Amid the divergent claims by the US and the Indian governments, it is important to delineate the correct position of international law on the military activities in the EEZ, writes Aftab Alam for South Asia Monitor
The recent episode of the US 7th Fleet asserting navigational rights inside India’s Exclusive Economic Zone (EEZ), and the insistence by India that this required prior consent, has once again brought to the surface differences between the two countries on the legality of military activities in the EEZ which is extended to 200 nautical miles (370 km) from the shore.
The event also underlines the need for harmonisation of international and domestic laws and policy about the EEZ.
In a press release, the US Navy’s 7th Fleet announced that on April 7 USS John Paul Jones “asserted navigational rights and freedoms” around 130 nautical miles west of the Lakshadweep Islands, inside India’s EEZ, without requesting India’s prior consent.
The release further emphasized that it "upheld the rights, freedoms, and lawful uses of the sea recognised in international law by challenging India’s excessive maritime claims".
FONOP not first time by US
This was, however, not the first that the ‘freedom of navigation (FONOP) exercise was conducted by the US Navy in the EEZ of India. In fact the US Navy regularly and in a routine manner conducts such FONOPs, what it claims, to protest excessive maritime claims by coastal states.
The United States claim that FONOPs are not country-specific. According to media reports, between 1992 to 2003, the U.S. Navy had conducted at least six FONOPs in the Indian EEZ and, with two exceptions, every year between 2007 and 2021.
While reacting to this, the Indian government reiterated its stated position on the 1982 UN Convention on the Law of the Sea (UNCLOS) 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.”
The United States, on the other hand, strongly defended the FONOP stating that India’s position on prior consent for military exercises or manoeuvres in its EEZ or continental shelf was “inconsistent with international law”.
Amid the divergent claims by the US and the Indian governments, it is important to delineate the correct position of international law on the military activities in the EEZ. The novel concept of EEZ, previously considered high seas, are largely supported by the developing states reflecting their desire to have greater control over economic resources of the seas.
It was inserted in the UNCLOS after a lot of ‘compromises’ and ‘trade-offs’ between coastal states and major maritime powers holding extremely conflicting views about the freedoms in the seas.
This was a major success for the coastal states as the maritime powers for the first time conceded their claims to extended rights and jurisdiction in waters off their coasts. The extended rights of such states were, however, accepted by the maritime powers only after the acknowledgement that the EEZ was not under their sovereignty of the coasal states and the traditional rights and freedoms of other powers were preserved in the newly created zone.
The UNCLOS seeks to accommodate diverse interests of the coastal and other states. It recognises the ‘sovereign rights’ of coastal states to explore and exploit the natural resources in the EEZ, as well as other “activities for the economic exploitation and exploration of the zone, such as the production of energy from water, currents and winds”.
it also obligates them to have ‘due regard’ to the rights and duties of other states and they must act in a manner compatible with the provision of UNCLOS (Article 56 paragraph 2).
It may be noted that coastal states don’t enjoy sovereignty over the EEZ in every respect like territorial waters.
At the heart of the current dispute between India and the United States is the divergent interpretation of Article 58 of the UNCLOS, partly due to its ambiguous wording, which stipulates the rights and duties of the ‘other states’ in the EEZ. According to Article 58, in the EEZ, all states, whether coastal or land-locked, enjoy the freedoms of navigation and overflight and laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms.
Nevertheless, these rights of ‘other states’ are not absolute. In exercising these rights, the UNCLOS requires them not only to ‘have due regard to the rights and duties of the coastal state’ but also comply with the laws and regulations adopted by the coastal state, provided these are not incompatible with this provision.
The phrase ‘other internationally lawful uses of the sea’ in Article 58 leaves the scope for varying interpretations by states. The Unites States defends its action invoking this provision. It argues that “military operations, exercises and activities have always been regarded as internationally lawful uses of the sea” and may be undertaken without notice or consent of the coastal state.
Prior to the UNCLOS’ adoption, Indian Parliament had passed an umbrella legislation generally referred to as the Maritime Zones Act in August 1976 proclaiming the sovereignty and the nature of jurisdiction exercisable in various maritime zones of India. It, for the first time, required foreign warships to give prior notification for passing through the territorial waters of India, while submarines and other underwater vehicles would navigate on the surface and show their flag while passing through such waters.
After adoption of the UNCLOS, the United States had objected to this provision as ‘not in accordance with international law’.
It is true that neither the UNCLOS nor the state practice prior to and subsequent to the adoption of UNCLOS clearly prohibits military activities except when ships are engaged in innocent passage, transit passage and archipelagic sea lanes passage (ASLP). The UNCLOS negotiations also suggest that the purpose of creating EEZ was only to grant coastal states greater control over the resources in waters adjacent to their coasts, not to regulate military activities.
However, the provision relating to freedoms of navigation and overflight in the UNCLOS cannot be interpreted to allow military activities in the EEZ.
It is equally important to note that despite being a signatory to the UNCLOS, India has, from very beginning and persistently, refused to recognise any right of ‘other states’ in its EEZ to perform military activities and has always insisted that if any such activities are to be carried out, it must be done only after prior consent of the coastal states.
Accordingly, while ratifying the UNCLOS in 1995 and in consistence with its 1976 Maritime Zones Act, India attached a declaration stating that “…the provisions of the Convention do 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.”
India’s position consistent
India’s refusal to recognise the validity of military activities in the EEZ is consistent with the international law doctrine of persistent objector which allows exceptions to a treaty or customary law obligation. India’s insistence on the right to obtain notification of military exercises or manoeuvres in its EEZ also derives from a ‘security interest’ recognised by Article 59 of the UNCLOS.
India’s position is also in sync with the peaceful purposes provision of UNCLOS, especially Article 301, which calls on states to “refrain from any threat or use of force against the territorial integrity or political independence of any state . . . .
”However, all the military activities cannot be said to be unlawful and, per se, constitute a threat or use of force against the sovereignty, territorial integrity or political independence” of other states, the provision mentioned.
In view of strong and divergent views on the conduct of military activities in the EEZ, it is suggested that the international community develop guidelines to regulate such activities.
The Nippon Foundation Guidelines stipulate that military activities in the EEZ should not stimulate or excite the defensive systems of a coastal state, collect information to support the use of force against it, or involve deployment of systems that prejudice its defence or security, or interfere with or endanger its right to protect and manage its resources and environment. The guidelines further suggest that major military exercises in a foreign EEZ should be pre-notified and must invite observers from the affected coastal state.
(The writer is Professor & Chairman, Department of Strategic and Security Studies, Aligarh Muslim University, Aligarh, India. Views are personal. He can be contacted at firstname.lastname@example.org)