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tv   [untitled]    May 24, 2012 5:30pm-6:00pm EDT

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south china sea, but also true in the arctic. being part of a convention that would help manage that, as another instrument for our use, recognizing, we always have sovereign interest in the military, and the navy in particular that will protect those. i do think this is wise at this point. >> i know we heard objections from some of our colleagues and i'm sure we're all getting letters reflecting different perspectives on the treaty. but i want to read to you something from a letter that i got from a constituent and ask you if you could respond to it. it says, and i'm quoting from the letters, even the freedom of navigation provisions add nothing to the existing customary law of the sea that sea faring nations, including the united states, have observed for centuries. given that we haven't, to date, had any major disruptions at sea, can you respond to that and
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talk about why it's -- why the sense now is that it's imperative to ratify the treaty? >> i can. the customary international law evolves and i can give you an example of something on the land domain in a moment. but it evolves. and it is subject to individual interpretations. so, threading this back to my earlier answer. the rise of new nations competing for resources, brazil, russia, india, china, the list goes on and on. their rise puts us in a position where unless we have this convention with which to form a basis to have the conversation about resources of the sort you're talking about, does cause us to be increasingly at risk to instability. and that's my job, instability. the secretary can speak eloquently about the economic h i issues, but i'm speaking to the security issues. so that is what has changed.
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and i'll give you the example of the land domain that i mentioned. we are party to the geneva convention. there were plenty of customary international laws related to the use of force. but we consciously and deliberately signed onto the jeanne have a convention as a mechanism by which to have this conversation among a community of nations. and that's what's different today than was different 20-year-olds ago. competition for resources, which is my grating increasingly into the maritime domain. >> and thank you, general dempsey. as you pointed out, secretary clinton, you were very eloquent in talking about the economic urgency of ratifying the treaty and one of the areas you mentioned was the arctic, we're the only arctic nation that hasn't ratified the treaty. i would point out, there are a lot of people, when we acquired
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alaska, which gives us access to the arctic, there were a lot of people in this country that thought that was folly, seward's folly, as we remember, and history has shown very differently. bull can you talk about where we are with respect to the other countries who have ratified the treaty, who border the arctic and where they are in terms of exploration and any other activities they may be doing in the arctic and how we compare to that and how much, to what extent we might be left behind if we don't ratify the treaty? >> well, thank you for that, senator, because i actually think that the arctic is one of these areas where potential instability, as well as economic competition, are going to be played out. the largest single portion of the u.s. extended continental shelf is in the arctic and the other arctic coastal nations, russia, canada, norway,
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denmark/green t denmark/greenland, are all in the process of establishing the outer limits of their continental shelves, using the provisions of the convention. think we all remember, cushion ya going down and planting a flag under the water, claiming the arctic. we don't think that has any force of law, certainly, but it demonstrates the interest of staking a claim in the arctic. as the arctic warms and frees up shipping routes, it is more important that we put our navigational rights on a treaty footing and have a larger voice in the interpretation and development of the you radios, because it won't just be the five arctic nations. you will see china, india, brazil, you name it, all vying for navigational rights and routes through the arctic. and the framework that we should
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establish and support is the one based in the convention that will help us deal with expanding human activity in the arctic, which is why i think that the time is so pressing for us to make this decision. >> thank you, secretary panetta, did you want to add to that at all. >> no, she did it. >> okay, thank you mr. chairman. >> thank you, senator. i think it's an appropriate moment to place in the record a letter from the commander of the united states northern command, general jacoby. and senator lugar and myself and -- the commander states, nation security is dependent on cooperative partnerships and peaceful opening of arctic waters is in the interest of the community of arctic nations. the united states is the only arctic nation that is not in the convention. consequently, the nation risks being excluded from strategic
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discussions for advancing the convention with our maritime partners and for resolving sovereignty and national resource issues. fuel sure defense and civil support scenarios will require closely coordinated multinational military operation lgs to include the formation of coalition task forces. our nation's asession to the convention will set the conditions for partnership and cooperation. it goes on, says, further things, but i place that in the record. senator demint? >> thank you mr. chairman. and thank you for beginning a process of hearings. i appreciate the panelists and their testimony today. the fact is that most of the testimony today dealt with navigation issues. and things that affect the navy on the waters around the world. that's about ten pages of the treaty. and certainly, we need to deal with this, there are a lot of theoretical advantages i think
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have been discussed, as mentioned by the general. the united states plays by the rules and the idea that we get into a rules-based system with other nations that establish some international rules of engagement, theoretically, i think we can have honest debate on how we come out on that. i know we brought china into the wto, because we thought if we could get them in a rules-based system, we would have a fairer system. it hasn't worked out that way. only a few months ago, a lot of us here on the panel were skweeming about china manipulating their currency. we know when we try to deal with them, the u.n. on sanctions against iran, not all of the members play by the rules. they're not always that effective. and of course we have a history of arms treaty, when we go back and finds that the other players are not playing by the rules. we could have a reasonable debate that there is a possibility that when we enter into agreements as a nation with other nations that don't play by
