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

51. Memorandum From Denis Clift of the National Security Council Staff to the President’s Assistant for National Security Affairs (Scowcroft)¹ ²

Washington, October 16, 1976

SUBJECT:

• Law of the Sea

The summer session of the UN Law of the Sea Conference ended in mid-September with the retention of the same Revised Single Negotiating Text (RSNT) that had been produced in the spring session. The United States thus succeeded in repulsing attempts by the developing countries to do away with proposals for the dual access system for seabed minerals but failed to make any important progress on other outstanding conference issues. Because of this failure, we believe it will be extremely difficult to counter mounting Congressional pressures for domestic seabed mining legislation by asking for a delay until the outcome of the next LOS session scheduled for May 1977. In addition, the March 1, 1977 effective date for the 200-mile fishery zone legislation is fast approaching while bilateral negotiations with countries fishing in our zone are running into snags. I have drafted this memorandum with a view to pulling these various threads together as we prepare for law of the sea developments of 1977.

The memorandum includes:

• —a review of the results of the summer session of the conference;
• —a memorandum for your signature to the President forwarding and summarizing the report of the U.S. Delegation to the conference (Tab I);
• —a memorandum for your signature to the Chairman, NSC Under Secretaries Committee acknowledging the report and requesting the submission of any recommended changes to the instructions prior to the 1977 intersessional meeting and formal session of the conference (Tab II);
• —a memorandum for Jeanne Davis’ signature to State requesting a spreadsheet on the major issues in the conference (Tab III);
• —a memorandum for your signature to the Chairman, NSC Under Secretaries Committee requesting the Law of the Sea Task Force to develop, on a contingency basis, legislative options for deep seabed mining legislation (Tab IV). The current State paper on this issue is at Tab V.

The memorandum also includes (at Tab VI) a status report on amendments being developed to solve some of the major problems still to be found in the Fishery Conservation and Management Act of 1976.

A. Review of the Conference

The summer session of the LOS Conference floundered on the ideological issue of access to seabed minerals. By the end of the third week of negotiations, the Group of 77 had agreed to amendments to the RSNT which would deny the U.S. guaranteed access to these minerals. Progress on other Conference issues was slow while this debate continued. In retrospect, the Conference failed to produce the desired results because:

• —many members of the Group of 77 believe the U.S. will still make major concessions on the mineral access system to preserve other U.S. LOS interests, especially if there is a change of Administration;
• —moderates in the Group of 77 were undercut because Mexico divulged the existence of the Secret Brazil Group, which drafted parts of the RSNT and because the short intersessional period did not give them enough time to solidify their position; and
• —the emerging acceptance of unilateral 200-mile zone declarations by major fishing states and new landlocked country demands reduce the attractiveness of a multilateral treaty for many coastal states.

Secretary Kissinger’s proposals during the fifth week of the Conference to provide financing for the seabed mining operations of the Enterprise and to review the system of exploitation in about 25 years did create a better negotiating atmosphere but conditions for the negotiations next May are likely to be only marginally better. The major contentious issues will remain:

• —the regime for seabed mining;
• —the legal status of the economic zone; and
• —the consent regime for marine scientific research.

Regime for Seabed Mining. During the recent negotiating session, the United States fought to protect dual access provisions of a Revised Single Negotiating Text which still has major flaws in other areas and is unacceptable to the Administration. To be successful during the next session, U.S. negotiators must not only continue to protect the dual access system but must:

• —sell the idea of concentrating the International Seabed Authority’s power in a Council which is controlled by the U.S. through weighted voting;
• —avoid revisions to the RSNT on production control provisions (Article 9) already agreed to by the United States;
• —prevent state quotas on the number of available mine sites; and
• —agree on a method of dispute settlement which reasonably protects assurances of guaranteed access.

