Foreign Relations of the United States, 1981–1988, Volume XLI, Global Issues II

160. Notes of an Interagency Group Meeting¹

Washington, May 25, 1982, 9:30 a.m.–noon

McManus: Three issues buried in the Draft Report to the President on LOS:²

a) I.C.J. proceeding; (requested an L assessment)³

b) Governments-sponsored risk insurance; and

c) Overflight and transit right.

Kronmiller: President’s decision on LOS should not be made before 6/21/82—unilateral processing in absence of RSA—because of possible impact on RSA and the LOS Conference.

Guhin: The President needs to know DOC activities and RSA plans.

Colson: Report to the President should stress our strategy against being isolated (LOS not confined to deep seabed mining). An important question: How to make mini treaty or RSA work? It is really now only a “statutory animal”. Should take into account our leadership, gamesmanship with the Soviet Union, and our relations with the Third World, in the event the alternative regime does not work, and an ICJ case is brought.

Holser: We should not take it for granted that 149 LDC’s will sign and ratify the LOS treaty.

Kronmiller: The U.S. has power and influence in the world, and the president wants to assert leadership.

Keating: Allies expect U.S. to be decisive, citing BBC film showing Malone, Breaux,⁴ U.S. has tactical advantages now should drive a wedge between G–77 and the Allies. Contingency planning has been done.

Kronmiller: Reasons for Japan’s vote for LOS Treaty:

a) Cost to relations with U.S.—Zero;

b) Cost to relations with G–77—plenty.

Verville: Japan’s consideration might involve the question of where Japanese miners can get the best protection for mining—LOS or RSA?

Harlow: How to develop viable oceans policy for U.S. and allies? Focus should be placed on the development of a viable mining regime. There is need for a “juridical approach” as alluded to by Colson.

Kronmiller: Gave example of one such approach as reasonable uses of the high seas—missile testing range.

Guhin: Observed that there is a difference between T.K.’s example based on “safety sake,”⁵ and the problem of exclusivity in seabed mining.

Kronmiller: U.S. wants Allies out of LOS with us, because the alternative regime offers real stability at little cost.

Harlow: But RSA is not permanent feature!

Guhin: Why spend high-level leverage for a non-starter?

T.K.: Bring in EA and EUR. Determine how many will not sign without our leverage.

B.H. Stressed the need to present our Allies with a package in their interest.

Guhin: “When there is a way out on things, they’ll take it”.

Hoyle: Our national interest is not so different from theirs.

Keating: France budgeted $250 million to explore seabed mining; Japan budgeted 320 million.

Holser: Wanted paper to show RSA weakness “Here is what needs to be improved.”

Guhin: Agrees w/Holser on need for this in paper.

Holser: He saw little use for going to subsidiary meetings, e.g, Drafting Committee, Caracas.

Colson: U.S. has participated in many conferences without agreeing to their objectives. We should therefore attend the Caracas session and make interpretive statements, which could be cited as foundation paragraphs in diplomatic notes for the next 20 years.

Kronmiller: While agreeing with the upside of the Colson argument, points out the following downsides:

a) U.S. interpretive statements might draw more fire after announcement of no signature;

b) Sending confused signals to our Allies;

c) Domestically, if the President’s Six points could not be accommodated, attend at Caracas could draw criticisms from Congress, etc.

Kronmiller: Development of customary international law; “its what large States Do, not what a gaggle of land-based producers do.”

Holser: Has U.S. participated in any conference where it had committed itself not to be a party?

Colson: Not sure. However, it would be better if U.S. could say no for the record, than mere absence. Colson admonished the group to start planning and stop muddling through up-until UNCLOS IV.

Guhin: Important to explain to the President in the report what the Drafting Committee is, or what the Final Act is, and what will happen in Caracas.

Bernstein: Observed that in ILO Conferences, U.S. has participated even though no state expected U.S. to ratify (only 6 were adopted by the U.S., all relating to maritime affairs).⁶

Colson: Raised a policy question: When the American Law Institute incorporated the LOS Treaty as customary international law, what should U.S. policy be?⁷ He cited that the Institute has adopted a 12-mile territorial sea as customary international law in its Restatement of Foreign Relation Law. In the face of this, how would the U.S. maintain a 3-mile territorial sea?

Harlow: It is inappropriate to recognize a 12-mile territorial sea? He explained that U.S. acceptance of the 12-mile zone in the LOS Draft Convention was made only as a package deal in the negotiations.

Colson: Pointed out the risk of later extension to 200-mile territorial sea.

1. Source: Department of State, Marine Law and Policy Division, Subject and Country Files, Law of the Sea, 1982–1983, Lot 85D105, LOS—S/IG. No classification marking.
2. In a May 24 memorandum to Harper, Uhlmann forwarded a copy of a draft Presidential Decision Memorandum regarding Law of the Sea. (Reagan Library, Meese Files, Law of the Sea)
3. Not found.
4. Representative John Breaux (D–LA).
5. Not further identified.
6. Reference is in error. The United States ratified seven ILO Conferences from 1938 to 1948.
7. Reference is to a draft of Restatement of the Law Third, The Foreign Relations Law of the United States, published by the American Law Institute.