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the rules, we could put ourselves at a disadvantage. but we could talk about that later. the concern i have is almost 300 other pages of the treaty that has really not been dealt with much today. and just for a few clarifications. we don't have a veto in the assembly of this convention. we can have a veto in the council, just as sudan has, one of the world's leading sponsors of terror. but we cannot have a veto in what the assembly decides as a whole. and also the oil companies don't pay the royalties, the united states does, the treaty specifically says the state members pay that and the taxpayer will ultimately pay it. i just want to make a few points, ask a short question. of course, 160 other nations want us in this thing. we need to think that through. because as has been said, maybe we have a lot to gain, but we will pay more than any other
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nation that is part of this agreement, the cost of the royalties that have been discussed. of course they want us in this. they also get to help define the rules of engagement for the u.s. navy all over the world. and that may be a thee roretica a good idea, but there's been a lot of testimony that the international rules of edge gaugement on the ground have put our folks in harm's way. so, we do need to debate that. and we doe know that the treaty very clearly subjects our states, our businesses, our electric utilities, to environmental lawsuits thatarbi slanted against us. it's clear, if we have a dispute with another nation, we appoint two arbitrators, they opponent two and the secretary-general of the united states appoints the fifth. those aren't odds i want to deal with when it comes to doing business in america.
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and i would just ask, and we've talked about this already and maybe i direct it to the general, because i certainly respect his advocacy for what he feels like is important to the navy. but this treaty is much bigger than that. and given the fact that -- and american oil companies have already leased a lot of land, 200 miles out in the gulf, to begin development of that, and we've done that without the law of the treaty. and we can keep the straits open and we have committed to do that, whether we're in this treaty or not. but general, how is it in the interest of the united states to turn the royalties over to an i accountable, international bur rock bureaucracy. given the fact we have facing short falls, cuts in our military, and this is something that is real money, that is going to be paid to an international body, at a time our country is almost hopelessly in debt, and it will be distributed to countries that
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maybe our enemies, like sudan. i just -- again, i respect your advocacy for the naval aspect of this, the navigation aspect. bull what we're trying to deal with is the whole treaty. and what it might do as far as cost to the american taxpayer, cost to american business. and just our ability to operate freely around the world. and i know that's a loaded question, but maybe you have an opinion you'd like to swing back at me. >> what i would like to say, sir, is the economics of it, i will leave to the economic experts. but from the security perspective, i would want to have a further conversation about whether in the treaty you see our rules of engagement or our activities limited, because they're not limited in any way. and by the way, sir, we never cede the rules of engagements on the ground to include in afghanistan, to any other nation on the face of the earth or any international organization. >> i appreciate that an. i think we're arguing that, hey,
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we need this for our military to operate freely around the world and inhear the treaty allows us on a military or defense front, to complete lly opt out of this thing any time we want. so, why do we need to give in to all of this in order to be able to operate our navy as we have for years, around the world? >> well, let me -- i'll take a shot at it and maybe pass it off to eithersemi secretaries. right now, the description of maritime zones and the freedoms of 1/2 yagss, or the rights of navigation, are codified in international customary law. i'm not comfortable with that any longer. because of the reasons that i gave to senator shaheen, on the way that the security in the maritime domain is being challenged by some of the rising powers, by the onning of the arctic and other areas around the world where that customary
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international law is now being subjected to individual interpretation. i think it is in our benefit to become partal of that conversation. >> general, just as a followup, some of those countries that are interpreting the law are already parties to the law of the sea treaty. they are not following the ru rules. what's going to be different if we're in it. are they going to now abide by the rules the way we see them? my concern is, we will abide but they're already view laolating rules. i don't know how this creates a system of rules we can count on. >> go ahead, sir. >> senator, you know, i -- i think the question you have to ask yourself is, is whether or not if it gifls us the best of both words. it gives under the circumstances the ability to protect our military active tills, gives us the ability to conduct what we have to do in terms of our
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ability to operate in the seas. gives us the ability to avoid any kind of dispute resolution with regards to military activities. it does give us the ability to opt out that which we don't want to participate in. at the same time, it givens us the ability to engage when we have to engage. i mean, better to have a seat at the table than not at the table when they are dealing with issues that affect our claims, our economy, our rights. that's the key here. >> secretary, is there any table in the world that we're not sitting at right now? >> well, yes, we're not sitting in the seattle that's reserved for us in the seabed mining table. and to be clear, senator, any assembly decision, because you referenced that, has to go through the council. we have a permanent seat on the council. other members rotate. but -- i really want to do everything i can, and i know my
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colleagues feel the same way, to try to explain over the next months, in the process that chairman kerry has started, why we do think, as secretary panetta said, this is in our interests and it is, for us, the best of all words. because otherwise, we will put our economic interests and our economic players in a dised disadvantageous, uncompetitive position. and i think what you are hearing from both general dempsey and secretary panetta is that when we are now facing new threats that largely arise out of the incredible race for natural resources that will be primarily based in the oceans, we need to be able to play any card at our disposal and we think we will have more cards if we're a member than if we're not a member.
