U.S. has made clear that in signing UNCLOS it would reserve the right to determine which of its activities are military activities

While the Convention explicitly allows a state party to declare that certain conflicts will not be subject to the Treaty’s dispute resolution processes, those exceptions are narrow. Article 298(b) allows a state party to effectively insulate “military activities” from Convention jurisdiction. Concerned that an adverse party might seek to apply the Convention’s jurisdiction to a U.S. activity by characterizing it as nonmilitary, the Department of Defense recommended that accession to the Treaty be conditioned upon “the understanding that each Party [to the Convention] has the exclusive right to determine which of its activities are ‘military activities’ and that such determination are not subject to review.”⁵⁷ This condition would protect a state party from becoming subject to a Convention-based dispute resolution tribunal if the military activity claim/exemption to such a tribunal were called into question.⁵⁸

Speaking on behalf of the Joint Chiefs of Staff, Admiral Michael G. Mullen re- iterated the concerns raised by others in the defense community and agreed that the “military activities” exemption condition was of paramount importance in a U.S. move toward accession. The Admiral also agreed that accession was warranted. “Military operations since September 11 . . . have dramatically increased [U.S.] global military requirements.”⁵⁹Mullen, Michael G. "Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ] In particular, Mullen noted that U.S. military operations relied upon “[t]he right of transit passage through international straits and the related regime of archipelagic sea lanes passage.”⁶⁰Mullen, Michael G. "Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ] While maintaining that those rights were available to the United States under customary international law, “as a party to the Convention, the United States would . . . be in a stronger leadership position to assert its rights.”61Mullen, Michael G. "Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ]