169. Telegram From the Embassy in Belgium to the Department of State1
9924. From RSA Del for OES DAS Klonmiller, EB DAS Calingaert, L Robinson, Dept pass Commerce NOAA/GC. Geneva pass drafting committee Rep Asher. Subject: Reciprocating States Arrangements.
1. Confidential—Entire text.
2. Consultations were held July 21–22 among US, UK, FRG and French Reps to review draft agreement concerning interim arrangement relating to polymetallic nodules of the deep seabed.
3. Text of agreement, not including schedule and annexes, as developed during these negotiations, is contained in para 12 below. Full draft text will be brought to Washington July 23 by US Del member Mary McLeod. With exceptions noted below, there is virtual agreement on text on schedule and annexes and no controversial issues remain.
[Page 491]4. Except for para 8(1)(C) of Part I (see para 10 below), UK, France and FRG Del were close to ad referendum agreement on text of agreement. UK could probably agree to text as is or to any reasonable compromise acceptable to others. If solution to para four of agreement is found, FRG will probably agree to text essentially along lines contained para 12 below. France has reserved on several articles and may seek further changes, but except for para four of agreement, all French problems seem capable of quick resolution.
5. Main problem during negotiations—and only serious outstanding issue—has been French-FRG insistence on provision that no RSA could enter into force prior to beginning of January 1983. French-FRG aim has been to prevent US from negotiating RSA with another country (read UK) which would enter into force prior to December Caracas LOS meeting.2 (During course of negotiations, French/FRG attempted to block us even from concluding RSA during next few months but gave that effort up in face of strong US and UK opposition.) In proposed text, France and FRG would agree to accept in a formal public document possibility of negotiating RSA with US between now and January 1, 1982. This, they have argued, keeps door for RSA open and does not close options for any party. French and FRG Dels repeatedly expressed concern that US might pressure them to conclude RSA in near term before they have completed their LOS review. This, they allege, could drive them into LOS Treaty. In return for postponing such pressure until 1983, they will agree to consult with us before announcing any decision on LOS as well as accepting publicly possibility of negotiating an RSA with US.
6. US Del expressed strong objection to this approach. US Reps attempted to delete provision, to move up date before which RSA could not enter into force (e.g. December 1982) or to make commitment reciprocal by requiring other parties to agree not to take any action on LOS Treaty during same period. All US efforts to delete or amend this provision met very strong opposition from French and FRG Reps. US Del agreed to submit text of paragraph four to Washington for review but did not agree to text even on ad referendum basis.
7. Comment. In US Del view, if US agrees to provision contained in para four of agreement (see below) or along these lines, it would be possible to conclude agreement quickly. All other outstanding issues can probably be resolved. On other hand, if US insists on deletion or significant change in para four, such as changing January 3 date, it [Page 492] seems likely that FRG and France will refuse to sign. US Del recognizes that such provision would substantially reduce value of agreement. End comment.
8. French have so far reserved on para five of the agreement. French may also wish to add provisions requiring parties to implement results of private industry arbitration procedures. US Reps pointed out US difficulties with this approach and French may not insist. French and Germans have insisted on six months denunciation clause (para eleven of agreement). US asked for thirty day clause. We expect that this issue can be resolved if, and when, para four is settled.
9. Agreement contains no accession clause. French Rep pressed for limiting parties to US, FRG, UK and France. FRG, with US support, urged that potential parties include Italy, Belgium, Japan and Netherlands and, possibly, Canada. We expect France ultimately to agree to this view.
10. Para 8(1)(c) of Part I (application procedures) has not been agreed upon. US Del proposed that provision read that each party shall accept amendments to applications to which agreement applies only if amendments are filed between July 23 and October 15, 1982, consistent with US regulations. Other dels argued strongly that October 15 date was too early and later date should be substituted or deleted.
11. Group of Four will meet in Geneva on Monday, July 26 at 10:00 a.m. in attempt to reach agreement on a text which can be given to likeminded July 27.3 If agreement on text can be reached next week, all four countries will undertake to complete internal review and processing of agreement as expeditiously as possible, aiming toward signature by end of August at latest. It was clear that FRG and France, in particular, wish to avoid signing agreement too close to LOS September plenary.
