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

7. Memorandum NSC–U/DM–109A From the Chairman of the National Security Council Under Secretaries Committee (Rush) to President Nixon¹ ²

Washington, November 1, 1973

Subject:

• Draft Instructions for the US Delegation to the Organizational Session of the UN Law of the Sea Conference

Pursuant to NSDM 225 of July 16, 1973 this memorandum transmits recommended instructions for the US Delegation to the organizational session of the Law of the Sea Conference, along with a report of the July/August session of the UN Seabed Committee.

The Under Secretaries Committee has approved the forwarding of these recommended instructions to you. They concern organizational and procedural issues to be decided at the first session of the Law of the Sea Conference.

Kenneth Rush
Chairman

Attachment
Draft Instructions

undated

RECOMMENDED U.S. POSITION FOR THE ORGANIZATIONAL SESSION OF THE LAW OF THE SEA CONFERENCE

Resolution 3029 of December 18, 1972, calls for the first session—the organizational session—of the Third United Nations Conference on the Law of the Sea to take place in New York during November-December for a period of approximately two weeks. The exact dates will be set by the U.N. General Assembly, probably before the end of October. The Resolution calls for the fall session to deal with organizational matters including the election of officers, the adoption of the agenda, the adoption of the rules of procedure of the Conference, the establishment of subsidiary organs and the allocation of work to these organs. Substantive issues will probably not be negotiated at this session although some delegations, particularly those from States which have not participated in the preparations for the Conference during the last three years, may wish to make general policy statements for the record. Contact groups and other informal groups may deal with substance outside of the formal sessions.

The second session of the Law of the Sea Conference, which will deal with substance, is now scheduled to be held in April-May, 1974. The General Assembly will review the timing and venue of the substantive session of the Conference. It will also decide several other important questions, such as whether there will be more than one substantive session in 1974 and who will be invited to attend.

The organizational session of the Conference is expected to adopt standard organizational and procedural arrangements. There are already established precedents on most issues which may tend to limit debate or controversy on most questions. The U.S. has a direct interest in ensuring that the organization and procedure adopted should protect U.S. substantive positions and facilitate productive Conference work and negotiations.

The chief U.S. interests in this session will be to ensure that the U.S. is represented on all committees and appropriate bodies established at the Conference and that the voting arrangements are such that the U.S. can prevent premature voting while at the same time prevent any country or very limited group of countries from being able to veto a satisfactory agreement by blocking a final vote.

The Chairman of the U.N. Seabed Committee, Ambassador Amerasinghe of Sri Lanka, is currently holding exploratory talks in New York with representatives of regional groups on the various issues which will be dealt with at the organizational sessions of the Conference. His purpose appears to be to settle all of these matters in advance so that the formal sessions themselves may be quite brief and non-contentious. The U.S. is represented at these meetings and will draw upon instructions for the Conference in the negotiations.

Rules of Procedure

Ambassador Amerasinghe has proposed that the Conference adopt the rules of procedure employed at the Vienna Conference on the Law of Treaties, modified as necessary to reflect differences in Conference structure and supplemented where necessary by informal understandings, such as on the voting question. These rules have been used in a number of recent international conferences in which the United States has participated and have proved satisfactory.

Voting

Probably the most critical and most difficult procedural issue facing the Conference is the voting question. The U.S. faces a dilemma. On the one hand we wish to prevent premature voting in the Conference which might force an issue to a final decision before the necessary negotiations are completed. This could lead to a Convention which U.S. and a number of maritime and other countries might not be able to accept. On the other hand, we do not want a system whereby voting can be blocked indefinitely and thus final agreement prevented. As noted above, it is widely considered that the Conference should adopt Rules of Procedure used at the Vienna Conference on the Law of Treaties. Under these procedures, substantive decisions in committees and subcommittees are taken by a majority of representatives present and voting and in the Conference by two-thirds of the representatives present and voting. The possible alternatives to such voting procedure would be a system of unanimity, consensus, or by a larger majority than two-thirds. It is probable that some countries, for example, the USSR, France and Japan, may urge that Conference votes be taken by a four-fifths or an even higher qualified majority, although they may later be willing to settle for two-thirds.