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>> thank you. thank you to you all. thank you, mr. chairman. >> thank you, senator. and i just point out to the senator, we'll go into this further, but the -- the veto -- you are correct, is not within the assembly, but there is a restrict specifically defined within the treaty as to what can go to the assembly and the royalties are specifically reserved to the council to send and that has to be by consensus. and consensus is specifically defined as requiring a formal -- any formal objection. so while, you know -- >> i'd like to get into that, because it begs two questions. first of all, sudan is on the council. if we have a veto, they have a veto. their interest is very different than ours.
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is there a question about whether they're on the council or not? >> they are a member -- they have exceeded to the convention. >> and they are on the council -- >> well -- you know, a lot of member states, 160 of them, are technically within an all-member body but all the important decisions are made by the council and there is absolutely nothing in this convention which says that -- >> i'm speaking of the council. i'm looking at the list of members right now and sudan is on it. and so, if we have a veto, they have a veto. and so, it's just something we need to look into, again, the devil's in the details. we've talked about some theoretical advantages that might address some navigation issues, but that only assumes if other countries are playing by the rules, there's very little indication within the treaty convention of the members already that that's happening, or that we can count on it in the international community as
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we go forward, but again, i want to thank all of the -- >> let me just say to the senator, for the period of time that sudan is on the council, it is possible, hypothetically, that they could veto something and therefore you could wind up with gid lock and they would look like the united states senate, or congress. but the fact is they're not a permanent member of the council. we are. and as a permanent member of the council, i think we're the only permanent member. so, we stand in a very special status that we are not currently able to exercise. and i think with respect to the senator's fears, and other fears, what you're trying to protect is something that would go against the interests of our country. that's what we need to be able to protect. if sudan votes to do something or blocks us from doing something that we're interested
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in doing, then there are plenty of other avenues of resource for that, too. but if you are deeming with the oceans and deeming with this question of royalties and other things, the fact that we would preserve the right to protect our interest. i think issues are, they don't want money going to dictators, they don't want money going to bad actor countries. well can block that. we can block that until the cows come home. and so, i think we can be protected. so, again, we'll go into that and while the veto word is not used, also not used incidentally, in the constitution of the united states, but nobody doubts the president has it. so, we have the ability to be able to do it through the language that is there and that will become, i think, more clear as we go forward. senator coons? >> thank you chairman kerry. i'm very glad we are having this meeting today. senator webb and i sent chairman kerry and ranking member lugar a letter back in april urging that
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we move forward to consideration of the law of the sea treaty and i'm grateful to your testimony here today. when i was brand new to the senate, one of the earlier meetings i took was with the then outgoing chief of naval operati operations. and when i asked him, what admirations, gary ruffet. when i asked what is the single most important thing we can do to help the navy over the next decade he said without hesitation ratify the law of the sea treaty. i was taken aback by that given ship building needs and budgetary priorities and other staffing issues and operational issues and as it turned out, admiral's estimation and associate of this treaty is shared by every living chief of naval operations not to mention every living secretary of state and secretary of defense and of course strongly supported by both of you and by chairman dempsey here today. i know that senator warner, former senator warner, former chairman of the armed services committee, former secretary of
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the navy, is with us here today, and i have a copy of a letter that he submitted to then chairman biden and ranking member lugar commenting on incoming chief of naval operations admiral ruffett and how he had given strong testimony in support of this treaty in 2007. my concern, mr. chairman, members of the panel, is that this is the treaty that time forgot, that we are locked in a debate that is literally decades out of date, and i understand some of the concerns raised by members of this committee there were some flaws and some issues in this treaty when first negotiated in '82. many of them hammered out, resolved by '94 by amendments and certainly by the time this was previously considered and several times by this committee during your service here, senator, and now secretary and i believe it is well past the time when the questions and concerns raised here today were compelling and if i have to face
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questions about whether this is a critical fire fight in the defense of american sovereignty or a self inflicted wound in a rapidly emerging global theater before our competitors are taking advantage of our absence, that empty seat at the table, that i would rather take my naval strategic advice from the chief of naval operations and the chairman of the joint chiefs of staff and the secretary of the navy than from the editorial pages of the washington times, so frankly if i could, i have a few questions i would like to ask you, but i think what you laid out here today is an overwhelming response to the question, is the ratification of this treaty in the best interests of the united states. senator menendez before me asked in rapid fire succession a series of questions. does this in any way put threaten the sovereignty united states, compromise our intelligence gathering act and my recollection was you all said no. let me put it in the opposite. does failure to ratify this treaty, general dempsey, in any
