Issue of Freedom of Navigation in EEZs

Synopsis: States should consult the coastal state before conducting military exercises in an EEZ exclusive economic zone.

Introduction

The USS John Paul Jones conducted a ‘Freedom of Navigation Operation’ 130 nautical miles west of the Lakshadweep Islands. The operation took place inside India’s Exclusive Economic Zone (EEZ). India’s consent was not taken in conducting this exercise.

• The U.S. 7th Fleet said that India’s emphasis on prior consent is inconsistent with international law.
• India stated that the UN Convention on the Law of the Sea (UNCLOS) “does not allow other States to carry out military exercises in the Exclusive Economic Zone and on the continental shelf without the consent of the coastal state”.

Explain the UN Convention on the Law of the Sea (UNCLOS)?

UNCLOS binds all its parties and customary international law binds all states. India is a member of the UNCLOS while the U.S. is not. According to the UNCLOS, EEZ is an area next to the state waters of a coastal state where the state has rights and duties.

1. Firstly, the right and duties involve management of natural resources; formation and use of artificial islands, installations, and structures; marine scientific research; and protection of the marine environment.
2. Secondly, the present issue highlights Articles 58 and 87 of the UNCLOS. Article 58 (1) provides that in the EEZ, all States enjoy the freedoms referred to in Article 87 of navigation.
   • Article 87 offers freedom of the high seas under which all states have the freedom of navigation. However, the freedom of navigation is subject to the conditions provided under the UNCLOS.
   • Article 58 (3) specifies that, in the EEZ, States shall respect the rights and duties of the coastal State and shall obey the laws adopted by the coastal State.
   • The Indian law relating to this is the Territorial Waters, Continental Shelf, Exclusive Economic Zone, and Other Maritime Zones of India Act, 1976.
3. Thirdly, the assertion by India in 1995 told that the Convention does not allow other States to carry out military exercises in the EEZ. The event involving the use of weapons or explosives without the consent of the coastal State is not allowed.
4. Fourthly, Article 310 of the UNCLOS allows the states to explain the relationship between the Convention and their own laws. However, such statements should not modify the legal effect of the provisions of this Convention.

Looking Forward

• Firstly, freedom of navigation cannot be read in a complete and isolated manner. Non-consensual military activities that obstruct the lawful enjoyment of such rights need not be allowed.
• Secondly, a coastal state is worried about military exercises posing a risk to its coastal communities, its installations or artificial islands, and the marine environment. Any state who wants to conduct such exercises must do so after consultation with the coastal state.
• Thirdly, India and the U.S. should discuss such concerns and maintain international peace and security. Otherwise, it might threaten friendly relations and undermine the progress towards codification and development of international law which is particularly complex.

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