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

53. Action Memorandum From the Deputy Secretary of State (Robinson) to Secretary of State Kissinger¹ ²

Washington, November 22, 1976

LOS Strategy

We have a responsibility to make productive use of the intersessional period, prior to January 20, to pursue the LOS objectives and policies of this Administration. We should, of course, avoid taking major policy initiatives or making commitments that would preempt the options of the next Administration.

In this memorandum we seek your approval of a basic strategy, on which we would build an interagency consensus, as general guidance for both consultations with other governments and determination of our positions on specific terms of the proposed treaty.

In shaping our strategy, we must take into account the sharp divisions among nations engaged in this multifaceted negotiation, the great difficulty of achieving international agreement on a comprehensive treaty protecting all of the affected U.S. interests, and the likely Senate judgment of the treaty that might emerge from this negotiation. Our strategy must dispel the illusion that we need a treaty more than any other country. We should line up support for our positions without appearing so eager as to invite pressure for compromise on contentious issues.

General Strategy

The foregoing considerations suggest the following key elements of a general strategy:

1. We should reaffirm and work toward the goal of a comprehensive LOS treaty but be prepared to exploit any realistic opportunities for advancing toward early agreement on a limited treaty establishing satisfactory international law on issues of greatest concern to U.S. security and maritime interests. (Not having determined the costs of obtaining agreement to a limited treaty omitting deep seabeds exploitation, we should not at this time advocate splitting off deep seabeds from the other LOS issues.)

2. The latter interests should be pursued in parallel actions designed to strengthen customary international law in the event that a treaty cannot be attained in the near future.

3. Similarly, our efforts to achieve a satisfactory treaty governing exploitation of the deep seabeds (including participation in both legislation and international negotiation efforts) should be designed to enhance our bargaining power as to the terms of the treaty as well as to protect our economic and strategic interests in the event of failure to reach agreement on a treaty.

4. While actively pursuing through international consultation the goal of early agreement on a treaty or treaties, we should make clear and specific the fundamental principles on which we will not yield in order to reach agreement.

Central to this overall strategy is the pending U.S. Government decision on the design and tactical use of U.S. legislation on U.S. mining of the deep seabeds. This paper assumes that the President will adopt a seabeds legislation option along the lines you have endorsed, i.e., the Administration should (1) take the public position that it will support legislation of an interim nature that does not grant exclusive mining rights to a particular area, seek to defer enactment pending the outcome of the next session of the Law of the Sea Conference; (2) work with Congress to shape legislation of a purely interim nature, with provisions for its being superseded by an LOS treaty, the legislation should assert the right of US companies to mine the seabed out not anticipate obligations of an LOS treaty, with the exception of revenue sharing.

Committee I Strategy

1. Consistent with the overall strategy, we should take a firm position that we cannot accept an international seabeds mining system that does not provide assured access, based on established preconditions, for our mining companies to deep seabed resources. Discussion of other economic issues in the definition of an international regime governing exploitation of the seabeds, such as production controls, anti-dominance provisions, or financing of the international enterprise, should be subordinated to acceptance of this basic principle.

2. We should obtain interagency agreement on the terms and control of U.S. seabeds legislation and use the leverage of unilateral action to attempt to gain increased acceptance by other governments of our position on access and, later, other provisions of the draft treaty.

3. We should mount an educational campaign to disabuse LDCs of the illusion that a rich bonanza is about to be plucked from the seabeds by mining companies of the United States and other industrial nations. It should be made widely known that the value of the “common heritage of mankind” represented by deep seabed minerals can only be realized if profit can be generated from their extraction, processing, and sale. It is yet unclear that such value exists based on current technology and market factors.

Committee II Strategy

1. We should work out promptly between State and Defense mutually satisfactory language on the high seas status of the Economic Zone. The formula should protect the U.S. interest as a maritime power with global security responsibilities while offering prospects of negotiability.

2. We should obtain G-5 and German agreement to this formula as the primary steps toward establishing a pre-Conference agreement on this and related Committee II issues.

Committee III Strategy

1. In intersessional consultations with other governments, we should stick with our present position on the major unresolved issue, the extent of coastal state control over marine research in the Economic Zone.

2. We should continue consultations with the U.S. scientific community on the research issue.

Specific Issues

Current U.S. Government positions on specific issues other than seabeds legislation are summarized in the attached draft paper. Further review of these positions may be required after the early rounds of intersessional consultation.

RECOMMENDATION
That you approve the LOS intersessional strategy outlined above.

APPROVE [HK initialed]
DISAPPROVE __________

1. Source: National Archives, RG 59, Central Foreign Policy Files, P760189–1838. Confidential. Drafted by Poats (D); and cleared in the LOS Planning Group. At the top of the first page notation in an unknown hand reads, “Interagency consultations are already underway. Robinson would appreciate confirmation you are in agreement with strategy laid out below.” Kissinger initialed his approval and noted “Make absolutely clear that there is to be no further give in Committee I.” Attached but not published is the 62-page paper, dated November 3. Legislation to enable U.S. companies to proceed with seabed mining had been introduced in previous sessions of Congress, the most recent being the 1976 Deep Seabed Hard Minerals Act (S. 713). No bill had been enacted by the close of the Ford administration and it was not clear what provisions might be included in legislation likely to be introduced in 1977.
2. Robinson outlined a basic strategy for future UNCLOS III negotiations.