Voting by a large majority—in excess of two-thirds, unanimity or consensus procedures, without provision for any voting—could have the effect of giving some individual States or a relatively small group of States—irrespective of their importance to the negotiation—a veto. Some States, such as Brazil, Spain, Ecuador, Peru, or Egypt may want to block agreement despite pressure from others. In addition, their veto would tend to encourage the majority to frame proposals satisfactory to them to a greater degree than might otherwise be the case. This could produce delay and frustrations, probably rendering completion of work by 1975 impossible. Delay, just as adverse voting, could produce irresistible Congressional pressure to act unilaterally. Since the U.S. wishes a timely and successful Conference, whereas some other countries do not, a veto could be used with far greater ease by them than by us. The process of unilateral claims in the ocean is prejudicing the U.S., not Brazil, Spain or perhaps, even Canada.

As a practical matter the Conference will probably operate on the basis of consensus, for as long as possible. However, most delegations including the U.S. will probably want some provision for voting at some stage so there would be an incentive for genuine negotiations. We recognize that at present it might be difficult to obtain two-thirds majority vote on a number of U.S. proposals.

The most advantageous solution to the voting issue from the U.S. point of view would be one which:

1. Reduces to a minimum the negotiating leverage of such countries as Brazil, Peru, Spain, who may ultimately oppose an otherwise broadly-based agreement;

2. Delays “premature” voting in the absence of a consensus on an overall package settlement protecting our interests;

3. Encourages a timely and successful conclusion to the Conference and does not provide an opportunity for States favoring unilateral action to interminably delay while unilateral claims proceed to confirm the negotiating objectives of these hard line and 200-mile territorial sea States.

Ambassador Amerasinghe has suggested as a protection against premature voting that there should be a “gentlemen’s agreement”, perhaps expressed by the Conference President in connection with the adoption of rules of procedure to the effect that there should be no voting on substantive texts until the Conference decides that development of its work makes such voting appropriate. In Amerasinghe’s view, the voting issue would be decided by a General Committee where consensus should be sought as far as possible. As conceived by Ambassador Amerasinghe, the General Committee would include the Conference officers, including the permanent members of the Security Council.

It would be possible to require that the decision to vote in the General Committee should have the concurrence of all regional groups. The U.S. has not been a member of the West European and Other Group in the Seabed Committee, and has accordingly represented itself at “contact group” meetings of regional group representatives. Based on this approach, the U.S. would be a regional group itself. However, this is unlikely to be acceptable to the developing countries. Further, the USSR would in effect be the only State with a certain veto and this would be opposed by developing countries as well.

The Soviet Union and probably some other States may support a consensus rule in the General Committee—assuming they have agreed to voting in the Conference. Under the usual consensus system most, but not all, of the members of the Committee must agree before a decision is taken, although in the Seabed Committee consensus came to be interpreted to mean unanimous agreement. Since those countries which have taken hard-line positions in the negotiations and which may not in fact wish to see a successful Conference will probably be represented on the General Committee, consensus procedure is likely to involve the same problems as following the same voting procedure in the full Conference although in a more acute form. While a consensus procedure would protect us from premature voting it could also threaten the Conference by giving a small group of States the power to block a vote when this became necessary.

A satisfactory voting system from the U.S. point of view would depend on the size and composition of the General Committee. Normally committees of this kind would have between 20 to 30 members and would include the Conference Chairman, the Committee Chairmen, and the permanent members of the Security Council. The remaining Conference officer positions would be filled on the basis of equitable geographic distribution using a standard U.N. formula. Under usual practice, the permanent members of the Security Council are not counted in allocating this distribution. Under these circumstances the Western European and Eastern European nations would constitute a blocking third regardless of the size of the General Committee. The Western and Eastern Europeans and Japan as a group will generally resist pressure to move toward premature voting and will wish to adhere to a consensus system for as long as possible. Therefore, in assessing the risks of premature voting, the U.S. can probably count on the support of those delegations. We can also count on support from responsible representatives of developing countries to prevent premature voting. Many countries will be reluctant to force an issue to a vote where the U.S. has indicated strong opposition and where there exists the possibility that as a consequence, the U.S. would refuse to sign or ratify the Convention.

