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

44. Memorandum of Conversation¹ ²

New York, September 1, 1976, 4:45 p.m.

SUBJECT:

• Roundtable Discussion on Committee I

PARTICIPANTS:

• US
• The Secretary
• Under Secretary Maw
• Under Secretary Vetter (Commerce)
• Under Secretary Frizzel (Interior)
• Ambassador Learson
• Mr. Katz
• Mr. Oxman
• Mr. Ratiner
• Mr. Gordon
• Mr. Loesch
• Ms. Wright (Notetaker)
• PERU
• Ambassador Juan Miguel Bakula
• Mr. Alvaro de Soto
• BRAZIL
• Ambassador Ramiro Saraira Guerreiro
• Mr. Sergio Martins Thompson-Flores
• MEXICO
• Ambassador Tello
• TUNISIA
• Mr. S. Belaid
• NIGERIA
• Mr. Justice Dan Ibekwe
• GHANA
• Ambassador K. Koranteng Addow
• UK
• Parliamentary Secretary Luard
• SENEGAL
• Ambassador Amadou Cisse
• SRI LANKA
• Ambassador C.W. Pinto
• CAMEROON
• Mr. Paul B. Engo (Chairman, Committee I)
• NORWAY
• Ambassador Helge Vindenes
• NORWAY
• Mr. Arne Treholt
• ARGENTINA
• Ambassador Listre
• CHILE
• Mr. Christian Maigueira
• Ambassador Gajarda
• NETHERLANDS
• Mr. P.H. Kooijmans
• Mr. W. Riphagen
• Mr. H.H.M. Sondaal
• JAMAICA
• Dr. Kenneth Rattray
• INDIA
• Ambassador Dr. S.P. Jagota

Amb. Learson: I want to welcome all of you and say that I am very happy that you are able to be here this afternoon. I would like to turn the meeting over to Secretary Kissinger immediately.

The Secretary: I very much appreciate the opportunity to meet with members of the First Committee. As I said to some Delegations this morning, one of my functions in being here is to provide an alibi for the US Delegation if no progress is made at this session. I think it is a sign of the confidence my associates have in me that several Departments in Washington have sent senior representatives, their Under Secretaries, to watch and prevent my giving away the store in just one session.

On several public occasions, I have pointed out the importance the US attaches to this Conference, not because we cannot operate without it—we can—but because it seems to us a unique opportunity to bring three-fourths of the earth’s surface under legitimate order, and is also significant for the manner in which we deal with each other in other areas. Of the three Committees, Committee II and Committee III are making progress. There are still unresolved issues, but that is not to say there are not practical solutions to those issues. It is Committee I where total unanimity has so far eluded us, if the reports of my Delegations are correct. As I understand it, there are three basic issues in this negotiation—access to deep seabed resources, Article 9, and the complex of issues involved in the Assembly and Council. Of these problems, the question of access is also closely connected with the possibility of an Enterprise. On my last visit, I had individual discussions with a number of those Delegations here and think it would be extremely unfortunate if this session ended with the appearance of complete deadlock, or indeed with the reality of deadlock. This result would give great impetus to the tendency toward moving in the direction of unilateral solutions, particularly in our country. I thought we might have a discussion here to see what are the issues. With your permission and agreement, I recommend that we deal with each individually. First, we can address the question of access and when we have settled that, we can deal with the other two. And when we have settled those, we can decide who will write it all out.

With respect to the question of access, we put forward or rather the revised SNT, which is strongly supported by the US, contains a dual, or parallel, access system. We know there are disputes about it, whether it is the way to go and as to its content. Frankly, for us, it would be very difficult to change that basic approach of a dual access system, but we are very open to ideas for meeting the concerns of many. I say this only so as to not to have it appear that the brilliant arguments against the dual access system which I am sure we will hear today fail to impact upon us. Each of us has limits beyond which we cannot go. This must be clearly understood by all, but we must each make the effort to go to the very limit of the possible in our positions. Having said this, perhaps we could begin with a discussion of the access system and perhaps the distinguished representative from Peru in Committee I, Mr. de Soto who has been Chairman of the Group of 77’s working group in that Committee, could commence. Would you like to begin, sir?

