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tv   [untitled]    June 14, 2012 11:30am-12:00pm EDT

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what is the downside of this treaty? is there in your view a downside? admiral? >> on the security side, i'm not aware of any downsides that we can point to. in fact, the upsides are why we're here today. as i mentioned, it very much improves the 1958 geneva conventions, it codifies treaty law on things we need to do day in and day out as a navy and as a force. in terms of on the security side, i know of no downside. i explored the commercial side and it's complex but it seems to me as though this treaty was negotiated and modified in 1994 to our advantage but i would leave that to the economic experts to discuss. i see no downside on the security side. >> senator, if i were to think of a downside it would be misinterpreting the advantages or what this will do for us. it's not going to solve everybody's problems and you laid out some very clear issues
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that we've been dealing with for years and years. i think feeling that the law of the sea convention will solve onto itself because it establishes law is wrong. now we need to roll up our sleeves and use it as an instrument to sit down with nations because we have a consistent instrument that we can use. >> i see no downside from a security perspective. i see a downside on the status quo though. it will morph in a way that we can't predict. it leaves us outside of the full international legal frame work that governs these rights and obligations and the actions of our allies, partners and friends. it weakens our standing to object inappropriate actions of other states that violate the conventions. 160 countries have signed up for this thing. they don't all follow it to the
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letter of the law. we're not in there to be able to be able to object to that. i think it weakens our ability to shape potential changes to the convention that we may want to see in the future. >> senator, i find it interesting. you used the rules of the road in the beginning of your statement there and to me that's one of the greatest analogies here. the rules of the road for centuries were determined by customary international law. the challenge was as we went from sale to steam and vessels approached each other more quickly, everyone had their own version of customary international law and collisions occurred. all countries agreed at a certain point to rags which standardized things to sea. there's stability and continuity and predictability in those rules which sailors depend upon. that's a perfect analogy for us that we continue under customary international law and it changes
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and everyone has a different view of it. we negotiated ourselves in a position where this is most favorable to us like having a lottery ticket, a winning lottery ticket you don't cash in and you can't use the proceeds. >> i would respectfully submit that the series of exchanges that we've had with china where they have insisted on only bilateral solutions is perhaps the strongest argument for us proceeding forward in this sort of way where we can continue to encourage multilateral solutions. thank you, mr. chairman. >> thank you, senator webb. that last point is a critical one. i'm sorry senator corker isn't still here to hear you say it but i think we should chat with him about it. everyone i think has agreed -- one of the reasons we have our presence where we do in the pacific is because we are viewed by most nations out there as being the indispensable nation.
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and clearly yana would love to just use its power to bilaterally leverage some of the country. if the united states is at the table and there's a unit, there's a whole different equation that chinese have to take into account. virtue of -- it advantage s us for the chinese to be out. they have been ribbed and kind of made fun of in various meetings when the subject comes up because we're not a member. they look and say you're not a member. you don't have standing to bring this up. people need to weigh that as we go forward here. >> admiral papp, we sit here every day and it isn't often that our intelligence is
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insulted but for you to come here and tell us that we can't resolve a border dispute with canada because we're not a member of this law of the sea treaty really does that. i'm sorry that you chose to go down that route because i think those kinds of representations really undermine the statements and the logical arguments made by others who want to see this treaty authorized. i was surprised as all of you testified that the south china sea wasn't mentioned until we got to admiral locklear. i was going to go down the same route that senator corker did in that regard and i'll touch on it at least some. most people in america don't realize what a mess the china sea is in and the description that we've had here today has been very an septic. it's not just the philippines. other governments are having the same difficulties.
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they are begging for help. not one of them asked that we subscribe to the law of sea treaty. they wanted you guys to do something about it. they wanted me to urge the president to have you do something about it, which i'm not inclined to do by the way. but senator corker made the point that this treaty was negotiating 30 years ago this coming december 12th. it was adopted by the united nation as couple decades ago and every one of the players in the mess in the south china sea is a subscriber to this treaty. yet this treaty is just a piece of paper and is just flowery speeches like we've had today and the gates open and the rodeo starts. this hasn't helped one bit to resolve the tension, the
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disputes that are going on in the south china sea. they are shooting at each other there. there has been munitions expended. this thing hasn't done one thing to help as senator corker has pointed out. can any one of you point to me one thing that this treaty has done on a specific basis. people, places, and timing tell me one thing that this treaty has done to resolve the disputes and the tensions that have taken place in the south china sea? i don't want to talk about the future. i don't want to talk about what a wonderful document it is. i want to know what did one country do to use the provisions of this treaty to help itself in the mess they're in in the south china sea. who wants to try that? >> we pointsed out, senator, the treaty is not a magical document to ease the ills of the south
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china sea. they can insist law of the sea convention are used. >> they haven't. >> our political backing and our political power and our influence to do that. it might not work. if that's the case, there are other mechanisms. why should we leap right away to the use of force or something along that order when we have an opportunity to bring our influence to bear in the region and nations in that region will be more comfortable if we bring our influence to bear with treaty law behind us than if we're on the outside looking in with no credibility to be able to having not exceeded to the treaty and to make statements about the treaty. >> i'm not suggesting that you should jump in with force. i'm not suggesting that at all. what i'm suggesting is this is an be a jekt failure for members that signed this and who have been members for years and years and they're coming to us asking for help. can anybody answer my question?
