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tv   [untitled]    June 18, 2012 7:00pm-7:30pm EDT

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and it was clear that this is one area where our companies do feel inhibited from exploring and exploiting beyond 200 where we do have -- we may have continental shelf that extends out as far as 600 miles in the arctic ocean, so i think it's important that that issue be resolved. >> we'll come back to that. i want to come back to that when we get into the second round. i'd just say to mr. groves. you're right. they are buying some leases, and they are very smart to do so, but there's a huge gulf between buying the lease and sitting on it. there are a whole bunch of leases down in the gulf that have been owned for years, but they don't exploit them. they are not buying them in drilling, and the differential is the capitalization that it requires to exploit, and that's really where the nub of this is. we'll come back to that. we'll come back to that, if we can. senator isakson. >> thank you, mr. chairman, and i apologize that i'm late and
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apologize to the panel that i'm late. i really have a compliment and one question that i think is significant. i want to thank secretary rumsfeld and ambassador negroponte for their service to their country. i remember secretary rumsfeld's transformation of our military and how well it prepared us for the unseen events of the last decade, and i saw john negroponte in baghdad in the most difficult days of our conflict there, and both of you deserve tremendous credit for your service to the country. my question is of mr. bellinger and mr. groves. i am not an attorney. i love listening to attorneys going back and forth, but i have a university of virginia law school student who is an intern to the summer so i posed to him this question of the veto. i said i want you to research this thing and read this thing, and i want to talk about the veto for a second because some people say we've got a veto and some people say, well, now you see it and now you don't. he did a beautiful paper for me and i want to read two quotes from the treaty and i'd like both of you to comment on it as
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it relates to this question of do we have a veto or do we not? one is that the veto is the absence of any -- i mean, the consensus as defined by the treaty is absence of any negative objection or formal objection from a member, is that correct? which means if -- if there was a proposal before the council or the assembly, as long as nobody objected, then they had consensus and they could move forward, but if one member of the 35-member council objected, then what do you do, and i want to read this sentence? if all efforts to reach a decision by consensus, which is nobody objecting, have been exhausted, decisions on questions of procedure in the assembly shall be taken by a majority of the members present and voting and decisions on questions of substance shall be taken by two-thirds majority of members present in voting. that says to me that we may have a veto to stop something from move because we can stop
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consensus, but the veto can be overridden by a tour-thirds vote of the full assembly or by a majority vote of those voting in the council, and i just want -- would like boast of you to comment. am i right, is my law student right or am i wrong and my law student wrong? >> can i help enlist him a little bit. >> i'm not mentioning his name because i don't want to get him in trouble. >> he's actually taking that from the original 1992 agreement and not the agreement as amended. >> that's the information i'm looking for so i would like to hear from boast you. >> i have the greatest respect from the university of virginia where i have my own masters degree from and i love university of virginia law students, but i would say that, one, the long-standing position of both administrations, in fact multiple administrations on this very point, is that we fixed the
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problem in the council voting to give the united states the predominant voice. one, that we're a permanent member of the council so that we're the only country that's a permanent member of the council and, two, that the council has to be the ones to make decisions on administrative or financial matters, and on the sentence where you just read where ultimately there is not agreement and it gets referred back, it's -- you did not mention the clause that says, and this is in section 3, paragraph 5, except where the convention provides for decisions by consensus in the council, and so the united states is always in the council. we're always the permanent member. section 3, paragraph 2 says the decision makes and the organs of authority should be by consensus. the clause there says that except where the convention provides for decisions by consensus in the council which refers to administrative,
