The recent standoff between India and the United States (US) following the Freedom of Navigation Operation (FONOP) conducted by the American Navy without the prior consent of India highlighted a long-standing crevice in their bilateral friendship. The dispute centres around differences in their interpretation of the legal framework prescribed by the United Nations Convention on the Law of the Sea (UNCLOS), which was introduced to guide conflicts and relations on issues relating to the use of the ocean and its resources. With both the US and India often portraying themselves as the self-proclaimed protectors of a rules-based order in the Indo-Pacific, there is a need to test their understandings of the governing international laws and their compliance with the UNCLOS.
Before delving into the legality of their claims, however, it is critical to understand the exact nature of the incident. On April 7, the Commander of the US Seventh Fleet released a statement saying that the American Navy Destroyer USS John Paul Jones “asserted navigational rights and freedoms approximately 130 nautical miles west of Lakshadweep islands inside India’s exclusive economic zone, without requesting India’s prior consent, consistent with international law.” Further, the release claimed that the exercise was conducted to challenge India’s “excessive maritime claims”, as India’s requirement of mandating prior consent for military exercises or manoeuvrers in its exclusive economic zone (EEZ) or continental shelf was “inconsistent with international law”. In response, on April 9, the Indian Ministry of External Affairs reiterated its claim that the exercise was a violation of international law and further confirmed that it had expressed its concerns about the incident to the authorities in the US.
While this is the first time the two sides’ governments have publicly highlighted these differences, the US Navy has conducted such FONOPs on several occasions now. According to the US Department of Defence’s FONOP report, similar manoeuvres were undertaken by American warships in Indian EEZs in 2015, 2016, 2017, and 2019. However, the April 7 incident is unique, as both countries’ authorities published a public statement expressing their outright disagreement with the other’s stand on the issue. While this episode is unlikely to instigate a diplomatic tiff between the two sides, specifically in light of their inter-dependency in countering China’s aggression in the Indo-Pacific, it is critical to identify the legal position on the issue to gain clarity on the exact nature of the “rules-based order” which the two countries have been vociferously advocating for.
The position of the UNCLOS on the issue is quite clear. According to the Convention, there are three kinds of zones over which a country can exercise varying levels of control. The first is the territorial zone that extends up to 12 nautical miles from the coastline, over which a country can exercise complete jurisdictional control. The second zone extends over 24 additional nautical miles and is called the contiguous zone, in which a country can exercise specific controls to prevent infringement of immigration, customs, fiscal, and sanitary laws. The third zone is the EEZ, which extends up to 200 nautical miles, wherein a country has exclusive rights over economic activities, including fisheries and mining. Despite these rights, however, Article 24 of the UNCLOS specifically prohibits coastal states from restricting the “innocent passage” of foreign vessels, even in their territorial zones. Hence, at first glance, it appears that the Indian claim is misplaced and in violation of the international law governing the issue.
This, however, is complicated by the declaration presented by India while signing the Convention, according to which the Indian government clearly stipulated that any “military exercises or manoeuvres” in a country’s EEZ cannot be conducted “without the consent of the coastal state”. This claim is further supported by the Indian domestic laws on the issue through the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976. According to the Vienna Convention on the Law of Treaties, which guides the interpretation of treaties and conventions, declarations are of particular significance, as all signatories of the Conventions are restricted by the terms of India’s restrictions in exercising the provisions of the UNCLOS against India. However, for non-signatories like the US, who only consider the provisions of the UNCLOS as indicative of customary international law, the declarations are irrelevant.
This issue is further complicated by the hypocrisy of the American side’s stand on the subject. Washington has conveniently refrained from signing the Convention, thereby allowing itself to be unrestricted by the limitations imposed by the Convention. By not being an official signatory to the UNCLOS, it can also successfully dismiss the declarations made by countries such as India, which impose restrictions on the US’ maritime activities.
Meanwhile, it continues to justify its maritime exercises by citing the need to protect a rules-based order and further the principles stipulated in the UNCLOS. This argument has often been used by the US to criticise China’s aggressive positioning and exercises in the Indo-Pacific, against which the US has constantly threatened to retaliate. Furthermore, it has time and again reiterated that the terms of the UNCLOS have now become customary international law and has empowered itself to act as a self-proclaimed protector of the Convention.
However, unlike signatories of the UNCLOS, the US cannot be held accountable for its violation of the principles of the UNCLOS under the dispute resolution mechanism established under the Convention—the International Tribunal for the Law of the Sea (ITLOS). For example, in 1945, President Harry Truman was able to expand his jurisdiction over the US’ continental shelf, thereby allowing certain states to exercise sovereignty over their EEZs in violation of the principles of the UNCLOS. As a non-signatory of the Convention, this action was immune from the scrutiny of the ITLOS. Therefore, by failing to abide by the principles of the UNCLOS itself while acting as the gatekeeper of the rules-based order in the Indo-Pacific, the US’ hypocrisy spins a web of confusion surrounding international law on freedom of navigation.
However, standing by their position on the issue is critical for both India and the US. For India, restricting access to the EEZ surrounding its 7,500-kilometre coastline is a crucial issue of national security, specifically with the growing Chinese aggression in the Indo-Pacific. In fact, just in 2019, this position was used to push out a Chinese vessel that was attempting to intrude into Indian waters near the Andaman and Nicobar Islands.
On the other hand, for the US, which has had a significant presence in the Indo-Pacific since World War II, seeking “peaceful passages” into foreign territories is critical. At any given point, the US Seventh Fleet has over 50 ships and submarines deployed in the region to check on excessive maritime claims of Indo-Pacific countries. This has recently allowed it to exercise “checks” on the “unlawful restrictions on innocent passages” that have allegedly been imposed by China, Taiwan, and Vietnam in the Paracel Islands. Hence, given the potential geopolitical and security implications, it is improbable that India or the US will make any concessions in their stance.
The lack of unclarity surrounding the UNCLOS is not limited to the divergent interpretations between India and the US. The weak system, which allows for several interpretations of the law surrounding “innocent passages”, has allowed countries across the world to adjust their interpretation of the same Convention to further their varying strategic and geopolitical aims. One such example is that of Saudi Arabia, which bars foreign vessels from accessing its territorial waters if there are alternate routes in the high seas or EEZs available. However, bringing an end to the differences between the US and India on the issue is particularly pertinent, considering their commitment to a rules-based order, individually and through the Quad platform. This is not only critical for the general peace and stability in the Indo-Pacific but also for upholding the principles stipulated in the UNCLOS and its understanding across the globe.
US’ Freedom of Navigation Operation in India’s EEZ: What Does International Law Say?
Neither the US nor India can justify their stand on the Freedom of Navigation Operation incident through international law, and the unclear provisions of the UNCLOS are to blame for this.
April 16, 2021
SOURCE: DEFENCE NEWS