Interpretation of "military activities" clause left up to external courts and possibly unfriendly panel

UNCLOS seems to provide protection against these concerns by stipulating that states may opt out of its compulsory arbitration requirements when disputes concern “military activities...by government vessels and aircraft engaged in non-commercial service.”⁶ At its narrowest reading, this provision might mean only that ITLOS will avoid intervening in full-scale confrontations between opposing battle fleets—a situation that would create problems far beyond those of dispute resolution. At its broadest, this exemption might mean that any seizure could be excluded from ITLOS review, since seizures are never effectuated by unarmed commercial vessels, which would entirely negate the provision bestowing mandatory jurisdiction on ITLOS for seizures at sea. So which is it?

The only thing certain is that it will be up to ITLOS to decide how far it wants to intrude into U.S. naval strategy. The State Department has proposed ratification with an “understanding” that the military exemption will be read broadly. (Sec. 2, Par. 2 of ‘Text of Resolution of Advice and Consent to Ratification,” printed with Treaty Doc. 103-39 in Hearings on the UN Convention on the Law of the Sea, Ot. 21, 2003, along with “Statement of William H.Taft, Legal Adviser to the Department of State) But UNCLOS itself stipulates that states may not attach “reservations” to their ratification.⁷ Again, it will be up to ITLOS to decide what significance, if any, should be accorded such unilateral U.S. “understandings.” And the court’s composition is not encouraging. As of September 2005, a clear majority of the court’s 21 judges were from states that cannot be supposed to be friendly to American naval action—including Russia, China, Brazil, Cameroon, Ghana, Senegal, Cape Verde, Tunisia, Lebanon, Grenada, and Trinidad.