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give me one example of a tension or a difficulty that was resolved as a result of this treaty by the members who operate in the south china sea. give me one example. can anybody do that? i'll take that as an answer. >> let me give you an answer because it's important to know that the philippines and vietnam have both specifically asked us to join the law of the sea in order to be able to help them leverage a peaceful outcome to the disputes of the south china sea because they can't do it on their own because of china's power. china, until we're in the law of the sea, doesn't listen to us either because we're not party to it. i will make sure those documents and those facts are made available to the senator. you know, china wants a different outcome.
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china doesn't want to submit to the law of the sea right now. it's going to take a different equation within the law of the sea for china to feel compelled to listen. those nations are at a huge disadvantage. if you look at the map of what china is clearing, it's clear why. law of the sea on its own will not resolve it. go ahead. >> mr. chairman, with all due respect, i don't understand that. you have these countries that have signed this agreement that is supposed to resolve these kind of disputes. whether we're in or not in shouldn't make any difference. 160 some countries are in here. supposedly this document is to do something to create a mechanism by which they resolve this dispute and it simply hasn't happened. >> senator, it does. it provides a forum with a set of rules that if a party to any dispute -- this is true in any country at any time.
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in the united states if you have two parties whether it is a sports figure negotiating with the franchise owner and they go to arbitration all tultimately because they can't come to an agreement or united states senate where we had a supercommittee where we couldn't get an agreement so we're going to have a sequester. you need a structure to be able to agree. >> it hasn't worked. >> it hasn't worked with respect to south china sea but the question is would the presence of the united states at the table in conjunction with those other nations be a precursor and lay predicate to other options if you had to come to them? the answer is most persons would say absolutely. if you're going to go to war, you want to go to war with china over the south china sea, lay the predicate that you have exhausted every opportunity peacefully before you ask the american people to do that. >> i would hope the united states doesn't give any consideration in going to war
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with china over the south china sea. this document was supposed to long ago have resolved this amongst the players in the south china sea and not one person has been able to give me a specific example as to one of these tensions or one of these disputes that's been resolved. >> with respect to the south china sea. it's for very obvious reasons. we'll have plenty of testimony that will show you the ways in which on an every day basis countless decisions are made which create rules of the road. admiral papp testifieded to that. which lay out the rules of the road which assisted and avoided conflict and dozens of examples where conflict is avoided or various thorny issues are resolved by virtue of people being at the table. we've had arms control agreements between the united states and the former soviet union and we didn't always have a resolution as a result of it but ultimately we found a forum or mechanism to try to move forward. i guess it's a fundamental
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belief about whether you think it's better to have some structure within which you can work these things through or you want to do it in an absolutely ad hoc basis but nothing should diminish the impact of the evidence that says from our commanders who are dealing with, you know, young officers and sailors and forces in various ways on a daily basis put in harm's way trying to do a board and search or trying to stop a drug interdiction or whatever it is, they are advantaged according to testimony of these commanders by the presence of this agreement. you may not agree but these are the commanders who are telling us on a daily basis that those advantages are there. with respect to the south china sea, i rather have the united states be at that table and i bet you if we are at the table within the confines of this, we can help resolve some of those issues. >> thank you, chairman kerry,
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for holding another hearing on the law of the sea. i'm grateful to the panel for the testimony to us today. as i expressed at their previous hearing, i'm concerned that debate over this treaty is locked in frame work that's decades out of date. all major questions about this treaty have been answered thoroughly, not once, but twice, by both democratic and republican administrations and we're now in the process of thoroughly vetting them a third time. in our last hearing after listening to and asking questions of general dempsey, it was clear that we are facing obstacles without the united states having a seat at the table putting our national security interests at some risk by failing to ratify this treaty. based on what i heard and read today and over the last few weeks and 30 years of commentary before that, there seems to be two schools of thought on this treaty's impact on our national security.
