Foreign Relations of the United States, 1969–1976, Volume E–3, Documents on Global Issues, 1973–1976

3. Memorandum NSC–U/DM–109 From the Chairman of the National Security Council Under Secretaries Committee (Rush) to President Nixon¹ ²

Washington, July 11, 1973

Subject:

• July/August 1973 Preparatory Meeting for the Law of the Sea Conference

Pursuant to your request of June 22, 1973 for a review of the recommended United States position for the July/August 1973 preparatory meeting for the Law of the Sea Conference, a meeting of the Under Secretaries Committee was held on July 9, 1973. The principal focus of the meeting was the economic components of our law of the sea policy, particularly economic issues concerning continental margin resources and the structure of the International Seabed Resource Authority. It had been agreed prior to the meeting that on other issues with an economic component, such as revenue sharing and the protection of the marine environment, there was ample flexibility to alter positions at a later date if warranted.

The Committee recommended approval of the instructions contained in the June 1, 1973 report of the NSC Interagency Task Force on the Law of the Sea at the earliest possible date subject to the understandings in this memorandum. The July/August meeting is now underway and approval of the instructions would enable the U.S. delegation to pursue present policies while maintaining maximum flexibility. It was understood that such approval would not prejudice our future ability to revise our positions, if necessary, pursuant to consideration of the results of a comprehensive review of our law of the sea policy. Failure to pursue our present course during the July/August meeting on the other hand, could seriously prejudice our ability to realize our present policies in these difficult negotiations. It was agreed that the delegation may submit draft articles in Geneva as necessary but that the submission of draft articles would not preclude a change in the United States position if such a change were agreed at a later date as a result of a subsequent comprehensive review.

The Committee also agreed that a comprehensive review of the economic issues raised in the Law of the Sea negotiations should be undertaken by the NSC Interagency Task Force on the Law of the Sea under the direction of the Chairman of the Under Secretaries Committee. Such a study will be commenced as a matter of priority and will be submitted by the Task Force to the Chairman of the Under Secretaries Committee by December 1. A comprehensive report taking into account all relevant factors including political, legal, security, economic, environmental and scientific factors as well as negotiating strategy will be submitted to the Chairman by February 1. I will forward the results of this overall review to you in conjunction with recommended instructions for the Santiago Conference.

During the discussion it was understood that United States willingness to accept a licensing system is subject to the acceptability to the United States of (a) the rules governing the issuance of licenses and (b) the structure of the international authority. The United States position on licensing thus depends on development of suitable rules and a suitable structure. It was understood in this connection that rules and structure which would be “suitable” would be those making licensing “nondiscretionary”; that is, the rules and structure would be such that if the applicant conformed to the rules or conditions, specified as part of the treaty agreement, the Seabed Authority could not deny a license, but would have to grant the license as a ministerial act, not a discretionary act. The examination of present positions concerning suitable rules and structure with development of new recommendations, if necessary, will thus be an important part of the comprehensive economic review.

It was also understood that the United States should seek in these negotiations to obtain an outer limit for the coastal seabed economic area of 200 miles or the edge of the continental margin, whichever is further seaward, and that the delegation may decide how best to obtain this objective.

Kenneth Rush
Chairman

1. Source: National Archives, Nixon Presidential Materials, NSC Files, NSC Institutional Files (H-Files), Box H–241, NSDM 225, LOS Preparatory Conference. Secret.
2. The Under Secretaries Committee recommended approval of instructions for the July–August Law of the Sea preparatory conference, with the proviso that concerns about economic issues raised by the Department of the Treasury required further review.