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budgetary or financial matters, so the u.s. would have a veto over any decision relating to administrative, budgetary or financial matters which would include the distribution of fees so that's why we believe the bush administration, which looked at this, believes the united states would have the critical role in deciding where any of the fees went, and i believe that mr. groves concede that had point, but even if he didn't, that is our interpretation, and i can see this is why you love lawyers. >> i'm a lawyer, and i don't concede anything, john. actually i'm a recovering lawyer. now, there's no doubt what the treaty says and the black letter law of the treaty when consensus can't be reached, and i would concede that if the u.s. was a party of the treaty and on the council that it could muddy that up and block consensus on some important issues. the important part is what the treaty is silent about which is
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what happens where no consensus can be reached on the council at all? let's say hypothetically because the u.s. is putting its foot down on something regarding royalties. from the silence of the treaty the only rational explanation is that the assembly could act by passing a resolution without the recommendations of the council. you see at the end of the day, article 82 royalty distributions, the council only makes recommendations to the assembly, and it's the assembly that makes the final decision, and the reason why we know this to be true is that further on in the article in the 1994 agreement it says that the council's decisions on financial matters shall be based on the recommendations of the finance committee. so if -- if the council has to be basing their recommendations on the recommendations of the finance committee, then it goes all the way down the line. at one point or another
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someone's going to make a decision. we see this in international organizations all the time, and from my view, especially with the silence of the treaty, it's going to be the supreme organ of the authority, the 162-member assembly that makes that decision. >> mr. chairman -- mr. chairman, were you commenting about the '94 agreement, and i think you're talking about the title or part 11 which was the subsequent amendments the united states proposed, is that correct? >> that, but also i think in '9 4 on page 272, section 3, decision-making, it actually gave us protection. i'll read it to you. decisions of the assembly, and this goes to mr. groves' deep concern about the assembly and what the assembly might do, the achievements that were -- what we achieved in '94 through the implementing agreement, which is
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very important, made clear that the assembly is not permitted to take action on any matter within the competence of the council unless the council has first recommended that the assembly do so. so the council controls the agenda. let me read right out of it. decisions of the assembly on any matter for which the council also has competence, and that is laid out, and that is the distribution of revenue and a whole bunch of other things, so the competence is in the council. any decisions which the council has competence or on any administrative, budgetary or financial matter shall be based on the recommendations of the council. if the assembly does not accept the recommendation of the council in any matter, it shall return the matter to council for further consideration. the council shall reconsider the matter in light of the views expressed by the assembly. in other words, it's a round
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robin. council has the final say. council has the original say, has to go back to the council. there's serious limitations on it, and the assembly effectively does not have this fearful power to come in and -- and do something that you might be concerned about. now i might also add, if you don't like what it's doing, i mean, we can come back to this, but, you know, let's say you get your businesses out there and suddenly the royalties are being produced and all of a sudden it's a bonanza and you get $1 trillion, and we can come back to that in a minute, article 317, page 208. a state party may by written notification address to the secretary-general of the united nations, denounce this convention and may indicate its reasons. the denunciation shall take effect one day after receipt of the notification. in other words, you just get out of it. you're not bound to trillions of dollars. you're nod locked in for a lifetime, just leave. if you don't like what it's
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doing and it's acting against our interests, you get out of it, so, i mean, this is really not as complicated as it's being made, but we can -- you know, we ought to continue to go at it. >> if i may just comment briefly, mr. chairman. >> yeah. >> first on the council issue, yes, the language says that any of these administrative budgetary financial matters shall be based on the recommendations of the council. but just three paragraphs later, it says decisions by the assembly of the council, having financial or budgetary implications, shall be based on the recommendations of the finance committee. >> that's correct. we are a member of the finance committee. >> but we don't have -- we can't block consensus on the finance committee. >> i believe we can. you want to speak to that? >> we're also a permanent member of the finance commit and we can block -- we can block or control the finance committee. these were really the great changes that the united states made -- let me just add one thing, if i could, senator.