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way compromise the ability of the united states to project force around the world, to support and sustain our allies, and to meet the threats within the constraints that we have in a balanced and responsible way? are we at risk as a result of failure to ratify this treaty? >> based on our current application of customer international law we will of course assert our sovereignty and our ability to navigate. however, what it does do, and therefore it won't deterioriate our ability to project force will not deterioriate. what could cause if we do not ratify over time, what could happen is that we put ourselves at risk of confrontation with others who are interpreting customary international law to their benefit, so the risk of confrontation goes up. our ability to project power is unaffected. >> so failure to ratify puts us at some greater risk of
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conflict, are you confident we continue to have the resources to meet that, but we are as it were unilaterally choosing not to use one potential tool for our national defense. >> i would agree with that phraseology. >> secretary panetta? >> senator, let me just make the point. it does put us at risk, and the risk is this, that if we face a situation that involves navigational rights, if we are not a party to this treaty, and can't deal with it at the table, then we have to deal with it at sea with our naval power. once that happens, you clearly increase the risk of confrontation. >> and if i might, secretary panetta, given the specific pivot, the aggressive expansive actions that others have referred to in the south china sea by china and others in your view does this put our allies at
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any risk in terms of their confidence about our willingness and ability to fight for their territorial issues, to fight for their freedom of navigation of the seas? >> well, the majority of our allies are signatories and exceeded to this convention. they're part of it. they have a difficult time understanding why we aren't there at the table alongside of them making the arguments we need to make. sure, they know we're strong and able powered. they know that we can exert ourselves militarily wherever we want to, but they also know that in today's world they are dealing at the table trying to negotiate resolutions to conflicts in a rural space manner. that's the way to deal with issues like that. somehow they're concerned and i think rightly so that a great power like the united states is not there alongside them. >> secretary clinton, if i
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might, in 2007 during a previous consideration or debate over this treaty senator mccow ski voted for the convention and then governor sapien dorsed the convention, and you referenced this would extend our reach from 200 miles to 600 miles and provide some predictability for investment for oil and gas extraction and transocean dl ic ables and sea bed mining and opportunities and if we remain the only arctic nation to not ratify the treaty puts us at some risk in terms of defending shipping lanes and commercial opportunities for our own country. what challenges is the state department facing in protecting u.s. interests in the northwest passage in the arctic and in your view are we at some risk if we fill to ratify this treaty. >> i think one of the reasons there is strong bipartisan support coming from alaska over the last decade is because they are truly on the front lines.
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we know there are natural resources that are likely to be exploitable if we have the opportunity to do so, and so i think, senator, the fact that we are an arctic nation, we are the only arctic nation that has not taken the step of exceeding to the convention and thereby being able to demarkate our continental shelf is seen in alaska as a missed opportunity and a strategic disadvantage that is increasingly going to make us vulnerable as the waters and the weather warms and there are going to be ship from all over the world exploring, exploiting, fishing, taking advantage of what rightly should be american sovereign territory, and nobody wants to see that happen. >> madam secretary, mr.
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secretary, mr. chairman of the joint chiefs, i am grateful for your testimony today. i am struck in reading the background materials and reflecting on it how a fight over some of the details of this treaty that was largely resolved in our favor in '94 remains frozen in time and i conclude from what i have heard so far today that the real risk we face is that we are letting others draw boundaries, we are letting others set rules. we are he have looing our economic interests out of the fight and putting our national security interests at risk by failing to ratify this treaty. thank you, mr. chairman. >> thank you very much, senator. i appreciate it. senator lee. >> thank you, mr. chairman. i thank each of the witnesses for joining us today. i am one of the people who has some concerns with this treaty, and a sure you that my concerns are rooted in something more than mythology and something more than an editorial page. they are rooted first and foremost in america's national
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sovereignty, and i think that is not something that is to be discounted here. one of the exchanges that i have appreciated during the course of our discussion this morning has surrounded the what has been described at times as veto on the council. i want to drill down on that issue a little bit and make sure i understand it correctly. my reading of article 158 of the treaty is that it creates three basic bodies. it creates the assembly. it creates the council, and it creates the secretary as outlined in section 1 of article 158. in article 160 we have a basic definition of the purpose of the assembly, and it describes that purpose as follows. it says that the sem before i shall be considered the supreme organ of the authority, meaning the international sea bed authority based in kingston, jamaica. then we move


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