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

60. Memorandum NSC–U/DM 39B from the Chairman of the National Security Council Under Secretaries Committee (Ingersoll) to President Ford¹ ²

Washington, March 10, 1975

Subject:

• United States Policy on Antarctic Mineral Resources

Pursuant to NSDM 263, the Under Secretaries Committee has reviewed what the US might wish to seek or avoid in discussions on establishing an internationally agreed approach to the issues of commercial exploration for and exploitation of Antarctic mineral resources. The mineral resources question is on the agenda of the Eighth Antarctic Treaty Consultative Meeting, June 9–20. Certain aspects could also be raised in the next session of the Law of the Sea Conference, although we hope this can be avoided.

A report concerning this matter has been prepared by an ad hoc working group of the Under Secretaries Committee and is enclosed. This memorandum presents the Committee’s recommendations on the major policy options. Comments of the interested departments and agencies are enclosed.

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Seven countries assert territorial claims in the Antarctic. Certain claims overlap. Some areas remain unclaimed. The US has not advanced a claim, has refused to recognize the claims of others, and has consistently maintained its juridical position on non-recognition of claims.

The 1959 Antarctic Treaty largely sets aside the difficult claims issues, provides a beneficial framework for international cooperation in the Antarctic, and prohibits military activities on the continent. In addition, the Treaty preserves the right of any state under international law with regard to the exercise of high seas freedoms within the Treaty area.

The Treaty does not refer to resource exploration and exploitation activities. Basic questions regarding the continued viability of the Treaty regime will arise if the underlying claims dispute is precipitated by commercial resource operations.

Available data and scientific inferences indicate that oil and natural gas may be present in the Antarctic continental shelf although the difficulties and costs of production in the Antarctic suggest that commercial exploitation is unlikely at least in the next decade. Hard minerals are present on land, but their commercial exploitation is unlikely in the foreseeable future.

In considering the major policy options, a number of the interested departments and agencies have stressed the need for further consideration of our tactical position and other aspects of negotiations looking toward international arrangements concerned with Antarctic resources. As Chairman of the Under Secretaries Committee, I agree that further consideration of these matters will be needed. However, I believe that this can most usefully be undertaken on the basis of guidance from you concerning the direction in which we should move with respect to the following problems:

• —the nature of an internationally agreed approach;
• —the regime applicable to offshore areas; and
• —continuation or discontinuance of our interim policy of voluntary restraint on commercial exploration and exploitation, pending an international arrangement.

Nature of an Internationally Agreed Approach

Negotiation of a detailed resource regime is not considered feasible at the present time, but steps can be taken toward an internationally agreed approach. The Committee has considered two options:

• —an approach looking toward a new international decision-making arrangement; and
• —an approach based on national legislation.

Subject in certain cases to the conditions noted below, the Departments of State, Defense, Commerce, the Interior, and Transportation, and the Federal Energy Administration, Council on Environmental Quality, Environmental Protection Agency, and National Science Foundation recommend that the US should seek an agreement recognizing the right of the US and others to undertake mineral resources activity in Antarctica, subject to a special mineral resources arrangement. Resource management, environmental and other problems requiring international solutions to achieve US objectives would be resolved through new decision-making procedures to give the US sufficient protection from adverse decisions, and through basic agreed principles to constrain and guide decision-making.

As discussed in the enclosed report, commitments would be sought from claimants of territory in the Antarctic and from non-claimant signatories of the Treaty to the principle of non-discriminatory access to all parts of the continent, except specially protected areas. In addition, we would seek under this approach to avoid the rule of unanimity (employed in present consultations with other Treaty parties) as the exclusive means of decision-making since a single state could veto measures that would be in our interest.

In supporting this approach, the Department of State notes that, in an international area such as Antarctica, international solutions are required if US interests are to be protected. State believes that since the US makes no territorial claim in Antarctica, our resource interests can best be advanced by strengthening the Treaty structure. State is concerned that an approach based on national legislation could lead to the disintegration of the present Treaty regime.

Commerce feels that this general approach contains possibilities which would contribute to the stability of the Treaty regime as well as to a stable investment climate for any future commercial mineral activity. Commerce’s support is conditional on commitment by all parties to the principle of nondiscriminatory access to all parts of the continent, including the continental shelf, except the specially protected areas.