Mr. de Soto: Thank you, Mr. Secretary. Mr. Secretary, it is true that I sometimes speak on behalf of the Group of 77 in the first Committee, but I will not attempt to do so today. The issue of access is the main one—in fact it is the only issue that has been discussed this session. The main difficulty here is that the industrialized countries would like to have guaranteed access and this is interpreted by the Group of 77 to mean the almost automatic granting of contracts. The developing countries want to see an Authority which is clearly predominant in the Area in the sense of being the main operator. But they are also willing to allow, to clearly give to the Authority, the power to provide for access to States and private enterprises under the conditions which have been determined.

The Secretary: You mean the Authority would have the right to set the conditions?

Mr. de Soto: There would be basic fundamental conditions in the treaty, but then the Authority’s regulations would spell these out. It is the aspiration of the developing countries to give some discretion to the Authority concerning when to give preference to the Enterprise or to developing countries, and also to give it certain negotiating latitude in dealing with prospective contractors through setting the terms of their contracts. This question is tightly linked to the issue of building the Enterprise. The concept of a parallel system is that there would be equal opportunities on both sides of the system, but since the Enterprise does not have the wherewithal to engage in activities in the Area, it cannot enjoy opportunities on equal terms with States and private companies. The Enterprise must be able to have the same level of opportunity on equal terms. Another problem, if I may raise it here, Mr. Secretary, is linked to the Assembly and Council issue. It seems that some industrialized countries have a basic mistrust of the Authority and fear it will be dominated by developing countries. For this reason, they are not willing to grant the Authority the benefit of the doubt or to make the basic assumption that the prospective contractor will have rights to exploit the Area. We feel that the Authority has no choice but to grant rights to States and private enterprises. There is a strong presumption that it is in the interest of the international community to have the Area exploited and there can be no exploitation and, therefore, no benefits for the developing countries unless the minerals are recovered, and this requires giving rights to States and their nationals.

The Secretary: Since I have had no time to follow the nuances of this subject and because my Delegation doesn’t make it easy for me to do so—I think for fear that I might form opinions of my own—I’d like to clarify the issue. Are you saying that the parallel system in principle is acceptable, but there is disagreement about the nature of the parallel system? I believe the point of view I’ve heard is against the very concept of parallelism. What is the perspective you are speaking of?

Mr. de Soto: A parallel system ensuring almost automatic access for States and private companies as now appears in the revised SNT is not acceptable. The problem is that automaticity in the granting of contracts does not allow negotiating latitude to the Authority to ensure that appropriate terms are included in each contract.

The Secretary: It seems to me there are two ways to look at this problem. In the first, the Authority has the right to determine whether certain criteria, that is defined criteria in the treaty, have been met by the prospective contractor. The second is that the Authority has the right to negotiate in the form of some kind of competitive bidding for each situation.

Mr. de Soto: The Group of 77’s position, Mr. Secretary, is a combination of both approaches. There would be criteria and there would be power in the Authority to negotiate. With respect to the nature of this parallel system of exploitation, Mr. Pinto, from Sri Lanka, made a particularly lucid statement in the negotiating group this morning, and perhaps he can explain this better than I.

The Secretary: I would certainly like to hear the statement of Mr. Pinto, but first may I ask one more question? I can understand the desire for the Authority to negotiate the terms of exploitation if there is some doubt about whether the Enterprise will become functional. But why should this be a concern if the Enterprise is a functioning entity?

Mr. de Soto: You are assuming that the only objective of the Authority’s negotiation is to pump funds and other things into the Enterprise. That is not the case. There are other objectives, such as ensuring the maximum amounts of revenues.

The Secretary: But these revenues have to go somewhere.

Mr. de Soto: Oh, yes, but not only to the Enterprise. For example, there is provision for distribution to developing countries.

