Unlikely that ITLOS will agree to U.S. interpretation of 'military activities' exemption
But it won't come to this, anyway, say defenders of the treaty. The treaty expressly provides for states to claim exemptions from compulsory arbitration where "military activities" are involved. And the United States will certainly claim this exemption. But are we engaging in "military activities" when we deploy a naval "cordon" to enforce a peacetime "quarantine"? Are we engaging in "military activities" when, in peacetime, we send warships into waters where their right of passage is contested by the host state?
To answer such concerns, the Bush administration proposes that the Senate ratify the treaty with a statement of qualifications, including the "understanding" that the United States interprets this exemption to mean "military activities as defined by the United States." But the treaty expressly prohibits states from making "reservations" to its substantive provisions. For tribunal judges or international arbitrators to accept the American "understanding," they would have to accept the idea that any state can nullify its obligations under the treaty by characterizing all its contrary actions as "military activities" and therefore, if not permissible, at least immune to challenge from international authorities. How likely is it that the International Tribunal for the Law of the Sea or its designees will take such a self-effacing or self-denying view of their own authority?