as it did in the case of the Stockholm
Environment Conference, and this could seriously disrupt
consideration of the law of the sea item. However, on the basis of
our discussions with the FRG, we
believe that if the inner-German talks, which are now in progress,
are concluded successfully before the German elections scheduled for
mid-November then a formula for West and East German participation
will probably be found. We are continuing to discuss this issue with
our allies.
Background Regarding the Timing of a
Conference
Without repeating the contents of the attached report, it is
important to note that the summer meeting was marked by more serious
substantive work and greater commitment to moving the negotiations
forward than at any time in the Seabed Committee’s prior work. Some
progress was made on refining national positions and narrowing
differences on some important questions of substance, but the
negotiation of treaty articles has barely started. By the end of the
summer, competing treaty texts had been tabled on issues such as the
territorial sea, straits, fisheries, economic zone and seabeds.
There seems to be little doubt after the summer’s meeting that a Law
of the Sea Conference will take place. Nearly every nation
represented on the Seabed Committee shared the view that a
conference should be held as soon as substantive preparations
permit, but there was virtually no support within the Committee for
beginning a substantive conference next year. A few countries, most
notably Peru and Ecuador, still made some attempt to delay progress
in the negotiations. Their attitude and tactics found very little
support among the other members of the Committee, including other
Latin American States.
Several delegations expressed reservations as to whether the progress
of preparatory work to date justified a decision by this fall’s
UNGA on a date for convening a
conference. The French delegate argued that discussion of a
conference
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date was
premature and expressed doubt that the Seabed Committee could within
a year provide the Conference with an adequate working basis to
ensure its success. The French view was explicitly endorsed by Peru,
while Ecuador made similar arguments. The Soviet Union consistently
stressed the need for further preparatory work to resolve the major
substantive issues, but did not express a definite public position
on the timing of the Conference. The Soviet Representative indicated
privately that in his view it may be desirable to have a clear
agreement on the general outline of the treaty before the formal
Conference is held because the USSR
might be outvoted at the Conference. To a lesser extent, the UK and Japan reflected concern over the
lack of progress in the substantive preparations. However, the
UK did not address the question
of timing, and Japan publicly expressed the hope for an early
conference. Apparently, the Japanese lean toward fixing a firm date
for the substantive Conference in early 1974.
Some Latin Americans have urged pre-agreement on an outline of a
final Law of the Sea settlement. The U.S. has approached this idea
cautiously because of our concern that the outline might not hold
firm, might encourage further demands at a conference, might
encourage delay or simplistic solutions, and generally might be less
favorable than a settlement reached at an early conference. Our own
approach has been to narrow and refine the areas of disagreement to
a minimal number of major issues which can be dealt with at the
political level at the Conference, and thus in concept does not
allow the firm predictability the Soviets contemplate. At the same
time, the U.S. has emphasized that a final law of the sea settlement
would have to accommodate certain basic U.S. Oceans Policy
objectives.
With respect to the timing of a conference, members of the U.S.
Delegation representing the petroleum, seabed minerals, and fishing
industries strongly favored beginning the substantive sessions in
1973 and, at the latest, in 1974. This view has been endorsed by
other industry members of the Law of the Sea Advisory Committee as
well as members from the legal, academic, and scientific
communities. Some specific arguments which these representatives
made for holding an early Law of the Sea Conference are: the need to
proceed with major investments in deep seabed mining, preferably
regulated by an internationally agreed regime; the need for
international agreement on straits to discourage unilateral action
by straits States to regulate traffic
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through important international straits; and
the need to head off unilateral coastal State pollution control
restrictions on navigation and restrictions on the conduct of marine
scientific research.
A majority of delegations which spoke at the summer meeting regarding
the convening of a conference reacted favorably to a suggestion made
first by Norway and Chile and endorsed by Committee Chairman
Amerasinghe and the U.N. Undersecretary for Legal Affairs
Stavropoulos. This proposal for action by the 27th UNGA contemplates two more preparatory
sessions of the Seabed Committee in 1973, totaling thirteen weeks,
followed by a brief organizational meeting of the Conference during
or immediately prior to the 1973 28th General Assembly in New York
for the purpose of naming officers for the Conference and
establishing the committee framework for the Conference’s work.
Although the Conference would have formally begun in 1973,
substantive work would begin in early 1974 at a time and place
decided by the 27th General Assembly.
One, largely psychological, advantage of the Norwegian-Chilean
proposal is that strictly speaking the timetable set in Resolution
2750C for convening a conference in 1973 would be met. In addition,
thirteen weeks of additional preparatory meetings would take place
under the pressure of a forthcoming full-scale diplomatic
conference. This pressure could improve the chances for making
greater progress in preparation because States would be encouraged
to make necessary political decisions. It would also be possible to
hold inter-sessional working group meetings to advance preparations
for the substantive Conference in 1974.
On the basis of the above, the 27th General Assembly will in all
probability be faced with choosing among three alternatives for the
timing of a Law of the Sea Conference.
First, it could decide that the preparatory work had been
insufficient to justify calling even an organizational conference in
1973, and that it is too early to fix any date for a conference.
Therefore, a decision should be postponed until the 28th UNGA. This decision may be sought by
France, Ecuador and Peru, and possibly the Soviet Union. (The
Soviets and others may use the issue of inviting all states to the
Conference as a lever in delaying a decision on a conference
date.)