Interior stresses that we cannot accept an Antarctic regime with the power to impose burdensome regulatory and financial conditions on commercial recovery operations. Interior believes that if we were to take a tactical starting position similar to the approach outlined above, the process of multilateral negotiation would lead to an unacceptable arrangement. Interior’s concurrence is conditional on adopting an initial tactical position which would involve indicating that we favor an agreed resource regime in which the Treaty consultative parties may undertake exploration and exploitation in any area of the Antarctic under their individual domestic legislative systems. Interior believes this would enhance our bargaining position in moving toward the ultimate substantive objective of a new international arrangement. Interior’s concurrence is also contingent on public abandonment of an interim moratorium policy (discussed below).

The Federal Energy Administration favors prompt resolution of legal and political obstacles to commercial resources activities. Its support of the approach described above is conditional on several qualifications, including emphasis during negotiations on the significance to the US and other consuming countries of any Antarctic resources potential, avoidance of actions indicating that the US discourages development of needed mineral resources, and avoidance of appearing so intent on resolving legal issues as to leave the impression that we are willing to accept any terms, conditions, or mechanisms providing access to the resources.

The Council on Environmental Quality believes the national legislation approach would, in the light of the claims situation, be perceived as the functional equivalent of unilateral exploitation and seriously endanger the existing Antarctic regime. While believing that it is too early to assess the negotiability of a resource settlement satisfactory to us, CEQ supports the objective of a new international arrangement for Antarctic resources as providing the flexibility necessary in the light of the negotiating uncertainties and the complexity of the problem. CEQ believes a critical element is avoidance of the rule of unanimity for Antarctic resources questions so that environmental controls are not subject to veto.

The Environmental Protection Agency emphasizes the importance of protecting the uniquely vulnerable Antarctic environment and the importance of Antarctica’s living resources, EPA, therefore, opposes the national legislation approach and favors seeking an international arrangement.

The National Science Foundation believes that preservation of the Treaty is, short of extreme actions, the only means of insuring accommodation of US resource interests. It believes the national legislation approach is not negotiable and would not, in any event, prove adequate to protect US interests. NSF considers that the alternative of seeking an international arrangement for these resources would provide sufficient flexibility to negotiate a formula acceptable to claimants and non-claimants and to advance US resource, environmental, and scientific interests.

The Department of the Treasury and the Acting Executive Director of CIEP recommend that the US should seek an agreement which would recognize the right of all nations to undertake mineral resource activity exclusively pursuant to their national legislation.

Treasury believes this approach is preferable to negotiation of a new regime whose scope and powers would have to be carefully delineated to avoid a discriminatory arrangement. Treasury is concerned that such negotiations would be long and would delay recovery operations. However, Treasury would not preclude assigning to the present consultative organization of Treaty parties additional powers that might strengthen the national legislation approach.

The Acting Executive Director of CIEP believes that the national legislation approach would allow recognition of the rights of other countries, guarantee the rights of commercial ventures and set acceptable standards for pollution control, wildlife protection and other areas as needed.

In reviewing this matter, the Committee also considered whether the US should first concentrate on prompt resolution of commercial exploration issues and basic conditions for exploitation, while pursuing a more comprehensive settlement of exploitation issues. Most of the interested departments and agencies believe that issues involved in exploration and exploitation are integrally related and that efforts to separate them would not be useful. However, the Acting Executive Director of CIEP would favor seeking first to resolve problems relating to exploration although he believes negotiations must go further since industrial investors will require guarantees beyond the industrial exploration phase. EPA also believes that exploration might be dealt with initially.

Regime Applicable to Offshore Areas

The Committee has reviewed three options:

• —a special regime;
• —inclusion of offshore mineral resources within the purview of the International Seabeds Resources Authority (ISRA) contemplated in the Law of the Sea Conference; and
• —preservation of both options for the time-being.

The Departments of State, Defense, the Treasury, Commerce, and Transportation, the National Science Foundation, and the Acting Executive Director of CIEP recommend that the US seek a special regime for offshore seabed resources in Antarctica which guarantees access for the US and others to the area to which the regime applies.

State believes that a special regime might best protect the full range of US interests, including our resources interests, while the Law of the Sea approach might both disrupt the Law of the Sea Conference and undermine the Treaty structure. State recognizes the uncertainties affecting a choice at this time but is concerned that, in the absence of a decision, the US would be required largely to remain silent during discussions of this subject and would be in a posture of reacting to events we have not influenced.

Treasury believes we should join other Treaty parties in opposing any move on the part of the Law of the Sea Conference to gain jurisdiction over Antarctica.

Commerce’s present evaluation is that US interests in Antarctica would best be served by a special regime but believes the matter should be reviewed following the coming session of the Law of the Sea Conference.

The National Science Foundation believes that options other than a special regime could lead to a collapse of the Treaty and would not serve our resource, scientific, or environmental interests.