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two things really for senator isakson. it's really quite useful, a paper was done by one of our negotiators, which i would encourage your staff to look at, bernie oxman back in 1994, that described how all of president reagan's concerns were fixed by u.s. negotiators and how they ended up giving the u.s. enormous influence over every one of these issues, including the permanent seat on the council and the effective veto, and i'll ask that that could be put into the record. one of the most interesting things about that for both of you is that russia was so concerned that the united states was given so much influence in the council that they refused to sign on and actually abstained from the vote over the 1994 amendments because they felt that they discriminated in favor of the united states. >> mr. chairman, could i make a comment on this? >> absolutely, yes, sir, mr. secretary. >> as a law school dropout i'm glad i wasn't asked to comment,
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but i -- i have a question about the 1994 amendments. they have been mentioned repeatedly, and i don't have any idea what their standing is given the fact that a number of countries have not signed on to them which just came up. second, one of the big issues for president reagan was technology transfer, and that was addressed in the amendments, and as i recall it went from mandatory technology transfer to a recommendation that technology transfer occur from the developed countries to the developing countries, i forget the precise language, but something like that. it seems to me that it is entirely possible, and i'd be happy to hear the experts on the subject, that in applying for licenses, the decisions with respect to licenses could be dependant on the degree of accommodation a company is willing to make with respect to technology transfer, so when we say that the reagan concerns
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were fixed, they were addressed, for sure, and in some instances fixed, and i think in some instances we punted. >> i would let the experts speak to that, the people who were there during that time. i think that that's important. >> i'll take a stab at that again. these issues are addressed at length in professor oxman's article which describes all of the 1994 changes. the tech transfer requirements, of course, were dropped. the production limitations were dropped. the barriers to access to deep seabed mine were dropped, and the idea that the authority could actually decide who could get mining rights and who couldn't, which was really one of our concerns, that we've have this group of countries that could look at u.s. mining companies and say, well, we really don't like you, was also dropped, and, one, u.s. companies were actually grandfathered in so that they would not have to make some of
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the same shows that other companies around the world would have to show. that was one of the reasons for the soviet protest. >> that's another reason why lockheed has no little objection to the treaty. >> and in addition there would not be an evaluation of the technical qualifications of applicants. it would be based on a first come, first serve basis as long as people met a basic financial qualifications. >> mr. chairman. >> yes, sir. >> i stirred up far too much of a hornet's nest. >> on the contrary. >> i think actually uphelped clarify some very significant important irareas. if i could just take 30 seconds to add, so it's in the record. i really want it to be in this record in this part. page 279, section 9, subsection 8, says, decisions in the finance committee on questions or procedures shall be taken by a majority of members present
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voting. decisions on questions of substance shall be taken by consensus. so both -- in every -- i can't think of an agreement -- i can't think of an international treaty on which the united states of america has the only permanent seat and the ability to block anything and protect our interests, and if we don't like it, can get out of it. so i think it's important to have that in its proper context. >> well, i'll just take one minute. this is a very critical question which is why i asked it, and i appreciate my uva law student doing such a good job that he got everybody engaged, but everybody has to remember they are communicating with a university of georgia business school graduate when they are talking to me and would i like to ask mr. groves and mr. bellinger if you wouldn't mind to try to get me a one-pager that addresses this issue of consensus and veto and majority of the members present voting to override or two-thirds
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to override. if you could do that and how it applies, understanding the '94 amendments that may have taken place. and one other question, mr. chairman, and don't respond to this because i know it will drag it out, but i was reading paragraph 4 as were you reading it and paragraph 5 still in this book and i need to know if the '94 treaty extracted paragraph 5 which refers to majority of those voting, present investigate and refers to the two-thirds majority. we won't get into that debate now, but i'd like to know that. >> fair enough. >> i apologize. >> i think that's a terrific request, senator isakson. it's very important and we'll look for that full explanation. i think it would be very helpful to the committee, indeed. >> to the extent that anything in law can be distilled to one page, we'll do our best. >> thank you. senator lee, thanks for your patience. >> thank you, mr. chairman, and thanks to all of you for your service to date for this committee and for your service to our country. mr. bellinger, i wanted to start