Second, the General Assembly could adopt the Norwegian-Chilean
formula. Preliminary indications at the summer Seabed Committee
meeting were that this approach
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would find considerable support in the
General Assembly. A possible compromise was indicated by Brazil in
making clear that it would go along with a resolution setting a
definite date in 1974 for a conference but only if the resolution
included a “condition subsequent,” allowing a future General
Assembly to reconsider the decision and, if appropriate, establish a
new conference schedule.
Third, the General Assembly could set a firm date in 1974 for the
Conference to begin, without a prior organizational meeting. The
first few days of the 1974 meeting would be devoted to
organizational questions. The Japanese appear to favor this
approach.
The U.N. Seabed Committee has until now operated under a rule of
consensus. At the Law of the Sea Conference, under normal procedural
rules, a two-thirds vote would be necessary for the adoption of
treaty articles. Accordingly, the principal risk in setting a
specific conference date is that most major law of the sea issues
are so contentious that if they are put to a vote prematurely, the
Conference could fail or the U.S. could be outvoted on important
issues. On the other hand, in the view of the Departments of State,
Commerce and Interior, the principal risk in delaying the Conference
is that unilateral claims and other trends could prejudice U.S.
interests in using the oceans and the ability to achieve a widely
accepted international agreement. The recommendations which follow
are designed to balance these risks by providing for specific
conference dates coupled with the opportunity for further
preparatory work and review of the situation by next year’s General
Assembly if necessary.
Recommended Instructions
- (1)
- The United States Delegation should support at the 27th U.N.
General Assembly a resolution fixing a specific date and place
for the Law of the Sea Conference, with two substantive sessions
in 1974. The resolution should indicate that the first session
would be the beginning of substantive work in the Conference,
and the second would
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be for the purpose of completing the law of the sea treaty and
opening it for signature.1
- (2)
- The U.S. Delegation should also support the inclusion of a
provision in the resolution for an opening session of the
Conference, primarily devoted to organizational matters and
general debate, in the fall of 1973. This objective should be
secondary to obtaining specific dates in 1974 for the beginning
and end of substantive work.
- (3)
- Since the substantive sessions of the Conference would not
begin until 1974, the 28th General Assembly could postpone it
without having any specific authority to this effect in a
conference resolution. Nevertheless, in the opinion of the Law
of the Sea Task Force, a broad measure of support for a
conference resolution setting specific dates is very unlikely in
the absence of an escape clause, along the lines of the
provision in the 1970 U.N. General Assembly’s conference
resolution (2750C), permitting next year’s UNGA to postpone the Law of the
Sea Conference if it determines that the preparation has been
insufficient. Accordingly, the U.S. should support the inclusion
of such a clause in the conference resolution.1
- (4)
- The U.S. Delegation should also support inclusion in the
conference resolution of an accelerated schedule for the work of
the Seabed Committee in 1973. In this connection, the resolution
should express the General Assembly’s desire to expedite
preparatory work, specifically directing the Seabed Committee to
arrange for such inter-sessional meetings and work as may be
necessary to meet the conference deadline.
- (5)
- With regard to conference site, we believe this issue to be
secondary in importance to the achievement of an acceptable
formula on conference dates and to the intensification of
substantive preparatory work. Our preference is for the
substantive sessions of the Law of the Sea Conference to take
place at the permanent U.N. facilities in Geneva. Accordingly,
the U.S. Delegation will work actively to obtain support for
this position and will, in any event, try to bring about a
situation in which the Conference would be held in a place other
than Santiago, Chile. However, the U.S. Delegation will not let
its position with regard to any particular site stand in the way
of supporting an otherwise satisfactory conference resolution if
that site obtains wide support in the UNGA and offers adequate conference
facilities.
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LAW OF THE SEA TASK FORCE
REPORT OF THE JULY-AUGUST
1972
UN SEABED COMMITTEE MEETING
(Geneva 3844, August 18, 1972, sent to all diplomatic posts)
1. SUMMARY. The 91-member UN Seabed
Committee (SBC) met in Geneva July 17-August 18 for its fourth
preparatory meeting for 1973 LOS
Conference. The most important development came at the end of the
session with final agreement on the comprehensive list of subjects
and issues which should permit the Committee to proceed at the next
meeting with negotiations on all issues before the SBC, including
straits and resource issues. The Subcommittee I Working Group,
dealing with basic articles on the seabed regime, began work on
treaty drafting. The US Del worked
closely on this with French, UK,
USSR, and Japanese reps to
coordinate tactic and positions. The Committee agreed to entrust the
Same Working Group with preparing draft articles on seabed machinery
and organization. Subcommittee III established a working group to
draft treaty articles on marine pollution but the working group held
only organizational meetings. The US
circulated a revised draft fisheries article incorporating
modifications of US fisheries policy
announced at the February-March meeting. The US gave policy statements on security and resource
objectives, international standards for navigational safety in
straits and congested areas, marine pollution and marine scientific
research. Kenya circulated draft articles on an exclusive economic
zone giving the coastal State exclusive rights over resources up to
200 miles. Generally, this meeting exhibited more constructive
dedication to substantive work and a better cooperative spirit than
prior sessions. Success in negotiating the comprehensive list of
issues caused increased optimism with respect to the possibility of
a successful LOS Conference which
could begin with at least an organizational meeting in the fall of
1973. This cable summarizes developments at the July-August session.
END SUMMARY