The Secretary: Would the representative from Sri Lanka like to speak now? I have never been able to repeat two lucid statements on the same subject, but perhaps he can excel me in this.

Mr. Pinto: I am not sure what aspect of my statement this morning the distinguished representative of Peru, Mr. de Soto, is referring to, but I will be happy to state my own views of the problems of the first Committee as clearly as I can. For some years, we have been studying the issue which is at the center of our discussion, that is, whether the parallel system is acceptable. Perhaps if I might elaborate, there are three types of parallel systems and this may be complicating our discussion. First, if you would not mind my characterizing it as such, there is your own parallel system with a notionally dominant Authority with a permanent and equal role for State enterprises and private enterprises in seabed exploitation activities. Second, there is a parallel system where the Authority is truly dominant and there is a permanent, but subsidiary and controlled, role for States and private enterprise. Third, there is the system with also a truly dominant Authority and with a subsidiary role for States and private enterprises, but on a temporary basis. In my view, those are the three types of parallel systems, and we do not have a single definition, and to further complicate the problem, connected with each of these goes the notion of access in a different way. There would be virtually automatic access under your system. Under the second type, we have regulations on the basis of objective criteria. And the third type involves virtually complete discretion in the Authority whether to allow access by States and private companies. Committee I is unable to focus on this central issue. Do the overwhelming number of delegations accept the parallel system, and if so, which kind of system? If we are talking about the first kind, that is a notionally dominant Authority, I do not think there would be enough agreement. I may be wrong, of course, but I do think we can accumulate sufficient support for the second type of parallel system. However, until we settle the question, it will be difficult to draft any provisions. With respect to regulated access, that is the second type of parallel system with objective criteria, which certainly would include protection for landbased producers...

The Secretary: I thought that the problem of production controls was contained in Article 9?

Mr. Pinto: For me, the question of producer protection is completely connected with the system of exploitation. The regulation of access would be devised so as to include measures to protect landbased producers. However, another reason for asking for regulated access concerns the ideological issues which are connected with the principle of the common heritage of mankind. The developing countries believe that this principle can only find expression through a strong Authority. So you see that the need for regulated access arises not only to give landbased producers protection, but also to accommodate ideological principles. It has been a great help, that is suggestions for the reservation of areas or what is sometimes called a banking system, have contributed greatly, as have the rumors that some of the developed countries are taking a general interest in setting up the Enterprise, to setting the stage for negotiations. But these proposals alone will not resolve the parallel system of exploitation. We must first focus on the basic issue.

The Secretary: May I ask a question for the purpose of my own education? When you say regulated access, does that exclude automaticity? Is negotiation inevitable?

Mr. Pinto: Yes, some form of negotiation is inevitable, if we are to have agreement.

The Secretary: I understand that limitations on production are conceptually introduced in Article 9. Are you thinking of other criteria for access in addition to those which are in the treaty?

Mr. Pinto: The question of automaticity is a difficult one. For instance, if I were to apply for a driving license in this country, and I am not sure that it would be possible for me to so apply, I presume I would have to take a test and there would be regulations designed to determine that I have passed that test. Now in a sense, this procedure is automatic, but in another sense, it is not; although I do not suppose in this country one can negotiate for such a permit. In any event, there are rules and objective criteria which must be met.

The Secretary: But to carry your example further, there is practically no discretionary authority in the issuing officer to argue about whether you get a license. At least in those countries where performance is judged by objective standards, if you meet those standards, you will receive the license. It is difficult to say that each enterprise must engage in competitive bidding in terms of criteria such as transfer of technology, or God knows what else, in which case it becomes indeterminate. Which idea are you thinking of? If the criteria are in the treaty and somebody determines if they have been met, that is reasonable. But if a negotiation is taking place beyond the limits of the criteria, that is something else again.

Mr. Pinto: As Mr. de Soto from Peru said, we are talking about both kinds. There would be objective criteria and objectively stated conditions that must be met.

The Secretary: So you are saying that meeting the objective criteria is the admission price to entering into negotiations?