Plans for the May 1977 Conference would have these issues resolved during the first five weeks of negotiation so that the Conference can make judgments on the text in plenary session. To try to meet this timetable, U.S. negotiators will use financing of the Enterprise as a bargaining chip to gain guaranteed access. The likely U.S. proposal—financing similar to the multilateral development banks—will not be seen as generous by most developing countries and as a result will not be a weighty chip. As a result, several U.S. negotiators— including Ambassador Learson—are now considering equity joint ventures between U.S. mining companies and the Authority as an alternative to guaranteed free access. Learson intends to discuss this concept on October 18 with the Board Chairmen of several prospective mining firms. Since the concept would involve case-by-case negotiations between the Authority and U.S. firms, the Board Chairmen are unlikely to be enthusiastic.

Legal Status of the Economic Zone. Of the three major outstanding Conference issues concerning the economic zone— its high sea status, the rights of land-locked states, and the continental shelf beyond 200 miles—only the first is of immediate concern to the United States. The RSNT would establish an economic zone which is neither territorial sea nor high seas but sui generis. Such a zone could quickly degenerate into a de facto territorial sea with coastal states seeking to assert control over naval operations of other nations. As presently drafted, the text is unacceptable to the Defense Department, which under existing NSDM authority, has veto power on this issue. During the final days of the recent negotiations, various formulae emerged which showed promise of being acceptable to the United States, and most U.S. negotiators are relatively sanguine about settlement of this issue during the May 1977 session. Defense and State are planning a series of meetings to draft alternative treaty texts which the U.S. could in turn have tabled by friendly delegations. We will continue to monitor these State-Defense talks and to require proper interagency clearance.

Consent Regime for Marine Scientific Research. The United States has opposed a coastal state consent regime for marine scientific research except in cases where the research is related to marine resources under coastal state jurisdiction. The RSNT, however, contains a full coastal state consent regime with an agreement by coastal states not to withhold consent, except under certain circumstances. Unfortunately, the circumstances listed in the RSNT are so broad that a coastal state could prevent any scientific research project in its economic zone. During the recent session, the Soviets agreed to the RSNT language, and as a result any major changes will be difficult. While the U.S. Delegation will hold to its current position, existing instructions will allow it to accept a more reasonable version of the RSNT’s consent regime.

It is therefore likely that a full consent regime for marine scientific research will emerge from the May 1977 negotiations and at best the U.S. may be able to reduce the circumstances under which the coastal state could withhold its consent. The Defense Department is likely to agree to this formulation if we can get agreement on the high seas status of the economic zone. Defense now argues that the RSNT definition of marine scientific research—studies which are designed to increase mankind’s knowledge of the marine environment—does not pertain to naval ASW research.

Ambassador Learson’s Report to the President. In accordance with NSDM 336, Ambassador Learson has prepared a report to the President on the August-September negotiating session (at Tab A with cover memorandum from the Chairman, NSC Under Secretaries Committee). Learson is essentially hinting at the need in 1977 for increased negotiating flexibility to “adjust” the U.S. seabed mining position. A more detailed delegation report for the President’s information is at Tab B. The memorandum for your signature to the President at Tab I would summarize Ambassador Learson’s report and forward it along with the Delegation report.

Next Steps. The delegation is preparing for the May 1977 negotiations by resolving interagency differences on the outstanding issues and by conducting intersessional talks including a Group of 5 meeting in November and informal multilateral seabed mining talks in February 1977. We have suggested to State that it would be helpful to have a report which would show the exact status of each major Conference issue. The memorandum for your approval from Jeanne Davis to C. Arthur Borg at Tab III would make this request formal. The memorandum for our signature to the Chairman NSC Under Secretaries Committee at Tab II would advise that the President has reviewed the Delegation’s report and would direct the Chairman, NSC Under Secretaries Committee to submit any recommended changes to existing instructions for review prior to the intersessional negotiations and the May 1977 session of the Conference.

B. Domestic Seabed Mining Legislation

Senator Metcalf will again introduce his seabed mining legislation when Congress convenes in January. Because of the re-emergence of the RSNT at the end of the August-September LOS session, support for some unilateral legislation is likely to be strong in the Congress. We have already received letters from Senator Metcalf and 19 colleagues and from Senator Harry Byrd criticizing the text.

