US’s Freedom of Navigation Operation in India’s EEZ – Explained, Pointwise

Synopsis: The recent Freedom of Navigation Operation (FONOP) of the US in India’s EEZ is in violation of UNCLOS.

Introduction

Recently, the US 7th Fleet announced that one of its warships, USS John Paul Jones carried out Freedom of Navigation operation(FONOP). The FONOP operation carried out approximately 130 nautical miles west of Lakshadweep Islands. This is inside India’s Exclusive Economic Zone (EEZ).

It is a cause of concern as the US warship did not request India’s permission before sailing through its Exclusive Economic Zone. This FONOP challenged India’s maritime claims.

This is more surprising due to the fact that India-US relations are improving. For example, the US-led Quad Leaders virtual meeting and major Indo-US military exercise happened recently. This step may create a disruption in good India-US relations.

What was the stand of the US and India? 

This operation, according to the US 7th Fleet, was to assert navigational rights and freedoms. Moreover, it also claims that this move was in accordance with the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

On the other side, India has raised its concern to the US, through diplomatic channels. Further, India also said that UNCLOS does not authorize military maneuvers on the continental shelf or EEZ. That too without the prior consent of a country.

Also, it is against India’s domestic law — the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones of India Act of 1976

About the UN Conference on Law of the Seas (UNCLOS) 1982

UNCLOS came into force in 1994. About 168 nations including India ratified the convention. But the US never signed and ratified.

The UN Secretariat not charged any country with the role of overseeing or enforcing the implementation of UNCLOS. So, the US asserted itself as a “global-cop” role in its implementation(without ratifying it)

Events in formulating the UNCLOS:

• In 1945, then US  President Harry Truman declared US jurisdiction over all natural resources on their continental shelf.
• Following that, Some states extended their sovereign rights beyond 200 miles. On the other hand, some other states declared their territorial limits as they liked.
• To bring uniformity at the global level, the UN convened conferences for codifying laws of the seas.
• UNCLOS entered into force on 16 November 1994.
• The provisions of UNCLOS divided the oceans in the following ways.
  1. Internal water: It includes all water on the continental side of the baseline. For ex.; lakes and lagoons. No foreign vessel can have any right of passage through internal waters.
  2. A territorial sea extends to 12 miles from the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels enjoy the right of innocent passage.
  3. A 24-mile contiguous zone:  A state can prevent or stop infringement of its customs, fiscal, immigration, or sanitary laws and regulations
  4. A newly conceived “exclusive economic zone” (EEZ). It will extend up to 200 miles.
     1. The coastal state will have the sole rights over natural resources (Fishing, Mining, energy, etc.) in the EEZ.
     2. However, Coastal state does not have a right to prohibit or limit freedom of navigation or overflight.
  5. The area outside EEZ is called High Seas or International waters. It does not belong to any State’s jurisdiction.

However, Innocent passage to foreign vessels is subject to certain restrictions. It shall not threaten sovereignty, territorial integrity or political independence of the coastal State. Also, it does not allow military practice with weapons.

India’s Exclusive Economic Zone Act of 1976

In this act, India legally defined the concept of EEZ and also regarding the passage of vehicles.

Section 4(2) of this act allows foreign warships including submarines to enter or pass through the territorial waters. However, it requires prior notice to the Central Government. They are also required to navigate on the surface and show their flags.

Freedom of Navigation Operation or FONOPs

• The US Navy conducts such operations in the exclusive territorial waters of coastal nations.
• These operations denote that the US does not agree to the exclusive maritime claims of coastal nations. Thus, it prevents those claims from becoming accepted in international law.
• According to the US Department of Defense(DoD), the FONOP Program has existed for 40 years. The program continuously reaffirms the US policy of exercising and asserting its navigation and freedom rights around the world.
• Under the same program, the US continuously challenges China’s claims in the South China Sea. It also challenged China’s claim to straight baselines enclosing the Paracel Islands.

Implications for India 

1. Firstly, It would make it difficult for India to trust the US intentions. This US move came after so many positive developments in its relations with India.
2. Secondly, it encourages other regional navies to violate India’s domestic regulations in the waters surrounding the Andaman and Nicobar Island.
3. Third, It would also disrupt other international initiatives, like QUAD in the Indo-Pacific region.

Flaw in UNCLOS

1. The UNCLOS is silent on controversial issues, especially with military or security implications i.e. passage of warships.
2. Further, the UNCLOS has no specific provisions for the resolution of disputes.
   • Many states preferred “negotiating in good faith”. Few states resort to the International Tribunal for the Law of the Sea or a Court of Arbitration for resolving disputes.
3. There are other areas of contention in the interpretation of rules as well. This includes the following,
   • Applicability of the EEZ concept to rocks and islets
   • The right of innocent passage for foreign warships through territorial seas
   • Conduct of naval activities in the EEZ
   • Pursuit of marine scientific research in territorial waters and EEZ.

Suggestions 

1. The UNCLOS is a great first step towards uniformity. But it is time for the members of the UNCLOS to convene another conference to review laws and resolve issues.
2. Similarly, the FONOP patrols of the US Navy have to identify the real threat to freedom of navigation(China). This is evident from the following events.
   1. China has an “anti-access, area-denial” or A2AD capability. China while trying to control the South China Sea, also developed a layered deterrent threat to the US navy.
   2. In 2013 China started an intense campaign to build artificial islands in the Spratly and Paracel group of islands. Today, three Chinese outposts, Fiery Cross, Mischief & Subi Reefs, have airstrips and harbors. Further, these are fortified with missiles and radars.
   3. In 2016 China rejected the verdict of the UN Court of Arbitration in its dispute with the Philippines.
   4. So far many US presidents aimed to threaten China. But nothing significant happened in reality. For example, Obama’s US Pivot/Re-balance to Asia, Trump’s Indo-Pacific Strategy, and Asia Reassurance Initiative Act have failed to create any impact on China.

So, the worldwide FONOP campaign needs to done carefully. The campaign has to deter adversaries and not alienate friends.