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first, there are those who argue and i would put many of today's witnesses in this camp, that the law of the sea is a treaty that contains vital provisions about navigation that would help our armed forces carry out their global mission. it also as we will hear includes benefits for american business. there are others that believe law of sea has minimal important provisions on navigation which has little impact on armed forces so we should focus on international sea bed authority in picking apart functions of a group of international book keepers. i disagree. in my view there are real benefits to the united states in terms of navigation rights i would like to focus on. as many distinguished witnesses have testified to the value of this treaty, i would like to focus on the question of how in the real world freedom of navigation operations are carried out and what potential benefit there might be as a result of this. since 9 out of 15 of the nations with excessive maritime claims in 2011 were challenged by armed
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for forces, i will focus my questions on two admirals with respect to other fine witnesses that are with us today. to reiterate what was covered in the last hearing for sake of a starting point, is it correct in navigational disputes the united states disputes the law? >> that's correct. >> when another nation rather ally or competitor claims customary international law, is it correct the united states performs a so-called freedom of navigation operation to reassert the real customary international law? >> when acokofakoufted, you cou, yes. we do a freedom of navigation operation. in addition to that we do regularly scheduled freedom of
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navigation operations. admiral locklear manages those in the south pacific. we say where we're going to go and why we're going to do it. >> if the united states did not contest an excessive claim through routine or special freedom of navigation operations, are we at risk that would set a new precedent and that our competitors, allies or others would suggest somehow the united states agreed that customary international law might allow their excessive claims? >> i believe that so. we are looked at very much as the ones that sort of set the standard not only in the pacific but in the arabian gulf, north arabian sea. i've seen it again and again. if we say that inland seas start at 75 miles -- if our behavior is that, others are going to assume we believe that and that is what we attest to. >> admiral locklear, in a freedom of navigation operation, generally speaking, i'm not asking about tactics, techniques
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or procedures, just generally speaking, is it correct that an aircraft or maritime vessel is placed into the contested area in order to prove customary international law is still in force and that we are demonstrating real customary international laws enforced because no one successfully intercepts, turns back or fires on that aircraft or vessel? >> that's correct. >> so it sounds to me like this is a process that is not without cost and risk. secretary panetta said clearly at the last hearing we never give up our right to self-defense and so when we insert men and women, aircraft, vessels into these situations, i presume there is some risk associated with that. >> that's correct. >> so when we successfully reasserted international law and leave a contested area, do other nations sometimes reassert their excessive claim? >> they do. >> we then have to conduct
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another operation. this is a back and forth routinely thing that is part of your mission yeweek in and week out year in and year out. >> we have a plan where we recognize where the contested areas are and we plan and get approval for freedom of navigation operations that do the same thing, do what you just said. they contest the -- they show that we are not abiding by that claim. >> admiral, the annual report that the pentagon provides to congress on freedom of navigation shows the number of countries with excessive claims that united states armed forces actively engaged in challenging and has tripled since 2006 the number of countries making these excessive claims and number of incidents required freedom of navigation operation have tripled since 2006. would access to the convention eliminate the need all together? >> i don't think it would eliminate all together the need for it.
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periodically we would -- in order to establish what is codified in the law of sea convention, we would continue that. it's right and proper. we believe in it. it would certainly say the need to retirement to do that that b we feel compelled to do that for reasons you said our behavior helps our coalition allies and potential allies to see what the standards are. >> so, admiral, if i hear you right, would exception to the convention provide an alternative, non-lethal, less risky, less asset-consuming tool to a certain navigation rights for the united states? >> yes, senator, it would. >> and so, my conclusion is that freedom of navigation operations which are provocative to nations, some of which are allies and some of which are opponents and are in seriousness and cost and complexion in recent years and it seems to me, mr. chairman, in conclusion that
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what you and senator lugar said for a long time is correct, that to avoid setting new precedence, the united states has to continue carrying out the freedom of navigations operations and consumes our limited assets and is also provocative to the nation's whose claims we're contesting whether hostile, friendly or ally, and the provocative process could be avoided in some circumstances by ratifying this treaty and being able to contest excessive claims in the ways it allows us to do. so this treaty makes a real difference for the average men and women who serve us on the high seas in the air, around the world and in my view contributes meaningfully to the national security of the united states. thank you for your testimony today. >> thank you. appreciate it. >> thank you, mr. chairman. i appreciate the opportunity to be here.
