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

194. Action Memorandum From the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs (Malone) to Secretary of State Shultz¹

Washington, January 12, 1983

SUBJECT

• Oceans Policy and Law of the Sea—Establishment of an Exclusive Economic Zone for the United States by Presidential Proclamation and Promulgation of a US Oceans Policy

ISSUE FOR DECISION: Whether the Department of State should support the establishment of an Exclusive Economic Zone (EEZ) by Presidential Proclamation and the promulgation of a US Oceans Policy as recommended by the Interagency Group on Oceans Policy and Law of the Sea.

ESSENTIAL FACTORS: By NSDD–58 (Tab A)² the Senior Interagency Group for Oceans Policy and Law of the Sea was charged with preparing recommendations on oceans policy including giving prompt attention to the establishment of an EEZ for the United States. The Interagency Group has considered this matter and has prepared a draft decision memorandum for the President recommending that he establish an EEZ by Proclamation, a draft Proclamation and a draft Oceans Policy Statement, which would be issued at the same time. The IG has forwarded these documents to the Senior Interagency Group for review.³ If the SIG approves, the package will be transmitted to the President for his decision.⁴

An EEZ is an area beyond and adjacent to the territorial sea, over which the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the seabed and subsoil and superjacent waters, and with regard to other activities related to the economic exploration and exploitation of the zone. In this zone, other States would continue to enjoy the high seas freedoms of navigation and overflight and the laying of submarine cables and pipelines. The zone extends from the outer limits of the territorial sea to a line, in most cases 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.

BACKGROUND

The United States already has fishery resource jurisdiction (with the exception of tuna) extending to 200 nautical miles from the coast (under the Magnuson Fishery Conservation and Management Act), sovereign rights for the purpose of exploration and exploitation of the resources of the continental shelf (implemented through the Outer Continental Shelf Lands Act), and certain jurisdiction beyond the territorial sea relating to pollution control (under the Clean Water Act of 1977 and other laws).

The establishment of an EEZ would establish new United States jurisdiction over: a) mineral resources of the ocean floor beyond the continental shelf out to 200 nautical miles; b) other economic activities, such as the production of energy from the winds, waves, tides and thermal conditions, within the EEZ; c) all artificial islands, installations and structures used for economic purposes (to the extent not yet established); and would create a framework wherein jurisdiction over marine pollution and marine scientific research could be exercised or expanded, as appropriate, by legislation. The EEZ would apply to the waters adjacent to the United States, US overseas possessions, and the Commonwealth of Puerto Rico.

Proclamation of an EEZ at this time would create a valuable precedent to help guide the practice of other coastal States when they establish their EEZ’s. (Over 50 nations have already done so.) Most other coastal states are expected to follow suit in the near future. An EEZ would bring within the jurisdiction and control of the United States substantial additional mineral resources within 200 nautical miles of our coasts while preserving the traditional high seas freedoms of other states. It would be seen by the public and many members of Congress as a commitment by the President to protect and promote US interests.

The major disadvantages of a US proclamation at this time are: that it could accelerate the tendency of a number of coastal States to adopt EEZ’s claiming jurisdiction and control in excess of that permitted under international law as reflected in the Law of the Sea Convention and, therefore, contrary to US interests; it would reinforce the argument that the US is picking and choosing among those rights and duties that it will respect, and may be viewed by some in the Congress as an act that would impair rather than promote US interests by attracting challenges to the exercise of our oceans rights.

A draft Decision Memorandum for the President is attached at Tab B, a draft Presidential Proclamation is attached at Tab C, and a Presidential Statement on Oceans Policy at Tab D.⁵ These documents reflect the views of the Interagency Group on Oceans Policy and Law of the Sea. We expect that all concerned agencies will recommend that an EEZ be established by Presidential Proclamation and that these documents be submitted to the President for his review.

No outstanding substantive issues remain.

Decisions made today will affect the basic freedoms of the sea for decades to come. It is incumbent upon us to gain a wide range of support, both inside and outside of government, for a new oceans policy based on our non-signature of the LOS Convention. Don Rumsfeld committed us to genuine consultations with our allies on oceans policy issues. We have cabled texts of the proposed EEZ proclamation and oceans policy statements to key maritime countries with a request for their comments.⁶

This week, we have undertaken an extensive program with our allies, neighbors, and others to explain the US approach to an EEZ and to solicit their views on the US EEZ initiative and oceans policy. The results of these consultations will be included in the final paper for the President.⁷

RECOMMENDATION

All concerned bureaus in the Department of State recommend that the Department of State support the establishment of an EEZ and that the attached package be submitted to the President.⁸

1. Source: Reagan Library, Papers of George P. Shultz, Law of the Sea. Confidential. Sent through Schneider. A stamped notation on the memorandum indicates Shultz saw it.
2. Not attached, printed in Document 176.
3. In a January 6 memorandum to Senior Interagency Group No. 32, Bremer forwarded draft copies of the decision memorandum, policy statement, and Presidential proclamation (Tabs B, C, and D). (Reagan Library, Guhin, Michael A.: Files, 1/19/1983[2])
4. See Document 195.
5. Tabs B, C, and D are not attached. See footnote 3, above.
6. In telegram 5357 to multiple recipients, January 8, the Department transmitted the proposed EEZ proclamation and requested feedback from host governments. (Department of State, Central Foreign Policy File, [no film number])
7. See Document 195.
8. Shultz initialed the approve option on January 14.