Mr. Pinto: No, the criteria are more than that. For example, they would deal with the transfer of technology and also with the financial arrangements which would nevertheless have to be negotiated.

[Parliamentary Secretary of the UK Luard is called out of the room, commenting that he must meet with Amerasinghe.]

The Secretary: You see, you have already driven one of the industrialized countries out of the room.

Mr. Pinto: One last thing, Mr. Secretary. I do not want to leave the impression that these negotiations would be without parameters. There could be many things to limit their scope, but the Authority must be able and have the competence to negotiate.

The Secretary: Who would like to speak now, the distinguished representative of Senegal?

Ambassador Cisse: Mr. Secretary, during the work of Committee I, I was myself a beginner because I had been attached to Committee II and was more familiar with that subject matter. I was rather new to Committee I at this session and had to pose even more questions than you are asking now. I found that the most important question for the African Delegations was this difficulty with the parallel system. For most of us, there is a little bit of doubt that, if the parallel system exists, the Enterprise will be given the technology and financial resources necessary to make it function. This means that the parallel system must be parallel on both sides. Not only must we allow the Enterprise the right to function, but we must find a way to put the Authority in a position to undertake activities in the Area in a true, functional sense. I have seen a lack of faith among most delegations which doubt that, if the parallel system exists, only the other half, that is the half for States and private enterprises alone, will function and that the Authority will be left with maybe 5 or 10% capacity to function or perhaps none at all because it will have no technology. If there was real parallelism on both sides of access, it would be a big help.

The Secretary: If I may, I thought I might explain the American position since we may be heading for an impasse and there may be misconceptions about what we can and cannot do, perhaps certain doubts. With respect to this problem, I have given as much personal attention to the issues involved in the Committee I negotiations as to any other matter in the Law of the Sea Conference. I have consulted with members individually here and also held consultations in a number of capitals over the last several months on this subject. In addition to the technical problems, and believe the Representative from Sri Lanka is absolutely right that there is no agreement on what we are trying to do and this leads to technical arguments which then lead to conflicts. I believe that the perception of the developing countries is that the sea is a common heritage of mankind, and, therefore, they are granting a favor to industrialized countries to let us do anything there at all on a State or individual basis. This leads to the conclusion that access is something to be negotiated and gradually dispensed with. In addition, there appears to be very real concerns that now we are setting up something of indefinite duration which cannot be changed, and which permanently legitimizes the present de facto monopolistic position of one or several countries. There is a fear that having painfully achieved an agreement, there would be no change possible. This point was made to me forcefully and ably by the Ambassador from Mexico during bilateral discussions I held with them several weeks ago. And then there is the concern about the dual access system because only the part of it available to States may be used. This is essentially what I believe the Representative of Senegal was just saying.

To some in the United States, and I am not saying I am one of them, but merely want to state this perspective, the problem looks different. We have the technology, crudely speaking, and nobody can stop us from proceeding to mine the deep seabeds even without an international agreement. The United States can do that. And it looks to many in the United States that we have made considerable concessions in proposing the dual access system. To some of us, it looks as if the developing countries are saying: If you give us the technology and financing for the Enterprise, and if you then go out and find a good mine for the Enterprise, then we will give you a certificate to do what you are already empowered to do, provided that you don’t produce too much and that the terms of this agreement are acceptable to us. Those are two perspectives and beyond these two extreme views we have to find some solution, some common ground.

As far as the United States is concerned, and I think my colleagues will say that I am not the most difficult of the senior officials in Washington, we honestly cannot give up the parallel system. I have been asked questions by the press recently who say that some Delegations here believe that a change of Administration in the United States would mean better terms for the negotiations. Now in my personal judgment, and I don’t believe there will be a change in Administration, but in the unlikely event that there is, I do not believe that the politics in this country would permit a new Administration to make significant, conceptual concessions beyond what we are trying to outline today. In fact, the probability is that if there is the appearance of deadlock at the end of this session, the pressures to go unilaterally will become infinitely greater.

