LOS CONFERENCE STRATEGIES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP84B00049R000200360023-1
• Release Decision: RIFPUB
• Original Classification: S
• Document Page Count: 12
• Document Creation Date: December 21, 2016
• Document Release Date: August 13, 2008
• Sequence Number: 23
• Content Type: MISC

Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
SUBJECT: LOS Conference Strategies
The Issue
The precise issue addressed by this paper is whether the
risk of failure of a negotiating effort by the US is so high
and the consequences of not adopting alternate strategies now
are so great that we should move immediately to implement them.
Background
After a year of inter-agency review, all departments and
agencies, including senior White House staff, have reviewed
US interests, objectives and options at' the Law of the Sea
Conference. The IG has forwarded a decision memorandum to
the White House, which sets forth two broad options for
Presidential decision. The first is to withdraw from the
Conference and attempt to put in place an alternative regime
to the one being negotiated at the Law of the Sea Conference.
The second option is to continue to negotiate as effectively
as possible subject to specified guidelines with a view
toward improving the Law of the Sea treaty so as to make it
acceptable to the Administration and the Senate. All agencies
have agreed that the second option best protects US interests.
The Department of Interior believes, however, that the second
option should contain a clearly delineated bottom line.
There is, however, a view held by some that it is
impossible for the US to achieve an acceptable treaty at the
Law of the Sea Conference and that particular attention
should be paid to contingency strategies. The purpose of
this paper is to address those strategies and to ensure that
senior decision makers have an opportunity to consider them
in connection with the decision memorandum. All agencies
would agree that strategies need to be prepared in the event
that the US fails to improve the treaty sufficiently to sign
and seek Senate advice and consent to ratification.
Strategies on the Assumption that US Efforts Will Not Adequately
Improve the Deep Seabed Mining Provisions of the Law of the
Sea Treaty.
1. Withdrawal from the Conference with our allies before
the next session.
Commentary:
a. While no effort has been made at the highest
levels to seek allied withdrawal from the
Conference, at this stage all of our senior
experts and experienced observers believe this
to be impossible. Our allies have other important
State Dept. review completed
SECRET
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
 Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
? -2-
non-deep seabed law of the sea interests to
protect and are concerned with their relation-
ships with developing countries.' As a result,
they will not simply walk out. Furthermore, an
unsuccessful US attempt to disengage the allies
would be a costly political irritant precisely
when we are seeking their cooperation on major
security, economic and political issues (e.g..,
Poland, Cuba, Libya).
b. Even if our-allies could somehow be convinced
to withdraw from the Conference with us, the
next step would be to try to set up an alterna-
tive regime for seabed mining. However, the
highest probability is that most of the rest
of the world, including many Western countries,
will proceed to conclude a comprehensive law of
the sea treaty providing for an international
organization to regulate deep seabed mining.
Mining rights would be in serious legal doubt
and mining would be unlikely to occur until
there was either a negotiated accomodation
between the two competing regimes or interna-
tional ajudication. Our chances of prevailing
in an international ajudication are highly
problematical.
c. Walking away now would leave the Soviets at the
table with the Third World, giving them a windfall
opportunity to influence the Conference in ways
adverse to national security and economic interests.
d. A strongly adverse international reaction
affecting our bilateral and multilateral
interests with a number of countries could he
expected in the event of our withdrawal.
2. Withdrawal from the Conference without our allies
before the next session.
Commentary:
a. This action would almost certainly produce in
1982 an adopted treaty. At best, it would be
more or less in its present form. We would
then have to attempt with little likelihood of
success to persuade our allies not to sign it.
This might be easier to do than getting them
to withdraw from the Conference since, if we
reject the treaty, the financial burdens normally
carried by the US would have to be carried
SECRET
Approved For Release 2008/08/13 :
 SECRET
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
-3-
in large measure by our allies. They might be
reluctant to assume this burden. Nevertheless,
the other criticisms of strategy one still
pertain and deep seabed mining might not occur.
3. Negotiate with the intention of preserving our
ideological positions on NIEO issues and then pulling,
out of the Conference and announcing non-support for
the treaty.
Commentary:
a. This approach would involve taking a public
posture at the Conference that lays out our
maximum ideological position and is, in effect,
one means of carrying out Option I as set forth
in the decision memorandum. It would be
designed to force the Conference to choose a
system that is consistent with US principles
or face the certainty of US withdrawal. It
would be perceived by most countries as a US
decision not to engage in serious negotiation.
