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

54. Briefing Paper Prepared in the Bureau of Oceans and International Environmental and Scientific Affairs at the Department of State¹ ²

Washington, undated

LAW OF THE SEA, INCLUDING IMPLEMENTATION OF THE 200-MILE LIMIT LEGISLATION AND FISHERIES MANAGEMENT

The advance of technology and increases in population, economic development and world trade have contributed to expanded use of the oceans, and created serious problems for U.S. economic and security interests in the oceans. The traditional law of the sea and customary uses of ocean space are undergoing a rapid change, creating a climate of instability and conflict. These changes are not simply legal but rather stem from rapid expansion of oceans uses which have brought, for example, depletion of certain fisheries stocks, serious marine pollution and conflicts over the use of clogged waterways. In addressing these problems, the United States has pursued its national oceans objectives in a variety of ways, including conclusion of bilateral and multilateral fisheries agreements, various environmental treaties, and participation in multilateral fora dealing with oceans matters. The most important U.S. initiatives have come in the Third United Nations Conference on the Law of the Sea, now in its third year; and in our unilateral declaration in April, 1976, of a 200-mile fisheries and conservation zone, and subsequent negotiations to implement it internationally.

LAW OF THE SEA CONFERENCE

Current State of the Issue

The Third UN Conference on the Law of the Sea has provided for a focal point for international efforts relating to oceans issues. These negotiations address issues, relating to national security, resource, environmental and scientific concerns, and are among the most important currently underway. The purpose of the Law of the Sea Conference is to achieve widespread international agreement on rights and duties of states in the oceans.

After four substantive sessions, the Conference has produced, but not formally agreed upon, draft negotiating texts that provide for:

• —a maximum 12-mile territorial sea
• —free transit of straits connecting two parts of the high seas
• —a 200-mile economic zone in which the coastal State controls living and nonliving resources and has certain other rights regarding economic installations, scientific research, and pollution control; and in which all states enjoy freedom of navigation, overflight, laying of cables and pipelines, and other uses related to navigation and communication
• —coastal State control of seabed resources of the continental margin to its outer edge, coupled with a duty to share some revenues with the international community from mineral exploitation in the area beyond 200 miles traditional high seas freedoms in the waters and airspace beyond 200 miles
• —an international regime and organization regarding mining of deep seabed minerals (manganese nodules containing significant quantities of manganese, nickel, copper and cobalt) seaward of 200 miles and the outer edge of the continental margin
• —a system for binding settlement of disputes arising under the treaty.

The fourth substantive session of the Conference ended in mid-September in an impasse, mainly over differences on deep seabed mining issues. The Conference has reached the stage where many delegations are weighing the benefits and losses of a treaty against no treaty.

The next session will begin in late May, 1977. Other action-forcing events currently scheduled before the critical meeting include consultations with the Group of Five (US, UK, France, Japan, USSR) in December, and perhaps twice more before May. Starting on February 28, 1977, an important multilateral consultation, sponsored by the influential Norwegian, Jens Evensen, will attempt a resolution of the deep seabed access problem.

The major outstanding issues of concern to us are:

• —the economic zone. (a) We prefer the legal status of the zone to be high seas, while most others want it to be a sui generis zone that is neither high seas nor territorial sea. A few would prefer it to be a territorial sea; (b) We wish to preserve the maximum freedom for marine scientific research (consent to be required by the coastal State, only with respect to resource-related scientific research and drilling), while most states want discretionary consent powers by the coastal state for all scientific research in the economic zone; and (c) We want compulsory dispute settlement procedures to apply broadly to disputes concerning the economic zone, but particularly to exclude fisheries disputes.
• —the deep seabeds. This issue is the major obstacle to conclusion of an LOS treaty. We are seeking (a) assured access for states and private companies to the mineral resources of the seabeds, under reasonable non-discretionary conditions; and (b) an international seabed resource organization which has a decision-making body (Council) in which we have influence commensurate with our economic position. U.S. mining companies lead in developing deep seabed mining technology. The developing countries are seeking a powerful international organization with fairly large but undefined powers which can control access to seabed resources, and in which the supreme powers are in an Assembly composed of all signatory states.

Current U.S. Policy

The most basic U.S. oceans policy is to continue to pursue a comprehensive, widely acceptable LOS Treaty which will protect our wide range of ocean interests.