But here is a position I believe we can take: with respect to the question of the dual or parallel system of exploitation, it would be misleading if I gave the impression of any flexibility on the part of the United States. There is no flexibility on this point. I mean no disrespect to the views that have been expressed here, but this is a fundamental fact. With respect to the State or private enterprise part of the system, access should be substantially automatic. For the international side, we are impressed with the argument that the dual access suffers from the flaw that the Enterprise may not become operational, and second, that we are making permanent conditions for an evolving area of economics that none can now predict.

We have been thinking about these arguments and I am prepared to say that the United States will be prepared to work out a method of financing which ensures that the Enterprise is capable of going into business either simultaneously with the other side of the system or shortly thereafter. And we are prepared to define shortly after so that there can be no question of a loophole in the scheme. We will aim for simultaneously. I am not going to go into any of the specifics of this concept today. Once the general principles are accepted, we can easily find the financing. I think we can all agree that the capability for financing exists. Our negotiations will not founder on this point. We would be forthcoming to find a way to make the Enterprise functional.

The second area I mentioned is the fear that we are setting up a permanent system based on the temporary technical advantage of a few and that this system will then be in place for an eternity. We can accept the concept of periodic reviews to be negotiated in every 25 year period. If we consider that under the most optimum assessments, there will be no mining within the first 7 to 10 years, it can be seen that we are not talking about a permanent system of operation, but one that in practice would last no more than 15 to 20 years before a review conference is convened.

With respect to the financing of the Enterprise, and this is within the same matrix as our other comments, we would be prepared to discuss the transfer of technology to the Enterprise. We recognize that the financing of the Enterprise would not be effective unless consideration of the transfer of technology is also involved.

With respect to the question of production controls, we have made a significant concession under Article 9. I am not in a position today to argue the matter of percentages in that article on which I know there is a difference of view. The percentages in Article 9 represent our best judgment of what the economic factors will be. I would intend to spend no time on this subject this afternoon. It is sufficient to know that we have agreed to the concept of production controls.

Ambassador Learson: For an interim period.

The Secretary: Yes, for the review period. I have just indicated that the United States will be making a serious effort to put the Enterprise on an operational basis, to provide it money, put it in the position to acquire technology and have the capability to unilaterally engage in seabed mining activities. We are offering to put the Enterprise into business and to give it technology for the sake of achieving an acceptable treaty. The United States will acquire no commercial benefits from putting our business competitor into operation. If these concepts are acceptable, it may be possible to break the conference out of the incipient deadlock in Committee I and to begin to work toward possible resolution of the main issues. These proposals are directly responsive to the views expressed by Senegal. Would anyone like to respond?

Ambassador Boaten: Thank you, Mr. Secretary. I would like to thank you very much for having this meeting. It is an obvious indication of the concern you have for our work, and the fact that so many of us were ready to accept your invitation also indicates our concern. I can see that we have here two areas of mutual distrust. If somehow the assurance can be given that the Authority is really to be an international Authority seeking to provide for the interest of all States both the minority and the majority, we may eliminate some of our problems. But there is considerable mistrust that this will not be the case. On the side of the developing countries, there is also some mistrust concerning the manner of operation of the private entities that will exploit the international seabed Area. Perhaps this mistrust is being promoted by the experience of developing countries in the operation of these very entities within their territories. Between these two poles of distrust, we must proceed to negotiate. I do not think either side can be in a position to negotiate if these distrusts are not removed and satisfied. Our negotiation should be on how do you create that trust which make developing countries feel that exploitation undertaken in the Area will in fact benefit all mankind. On the part of the developing countries, they must assure the developed countries that they will not be prevented from exploiting the Area. The developing countries do see a need for seeing that exploitation takes place. If nothing is recovered from the Area, there will be no benefits and no use made of the common heritage of mankind. We realize that you possess the technology and that nothing can prevent US companies from starting unilaterally to exploit the deep seabed. I would like to say that in doing this you would be making a serious error. We should not be concerned solely with the present, but look at the, future and convince ourselves that certain unilateral actions do not always serve the cause of world peace.

