Many of you may have missed this news item, what with the Covid resurgence and the West Bengal elections that have choked news channels, social media, and newsprint of late.
Earlier this month, a US Navy warship USS John Paul Jones, on a voyage from the Arabian Gulf to the Malacca Straits, entered Indian waters and passed west of the Lakshadweep group of islands, well within India’s Exclusive Economic Zone (EEZ).
So what?
Well, the US Navy willfully violated Indian maritime territory without so much as a ‘by your leave’, as courtesy demanded.
A surprised India conveyed its concerns to the US through diplomatic channels. A Ministry of External Affairs statement said that the UN Convention UNCLOS does not authorize foreign nations to carry out military exercises or manoeuvres of their vessels in the EEZ of a country, without the consent of that country. In other words—‘Although we were monitoring your movement, you’re supposed to inform us that you’ve entered, my friend.’
But the retort from the US Government was the real surprise. This is what it said.
On April 7, 2021 (local time), USS John Paul Jones (DDG 53) asserted navigational rights and freedoms approximately 130 nautical miles west of the Lakshadweep Islands, inside India’s Exclusive Economic Zone, without requesting India’s prior consent, consistent with international law.
India requires prior consent for military exercises in its Exclusive Economic Zone, a claim inconsistent with international law. This freedom of navigation operation upheld rights, freedom, and lawful uses of sea recognized in international law by challenging India’s excessive maritime claims.
US Forces operate in the Indo-Pacific region on a daily basis. All operations are designed in accordance with international law and demonstrate that the United States will fly, sail and operate wherever international law allows.
We conduct routine and regular Freedom of Navigation Operations (FONOPs), as we have done in the past and will continue to in the future. FONOPs are not about one country, nor are they about making political statements.
Ouch!
In other words, Uncle Sam just showed us the middle finger. He said, ‘Look,pal, I’m well aware of Indian rules but I wanna make a point on the freedom of navigation. What you want is not consistent with international law!’
Geo-politics is normally not my cup of tea. But this news item piqued my interest, since it concerned the sea, ships, and maritime law. I can have an opinion on this, can’t I? Here it is….
To fully comprehend the big picture, we need to know about territorial waters and EEZ’s first.
From the 18th to the mid-20th century, respect for the principle of ‘freedom of the seas’ meant that the stretch of coastal waters said to belong to a State (meaning ‘country’ or ‘Nation’) was 3 nautical miles or 5.6 km. This was the norm set by the imperialist powers of the time such as the US, Britain, France and others, and was based on the maximum distance a cannon shot could travel from an offshore threat. After WWII, economic ambitions led many countries to extend their sovereign claims to 12 nautical miles, which by the 1960s became widely accepted as the new norm.
Negotiations for establishing an international Law of the Sea began by the UN in 1973. These negotiations lasted for 9 years culminating in the United Nations Convention on the Law of the Sea (UNCLOS) in 1982, which came into force in 1994 when the 60th country, Guyana, ratified it.
UNCLOS was established to define coastal and maritime boundaries of nations, to regulate seabed exploration not within territorial claims, and to distribute revenue from regulated exploration. It lay down laws and rules whose wide acceptance, it is believed, has greatly reduced the number, frequency and potential for international conflicts that would otherwise have taken place. There are now 167 member countries plus the European Union, which have signed on to the treaty and agreed to stuff such as coastal sovereignty, conservation, ocean resource management and the freedom of the high seas. India too is a signatory.
The 12-mile zone was legally sanctioned as the ‘territorial seas’ belonging to a specific coastal State, but within which ‘innocent passage’ of other ships including warships is allowed. UNCLOS created and legally sanctified Exclusive Economic Zones (EEZs) of 200 nautical miles (about 370 km) over which States have sovereign rights to explore and exploit in the seas, the seabed, and subsoil.
The areas beyond the EEZs were demarcated as the ‘high seas’ and said to be common to all. Key narrow straits (like the Malacca and Singapore Straits) crucial for shortening maritime routes were given international status for ‘transit passage’, but otherwise local coastal States had sovereign rights over them.
UNCLOS itself is quite clear that while exploiting the resources of the EEZ and the seabed are the right of the coastal State, there are no restrictions on the passage of vessels—military or commercial—through them. Likewise, no prior notification is needed for ‘innocent passage’ of military vessels through the actual territorial waters of the coastal State, i.e. covering a distance of 12 nautical miles from the coast line. UNCLOS does call on foreign nations to refrain from the threat or the use of force against coastal States, but it does not prohibit their ships from collecting hydrographic intelligence data in the EEZ of another State.
Though the USA has accepted the legal limit of 200 miles, unlike China, it is not a member of UNCLOS, thanks to its own internal politics. Therefore in theory it is not bound by the laws that govern the member countries. So legally it can do what it bloody well wants. Like Rambo.
It is their arrogant statement about the ship asserting its right of unrestricted transit that is cause for worry. Aren’t US ships setting a precedent for other navies to violate Indian territorial seas at will? Aren’t they insulting us by riding roughshod over our sentiments and policies?
So what should India do? Look away, pretend nothing happened? Or look all transgressors in the eye and assert our rights?
In 2019, India did ‘chase’ away a Chinese naval ship that was collecting data in our EEZ. That ship prudently left quietly, for reasons best known to it. (Perhaps its detention in an Indian port would have revealed secret information and equipment on board?) But this time, India did not challenge the US warship though its movement was being monitored. So why should there be selective challenge of the supposed violation of our EEZ? I say ‘supposed violation’, because India thinks it is so. As per UNCLOS, of which India is a signatory, it is not.
I think selectively challenging foreign navies is inconsistent behaviour. The same policy should apply to all. If the Govt of India has the gumption, it should demand that the US ratify UNCLOS. And then insist on some sort of guarantees that coastal States will not be subject to close surveillance by foreign navies. China could chip in and support the cause, causing perhaps a thaw in our relations with Beijing, because their perspective on this issue is similar. Or we can choose to look away and live in denial. Which we’ve become pretty good at.
What next? I don’t think the matter has ended here. Picture abhi baaki hai, dost.
Beetashok Chatterjee is the author of ‘Driftwood’, a collection of stories about Life at Sea and ‘The People Tree’, another collection of stories about ordinary people with extraordinary experiences. A retired merchant ship’s captain by profession, he lives in New Delhi with his memories of living more than 40 years on the waves.
His book is available on Amazon. Click here.
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