The conference would undoubtedly conclude we
are seeking to have our position rejected so
as to give us a viable excuse for walking out.
In practice this approach would be the equivalent
of the second strategy and is, therefore,
subject to the same criticism.
b. This strategy would foreclose the option of
improving the treaty and could result in
retaliatory action by developing countries to
vote through amendments which would erode the
advantageous navigation/overflight provisions
of the current Draft Convention.
4. Make a maximum effort to negotiate a treaty that
meets US interests and minimizes objectionable NIEO
principles, preserving our option whether or not to
sign and participate in the treaty.
Commentary:
a. This'strategy would be designed to preserve
non-deep seabeds provisions that we support,
particularly important navigation and overflight
rights which involve our national security.
It would probably result in important improvements
to the treaty, but they could still fall short
of all the US objectives. Without a significant
SECRET
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
 Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
change in present views which we consider highly
unlikely, this is the only approach our allies
appear to be prepared to support. Even if the
treaty were not improved enough for US signature,
this approach would stand the best chance of
preventing erosion of the present advantageous
navigational provisions of the treaty.
b. This approach assumes that the US will decide
later whether.to sign the resulting treaty. if
we do not sign, a strategy could then be imple-
mented to prevent our allies from signing and
to persuade them to join us in establishing an
alternative regime. (See strategy 6).
c. This approach will enable us to conclude with
our allies the interim reciprocal regime, provid-
ing for conflict resolution and recognition of
exploration licenses only, which we have been
negotiating. They have made it clear that
they would not sign such an 'agreement if the
US withdraws from the negotiation.
5. Negotiate with the intention not to sign.
Commentary:
a. This strategy could result in modest improvements
to the treaty. It is, however, subject to the
risk and criticism, should such a decision
become known, of placing the US in a position
of negotiating in bad faith. No one believes
that this decision could be taken without high
risk of it leaking or becoming obvious to
other negotiators, and it therefore could
greatly impair the stature and respect of the
Reagan Administration as perceived by other
nations. It could also lead quickly to retalia-
tory action including damaging amendments to
the navigational provisions of the text.
6. Negotiate at the Law of the Sea Conference in a
serious effort to make significant improvements to
the treaty, while at the same time negotiating with
our allies to produce a reciprocating states regime
which could, with further development serve as the
basis for an alternative, or mini-treaty regime if
our efforts at the Conference failed to produce an
adequate result.
SECRET
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
 Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
SECRET
Commentary;
a. The first stage of this strategy is being pursued
right now through the reciprocal regime negotia-
tions. It has been made clear to us by our
allies that the US must be a bona fide partici-
pant at the Law of the Sea Conference and must
be seriously and reasonably attempting to
negotiate changes in the law of the sea treaty
(i.e., that the US pursue Option II as described
in the decision memorandum). Moreover, our
allies have stressed that they are only willing
to participate in a reciprocating states
regime that is interim to a law of the sea
treaty because of the importance they attach
to achieving an acceptable treaty.
b. It is also open to question whether, if the
Law of the Sea Conference ultimately fails from
our perspective, an elaborated reciprocal
regime or mini-treaty would adequately protect
our deep seabed mining interests. Most developing
countries, the Eastern block and many Western
countries are still likely to create an Inter-
national Seabed Authority with regulatory
power over deep seabed resources. This strategy
is therefore subject to the same criticism as
preceding strategies.
Conclusion
It may not be possible fully to protect US interests with
any of these strategies. Strategies 4 and 6 offer the best
opportunities to satisfy US interests. They are essentially
the same with respect to our efforts at the Conference but
have been presented separately for the purpose of highlighting
analysis of our ability to establish an alternative regime.
If our sole or primary interest is to avoid US participa-
tion in a treaty which accelerates or enhances international
acceptance of NIEO concepts, and we do not place importance
on preventing erosion of the navigation and overflight provi-
sions or on the viability of our future capacity to mine
deep seabed resources under the US flag in a secure legal
framework, and if we are not seriously concerned with world
opinion, then any of these strategies will accomplish this
objective. Strategy 5, however, would subject the US to the
legitimate criticism of negotiating in bad faith, would
undoubtedly become known, and therefore should be rejected.
SECRET
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
 Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
SECRET
-6-
Strategies 4 or 6 appear to be the only strategies which
would avoid the serious disadvantages to US interests described
above and which would preserve our option to stay out of the
treaty and implement an alternative at a later date. The
other strategies will be equally available after the next
session of the Law of the Sea Conference and could be addressed
at that time. In any case, none of them except for unilateral
withdrawal could be implemented effectively in the time
remaining before the Law of the Sea Conference begins in
early March.