The Secretary: I certainly agree with the end of your statement. That is why we are making a major effort to come to an agreement and make proposals which give us no commercial benefit at all. But if we could agree on regulations and norms for this area of common endeavor, it would be a significant contribution to world peace. But there is a certain point where, if it appears that agreement is not possible, regrettably another course may prevail. I believe you have said it well. There is distrust on both sides. Through guaranteed financing of the Enterprise and the concept of a review period, we intend to make a significant step toward meeting these concerns. But we cannot agree in addition to a negotiation on the other side that is so open-ended as is sometimes discussed.

Ambassador Boaten: May I ask a point of clarification? When you say you do not envision negotiation concerning exploitation by States and companies, are you saying there will be no contracts?

The Secretary: No, the Authority would be in full control on both sides of the exploitation system. But with respect to the State and private enterprise half of the system, certain criteria would have to be established in the treaty and the Authority’s functions would be closer to the example that was raised about the driving test than to negotiations conducted in each case individually. The Authority’s primary responsibility would be to determine whether the criteria had been met.

Minister Ibekwe: I appreciate your providing for this opportunity, Mr. Secretary. I confess that an apparent deadlock has been repeatedly called to my attention in Committee I. It is imperative that we find an answer to this problem, and my Delegation and myself have been considering the matter at length. Sometimes it seems more difficult to reconcile the irreconcilable. In other words, sometimes the way out may be another solution. The idea of parallel access has not been so clearly defined, and the problems which attend it are widely admitted and accepted. We have spoken of mistrust. Why should it be that in creating the Authority which is supposed to represent all of mankind, in the same role as a trustee to a beneficiary, are we now at loggerheads? I suggest, I urge upon you to think about why we do not take the line of least resistance. We might provide that the Authority in all cases get into a joint venture with the State applying to prospect. This idea of joint ventures may be able to accommodate our problems.

The Secretary: Are you speaking of a joint venture between the Authority and the miners? There would be no dual access system at all? I am trying to understand your proposal. Does it mean that every mining operation would be done through a joint venture?

Minister Ibekwe: The issue of participation does not matter to me at the moment. I think we should look at the broader context. A joint venture approach would take care of many problems. For example, the transfer of technology. The anxiety about this subject would be wiped out immediately because the transfer would be gradual; it is implicit in the system. The question of access could also be dealt with effectively because the Authority as the trustee of all of us would participate in every venture. Once the stated conditions have been filled by the miner, the Authority will naturally grant its permission or license to prospect. This approach also takes care of the mistrust and suspicion on the part of developing countries that because they lack technology, they are unlikely to apply, and therefore cannot participate in the activities. Joint ventures of this nature sound fair and equitable to all.

The Secretary: If I understand you correctly, everything would be done by a joint venture. There would not be one part of the system for States and another part for the international organization.

Minister Ibekwe: Now that depends on the issue of participation.

The Secretary: What do you have in mind?

Minister Ibekwe: I think we should avoid conflict since the Authority also has regulatory power. The percentage of its participation should not matter, although many Delegations would say that it should have the majority share. They would raise this problem. We should all recognize that it is the prospective miner who has the financial resources, the technology and the know-how necessary for the venture to proceed. Therefore the prospective miner should be in control, and the Authority should have regulatory control and a share of the profits; and at the end, any additional revenues provided for by the Authority’s tax. To my mind, this approach would be less controversial than the parallel system.

The Secretary: I have not yet understood your approach.

Minister Ibekwe: Hypothetically speaking...

The Secretary: Yes, hypothetically.

Minister Ibekwe: Hypothetically, you may give a 51%/49% arrangement. Fifty-one percent to the miner who will invest the capital and provide the technology.

The Secretary: That is the answer to my question, whether there would be majority control in the Authority. Now your argument is that since the Authority is a regulatory agency, it does not need majority control. This is a new proposal that I haven’t studied and would like to think about. We will look at it carefully before giving you our considered reply.