12. Following is text of draft agreement.
Begin Text
The parties to this agreement:
—Having regard to investments made in exploration, research and other pioneer activities relating to the polymetallic nodules of the deep sea bed;
[Page 493]—Noting the adoption by the Third Nations Conference on the Law of the Sea of a Convention on the Law of the Sea and of a resolution governing preparatory investment in pioneer activities relating to polymetallic nodules prior to the entry into force of the Convention on the Law of the Sea, and the provision of that resolution concerning resolution of conflicts among pioneer operators;
—Recalling the interim character of legislation with respect to deep sea bed operations enacted by certain parties;
—Desiring to make appropriate provisions for avoiding overlaps in the areas claimed for future pioneer activities in the deep sea bed and to ensure that, during the interim period, such activities are carried out in an orderly and peaceful manner;
—Emphasizing that this arrangement is without prejudice to the decisions of the parties with respect to the Convention on the Law of the Sea adopted by the Third Nations Conference on the Law of the Sea;
—Desiring also to avoid any discrimination among parties in the implementation of this agreement;
—Desiring further to ensure that adequate areas containing polymetallic nodules remain available for operations by other states and entities in conformity with international law;
Have agreed as follows:
1. The object of the present agreement is to facilitate the identification and resolution of conflicts which may arise from the filing and processing of applications for authorizations made by pre-enactment explorers (PEES) on or before 12 March 1982 under legislation in respect of deep sea bed operations enacted by any of the parties.
2. In the case of a conflict between the areas claimed in such applications, the parties shall afford the applicants adequate opportunity, and shall encourage them, to resolve such conflict in a timely manner by voluntary procedures.
3. The parties with whom the applications for authorizations have been made by PEES on or before 12 March 1982 shall follow the procedures set out in Part I of the schedule hereto in respect of applications to which this agreement applies.
4. The parties shall consult together:
(A) With a view to coordinating and reviewing implementation of this agreement;
(B) Before issuing any authorization under their respective laws relating to deep sea bed operations;
(C) In regard to consideration of any arrangement to facilitate mutual recognition of such authorisations, it being understood that any such arrangement shall not enter into force before January 1, 1983.
(D) Before entering into any other bilateral or any multilateral arrangement between themselves or any arrangement with other states, with respect to deep sea bed operations.
5. In the event that any two or more of the parties enter into an agreement for the mutual recognition of authorisations granted under their respective laws in respect of deep sea bed operations, the parties concerned shall when necessary apply the procedures and impose the requirements set out in Part II of the schedule hereto.
6. To the extent permissible under national law, a party shall maintain the confidentiality of the coordinates of application areas and other proprietary or confidential commercial information received in confidence from any other party in pursuance of cooperation under this agreement in accordance with the principles set out in Part III of the schedule hereto.
7. The parties shall settle any dispute arising from the interpretation or application of this agreement by appropriate means. The parties to the dispute shall consider the possibility of recourse to binding arbitration and, if they agree, shall have recourse to it.
8. The schedule hereto is an integral part of this agreement and Part IV thereof shall apply for the interpretation of this agreement.
9. This agreement may be amended by written agreement of all the parties.
10. This agreement shall enter into force upon signature.
11. Any party may denounce this agreement bracket on six months notice and bracket to the government of the United States of America.
[12.] Done at Washington in the English, French and German languages, all three texts being equally authentic, in a single copy which shall be deposited in the Archives of the Government of the United States of America, which will transmit a duly certified copy to each of the other signatory governments.
End text.
13. Action requested. Please provide guidance in particular on para four issue. Such guidance should, if possible, be received at US Mission Geneva by opening of business July 26. USDel feels that final FRG-French position on para four is on table. We note French have now modified position to some degree and made some concessions. It is view of USDel that French will not move further on substance. Dept. should decide therefore, whether an agreement as set out above is worth written commitment not to have reciprocity agreement enter into force before January 3, 1983.
- Source: Reagan Library, Guhin, Michael A.: Files, LOS (Law of the Sea) Reciprocating States Agreement (4). Confidential; Immediate. Sent for information to Bonn. Sent to USUN Geneva, London, and Paris. Printed from a copy that was received in the NSC Message Center.↩
- The concluding sessions for the treaty were moved from Caracas to Montego Bay, Jamaica.↩
- In telegram 7771 from Geneva, July 28, USUN reported on the July 27 negotiating session. (Department of State, Marine Law and Policy Division, Subject and Country Files, Law of the Sea, 1981–1982, Lot 92D622, 50.12–Background—Sept 2 Agreement) [C] In telegram 7733 from Geneva, July 27, USUN transmitted the text that the U.S., British, West German, and French delegations had agreed upon. (Department of State, Central Foreign Policy File, D820389–0709)[U]↩