Advice and consent resolution protects us from having to divulge military secrets in front of tribunal
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Third, the Advice and Consent Resolution contains a declaration that the United States does not accept Part XV, section 2 procedures "with respect to the categories of disputes set forth in subparagraphs (a), (b), and (c) of article 298(1)." 49 This declaration thus excludes from Part XV, section 2 the maximum categories of disputes that may be exempted under Article 298. The matters covered include disputes concerning: maritime delimitation of the territorial sea, the exclusive economic zone, and the continental shelf; historic bays; military activities; enforcement activities related to EEZ fisheries and marine scientific research; and "disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations." This U.S. declaration would limit the ability of the United States to challenge the conduct of other states before third-party tribunals. By excluding "disputes concerning military activities," for example, the United States could not, according to Article 298(3), bring a third-party proceeding challenging the legality of military activities by coastal states that impeded U.S. attempts at transit passage through straits or innocent passage in the territorial sea. Nonetheless, the concern that the legality of the United States' own military activities might be challenged before a public, third-party tribunal apparently carries greater weight. Avoiding judicial scrutiny of the legality of U.S. uses of force, as occurred in the ICJ's Nicaragua and Oil Platforms cases, 51 or the concern that the United States might have to disclose military secrets to a tribunal, probably led the United States to include this military activities 52 exception.
"The United States and the Law of the Sea Convention: U.S. Views on the Settlement of International Law Disputes in International Tribunals and U.S. Courts
." The Publicist
. Vol. 1. (2009): 27-52. [ More (9 quotes) ]