Because of the fact that preliminary negotiations are already underway it was fell necessary to provide interim guidance on this important issue. Consequently, the U.S. delegation has been instructed to concur with Ambassador Amerasinghe’s proposal on the role of the General Committee and to express our views on the composition and operation of the Committee. It sets forth the U.S. preference for General Committee decisions on voting by two-thirds majority of its members, without excluding acceptance of some form of loose consensus if a two-thirds system proves unattainable.

Structure of the Law of the Sea Conference

Ambassador Amerasinghe has proposed that the structure of the U.N. Seabed Committee be carried over to the Conference with the same division of work. The Seabed Committee, in addition to the Main Committee, had three subcommittees: Subcommittee I dealt with the principles and. machinery for the international seabed area; Subcommittee II dealt with, among other things, the territorial sea and straits, fisheries, coastal State economic jurisdiction, archipelagoes, and islands; Subcommittee III dealt with marine pollution, scientific research and transfer of technology.

Ambassador Amerasinghe has further suggested that a fourth committee be created which would deal with the items reserved in the Seabed Committee for the Main Committee as well as other items of a general character, such as regional arrangements, responsibility and liability for damage resulting from the use of the marine environment, settlement of disputes, peaceful uses of the ocean space; zones of peace and security, enhancing the universal participation of States in multilateral conventions relaying to the law of the sea, and the provisional application of the regime and other items referred to it. One unspoken justification for the creation of a fourth committee would be to satisfy each regional group’s aspirations for a Main Committee chairmanship.

It is possible that a formal drafting group will be constituted as well as other drafting groups of a less formal nature. In addition, throughout the negotiations, the U.S. has consistently pressed for the creation of a working group on fisheries in Subcommittee II and we should continue to seek the establishment of such a body.

In addition to the three or four substantive committees, there will also be need for a General Committee, Drafting Committee, and Credentials Committee.

Agenda

Ambassador Amerasinghe has suggested that the Conference agenda might reflect the general outline of subjects set forth in the General Assembly’s 1970 resolution on Law of the Sea (2750C (XXV)), as well as the detailed list of subjects and issues adopted by the Seabed Committee in the summer of 1972.

It would theoretically be possible to propose an entirely new agenda unrelated to the U.N. Resolution or the list of subjects and issues or to propose changes or additions to the list of subjects and issues. This is almost certain to provoke a prolonged and heated debate. The Seabed Committee lost much valuable time considering the list question in 1972 and it would be highly undesirable to reopen those, issues again. It could also risk adoption of agenda items or formulations which would be less satisfactory to the U.S.

Conference Officers

There is only one candidate for the Conference Chairmanship: Ambassador H. S. Amerasinghe. We expect that he will be elected without opposition. Amerasinghe proved to be a very effective and fair chairman in the Seabed Committee and he is probably the best possibility from the point of view of U.S. interests.

It appears probable that the chairmen of the subcommittees and working groups of the Seabed Committee will be the chief, and perhaps sole, candidates for chairmen at the Conference committees. These chairmen, with the exception of Ambassador Kadadi of Tunisia, who chaired the Subcommittee II working group, have been reasonably effective. Candidates for chairmen will probably be selected by regional groups rather than by the Committee as a whole. Overt U.S. efforts to influence such groups’ choices would be seriously resented. It would be in our interests to use appropriate means to oppose the appointment of Ambassador Kadadi to any position of influence. We should also be receptive to proposals to replace the present Chairman, of the Working Group on Scientific Research in Subcommittee III.

Arrangements for Conference Documentation

Rules of procedure for international conferences generally include reference to the “basic proposal” under negotiation—the draft articles or texts to form the basis of the proposed treaty. For the Law of the Sea Conference the basic proposal will probably be described as the material forwarded to the Conference by the preparatory body—the Seabed Committee. A number of the draft texts for the Law of the Sea Conference, particularly those in the Subcommittee II area need further refining in order to be useable in the treaty negotiations.

