US advice and consent resolution regarding UNCLOS already excludes military activities from third party arbitration

Furthermore, the United States has indicated that it may broadly construe the scope of the military activities exception. The U.S. State Department takes the position "that intelligence activities at sea are military activities for purposes of the U.S. dispute settlement exclusion under the Convention and thus the binding dispute settlement procedures would not apply to U.S. intelligence activities at sea."⁵⁴ The Advice and Consent Resolution also includes an understanding providing that a U.S. military vessel's collection of "military survey data" is a "military activity."⁵⁵ Hypothetical situations in which U.S. views concerning the scope of "military activities" might differ from the views of international judges or arbitrators are not difficult to imagine. For example, consider a case in which a coastal state challenged the collection in its EEZ of "military survey data" by a U.S. military vessel. Would an international tribunal accept the U.S. assertion that this data collection was a "military activity"? Or would the tribunal instead characterize a dispute over such data collection as one involving coastal state restrictions on the conduct of marine scientific research? Is military deployment of a listening or security device on a coastal state's continental shelf a "military activity" (likely the U.S. view), or would this deployment fall within the scope of the coastal state's control over installations on the continental shelf (under Article 60(1)(c) of the Convention)? The self- judging U.S. "military activities" condition in the Advice and Consent Resolution suggests that the United States desires to preserve its flexibility not to participate in certain third-party proceedings, and that the United States may well regard with great skepticism any attempt to proceed with a case that the United States deems to concern military activities. U.S. State Department and Department of Defense officials, along with military leaders, have stressed the importance ofthis "military activities" condition.