Foreign Relations of the United States, 1969–1976, Volume E–2, Documents on Arms Control and Nonproliferation, 1969–1972

124. Memorandum From Helmut Sonnenfeldt of the National Security Council Staff to the President’s Assistant for National Security Affairs (Kissinger)¹ ²

Washington, September 29, 1969

SUBJECT:

• New US Proposal on Seabeds Treaty

Attached at Tab A is a copy of instructions to Geneva outlining a new compromise worked out by State, ACDA and Defense. In effect, it buys one-half of the informal Soviet suggestion to move the negotiations off dead center. It leaves ambiguous the most contentious issue, that of defining territorial waters, but rejects the idea of unilateral Soviet declaration renouncing any intention to use its “historic waters” in violation of the treaty.

Our last position defined the zone of exclusion as measured from the low-water mark to the “outer limit of the contiguous zone,” in effect 12 miles. The Soviet position was defined as 12 miles measured from the “baseline” used by coastal states.

We now propose that the outer limit of the contiguous zone shall be measured “from baselines drawn as specified in the 1958 Geneva Convention… and in accordance with international law.”

The reference to the Geneva Convention is intended to satisfy the Soviets, because the Convention does refer, ambiguously, to claims to historic waters.

The phrase “in accordance with international law” is intended to save our position if and when problems arise in interpreting the excluded zones particularly if the Soviets draw their base lines to exclude their “historic” waters from treaty coverage.

We intend to tell the Soviets that if they act “inconsistently” with the treaty, we will have to invoke the withdrawal clause.

Chances are the Soviets will accept this approach. If, however, they attempt to pin down an understanding that their claims are thereby recognized, then it is likely the treaty will founder.

ACDA proposed five alternatives to handle this issue (Tab B), and Defense accepted the approach now proposed (Tab C). Judging from the memorandum from Nutter to Farley, Defense will not go much further, and ACDA is not pushing for recognition of Soviet claims.

Unfortunately, if we cannot agree with the Soviets soon, the Committee will adjourn and the other members of the Committee will take the issue into the UN, where we may have a nightmare of proposals.

All things considered, as long as we have gone down the road of these negotiations as far as we have, the proposed approach is probably the one we will have to follow. Later, the Congress may raise some thorny questions and we may face problems with the USSR. ACDA proposes to initiate early briefings and discussion in the Congress once the treaty seems on the tracks. Given the basic decision to negotiate a treaty and the initial US compromise accepted this summer, there seems little alternative to proceeding on the proposed approach.

The other points in the cable to be prepared are non-controversial.

RECOMMENDATION:

That we clear the cable.

Approve [HK initialed]
Disapprove

Attachment
Memorandum From the Executive Secretary of the Department of State (Eliot) to the President’s Assistant for National Security Affairs (Kissinger)

Washington, September 29, 1969

The attached telegram on the Seabeds Treaty has been approved by Secretary Rogers and by Gerry Smith subject to the President’s concurrence. If he concurs, Gerry will want to consult with a few key Senators before the instruction is sent.

Attachment
Telegram From the Department of State to the Mission in Geneva, the Mission to the North Atlantic Treaty Organization, and the Embassy in Japan

Washington, September 29, 1969

SUBJECT: Seabeds Treaty

You should make following presentation to Soviet Co-Chairman as soon as possible.

1. Our proposal, presented to Soviet Co-Chairman Sept 15 was designed to assure equitable balance of obligations and we continue to believe that any effective and durable arms control measure must reflect this key provision of 1961 Joint Statement of Principles.

2. Having in mind the provision of paragraph 2 of. Art II (on which we believe there already is agreement) we propose formulation for para. 1 of Art II as follows: “For the purpose of this Treaty the outer limit of the contiguous zone referred to in Article I shall be measured from baselines drawn as specified in the 1958 Geneva convention on the Territorial Sea and the Contiguous zone and in accordance with international law.” The formulation is designed to facilitate international agreement on a significant arms control measure which would be responsive to Article VI of the NPT, but which would not prejudice the existing rights or claims of potential parties to a seabeds treaty with respect to waters whose juridical status in international law is in dispute.

3. As Soviet Govt is aware, US does not accept claims asserted by Soviet spokesmen or writers in past regarding marginal waters off Soviet coasts. Thus we are adopting the provisions of the Geneva Convention as the basis for drawing baselines for the purposes of this treaty, with understanding that, where there is any question as to how that Convention should be applied, or as to situations that are not clearly covered by that Convention including disputed waters of any description such as waters claimed on the basis of so-called “historic title” or under an archipelago theory of baselines, the baselines shall be drawn in accordance with international law. We will use baselines drawn in this manner to determine the area in which the treaty applies, and to govern our behavior under the treaty. If other parties act inconsistently with the treaty as so understood and if consultations between the parties concerned are unavailing, US might have to go so far as recourse of withdrawal from the treaty.

4. We have carefully noted suggestion that Soviet Govt might make statement to effect that USSR would not violate purposes of treaty on seabed underlying disputed waters. However, US Govt believes that it would better serve our mutual interest if no statements are made affecting the coverage of seabeds with respect to disputed waters, because statements would require counter-statements.

5. Regarding Soviet objection to our omission of preambular reference to further negotiations on complete demilitarization of seabed, you should say US does not envision possibility Of negotiating such an agreement except in context of GCD. You authorized accept informal suggestion of Deputy Chief Sovdel (para 3, Geneva 3352) as separate preambular paragraph or to combine it with third para of US Sept. 15. proposa1 as follows:

“Convinced that this treaty constitutes a step towards the exclusion of the seabed, the ocean floor and the subsoil thereof from the arms race, pursuant to a treaty on general and complete disarmament under strict and effective international control, and determined to continue negotiations to this end,”

6. If Soviets continue to object, you authorized to delete word “specifically” from Art I (1) in US Sept. 15 proposal.

7. Regarding point raised informally in paragraph 3 of Geneva 3329 you may say, if it is raised again, that emplacement or emplanting of nuclear mines or seabed would be prohibited.

8. US Govt has had difficulty in reaching decision over problem presented by claims of various states, including USSR, to marginal waters which US regards as high seas. We hope the Soviet Govt will agree rapidly to tabling a draft treaty recommended by the Co-Chairmen. We are prepared to do so subject to the views of our allies.

9. After making above presentation you should inform Western Five plus Japan of presentation and, in your discretion, initial Soviet reaction. You should inform allies that we believe our position is consistent with what we believe represents interests of our allies and assume that if Soviets agree to table seabeds on basis of our compromise suggestions, there will be no objection. However, we plan NAC consultation as soon as warranted and would appreciate expression Japanese views through Japanese CCD del.

10. FOR USNATO: You should send letter to NATO dels drawing on above on same day presentation made to Soviets. You should coordinate with Ambassador Leonard in Geneva on exact timing. You also should say we would like NAC “green light” to table Co-Chairman draft before CCD as soon as possible. For this purpose you should indicate that if Soviet response favorable, we would seek special NAC meeting on October 3.

11. FOR TOKYO: You should fill in Fonoff soonest on above and say we hope GOJ will not object to our tabling draft treaty at CCD if Co-Chairmen agreement reached.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 381, Subject Files, Seabeds Vol. I, May 1970. Secret; Limdis. Sent for urgent action. Kissinger initialed “Approve.” A handwritten notation on the first page reads, “Watts informed.” The attached telegram was repeated to USUN, Moscow, and London. Tabs B and C are Documents 121 and 123.
2. Sonnenfeldt forwarded for Kissinger’s approval draft instructions to Geneva outlining the compromise reached by State, ACDA, and Defense on territorial waters.