At our request, State has produced a draft options paper on seabed mining legislation (Tab V), which provides the following alternatives:

• #1: Oppose United States unilateral deep seabed mining legislation at the present time.
• #2: Support interim legislation of a limited nature.
• #3: Support the Metcalf Bill.
• #4: Support interim legislation with benefits tied to draft LOS treaty elements.

State has not yet recommended an option. We believe that Option #1 would be unwise if Congressional support for legislation is strong. The Metcalf Bill (Option #3) includes unacceptable provisions, including authorizing claims for U.S. citizens to specific seabed mine sites, insurance against claim jumping, and financial guarantees against provisions of any future treaty that are inconsistent with the legislation. Option #4 would be difficult to draft and would probably tie the hands of U.S. negotiators. We believe that Option #2, at present, appears to be the best course of action but that more information is needed regarding Congressional support for the Metcalf Bill.

The next step, however, is development of a formal options paper by the Chairman, NSC Under Secretaries Committee with interagency views attached. The memorandum for your signature at Tab IV would request such a paper by December 1, 1976. The memorandum also restates your earlier position that individual agencies refrain from discussing the legislation with Congress until the Administration has taken a position on the legislation. This will prevent Interior and Commerce from taking their jurisdictional dispute to the Congress. The key, in my opinion, is to get the Executive Branch coordinated in its thinking on the language of contingency legislation, before the Congress acts—so as to avoid a repeat of the situation we faced in ′75–′76 with the fisheries legislation.

C. Amendments to the Fisher Conservation and Management Act

On August 31, we asked the State Department to provide us with a possible list of amendments to the Fishery Conservation and Management Act to make that act consistent with international law and to remove other undesirable provisions. The President had earlier indicated in his signing statement that such amendments might be forthcoming. State has provided us with a preliminary list of issues which might require amendments and has stated that interagency cleared legislative options would be prepared by December 1 (Tab VI). State’s list includes:

• —shortcutting the Congressional review process for fisheries agreements signed too late to meet the March 1, 1977 deadline;
• —removing mandatory import prohibition provisions;
• —amending provisions establishing exclusive U.S. management authority over anadromous species (i.e., salmon) beyond our 200-mile zone;
• —modifying imprisonment provisions for violation of the act; streamlining permit application procedures; and
• —amending language “directing” the Secretary of State to engage in certain negotiations.

As a legislative options paper is being prepared, no action is required by you at this time.

Cathie deSibour concurs.

RECOMMENDATION

1. That you sign the memorandum for the President at Tab I forwarding the report of the U.S. Delegation.

2. That you sign the memorandum to the Chairman, NSC Under Secretaries Committee at Tab II acknowledging the report and request the submission of and changes to the instructions prior to the 1977 sessions.

3. That you approve the memorandum at Tab III for Jeanne Davis’ signature to C. Arthur Borg requesting a tabular report on the status of major LOS issues.

4. That you sign the memorandum for the Chairman, NSC Under Secretaries Committee at Tab IV requesting policy options and coordinated interagency views on seabed mining legislation.

1. Source: Ford Library, National Security Adviser, NSC Europe, Canada, and Ocean Affairs Staff, Box 58, General Subject File, Ocean Policy, 1976 (18). Secret; Sensitive. Sent for action. The tabs have not been found. For a copy of Learson’s report see Ford Library, National Security Adviser, NSC Europe, Canada, and Ocean Affairs Staff, Box 58, General Subject File, Ocean Policy, 1976 (16). NSDM 336 is published as Document 38. In the same file is an October 21 memorandum from Scowcroft to the Under Secretaries Committee requesting a review of the most likely outcomes of Congressional seabed mining initiatives during 1977 and the development of legislative response options taking into account the positions of interested Executive Branch agencies.
2. Clift reviewed, for Scowcroft, the August 2–September 17 (New York) UNCLOS III negotiating session, outlined the preparatory steps to be taken prior to the May 1977 UNCLOS negotiations, and recommended course of action pertaining to domestic seabed mining and fisheries legislation.