January 19, 1983 | Executive Memorandum on Energy and Environment
Dear Mr. Secretar y of State: It has been brought to our attention that you have r 'ecently received, a letter addressed to "Dear George" from "Elliot." The writer, it appears, was Mr. Elliot Richardson, chairman of 'Citizens for Ocean Law and former Ambassador to the Unit e d Nations Law of the S6a.-Conference, who was asking you to reconsider U.S. refusal-to@join the Law of the Sea process. Though'we cannot address you by your first name, we feel compelled to state our conviction that it would be neitheriin your interest no r in that of our nation to follow Mr. Richardson's advice. President Reagan has made clear that sound reasons prevent this nation from endorsing the Law of the Sea Treaty. Nor should the U.S. participate in the-.Preparatory Commission (PrepCom) for the Law of the Sea Conv6ntion. The PrepCom's sole task, after all, is to establish the rules,;regulations, and proce- dures for seabed mining under the control of the!International Seabed Authority,-which the President has rejected. More important, just when the r est of the world looks to the United States to assume global leadership by establishin' a comprehensive .9 national oceans policy, you should urge the President to proclaim an Exclusive Economic Zone (EEZ) for the United Stat'es. In Heritage Foundation Ba c kgrounder No. 188;of June 1982 provided to the Department of State, we outlined the basi6 problems in the Law of the Sea Treaty text. We maintained that it was 'not in the interests of the U. S. to sign the Treaty, and suggested alternative arrangements a n d options that the U.S. could pursue to ensure its:continued access to'a-11 ocean resources, the maintenance of its navigational rights, and tradi- tional high seas freedoms. This paper pointed out that the U.S. delega:,tion to the Third Law of the Sea Co n ference was ready to negotiate with other nations at the Conference toward a settlement that would benefi@ all nations by encourag--@ ing mining in the deep seabed and would reaffirmithe rights and privileges' of navigation and fishing and jurisdiction ov e r continental shelf areas for coastal states. To this end, the President 6utlined six objectives for the Treaty that would make it acceptable to the.-United States. These objectives asked, first and foremost, thatthe Treaty not deter development of any se a bed mineral resources; that it provide a decision- making role in the deep seabed regime that fairl@ reflects and protects the economic interests and financial contributiohs of participating states; and that it be receptive to the advice and consent of th e U.S. Senate. Despite the U.S. representatives' efforts to negotiate 'for them in good faith, not one of the President's objectives was achieved.2
Treaty provisions distress other nations as well as the U.S. The political, economic, and ideological ass umptions that underlie the Treaty, and with which developing nation negotiators from the Group of 77 have armed themselves in deliberations for the Treaty throughout the past decade, are essentially antithetical to American values. These values are inhere n t in U.S. promotion of free enterprise, protection of private property, and opposition to monopolistic,power and governmental discrimination in the marketplace. Had the Trea:ty not violated these values, the U.S. surely would have signed the acbord. The r e visions needed to correct this fundam6ntally flawed document cannot be attained through U.S. participation in:the PrepCom, and the President is right in refusing to permit the U.S'. to pay a United Nations assessment for the PrepCom. It is an improper ass e ssment under the U.N. Charter and is not legally binding upon members., We urge you to support the President in continuing to reject U.S. partibipation in the PrepCom either now or in the future. With the U.S. rejecting the Law of the Sea Treaty and furth e r participation in any of its bodies, the time is iight for the President to assert U.S. leadership and to proclaim, at thb earliest possible date, a national Exclusive Economic Zone (EEZ), e;xtending 200 miles into the coastal water's of the U.S. and its territories and claiming juris- diction over resources that are rightfully ours to own and economic acti- vities that are properly ours to control. Today, approximately fifty-six nations claim an EEZ of 200 miles. In addition, some twenty-three nations, i n cluding the U.S., claim exclu- sive fisheries zones of 200 miles. Clearly, customary international law already recognizes jurisdiction in the continental shelf and the 200-mile fisheries zone and is beginning to recognize it 'in the EEZ. The EEZ also appe a rs in the Law of the Sea Treaty text, keflecting wide inter- national agreement on this issue'. Thus, extensi@re state practice, impressive international consensus, and noteworthy legal authority would support the establishment of a U.S. EEZ. The likely v i ew of the world community, and our Allies in particular, is that-the establishment of an EEZ would represent a positive approach to the eiaboration of ocean law. It is also important that the U.S. act to ensure traditional high seas freedoms within the EE Z . By carefully shaping the EEZ to allow maximum freedom'of the seas consistent with U.S.:resource-jurisdiction, we would favorably influence the behavior of othe'r nations. This influ- ence would be even stronger, if the President's Proclamation, and subs e - quent legislation in both the House and the Senate, basically conformed to the text of the Law of the Sea Treaty. We urgle you to support this Proclamation to be made at the earliest possible:date. The President's State of the Union Address would certai nly.be an-appropriate occasion for this statement of U.S. resolve.
Roger A.-Brooks 1@olicy AnalystF or further reading: Theodore Kronmiller, "The Exclusive Economic Zone," paper @repared for the University of Virginia, Center for Ocean Law and Policy, 7th Annual Seminar, Montego Bay, Jamaica, January 7, 1983. Doug Bandow, "The United States and the Law of the Sea Treaty," The Journ al of Social, Political and Economic Studies, Fall 1982.