SECRET
'??"9' Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
 Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
SECRET
SUBJECT: LOS Conference Strategies
The Issue
The precise issue addressed by this paper is whether the
risk of failure of a negotiating effort by the US is so high
and the consequences of not adopting alternate strategies now
are so great that we should move immediately to implement them.
Background
After a year of inter-agency review, all departments and
agencies, including senior White House staff, have reviewed
US interests, objectives and options at the Law of the Sea
Conference. The IG has forwarded a decision memorandum to
the White House, which sets forth two broad options for
Presidential decision. The first is to withdraw from the
Conference and attempt to put in place an alternative regime
to the one being negotiated at the Law of the Sea Conference.
The second option is to continue to negotiate as effectively
as possible subject to specified guidelines with a view .
toward improving the Law of the Sea treaty so as to make it
acceptable to the Administration and the Senate. All agencies
have agreed that the second option best protects US interests.
The Department of.Interior believes, however, that the second
option should contain a clearly delineated bottom line.
There is, however, a view held by some that it is
impossible for the US to achieve an acceptable treaty at the
Law of the Sea Conference and that particular attention
should be paid to contingency strategies. The purpose of
this paper is to address those strategies and to ensure that
senior decision makers have an opportunity to consider them
in connection with the decision memorandum. All agencies
would agree that strategies need to be prepared in the event
that the US fails to improve the treaty sufficiently to sign
and seek Senate advice and consent to ratification.
Strategies on the Assumption that US Efforts Will Not Adequately
Improve the Deep Seabed Mining Provisions of the Law of the
Sea Treaty.
1. Withdrawal from the Conference with our allies before
the next session.
Commentary:
a. While no effort has been made at the highest
levels to seek allied withdrawal from the
Conference, at this stage all of our senior
experts and experienced observers believe this
to be impossible. Our allies have other important
SECRET
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
 Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
non-deep seabed :Law of the sea interests to
protect and are concerned with their relation-
ships with developing countries. As a result,
they will not simply walk out. Furthermore, an
unsuccessful US attempt to disengage the allies
would be a costly political irritant precisely
when we are seeking their cooperation on major.
security, economic and political issues (e.g.,
Poland, Cuba, Libya).
b. Even if our-allies could somehow be convinced
to withdraw from the Conference with us, the
next step would be to try to set up an alterna-
tive-regime for seabed mining. However, the
highest probability is that most of the rest
of the world, including many Western countries,
will proceed to conclude a comprehensive law of
the sea treaty providing for an international
organization to regulate deep seabed mining.
Mining rights would be in serious legal doubt
and mining would be unlikely to occur until
there was either a negotiated accomodation
between the two competing regimes or interna-
tional ajudication. Our chances of prevailing
in an international ajudication are highly
problematical.
c.
Walking away now would leave the Soviets at the
d.
table with the Third World, giving them a
opportunity to influence the Conference in
adverse to national security and economic
A strongly adverse international reaction
windfall
ways
interests.
affecting our bilateral and multilateral
interests with a number of countries could be
expected in the event of our withdrawal.
2. Withdrawal from the Conference without our allies
before the next session.
Commentary:
a. This action would almost certainly produce in
1982 an adopted treaty. At best, it would be
more or less in its present form. We would
then have to attempt with little likelihood of
success to persuade our allies not to sign it.
This might be easier to do than getting them
to withdraw from the Conference since, if we
reject the treaty, the financial burdens normally
carried by the US would have to be carried
SECRET
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
 z
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
in large measure by our allies. They might be
reluctant to assume this burden. Nevertheless,
the other criticisms of strategy one still
pertain and deep seabed mining night not occur.
3. Negotiate with the intention of preserving our
ideological positions on NIEO issues and then pulling-
out- of the Conference and announcing non-support for
the. treaty . -
Commentary:
a. This approach would involve taking a public
posture at the Conference that lays out our
maximum ideological position and is, in effect,
one means of carrying out Option I as set forth
in the decision memorandum. it would be
designed to force the Conference to choose a
system that is consistent with US principles
or face the certainty of US withdrawal. It
would be perceived by most countries as a US
decision not to engage in serious negotiation.
The conference would undoubtedly conclude we
are seeking to have our position rejected so
as to give us a viable excuse for walking out.
