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

31. Memorandum From the President’s Assistant for National Security Affairs (Scowcroft) to President Ford¹ ²

Washington, June 14, 1976

SUBJECT:

• Report on the New York Session of the Third United Nations Conference on the Law of the Sea

In response to NSDM 320, Acting Chairman of the NSC Under Secretaries Committee Joseph Sisco has forwarded you a report on the third substantive session of the United Nations Conference on the Law of the Sea held in New York from March 15 to May 7, 1976 (Tab B). The main points of the report are as follows:

Principal Developments at the New York Session

Although the New York session did not produce formal agreement on the articles of a treaty, additional progress was made toward reaching a comprehensive oceans treaty as reflected in the revised single negotiating text distributed at the conclusion of the session (Tab C). This includes:

• —continued informal agreement on a 12-mile territorial sea, a 200-mile economic zone with broad coastal state jurisdiction over the living and non-living resources of the coastal margin areas, free and unimpeded transit of straits used for international navigation, and a reasonable archipelago regime.
• —significant movement toward the U.S. position on the regime for the deep seabed, although a number of major difficulties remain to be resolved in this area of the negotiations.
• —satisfactory provisions on marine pollution control.
• —development of a compulsory dispute settlement text which generally meets U.S. objectives.

With respect to the future work of the Conference, the decision was taken —after considerable U.S. “lobbying” with the lesser developed countries (LDC’s)— to convene a six week negotiating session this summer in New York from August 2 to September 17. This session is important to maintaining the current momentum in the Conference and is vital if we are to be successful in reaching agreement on an oceans treaty by mid-1977—a principal U.S. goal. As an indication of the importance we attach to attaining this goal, Secretary of State Kissinger announced on April 8 that at your request he will lead the U.S. Delegation to this summer’s negotiating session.

Issues

There are a number of important issues that remain to be worked out during the present intersessional period and at the negotiations this summer in New York. Principal among these are:

• —the degree of coastal state jurisdiction over marine scientific research conducted in the 200-mile economic zone by third parties. Many developing countries strongly support a legal regime for such research which would require the consent of the coastal state.
• —the right of free navigation through the 200-mile economic zone. The current negotiating text gives the economic zone a “non-high seas” character, with potential problems for our security interests.
• —the nature, scope, structure and function of the new international organization-dealing with the resources of the deep seabed—principally, the manganese nodules—beyond national jurisdiction.

The most difficult of these unresolved issues is the structure and functions of the new international organization for deep seabed mining. The U.S. objective in the negotiations on the deep seabed is to obtain a system which guarantees non-discriminatory access by U.S. firms to deep seabed minerals under reasonable conditions coupled with security of tenure, and with fair and reasonable rate of return on investment to deep seabed mining operators. Within this framework, we have sought to accommodate the often conflicting interests of all Conference participants—particularly the lesser developed countries.

Until recently, the U.S. position on the regime for the deep seabed differed greatly from that of the lesser developed countries (LDC’s). Many developing countries in the Group of 77 have been seeking a strong international organization, with broad discretionary powers. Under this concept, individual states and their nationals would in effect be excluded from deep seabed mining Operations, except under the most stringent and unattractive conditions.

During the most recent negotiating session, we managed to achieve a number of important changes in the negotiating text which favor U.S. interests in this area. Accordingly, our basic interests in the deep seabed continue to be safeguarded. A number of the LDC’s, however, believe that the revised negotiating text is a “sell-out” of their interests in the deep seabed and are beginning to push hard for an overturn of the compromises developed at New York. One of our principal objectives in the period ahead will be to ensure that the LDC’s are not successful in this effort.

Intersessional Issues

Pressure continues to mount, both in this country and abroad, for unilateral action to protect individual strategic and economic interests in the oceans in the absence of an international agreement. The recently enacted 200-mile fisheries bill is an example of this trend. Additionally, the Metcalf Murphy unilateral oceans mining legislation has been introduced in the Congress —hearings were held on the measure in both Houses in May. The Administration’s position with the Congress has been to urge deferral of action on the legislation until after this summer’s negotiating round, at which time we will consult further with the Congress on ways best to achieve U.S. deep seabed mining objectives. In the Senate, the Armed Services and Commerce Committees have ordered the deep seabed mining bill reported, without making a recommendation for or against approval. The Foreign Relations Committee has submitted an adverse report on the measure. Most sources indicate there is little likelihood of full Senate action this session due to the heavy legislative calendar and weak constituent pressure for enactment. In the House, the measure is not expected to be reported out of committee during this session.

In this intersessional period, the NSC Under Secretaries Committee should be tasked to identify any recommended changes to the current instructions to the U.S. Delegation to the UN Law of the Sea Conference, for use at this summer’s negotiating session at New York. This will permit the views of all concerned agencies to be heard in the review process. With your approval, I will sign the memorandum to the Chairman, NSC Under Secretaries Committee at Tab A requesting the submission of any recommended changes to the instructions by July 12, 1976, for your consideration.

RECOMMENDATION

That you approve the memorandum at Tab A for my signature to the Chairman, NSC Under Secretaries Committee.

APPROVE _________
DISAPPROVE ___________

1. Source: Ford Library, William Seidman Files, Box 75, Law of the Sea. Secret. Sent for action. A signed copy of Tab A is in the National Archives, RG 59, Central Foreign Policy Files, P760110–0509. Tab B was not attached to this document, but a copy is in the Department of State, S/SI Files: Lot 83 D 290, NSC Under Secretaries Committee Miscellaneous Memoranda (1972–1977), 1976. Tab C is published as UN Document A/CONF.62/WP.8/REV.1. NSDM 320 is published as Document 25. For Kissinger’s speech, see the source note of Document 27.
2. Scowcroft summarized a report on the March 15–May 7 (New York) UNCLOS III negotiating session.