Exhaustive review concluded that U.S. could prevent UNCLOS tribunals from adverse rulings on U.S. military
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Last year, before the Senate Foreign Relations Committee, Administration officials expressed their serious concerns about whether the Convention's dispute resolution process could possibly affect U.S. military activities. A review was conducted within the Executive Branch on whether a Law of the Sea tribunal could question whether U.S. activities are indeed "military" for purposes of the Convention's military activities exception clause. Based on the Administration's internal review, it is clear that whether an activity is "military" is for each State party to determine for itself. The declaration contained in the current Resolution of Ratification, stating the U.S. understanding that each Party has the exclusive right to determine which of its activities are "military activities" and that such determinations are not subject to review, has appropriately addressed this issue.
Some opponents of UNCLOS have argued that by ratifying UNCLOS, U.S. military forces could be subject to adverse ruling by international tribunals through the dispute resolution mechanisms of the treaty. However, the U.S. defense department has reviewed the relevant law and has found no undue liability risk to U.S. forces. Furthermore, in the Senate's Advice and Consent resolution that would ratify UNCLOS, the U.S. has taken advantage of article 298(1) in UNCLOS to exempt itself from all dispute settlement.