The Acting Executive Director of CIEP considers the prospect of reaching an equitable agreement in the Law of the Sea Conference uncertain and considers that introducing the Antarctic issue would compound the problem.

No department or agency favors at this time a decision looking toward placing the offshore resources of Antarctica under the International Seabed Resources Authority contemplated in the Law of the Sea Conference. However, the Department of the Interior, the Federal Energy Administration, the Council on Environmental Quality, and the Environmental Protection Agency recommend that for the time being the US should preserve the option of applying either the International Seabed Resources Authority regime or a special regime to offshore seabed resources in Antarctica.

Interior does not believe there is sufficient knowledge or analysis for a decision and feels that a neutral position would maximize our bargaining leverage.

The Federal Energy Administration sees no compelling reason for choosing either a special regime or a Law of the Sea regime at this time and believes further information is needed on the legal and political ramifications of either choice.

In the view of the Council on Environmental Quality, if we can successfully negotiate a new, non-unanimous decision-making procedure in the Antarctic forum, keeping Antarctic resource decisions within the Treaty consultative framework would probably serve US interests better than a Law of the Sea solution. However, CEQ considers it too early to assess negotiability of such a procedure. Moreover, CEQ feels that a choice should be made in the light of possible effects on Antarctica’s living resources and notes that these effects have not yet been analyzed.

While the Environmental Protection Agency prefers no decision at this time, it would prefer a policy favoring a special regime if a decision is to be made.

The Chairman of the NSC Task Force on the Law of the Sea reports that the Task Force is of the view that the question of the legal status of offshore seabed resources adjacent to Antarctica should not be raised in the Law of the Sea Conference. He stresses that this could become a highly contentious new issue and seriously disrupt efforts to achieve a Law of the Sea agreement.

At the end of February, an informal consensus was reached that the US and eleven other parties to the Antarctic Treaty would not raise the Antarctica question at the Law of the Sea Conference.

This agreement on tactics would not, of course, preclude a policy decision looking toward a special regime or leaving the matter open for the time being.

Moratorium Policy

The Committee has reviewed the alternatives of continuing or discontinuing our interim policy of voluntary restraint (sometimes referred to as a moratorium) established by NSDM 263 and has also considered the possibility of a two-year moratorium on drilling in the continental shelf adjacent to Antarctica.

The Departments of State, Defense, Commerce, and Transportation, the Council on Environmental Quality, the Environmental Protection Agency, and the National Science Foundation recommend that the US should continue its present interim policy: while the US is seeking an internationally agreed approach, it should oppose actions by any other nation directed toward commercial mineral resource exploration and exploitation, and should urge other nations to join in this interim policy. This policy would be kept under continuing review.

The Department of State supports the interim policy approved by NSDM 263, sometimes referred to as a policy of “voluntary discouragement” of commercial mineral resource exploration and exploitation in Antarctica, on the understanding that this policy would cease as soon as the Law of the Sea Conference is over and agreement in principle has been reached on a special Antarctic resource regime. State notes in this regard that, in the absence of restraint, the grant of a license by a claimant state would effectively increase the viability of that nation’s territorial claim and, therefore, would not be in the US interest.

Commerce believes continuation of an interim moratorium policy is consonant with the realities of Antarctic mineral exploration and avoids the potential for sowing confusion which is implicit in the alternatives.

The Council on Environmental Quality believes that continuation of the interim policy increases our chances of obtaining an Antarctic resources solution which does not seriously damage the US environmental, scientific, security, and political interests presently served by the Treaty. CEQ is concerned that discontinuance of our stated policy of voluntary restraint would provoke a confrontation with the claimant states and endanger the entire system.

The Environmental Protection Agency is concerned that discontinuance of our present policy could easily lead to a race for resources before appropriate environmental safeguards are in place. EPA favors an agreement among the parties on a moratorium.

The National Science Foundation notes that lacking any restraint, claimants could issue licenses to their companies reinforcing their claim and requiring vigorous US pressure to preserve our rights of access. NSF believes the totality of US interests would best be preserved by maintaining our present policy.

The Departments of the Treasury and the Interior, the Federal Energy Administration and the Acting Executive Director of CIEP recommend that the US should discontinue its stated policy of voluntary restraint and oppose any formal or informal moratorium on commercial activities in Antarctica.

Treasury believes that there should be no moratorium on recovery operations and that discouraging recovery operations would insulate countries from pressure to negotiate.

Interior is convinced that any policy to discourage commercial activities substantially diminishes our bargaining strength. In addition, Interior believes a moratorium would prevent the US from obtaining valuable information on the resource potential in Antarctica and delay indefinitely the commencement of commercial exploitation.