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let me say all six of you, i know all about you. you're great guys and you serve your country, and i have the greatest respect for you. i don't envy you a bit. you are put in a position, and i know a little bit about chain of command because i was on a very lonely position, but i was in the united states army and my chain of command started with my sergeant and on up to the lieutenants and to the rest of them. yours is president of the united states. he's the commander in chief, so you're going to naturally reflect anything that comes -- you have to. you're military, and i understand that. i've been there. what i'd like to do is -- is suggest that after your retirement you might change your mind. i'm looking right now at 24 stars. i just had a few stripes, that's all i had. 24 stars and that's very, very impressive, and i have a letter here that's signed by 33 stars and these guys have already
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retired. on this letter, and i want to ask that this be admitted as part of the record. i can't read the whole letter, there isn't enough time, military personnel uniformly support this accord by expressing our strongly held belief that the law of the state ratification would prove both to the national security interest and sovereignty of the united states and it goes back and gives the history of this thing and it has very, very strong language and signed by one, two, three, four -- nine of the top-level people who are in retirement. i'll ask that be a part of the record. >> without objection. >> and also i want to make as part of the record the reserve officers association. this was a letter that was that we have here and it's a resolution and it says, in conclusion the reserve officers
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association does not endorse the ratification and actively -- and it claims it's right and the territory was manifest to agree and it acknowledges that the united nations has authority over the united states maritime, territorial claims and the reserve officer's association concern is that the law of the sea treaty goes on and goes on and on. i ask also that this be made a part of the record. these are all retired people, and i think that is significant. i'll have to quickly go through this. it used to be a yes or no answer because there isn't time for more than a yes or no answer. the not signing of this will not compromise in any way our ability to use force or to navigate. is that true? is that yes or no?
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do you agree with that, starting with you, general jacoby? >> yes, senator, i agree. >> do you agree? >> yes, sir. at the moment it will not, but in the future it could. >> i agree. >> okay. >> you all agree? >> thank you. >> at the last hearing, here's a guy who is your boss and the joint chiefs is general dempsey. at the last hearing he was asked a question as to whether or not this would have an effect and whether failure to ratify the law of the sea treaty would compromise our ability to project force around the world and his answer that the united states would continue to assert our ability to navigate and our ability to project force and would not be deteriorated if we did not ratify this treaty. so i will ask you whether you agree or disagree with your boss, but i agree with him. when i talk to people in what i call the real world, that's
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outside of washington, in oklahoma, and i say when you think about a treaty, the seeds are right to allow another entity to tax the united states for the first time or to sue in a court and not in the united states, they find that this is a real sovereignty issue. we talked about sovereignty up here, but we haven't gotten specific. i don't think anyone's going question the fact that this does give the sea bed authority the right and the privilege, and the authority to tax this and it comes from royalties. right now the royalties of the area of the extended continental shelf are 18 3/4% and the reason that's a range is because the oil companies who would drill, they would say anything in excess of that range we would not be interested. so we have to do it at that range.
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this authority according to the u.s. interagency continental shelf task force talk about the resources out there are worth billion, if not trillions. if you just merely take $1 trillion and you apply this, they'll be at the end of 12 years, it would get up to 7% of these royalties that would otherwise go to the united states. that amount would be $70 billiobillio billion. i won't ask the question i asked the last panel. does anyone know at any time in the history of this country that we have ceded to allow someone else to tax us and the other question is which i think senator lee is -- he certainly is much better positioned to
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talk about the fact that they would be able to sue us. i would only want to read something to make sure it's in the record. when you talk about the people who are chomping at the bit, waiting for us to become the party of this treaty so they can sue the united states of america, one person that i would quote so it gets into the record would be the international tribun tribunal -- well, i don't have it here, but the andrew l. strauss who the forum was the global warming emission. it proposes forums for initiating lawsuits including the law of the compulsory resolution which i'm sure that senator lee will be talking about mechanisms and he admitted as the united states has not
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adhered to the convention the suit cannot be brought unless we adhered to the convention. in the book that was written, climate change, damage and international law, the law professor said she posed a comprehensive, hypothetical case that could be brought to the united states for its alleged responsibility in melting glaciers. the reason i'm interested in this is we in the senate, in the house have refused to adhere to this and passed something that would put a limitation on gasses and here we would be ceding that authority to someone else. so the last thing i want to mention, mr. chairman if you'd allow me to do this. they keep talking about a seat at the table. i think my good friend to my right will ask what table you're talking about because we already have a table out there and it's called the international maritime organization, and it says their duty and they've had


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