As the LOS negotiations move into their third year, we are concerned that, although the number of major issues which must be resolved in order to achieve a satisfactory LOS Treaty has been reduced to a handful, divisions remain sharp. For our part, we must achieve satisfactory resolution in the LOS Conference of questions relating to the legal status of the economic zone and the degree of coastal state control over pollution and marine scientific research in the zone, as well as issues surrounding the deep seabed mining question and compulsory settlement of disputes. Other nations demand satisfactory resolution of issues critical to them, such as access by landlocked nations to the sea and the rights of landlocked or geographically disadvantaged states to exploit the resources of the economic zone.

It is current U.S. policy to pursue existing objectives and policies during intersessional meetings, but to avoid taking major policy initiatives or to make commitments that would preempt the options of the new Administration. However, any decisions to change our approach will have to be made quickly in the new Administration in order to be implemented prior to the next session of the Conference. In the intersessional period, we will reaffirm and work toward the goal of a comprehensive LOS treaty, but be prepared to exploit realistic opportunities for advancing toward early agreement on a limited treaty dealing with all major issues other than deep seabeds. We have not determined the costs of obtaining agreement to a limited treaty omitting deep seabeds exploitation and therefore will not initiate efforts to split off deep seabeds from the other LOS issues. Such an attempt, if it became known, could result in retaliation by others against our other interests in the Conference.

Our current strategy is to continue efforts to achieve a satisfactory overall treaty through actions designed to enhance our bargaining power as to the terms of the treaty as well as to protect our economic and strategic interests. In pursuing our strategy, we will attempt to strengthen customary international law along lines favorable to us in the event that a treaty cannot be attained in the near future. Specifically:

• —While actively pursuing, through international consultation, the goal of early agreement on a treaty or treaties, we will continue to make clear and specific the fundamental principles on which we will not yield.
• —On deep seabed issues, we will take a firm position that we cannot accept an international seabeds mining regime that does not provide assured access, based on established preconditions, for all qualified operators to deep seabed resources.
• —We will mount an educational campaign to disabuse LDCs of the illusion that U.S. companies are going to reap windfall profits from deep seabed mining.
• —We will work out between the Departments of State and Defense mutually satisfactory language on the high seas status of the Economic Zone.
• —We will seek to obtain agreement on this formula with our maritime allies and establish a pre-Conference agreement on this and related issues.
• —We will pursue our present position on marine scientific research in the Economic Zone.
• —We will continue consultations with the U.S. scientific community on the research issues.

One important policy issues could impact directly on our intersessional strategy. There are pressures to enact unilateral deep seabed mining legislation. Although the mood in Congress is not as clear as it was in regard to the fisheries legislation, it is evident that there is growing support for Congressional action of some sort. However, members of Congress are not under the same constituent pressure for a mining bill that they were for the fisheries bill, and in fact some worry about a “give-away” to big business. Others are concerned with possible adverse effects on national security, although proponents argue that unilateral legislation will actually protect those same interests and that we must move positively to develop a deep seabed mining capability. The environmentalists wish to ensure that deep seabed mining is covered by adequate controls, with or without a treaty.

We have already been approached at a high level by the UK on requesting prior consultations before we support specific legislation. Deep seabed mining bills will undoubtedly be submitted to the next Congress. A careful examination is being carried out now in the Executive Branch to assess the PROS and CONS of active support or active opposition to such bills at this time.

Brief History of Policy

The United States has been actively involved in the LOS negotiations since their inception in 1969 and has made a large number of important proposals. In 1970, the U.S. submitted a draft treaty on the seabeds. This proposal incorporates many of the principles which have been negotiated since. Subsequently, the U.S. has tabled formal proposals on the territorial sea, straits, fisheries, dispute settlement, the economic zone, protection of the marine environment and marine scientific research. The informal draft treaty meets the majority of our concerns with some critical issues remaining as noted earlier.

200-MILE LIMIT LEGISLATION AND FISHERIES MANAGEMENT

Current State of Issue

Dissatisfaction with the slowness of the LOS negotiations, as well as a growing awareness that substantial overfishing of certain stocks of fish off the U.S. coasts was taking place, led Congress in early 1976 to move unilaterally to establish a 200-mile fishery conservation zone off U.S. coasts, with enforcement to begin March 1, 1977. The Administration believed the Bill was premature and would have a detrimental effect on the LOS negotiations. Actual impact has been varied, with definite impact on bilateral relationships—at least in the interim. This was particularly true of the Soviets. The long-term effect has been to legitimize unilaterally declared coastal State fishery zones extending out to 200 miles, an outcome which was a surety in the LOS treaty but was hastened by U.S. action. It may also encourage more expansive claims, although except for Mexico this has not been the case so far.