In practice this approach would be the equivalent
of the second strategy and is, therefore,
subject to the same criticism.
b. This strategy would foreclose the option of
improving the treaty and could result in
retaliatory action by developing countries to
vote through amendments which would erode the
advantageous navigation/overflight provisions
of the current Draft Convention.
4. Make a maximum effort to negotiate a treaty that
meets US interests and minimizes objectionable NIEO
principles, preserving our option whether or not to
sign and participate in the treaty.
Commentary:
a. This strategy would be designed to preserve
non-deep seabeds provisions that we support,
particularly important navigation and overflight
rights which involve our national security.
It would probably result in important improvements
to the treaty, but they could still fall short
of all the US objectives. Without a significant
SECRET
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
 Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
change in present views which we consider highly
unlikely, this is the only approach our allies
appear to be prepared to support. Even if the
treaty were not improved enough for US signature,
this approach would stand the best chance of
preventing erosion of the present advantageous
navigational provisions of the treaty.
b. This approach assumes that the US will decide
later whether.to sign the resulting treaty. If
we do not sign, a strategy could then be imple-
mented to prevent our allies from signing and
to persuade them to join us in establishing an
alternative regime. (See strategy 6).
c. This approach will enable us to conclude with
our allies the interim reciprocal regime, provid-
ing for conflict resolution and recognition of
exploration licenses only, which we have been
negotiating. They have made it clear that.
they would not sign such an agreement if the
US withdraws from the negotiation.
5. Negotiate with the intention not to sign.
Commentary:
a. This strategy could result in modest improvements
to the treaty. It is, however, subject to the
risk and criticism, should such a decision
become known, of placing the US in a position
of negotiating in bad faith. No one believes
that this decision could be taken without high
risk of it leaking or becoming obvious to
other negotiators, and it therefore could
greatly impair the stature and respect of the
Reagan Administration as perceived by other
nations. It could also lead quickly to retalia-
tory action including damaging amendments to
the navigational provisions of the text.
6. Negotiate at the Law of the Sea Conference in a
serious effort to make significant improvements to
the treaty, while at the same time negotiating with
our allies to produce a reciprocating states regime
which could, with further development serve as the
basis for an alternative, or mini-treaty regime if
our efforts at the Conference failed to produce an
adequate result.
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
 Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
SECRET
Commentary:
a. The first stage of this strategy is being pursued
right now through the reciprocal regime negotia-
tions. It has been made clear to us by our
allies that the US must be a bona fide partici-
pant at the Law of the Sea Conference and must
be seriously and reasonably attempting to -
negotiate changes in the law of the sea treaty
(i.e., that the LIS pursue Option II as described
in the decision memorandum). Moreover, our
allies have stressed that they are only willing
to participate in a reciprocating states
regime that is interim to a law of the sea
treaty because of the importance they attach
to achieving an acceptable treaty.
b. It is also open to question whether, if the
Law of the Sea Conference ultimately fails from
our perspective, an elaborated reciprocal
regime or mini-treaty would adequately protect
our deep seabed mining interests. Most developing
countries, the Eastern block and many Western
countries are still likely to create an Inter-,
national Seabed Authority with regulatory
power over deep seabed resources. This strategy
is therefore subject to the same criticism as
preceding strategies.
Conclusion
It may not be possible fully to protect US interests with
any of these strategies. Strategies 4 and 6 offer the best
opportunities to satisfy US interests. They are essentially
the same with respect to our efforts at the Conference but
have been presented separately for the purpose of highlighting
analysis of our ability to establish an alternative regime.
If our sole or primary interest is to avoid US participa-
tion in a treaty which accelerates or enhances international
acceptance of NIEO concepts, and we do not place importance
on preventing erosion of the navigation and overflight provi-
sions or on the viability of our future capacity to mine
deep seabed resources under the US flag in a secure legal
framework, and if we are not seriously concerned with world
opinion, then any of these strategies will accomplish this
objective. Strategy 5, however, would subject the US to the
legitimate criticism of negotiating in bad faith, would
undoubtedly become known, and therefore should be rejected.
SECRET
Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
 Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1
SECRET
Strategies 4 or 6 appear to be the only strategies which
would avoid the serious disadvantages to US interests described
above and which would preserve our option to stay out of the
treaty and implement an alternative at a later date. The
other strategies will be equally available after the next
session of the Law of the Sea Conference and could be addressed
at that time. In any case, none of them except for unilateral
withdrawal could be implemented effectively in the time
remaining before the Law of the Sea Conference begins in
early March.
SECRET
- Approved For Release 2008/08/13: CIA-RDP84B00049R000200360023-1