The explains the issues involved in the recent incident in which US position on freedom of navigation under UNCLOS differed from India’s.

Different positions

• On April 7, the U.S.’s 7th Fleet Destroyer conducted a ‘Freedom of Navigation Operation’ inside India’s Exclusive Economic Zone (EEZ).
• This exercise was conducted without requesting India’s consent.
• Moreover, the U.S. 7th Fleet noted in its press release that India’s requirement of prior consent is “inconsistent with international law”.
• However, India asserted that the UN Convention on the Law of the Sea (UNCLOS) “does not authorize 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”. 
• The question is, can countries carry out military exercises in another country’s EEZ and if yes, subject to what conditions?

UNCLOS Provisions for EEZ

• UN Convention on the Law of the Sea (UNCLOS) binds all its signatories and customary international law binds all states, subject to exceptions like the doctrine of persistent objector.
• As per the UNCLOS, EEZ is an area adjacent to the territorial waters of a coastal state.
• Under UNCLOS, a sovereign coastal state has rights and duties relating to management of natural resources; establishment and use of artificial islands, installations and structures; marine scientific research; and protection of the marine environment.
• India is a party to the UNCLOS while the U.S. is not.
• Article 87 provides for freedom of the high seas under which all states have the freedom of navigation. 
• Apart from that, states enjoy the freedom of overflight and of the laying of submarine cables and pipelines as well as other internationally lawful uses of the sea.
•  However, the freedom of navigation is subject to the conditions laid down under the UNCLOS and other rules of international law.
• In addition to it, Article 58 (3) stipulates another qualification: “In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State…”.

So, what laws and regulation are adopted by India under Article 58 (3) of UNCLOS

• The relevant Indian law in this regard is the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones of India Act, 1976.
• Section 7 sub-section 9 of this Act recognises the freedom of navigation of the ships of all States but makes them subject to the exercise of rights by India within the zone.
• Article 310 of the UNCLOS does permit states to make declarations in order to explain the relationship between the Convention and their own laws.
• The declaration by India in 1995 also states that India “understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone and on the continental shelf military exercises or manoeuvres.

Way forward

• Non-consensual military activities that hinder the lawful enjoyment of rights of coastal states need not be permissible.
• Also, a coastal state is naturally concerned about military exercises and manoeuvres posing a risk to its coastal communities, its installations or artificial islands, as well as the marine environment.
• Thus, any state which wishes to conduct such exercises must do so only in consultation with the coastal state since the coastal state is the best judge of its EEZ.
• Both India and the U.S. should negotiate such concerns for the maintenance of international peace and security.

Consider the question “What are the rights of coastal state on its Exclusive Economic Zone under UNCLOS? “

Conclusion

On a conjoint reading of Articles 58, 87 and 310, it can be argued that freedom of navigation cannot be read in an absolute and isolated manner.

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