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just by asking a basic fundamental question about something this treaty does. by creating a royalty obligation as to the exploitation of minerals from the seabed outside of the 200 nautical mile range, aren't we creating a construct that recognizes ownership or at left a degree of sovereignty in an international organization? is that what the word royalty implies? if somebody can charge a royalty for the exploitation of minerals on any property, doesn't that imply that they own that land or at least that they possess the incidence of sovereignty with respect to that land? >> i wouldn't say so. i think -- i just see that as a fee that the united states has agreed to -- to -- to mine in that area. >> so if you own land and exxon mobil wants to develop oil on
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that land, and i say i'm going to charge you a royalty for exploiting this resource -- this resource on mr. bellinger's land, wouldn't i be implying that i have some sort of ownership or sovereign right with respect to that land? >> well, again, not necessarily. i think that something that was agreed to in the treaty without a broad philosophical construct of the significance of what it meant for a royalty provision, i mean, as you know, because i know you have a long legal pedigree that property rights and bundles of sticks can get to be very complicated as far as what is actually a property right, and it can be used in different contexts and different things, and it's the same with respect to treaties, so simply that we agree to pay something here does not mean that we're conceding that the international community owns the extended continental shelf. >> okay. but we're creating an interest, a financial interest of one sort or another, one that could be construed as a property issue. i appreciated your
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acknowledgement with regard to senator risch's comments on article 222, as i believe you acknowledged that at least there was ambiguity there as to the meaning of the word applicable, the phrase international applicable rules. if there's an ambiguity there, wouldn't that suggest that an international arbitration panel, perhaps one convened pursuant to an ex8 under the treaty could, also conclude that there is an ambiguity there, and they could decide that issue one way or the other? >> i guess i say on that, senator, i would think not. i mean, i think it's a good question for someone who is reading that provision, but i can tell you as someone who has spent a lot of time reading treaties, particularly ones that were allegedly applicable -- i mean, honestly. this was my job for four years as legal advisers to defend against other countries that claimed that certain things were applicable to the united states, and -- and applicable means that
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we are legally bound by it. >> if we get a good arbitration panel, if we get at least three who are well-trained, who are doing it right, doing it the way we'd like it to be done, your position is that they are going to reach the right conclusion? >> i think it's certainly pretty clear that applicable international obligation is something that we are legally bound by. >> okay. >> okay, thank you. secretary rumsfeld, i recently had a retired navy commander in my office. he made the following statement regarding this treaty. he said we should not in any way restrict the ability of the united states navy to serve its primary purpose, protecting the constitution of the united states of america against all enemies, foreign and domestic. ratifying the u.n. convention on the loft sea will expose the united states navy to unnecessary counterproductive and extra constitutional bureaucratic and regulatory oversight. do you tend to sympathize with that statement? >> well, i have to confess i
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can't look around all those corners, but we have seen an explosion of litigation in the wor world. i don't know how many lawsuits have been filed, but every time anyone in the united states government turns around, they get lawyered up. there's something like 10,000 lawyers in the department of defense today, and i don't doubt for a minute that -- that that could happen. it seems to me that the -- i watch some of the military panel this morning, and they were -- they are wonderful people and they are talented, and as they said things i did not hear a lot of instances as to why we believe that with this the chinese or the iranians, for example, will alter their behavior notably. >> all right. >> the law of the sea has been around. they haven't solved some of the problems in the south china sea. china and the neighboring countries are members, and --
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and in terms of dispute resolution, i -- i haven't seen it. in direct answer to your question. it seems to me that anything they said that they think that treaty could or should do that would benefit us, and there's no doubt in my mind but there's certainly some things that it would with respect to the military, the question is what's their weight against some other aspects of it, the disadvantages. it seems to me that the united states of america ought to pursue those on a bilateral or multi-lateral basis, if they are as important as they seem, and i don't doubt for a minute that the very credible military officers were making points that were valid that could be pursued bilaterally or multi-laterally. >> at the end of the day, mr. secretary, any legal rights, legal protections that we have, to the extent that they have to be enforced, would have to be enforced through our own military might, would they not?