Non-Governmental Organizations (NGOs)

Resolution 3029A provides that the Secretary-General invite interested NGOs having consultative status with the ECOSOC to send observers to the Law of the Sea Conference. ECOSOC lists three groups of NGOs—categories I and II which automatically possess consultative status and a third list, the “Roster”, consisting of NGOs eligible for consultative status when matters are discussed involving their respective fields of competence. The majority of NGOs concerned with the law of the sea issues are included on the Roster and we assume that they are covered by last year’s resolution. In any event we intend to confirm this, bearing in mind considerable interest of such NGOs in the preparatory work.

Recommendations

The NSC Interagency Task Force on the Law of the Sea recommends the following instructions for the U.S. delegation to the organizational session of the Law of the Sea Conference:

1. The standard rules of conference procedure used at the Vienna Conference on the Law of Treaties, modified as necessary, should be adopted as the Law of the Sea Conference procedure.

2. The standard rules for conference voting, i.e., two-thirds of the representatives present and voting on substantive issues should be adopted as the Law of the Sea Conference voting rules, provided the U.S. and like-minded States have some control in the General Committee of the Conference which will permit them to block premature voting.

3. The General Committee should decide on when to move to formal Conference voting.

4. The General Committee should decide on Conference voting on the basis of two-thirds majority of the full Committee membership.^* If the two-thirds rule is not obtained, then a loose consensus procedure in the General Committee can be supported.

5. Undue energy should not be expended to split up the substantive work in Subcommittee II into several Committees. Rather, the U.S. Delegation should seek the establishment of a fourth committee to deal with particular substantive matters.

6. The Drafting Committee should be small and should include the permanent members of the Security Council and, under any circumstances, must include the U.S. In any discussions of Drafting Committee selection, the U.S. delegation should stress the need to choose representatives on the basis of proven competence in this key area.

7. The Conference Credentials Committee should include the U.S. To the extent that the U.S. may affect the composition of this Committee, the U.S. delegation should be guided by the aim of preventing disruptive credentials disputes at the Conference.

8. The U.S. should be a member of all other Conference Committees or appropriate bodies.

9. The delegation should attempt to prevent a dispute over the agenda, the order of agenda items or the assignment of priorities, as long as the U.S. substantive position is fully protected in the agenda.

10. Ambassador Amerasinghe’s agenda proposal or any comparable proposal which does not prejudice the presentation and consideration of U.S. proposals should be supported.

11. The U.S. should support the election of Ambassador Amerasinghe of Sri Lanka as Conference Chairman. To the extent U.S. views are sought or we can appropriately influence the choice of Chairman of Committees on other bodies, the criteria we should follow should be individual competence and fair-mindedness.

12. The U.S. should strongly support efforts to consolidate and rationalize the documentation to be forwarded to the Conference. The U.S. delegation should investigate the feasibility of having this done by the Secretariat or by individual Conference participants working on an informal basis in some manner or form in which the United States will be represented.

13. We should support inviting interested NGO’s from all three ECOSOC categories to send observers to the LOS Conference.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, NSC Institutional Files (H-Files), Box H–243, NSDM 240, 2 of 2. Confidential. NSDM 225 is published as Document 5. The report of the July/August Session of the UN Seabed Committee is published as Document 6.
2. Rush transmitted for consideration the proposed instructions for the U.S. delegation to the organizational session of UNCLOS III.
3. All concerned agency representatives except Treasury and OMB feel that the risk of premature voting can be controlled with a two-thirds system and that a loose consensus approach introduces a greater risk that States opposing a successful Conference will block or delay the Conference even after we are reasonably assured of an acceptable settlement. The Treasury and OMB representatives have expressed a preference that the Committee’s decision be taken by something approximating consensus rather than a two-thirds majority, considering that a loose consensus approach would best enable the General Committee to override trivial and intentionally disruptive objections to Conference voting and at the same time guarantee that important U.S. interests would not be compromised by particular votes at inappropriate points in the Law of the Sea Conference. The other agency representatives considered on balance that the increase in our ability to prevent premature voting which would be obtained from a loose consensus system would provide greater opportunity for States seeking to block a successful Conference.