What the sailing of US guided missile destroyer through India’s EEZ means

The US Navy's Seventh Fleet statement of April 7 that the freedom of navigation operation (FONOP) by the USS John Paul Jones 'upheld the rights, freedoms, and lawful uses' of the sea recognised in international law by challenging India's `excessive maritime claims’, took many in New Delhi by surprise, particularly those blindsided by the emerging and close bilateral strategic relationship between India and the US, as a politico-military alliance against the might of a rising China.

The Ministry of External Affairs issued a statement asserting that India’s position “on the UN Convention on the Law of the Sea (UNCLOS) is that the Convention does not authorise other states to carry out in the Exclusive Economic Zone and on the continental shelf, military exercises or manoeuvres, in particular those involving the use of weapons or explosives, without the consent of the coastal state.”

It further added that Delhi had "conveyed our concerns regarding this passage through our EEZ to the government of the USA through diplomatic channels''.

However, the Pentagon defended its Navy, asserting that the actions of its warship were consistent with international law.

Says former diplomat Rajiv Bhatia, a Distinguished Fellow, Foreign Policy Studies Programme at Gateway House: "This is not the first time that such a thing has happened. Given the sensitivities of the South China Sea issue, the subject has acquired a different hue.”

US warships have often charted this course without caring to inform their Indian counterparts, as per strict interpretation of law.

But Bhatia does not believe that it has the potential to turn into a diplomatic row. He agreed, however, that while US action is not unprecedented, their act of issuing a statement in the aftermath of the incident, is. ``Maybe it was an oversight. Maybe, the US Navy did not inform the US State Department. I am sure it will be sorted out,” he told Moneycontrol.

What explains the US belligerence?

The key point to ask here is this: what explains this US unilateralism and is India the lone target of such exercises? A review of navigational rights announcements by the US Navy since last November indicate that it has conducted such patrols, citing `excessive maritime claims’ by many nations including Russia, Japan, China, Vietnam, the Philippines, South Korea, Sri Lanka, India and the Maldives.

Traditionally, the oceans of the world have been designated as global commons and freedom of navigation (FON) is enshrined in customary practice and codified by international law. Any ship that is flying the flag of a sovereign State and engaged in legitimate maritime activity is not to be hindered on the high seas; this is also the underlying theme of global trade. Thus, when there is reference to FON and respecting international law, it usually pertains to the non-military domain.

Far stickier is the freedom of navigation operations, which are carried out by naval platforms. They have come in for special scrutiny after the 1982 United Nations Convention on the Law of the Seas (UNCLOS), which introduced the concept of territorial waters (12 nautical miles from the coast), a contiguous zone (24 nautical miles) and an EEZ that extends to 200 nautical miles.

Coastal states can exercise sovereign rights in their territorial waters while allowing for `innocent passage’ of naval platforms; they have some policing and pollution/health related enforcement rights in the contiguous zone. The UNCLOS envisaged the EEZ as a region whose natural resources could be exploited, minus the conferring of exclusive sovereignty rights.

The rationale for such a classification is that if all EEZ claims of the global community were aggregated, it would amount to almost 38 percent of the global commons! UNCLOS concluded that restricting access and passage in more than a third of the global maritime domain was not just untenable, but undesirable as well.

UNCLOS was adopted in 1982 but as can be expected in such multilateral draft proposals, many anomalies crept in. The US accepted its provisions but preferred not to be a signatory.

Nations like India and China signed up but insisted on adding their own caveats. This led to the lack of a consensual interpretation of the EEZ and the rights it confers on a coastal state.

In the current instance, the US is sticking by its interpretation of the EEZ and India is pointing to its domestic laws that mandate New Delhi’s prior approval.

Noted Uday Bhaskar, Director of Society for Policy Studies, in a column: ``It may be prudent for the Quad nations that have emphatically upheld the FON principle and adherence to international law in the Indo-Pacific to decide on `whose’ version of the law is to be upheld.”

India has the world’s 18th-largest exclusive economic zone with a total size of 2,305,143 km. It includes the Lakshadweep Island group in the Laccadive Sea off the southwestern coast of India and the Andaman and Nicobar Islands at the Bay of Bengal and the Andaman Sea.

Based on new scientific data, India has petitioned the United Nations to extend its EEZ from 200 nautical miles to 350 miles. India legally defined the concept of EEZ in the "Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976".

In June 1997, India also ratified UNCLOS. It also enacted the "Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981", prohibiting fishing by foreign vessels within Indian EEZ without a license. Additionally, India has also enacted laws regulating fishing and fisheries by Indian fishing vessels operating in the EEZ.

As a former Indian diplomat pointed out: ``To be sure, there are different yardsticks all around. The US, for instance, is yet to accept the UN tribunal ruling in relation to Diego Garcia.” That’s precisely the reason why it will continue to pass unannounced through Indian EEZ.