Mr. Engo: I find myself in a difficult position. On the one hand, I have been invited to this meeting in my capacity as the Chairman of Committee I, and thought as befits the role of Chairman, I would listen to all of the statements given and then give you my views at the end of the discussion. However, I find that I cannot divorce myself from my role as the representative of the Cameroon and, therefore, from among the African nations, and from following the preoccupations of the developing countries. I want to thank you for your kind invitation to this discussion and also for the frankness with which you have expressed your position. It is clear to me as Chairman, the type of problems we have to grapple with here today. It appears from what you have said that there is, in fact, a great conflict of perspectives as to the nature of the negotiations. You have made it clear that as far as the United States is concerned, the United States and other industrialized countries have the capability to exploit the resources of the seabeds beyond the limits of national jurisdiction. I think that is the language that I have seen used in many of the newspapers recently. And you say that from that standpoint, others must see that you have made tremendous concessions to even agree to negotiate a treaty on the deep seabeds. I hope that what I have inferred is the wrong impression, Mr. Secretary.

It is the impression of African nations that this problem had to be resolved in the Seabed Committee and was resolved when we decided to adopt there certain principles. As a result of this effort, all nations agreed, I believe there was one which did not accept it, to a Declaration of Principles for the seabed beyond the limits of jurisdiction in which the resources and the Area were proclaimed to be the common heritage of mankind. I think the developing countries have been going on the basis that the international community as a whole are now seized of the property of these resources. The purpose of this Conference is to see how we can all profit by them.

We had to face the reality that the know-how, technology and financial capabilities were in the hands of a few and that we were asking them to make its available to mankind as a whole. The developed countries, believe that for that sacrifice, certain concessions must be given to them. They are saying that discrimination must be provided in the treaty to enable the technologically advanced to have a special association with the Authority over and above the rest. This is a different premise from that held by the majority of nations. If this is indeed your thinking, then we must reach a consensus. Are you operating on the basis of the Declaration of Principles or on the basis of practical realities.

Also, there is a different perspective as to the nature of the Authority. The Authority is not simply the developing countries assembled, but includes the entirety of humanity. Even if special rights are to be given to those few with technology, they will still have the right to participate in activities through the Authority. We would not want to see the Authority dominated by developing countries. It is for all of us.

My distinguished colleague from Ghana has presented the long-term view of things, but some of you have read and some may have forgotten that the young countries have been the subject of history itself, of a painful history and that this still underlies our approach to these problems. I still believe that we should now clarify our perspective. The United States is in a unique position, not only because of its riches but because of its experience over the last 200 years in overcoming the difficult problems of growth and succeeded. You are in a far better position to lead the world than the rest of us. With respect to the system of access, you have said that you are prepared to guarantee that the Authority will operate. You, in fact, have given your personal assurance that you, Mr. Secretary, as the United States in your person, are prepared to examine means to strengthen the Authority. But on the other side of the exploitation system, problems arise. Should we leave that side of the system entirely for those States who are in a position to do it now, and you have said and I accept that only the United States is in this position at the moment? If one accepts the concept of the common heritage of mankind, and the need to encourage exploitation of the resources of the Area, perhaps we can get away from the nomenclature and find conditions conducive to exploitation so that mankind may benefit from peace in the Area.

I apologize, but I have been told that this meeting would conclude at 6 o’clock and I have another appointment to which I must go.

[Mr. Engo leaves the meeting.]

The Secretary: I would like to make it clear that it is not in fact our position that the mere fact that we are willing to negotiate is a concession. By proposing the mechanism of the dual access, financing of the dual system and finally a review, we are making a major effort to meet the concrete concerns of the developing countries. Would the representative from Norway wish to speak?

Ambassador Vindenes: I have listened with great interest to the new ideas you have presented, Mr. Secretary. I will not comment on my views as to whether they are sufficient to bridge the gap we find in our Committee, but I do believe you have made a constructive contribution to trying to find solutions. With respect to the question of automaticity and discretionary powers in the Authority, I believe our difficulties may be due to the fact that we are dwelling too much on abstractions. Between the two sides, there is more a difference to degree than of principle, because on the one hand, even under the proposals submitted by the Group of 77, the Authority is not free to act on an entirely free and arbitrary basis. It has to apply the convention and all of the applicable rules and regulations. I believe this point has also been raised by Mr. de Soto of Peru. It is a question of the application of the convention and the rules and regulations adopted under the convention to each concrete project.