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>> regardless of whether you're in the treaty sglornt in the treaty or not. >> mr. groves, would you agree with that assertion, in the treaty or not, legal rights, legal protections that we have, whether we draw them exclusively from customary international law as we would were we not to ratify this treaty, or if we were also to draw additional rights or perhaps the same set of rights from the treaty? don't those have to be enforced, to the extent they have to be enforced, by our military? >> i would agree with that, and i think that the members of this morning's panel would agree with that. they have said in no uncertain terms, you know, when push comes to shove, we're going to assert our rights. we're going to assert our power. we're going to project our power, and we hope that they will do so, whether or not they are in any treaty or not to protect american national security interests. their only argument is that somehow being inside the treaty will enhance their abilities to do so. i just haven't seen where that enhancement lies. their diplomatic protests would
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be the same, the same language. their operational assertions would be the same. none of those things would change, but somehow they are making a claim that i just haven't found the substantiation for yet, that ten happenses their ability to perform their mission. >> thank you. let me follow up with an additional question that i wanted to ask of you, mr. groves. let's suppose that we get into an international arbitration pursuant to say an "x" 8. our opponents choose two arbitrators and can't agree on the fifth arbitrator so the fifth is chosen but the u.n. secretary-general. at the end of the day three. five arbitrators rule against us. they rule against us on a theory that we think is legally deficient, that it's wrong, it's against us, we don't like it. is that judgment, notwithstanding our objections to it, notwithstanding the errors that we see it, is it enforcible in u.s. courts? >> it's enforcible on u.s. territory because that's what the treaty says it is, and we've got at least one supreme court judge -- justice who says so in
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ditka in the medellin case. he discussed how decisions made by enclosed tribunals would be enforcible to u.s. territories. >> referring to justice stevens' opinion? >> in concurrence. >> anything about our recision from the treaty, from the convention, which couldn't become effective until a year after we provided notice anyway, but is there anything about our withdrawal from the treaty, from the convention, that would affect the validity and the impact of such a judgment after the fact? >> under international law, no, and we're actually dealing with that issue right now in the avina case, regarding the mexican death penalty cases that was litigated through our system as medellin versus texas. we withdrew. the bush administration withdrew from the optional protocol to vienna convention on consular relations after they got a really bad judgment from them, but the judgment of the international court of justice
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in that case is still pending. it still has legal force and effect because we were under its jurisdiction when they made the judgment regardless of our subsequent withdrawal. >> almost 30 years ago? >> the avina case was during the bush administration. you might be thinking of the nicaragua case during the reagan administration. >> yes, indeed. thank you very much. i see my time has expired. >> thanks, senator. i appreciate it. do you have any second-round questions you want to ask? certainly, you might be interested to know that the united states senate has already approved a treaty that hats exact same procedure in it, and that's the -- we gave our advice to consent to it in 199 61996, not only does it subject the united states to arbitration, but in fact it subjects us to arbitration under the law of the sea convention.
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>> may the senate not err twice. >> ratified. >> it seems to be working pretty well without problems. that incidentally was passed out under chairman jesse helms so, yes. mr. negroponte. >> i just had one point that i wanted to make with respect to how adhering to the treaty might be helpful in some circumstances with respect to our naval activities and operations and coast guard. and i -- clearly, when you boil it down to a polar choice between the use of force and the application of law, well, the application of american military force is likely to win every time. i don't question that. but let's take the proliferation security initiative, for example. there are instances where countries, friendly countries, have either had reservations and
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may even in some instances have declined to cooperate with us on a particular psi mission because we are not party to the law of the sea, so that's an example of where i think the cooperative atmosphere on an issue of real security importance to the united states could improve if we accede to the treaty. the case of china and their exaggerated claims to the south china sea. they are out of sync and out of line with the law of the sea because of the way they draw their baselines and their historical interpretation of the -- of their jurisdiction over those seas and the best arguments are that they are not applying the principles that are embodied in the law of the sea. well, we're disadvantaged in making that argument to them, along with other countries in southeast asia, because we're not parties to the convention,
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so, i mean, i can think of a number of instances where the application and then the last one i guess i would cite is the passage -- free passage through straigh straits. that was a real accomplishment in the law of the sea treaties and think of the complications we might have if we developed an antagonistic relationship with a particular country that decided they wanted to make it difficult for the free navigation through straits for ears surface or other kinds of vessels so those are three examples where i can think of where the treaty, and i don't think it's wrong for mr. groves to use the word enhance, but, you know, diplomacy has its limitations, but it can still be positive. enhance is a positive word. >> thank you. >> so let me wrap this up a little bit, if i can, because we're under a certain time constraint here. first of all, y'all have been

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