The explains the implications of a recent incident in which the US 7th fleet asserted navigation freedom and rights inside India’s Exclusive Economic Zone.

Freedom of navigation operation in India’s EEZ

• The US 7th fleet recently declared that on 7th April, 2021 USS John Paul Jones asserted navigational rights and freedom inside India’s EEZ, without requesting India’s prior consent.
• The statement also said that  “India requires prior consent for military exercises or manoeuvres in its EEZ, a claim inconsistent with international law.

Which international law the statement referred to

• The “international law” being cited by Commander 7th Fleet is a UN Convention which resulted from the third UN Conference on Law of the Seas (UNCLOS 1982).
• India has ratified the Convention, which came into force in 1994.
• However, amongst the 168 nations who have either acceded to or ratified UNCLOS 1982, the US is conspicuous by its absence.

Background of the UNCLOS

• In 1945, the US unilaterally declared its jurisdiction over all natural resources on that nation’s continental shelf. 
• Taking cue from the US, some states extended their sovereign rights to 200 miles, while others declared territorial limits as they pleased.
• To bring order to a confusing situation, conferences for codifying laws of the seas were convened by the UN.
• After negotiations, an agreement was obtained on a set of laws that formalised the following maritime zones:
• (a) A 12-mile limit on territorial sea;
• (b) A 24-mile contiguous zone.
• (c) Amnewly conceived “exclusive economic zone” (EEZ) extending up to 200 miles within which the state would have sole rights over natural resources.
• The EEZ was said to be unique in that it was neither high seas nor territorial waters.

Issues with the UNCLOS 1982

• The signatories UNCLOS 1982 have chosen to remain silent on controversial issues with military or security implications and mandated no process for resolution of ambiguities.
• Resort to the International Tribunal for the Law of the Sea or a Court of Arbitration are amongst the options available.
• However, many states have expressed a preference for “negotiating in good faith”.
• The time has, perhaps, come for signatories of UNCLOS 1982 to convene another conference to review laws and resolve issues of contention.

Why US refused to ratify UNCLOS

• It was accepted that the seabed beyond the limits of national jurisdiction was not subject to national sovereignty but would be “the common heritage of mankind” .
• This seems to have been at the root of the US opposition to UNCLOS.
• It was felt in the US that this concept favoured the under-developed countries thereby denying America the fruits of its technological superiority.
• The US Senate, therefore, refused to ratify UNCLOS.
• Amongst the areas of major contention or sharp divergence in the interpretation of rules are:
• 1) Applicability of the EEZ concept to rocks and islets.
• 2) The right of innocent passage for foreign warships through territorial seas.
• 3) Conduct of naval activities in the EEZ and the pursuit of marine scientific research in territorial waters and EEZ.

Containing China

• China has insulated itself against US intervention, through the progressive development of its “anti-access, area-denial” or A2AD capability.
• China has accelerated its campaign to achieve control of the South China Sea (SCS).
• In 2013, China commenced on an intense campaign to build artificial islands in the SCS on top of reefs in the Spratly and Paracel groups.
• In 2016, China disdainfully rejected the verdict of the UN Court of Arbitration in its dispute with the Philippines.
• So far, none of the US initiatives including Obama’s abortive US Pivot/Re-balance to Asia, Trump’s Indo-Pacific Strategy and Asia Reassurance Initiative Act, seem to have had the slightest impact on China’s aggressive intent
• Therefore, it seems pointless for the US Navy to frighten the Maldives or friendly India and it needs to focus on China instead.

Consider the question “What are the different types of maritime zones under the United Nations Convention for the Law of the Sea 1982? What are the flaws in the convention?

Conclusion

In this fraught environment, the ever-expanding, worldwide FONOP campaign needs a careful reappraisal by US policy-makers for effectiveness — lest it alienates friends instead of deterring adversaries.

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