On the other hand, even under the United States position, there is a strong element of discrimination because the Authority in dealing with prospective miners would have to apply generally objective criteria, but there would be an element of interpretation. Obviously, in any case the Authority would have to have sufficient discretion to interpret the international guidelines on such subjects as the size of the mining block, the duration of the contract, the production control limit, and the financial regulations. It has been pointed out that one reason why the Authority must be free to negotiate is for it to seek to optimize the benefits to mankind. But even in that case, it would be a question of applying financial regulations. The degree of discretion which the Authority will exercise will in fact depend on all of the rules of the convention and all of the applicable rules and regulations that the Authority will adopt under the convention.

I do not believe we should be absorbed with automaticity. We are now trying to negotiate the details of the system of exploitation, but it seems to me that the question of access faces us in every article—not just Article 22, but in Article 9 and in all of the issues related to the functioning of the international machinery. The question of access depends on the outcome of all of these negotiations. We should try to focus on the texts and not attempt to place in them clear-cut answers to our problems.

The Secretary: I appreciate your statement. We would be prepared to explore to see if the approach you have outlined could lead to a solution on automatic access.

Mr. de Soto: I am extremely intrigued by the concrete proposals you have presented, Mr. Secretary. They are, indeed, worthy of study. I note, however, that you have not mentioned the United States position on the question of the Council and look forward to learning your views on that issue.

The Secretary: Yes, I am glad you raised that. We would like to circulate unofficially a new proposal for the membership and decision-making of the Council. We are anxious to have your comments before we proceed to introduce formally the article. You will be receiving our proposal informally in the next several days and we would very much like to learn your views.

Mr. de Soto: I confess I am somewhat attracted to your proposal on the periodic review of the provisions of the treaty. I have a specific question concerning the fear which...

The Secretary: It would be a review of Part I of the Convention, not the entire treaty.

Mr. de Soto: Yes, Sir. I understand that. But I heard you make a linkage earlier between Article 9 and the concept of the review. Are you considering a blanket review of Part I or would it be limited to the economic implications issue?

The Secretary: We have in mind a review of the system of exploitation and that would include the provisions on production controls.

I find myself in the embarrassing position that I have invited you all to a reception which is supposed to commence shortly and where it would not be polite for the host not to be present.

I see we have reached no final conclusions today. We will certainly examine the ideas put forward by the Representative of Nigeria and by Norway. But within the framework that we have so far discussed, I want to point out the United States cannot change its approach to dual access as I have defined it. We are able to make a major effort to give the Enterprise significant and operational capability, practically concurrent with other operators. And we believe that a review clause in the treaty may permit us to look at the situation again when the technological advantage of States may be more equalized. But we will look to the different approach contained in the Nigerian proposal to see if it could be a way out of our dilemma.

In conclusion, I would like to say that we are reaching the limits of what the United States can give in these negotiations. Beyond that point, there is a grave danger that things such as we have discussed today will be seen by many people as providing the basis for no agreement and a road will have to be taken that no one wants to take. So, if I could urge all members to look again at the negotiating situation in the First Committee in light of the new proposals which I have presented to you today, we can agree to look at the proposal of Nigeria to see if it could be a way out. I would hope that our goal would be that by the end of this session, or during the next two and half weeks, we will see emerging in the First Committee not the final solution to its many problems, but at least a basic understanding on the premise which must form the basis of our negotiation on the system of exploitation. Thank you.

1. Source: National Archives, RG 59, Central Foreign Policy Files, P820121–0651. Secret; Nodis.
2. Kissinger and other members of the U.S. delegation discussed UNCLOS III issues with a roundtable of representatives from other states.