In intensive negotiations paralleling our LOS efforts, we have moved vigorously to implement our fisheries law. Recent signature by the Soviet Union of a fisheries agreement with the U.S., which recognizes U.S. jurisdiction, should prove to be a watershed in our efforts to implement the law internationally. However, the prospect of a more restrictive fisheries regime off U.S. coasts has resulted in some foreign policy problems as the implementation date approaches.

Under the terms of the law, the Department of State’s role is to:

• —negotiate Governing International Fishery Agreements (GIFAs) and renegotiate as soon as possible existing bilateral and multilateral agreements that are inconsistent with the Act
• —allocate available surpluses to foreign nations, in consultation with the Department of Commerce
• —transmit and receive applications of foreign nations for permits for each of their fishing vessels wishing to engage in fishing in the U.S. zone
• —participate as a non-voting member in each of eight Regional Fishery Management Councils established by the Act.

GIFAs have now been signed with Poland, Republic of China, German Democratic Republic, Romania, and the USSR. Negotiations with Bulgaria will be resumed during December and we expect that GIFA to be signed in December or early January. Negotiations with Japan have been difficult and they have indicated serious problems in recognizing U.S. jurisdiction. In order to ease domestic difficulties being encountered by the Japanese, we have indicated a willingness to conclude an interim agreement concurrently with the GIFA, to allow consideration of the GIFA by the Japanese Diet in late spring. The Japanese are considering this approach and we expect a response momentarily. Another round of negotiations with Japan is scheduled for December 13–17 in Washington.

We are continuing to negotiate with Spain, South Korea, and the European Community (EC). To date, each is insisting on terms that are impossible for us to accept under our law.

Spain has stated its intention to raise the fisheries issue at the forthcoming US/Spain Economic Committee meeting in February. Remaining issues with Korea are few but substantive. The next round of negotiations with them is scheduled for December 8–10 in Washington. The EC has stated a willingness to acknowledge U.S. fishery jurisdiction so long as it is in accordance with international law, but has indicated that a reciprocal agreement is necessary because of the existence of a U.S. shrimp fishery off French Guiana. The U.S. will next meet with the EC staff on December 13–14 in Brussels.

With regard to negotiations with our neighbors, an agreement covering U.S. fisheries in the Mexican 200-mile zone was signed in Mexico City on November 24. Negotiations with Canada are continuing. Our fisheries relations with them are complex and are complicated by our common maritime boundaries, some of which are in dispute. The main concerns are in the area of the Gulf of Maine—an important commercial fishing ground. The Canadians claim the northern one-third of Georges Bank fails within Canadian jurisdiction, whereas the U.S. claims the entirety of the Bank. Due to the linkage between boundary and fishery issues, we have been unable to make sufficient progress to conclude these negotiations by January 1. Secretary Kissinger and Foreign Minister Jamieson met in October and agreed:

a) to try to find a mutually agreeable, boundary line;

b) in the interval while negotiations are going on, to work out mutually agreeable interim procedures dealing with third parties;

c) to negotiate long-term fishing arrangements not necessarily limited to the disputed zone of overlapping claims; and

d) to work out cooperative arrangements concerning hydrocarbons on similar terms. Recent meetings have focused on the problem of buying time to allow long-term negotiations to go forward, and both sides have agreed to proceed with a short-term (one year) agreement in the interim. Formal negotiations for the short-term agreement will take place January 17–31.

Our fisheries law raises issues with regard to various other maritime boundaries, as well as fisheries and boundary issues with Cuba. A Cuban fisheries official recently approached us concerning these issues, and we are considering our next steps.

The U.S. is also signatory to two multilateral fisheries treaties that involve fisheries in our 200-mile zone: the eighteen-member International Convention for the Northwest Atlantic Fisheries (ICNAF) and the three-member International Convention for the High Seas Fisheries of the North Pacific Ocean (INPFC).

At the June 1976 annual meeting of ICNAF, the U.S. announced its intention to withdraw as of December 31, 1976, but indicated a willingness to reconsider if the Commission agreed to meet certain U.S. conditions for management of the fisheries. No agreement was reached, and a special meeting was convened December 1–9 to complete the deliberations following which we must decide as to our continued participation.

The INPFC will also have to be renegotiated, and the U.S. has informed the other members (Canada and Japan) of its intention to seek renegotiation of the Convention in 1977.