The Federal Energy Administration is strongly opposed to a moratorium and regards support of a policy of voluntary restraint as tantamount to a decision that we do not want to encourage the development of the potentially valuable Antarctic resources. FEA believes that a voluntary restraint policy is a very effective means of precluding eventual development whereas if geophysical surveys are done, we will gain valuable information and be a step closer to development, should it prove desirable. FEA would support a time-limited moratorium only if done in the context of insuring a prompt and favorable resolution of the resource issue. (No other agency has expressed interest in the time-limited approach.)

The Acting Executive Director of CIEP believes the US should oppose a moratorium on commercial activities in the Antarctic and regards a moratorium as inconsistent with the US objective of increasing the global supply of mineral resources.

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The Central Intelligence Agency takes no formal position on the options presented but notes that three of the options (the national legislation approach to an Antarctic resources regime; a policy favoring placing offshore resources under the International Seabed Resources Authority; and discontinuance of our present policy concerning an interim moratorium) would tend to jeopardize US international cooperative relations and known US interests in Antarctica without necessarily assuring US access to the area’s mineral resources.

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Chairman’s Views and Recommendations

NSDM 263 contemplates that the US will seek to gain acceptance of an internationally agreed approach to any commercial exploration and exploitation of Antarctic mineral resources. I do not believe this objective could be accomplished through the “national legislation” approach discussed above. I support the recommendation of the majority of interested agencies that we should work with our Antarctic Treaty partners toward a special, internationally agreed arrangement for mineral resources of the Antarctic. This should be based on commitments to non-discriminatory access and should involve new decision-making procedures designed to protect our interests by, inter alia, avoiding the rule of unanimity employed in present consultations with other Antarctic Treaty parties.

Regarding offshore mineral resources of the Antarctic, I note that all agencies recommending a specific policy at this time support the objective of a special regime. I also note that no agency supports a decision at this time to place the offshore mineral resources of the Antarctic under the proposed International Seabed Resources Authority. Although several agencies believe that no decision need be made for the time-being, I believe that such a position would lead to an unduly passive posture on our part in the coming discussions. I am also concerned that such a stance might arouse an adverse reaction on the part of countries claiming territorial rights in the Antarctic. (Such countries might conclude that unilateral action was necessary to preclude an approach placing Antarctic mineral resources under the proposed International Seabed Resources Authority). Accordingly, I recommend that you approve a policy looking toward a special regime for offshore mineral resources of the Antarctic. This should be subject to reexamination if warranted by developments in the Law of the Sea Conference or by discussions with our Antarctic Treaty partners.

I am aware of no developments since the issuance of NSDM 263 which would justify discontinuance of our present interim policy of urging nations to refrain from commercial exploration and exploitation, pending an internationally agreed approach. On the contrary, the abrupt discontinuance of this interim policy would undercut efforts to arrive at an internationally agreed approach, our interim policy should, of course, be reexamined if other parties to the Antarctic Treaty were to undertake precipitate action warranting such a reexamination.

NSDM 263 called for a plan of action in addition to substantive recommendations. I believe a useful plan cannot be developed without guidance from you on the basic issues discussed above.

I recommend that the plan of action, including appropriate tactical positions, be developed by the Antarctic Policy Group in the light of your decisions. The plan should be completed well in advance of the Eighth Antarctic Treaty Consultative Meeting in June.

Taking into account the views expressed by a number of agencies, I believe the Antarctic Policy Group should also undertake a further and more detailed examination of several aspects of this matter: the principles and alternative organizational and legal approaches applicable to a possible internationally agreed arrangement; the environmental consequences of exploration and exploitation and mechanisms for minimizing such consequences; and US interests in the living resources in Antarctic waters. This more detailed examination need not be completed before June but should be sufficiently far advanced to assist in defining and delimiting the approach to be taken by our representatives. The Antarctic Policy Group should also consider the need for an environmental impact statement.

For the foregoing purposes, the Antarctic Policy Group should include representatives of all interested agencies.

Major unresolved policy issues could be reviewed by the Under Secretaries Committee if you so desire.

Robert S. Ingersoll
Chairman

1. Source: Ford Library, National Security Adviser, Presidential File of NSC Logged Documents, Box 17, 7501481, U.S. Policy on Antarctic Mineral Resources. Confidential. Attachments 1 and 2 have not been found.
2. An ad hoc working group of the Under Secretaries Committee summarized department and agency positions and submitted recommendations on major policy issues concerning extraction of Antarctic mineral resources.