The Department has also taken other actions to assist in implementing the law.

• —Permit applications and vessel identification forms have been sent to each nation with which we are presently negotiating and to those which have signed GIFAs.
• —Preliminary fishery management plans (PMPs) prepared by the Department of Commerce, will be the basis for determination of quotas to be allocated to foreign nations by the Department. The draft PMPs are presently under review.
• —The eight Regional Fishery Management Councils created under the Act are now in operation and Department of State representatives attend all regularly scheduled meetings.

There are two issues which could require action in the near term. First, due to the procedural requirements of the law, it will be impossible to have GIFAs in force on March 1, 1977. Congress will not convene until January 4, 1977, and there is a sixty-day Congressional review period required. Additionally, the administrative permit processing time may delay matters even worse. Thus, action will be required, either in the form of legislative relief or Executive Branch administrative action if the law is to be implemented in a manner which allows foreign fishing on March 1, 1977. This issue is being considered at the present time and recommendations will be forwarded to the White House.

Another issue arises with regard to the work of the Regional Fishery Management Councils. These bodies are given a role in setting total allowable catches and in determining surpluses available for foreign fishermen, as well as developing regulations which will apply to foreigners. The Department participates on the Councils as a non-voting member, and must ensure that each Council is fully aware of the foreign policy implications of its deliberations. Issues papers are currently in preparation assessing the potential impact on foreign policy in each of the Councils’ areas of responsibility. In some instances we may wish the Secretary of Commerce to review the Council’s proposed plans in light of our concerns.

Current U.S. Policy

The U.S. is committed to establish by March 1, 1977, its management authority over all fisheries, except tuna, within the U.S. zone, and over continental shelf species and salmon beyond the zone and to do so in a manner that does not result in serious foreign political repercussions. The Department of State’s objective is to have all bilateral negotiations completed prior to that date.

We must also renegotiate or withdraw from multilateral treaties which are inconsistent with our law. U.S. participation in ICNAF is currently under consideration, but in any event will not extend beyond 1977. We have signaled our intention to withdraw from INPFC, although there is a one-year lead time before such an action would become effective. We have indicated a willingness to renegotiate the agreements establishing both Commissions during 1977 to bring them into consonance with U.S. law.

Our current plan is to concentrate negotiating efforts on signing GIFAs with countries desiring to fish in the U.S. fisheries zone after March 1, 1977, continue to seek a solution to our problems with Canada, and to conclude negotiations aimed at gaining access to foreign economic zones for our distant water fishermen.

Brief History of Policy

The Department began negotiations to implement the law in June 1976. The strategy outlined above was developed at that time and has guided our negotiating schedule.

CONGRESSIONAL PERSPECTIVE - LOS AND FISHERIES

Congressional interest in both LOS negotiations and negotiations leading to implementation of our fisheries law has been high. In the past several years, Congressional interest—while generally supportive of our oceans policies—has tended to focus on the slowness of the LOS negotiations and the necessity for the US to move in a positive manner to protect its interests. This attitude produced the 200-mile fisheries bill and the growing support for unilateral action in deep seabed mining. Congressional opinion has been generally complimentary regarding our efforts to implement the fisheries law with comment focused on the practical problems involved.

Outside Studies - LOS and Fisheries

The Department receives advice and consultation from a variety of outside sources. In particular, there are two standing Federal advisory committees: the LOS Advisory Committee and the Ocean Affairs Advisory Committee. Moreover, the implementing legislation for several fisheries treaties creates advisory bodies which are important sources of advice. In addition, there are a number of consultants whose specialized knowledge and expertise in these matters were retained by the Department on a regular basis.

1. Source: Library of Congress, Manuscript Division, Kissinger Papers, Box CL 327, Department of State, Carter, Jimmy, Transition Papers, Briefing Books, Series I (2), December 1976. No classification marking. Drafted by OES and D/LOS. Coordinated with ARA/LA/EP, L, EB, and H. Department of State telegrams indicate that Anthony Lake of President-elect Carter’s transition team requested by December 6 this document as a follow-up to a November 18 briefing book that provided a general overview of major issues facing the new administration. (Telegram 289737 from the Department of State to Kissinger, November 26, and telegram 292120 from the Department of State to Kissinger, December 1, both in National Archives, RG 59, Central Foreign Policy Files)
2. This transition paper written for the incoming Carter administration outlined the principal issues surrounding UNCLOS III negotiations and the implementation of 200-mile fisheries legislation.