US Freedom of Navigation Operation (FONOP) in Indian waters creates ripples

Social media was abuzz with the news of the US 7^th Fleet, USS John Paul releasing a statement on FONOP in India’s Exclusive Economic Zone (EEZ) close to Lakshadweep Islands. The Arleigh Burke-class guided missile destroyer Fleet stated, “carried out Freedom of Navigation Operation (FONOP) approximately 130 nautical miles west of the Lakshadweep Islands, inside India’s EEZ, without requesting India’s prior consent, consistent with international law”. It added, “India requires prior consent for military exercises or manoeuvres in its EEZ or continental shelf, a claim inconsistent with international law. This FONOP upheld the rights, freedoms, and lawful uses of the sea recognised in international law by challenging India’s excessive maritime claims”.

While this is not the first time, the US Fleet has entered Indian waters to assert its navigational rights, the timing of the event and the strong-worded statement has created ripples to say the least. Though the release states that the operations are not about making political statements, it continued “We conduct routine and regular FONOPs as we have done in the past and will continue in future”. Rightly so, Annual Freedom of Navigation (FON) reports of US Defense Department has meticulously chronicled these events. But it is rare that such precise statement of violation of Indian rights hasn’t been issued.

The operation coming less that a month after the first virtual Quad Summit with maritime cooperation as the mainstay followed by US Defense Secretary Austin Llyod visit last month who called India, “an increasingly important partner” and a week later, reflecting growing congruence in military and defence cooperation, India and US conducted two-day PASSEX from March 28-29 in Bay of Bengal. India deployed warship Shivalik and for the time it was joined by Indian Airforce to practice along side USS Theodore Roosevelt Carrier Strike Group during these exercises. Interestingly, at a time US conducted FONOP close to Lakshadweep Island, Indian Navy Ships INS Satpura, INS Kiltan along with P8 I maritime patrol aircraft participated in the La Perouse Naval Drills held by France from April 5-7 along with Quad members in the Eastern Indian Ocean.

Viewing the five-country exercise with suspicion, Chinese spokesperson stated, “we always believe that military cooperation between countries should be conducive to regional peace and stability”. Clearly, maritime cooperation, has been underlying feature of these new strategic partnerships and more so to the burgeoning Indo-US strategic partnership.

Amidst this strategic congruence, the notification by US Navy of FON and the provocative statement which is totally avoidable has inadvertently created some discordant notes and gave US-sceptics an opportunity to raise hackles over this issue which as per the Rules Based International Order (RBIO) is accepted.

But here comes the important twist to tale, the UNCLOS (United Nations Convention on the Law of the Sea) signed by India, China and others in 1982 has an interpretation different from international law or the Rules Based International Order (RBIO) cited by the US. The issue is complicated by the fact that US is not signatory of UNCLOS and US regularly conducts FONOPS in contentious South China Sea and other regions in the Indian Ocean region to challenge its claims of countries.

Global commons are governed by various rules and this is further complicated by the domestic laws legislated by individual countries. UNCLOS imposes no restrictions on the passage of foreign vessels through EEZ which is 200 nautical miles from the baselines from which breadth of the territorial sea is measured. Area up to 12 nautical miles from baseline is termed as territorial seas, and area extending further from the outer edge of territorial seas to 24 nautical miles is contiguous zone and it is part of EEZ. But India’s 1976 Maritime Zones Act (MZA) mandates prior notification from foreign vessels when passing through its territorial waters and even when undertaking innocent passage. In the recent past, India has successfully chased away Chinese vessels that tried to enter India’s EEZ by navy and coast guard.

Though India has ratified UNCLOS it has declared that it will never authorise foreign countries to carry out any exercises or manoeuvres or use of weapons in its EEZ. This indicates that there is no universally accepted golden rules and any contravention to the norms of coastal country can be deemed as a violation. Accordingly, US’s FONOP can be construed as muscle-flexing and unilateral persuasion.

There is another major point of contention between UNCLOS and India’s MZA is the right of Indian government to establish, “fairways, traffic separation schemes, or any other mode of ensuring FON that is not prejudicial to the interests of India”¹. This provision has been widely criticized by the US and Western countries terming it as a thinly veiled attempt to restrict FON.

In lieu of perceived threats from Pakistan and China, India has legislated stringent maritime laws. Expressing its unease over these acts, the US has been conducting FONOPs. Indeed, in 2007, India issued a strong diplomatic note to US against US Navy Ship Mary Sears conducting marine scientific research (MSR) in its EEZ².

USN’s audacious statement is contesting this domestic law. It is in this context that an expert noted, “a coastal country’s right to stop foreign ships from conducting military activities in its EEZ is not accepted by the US and other countries. A more charitable view could be that the US is conveying to China that we consider friend and foe alike when it comes to freedom of navigation in global common”. Indeed, if US intends to send a strong message to China by conducting FONOP’s and widely publicising it then it is undeniably a strategic miscommunication of huge proportions.

While US, widely hyphenates India and China with respect to their interpretations regarding principles of maritime order, it must be noted that China adopts an increasingly assertive territorial policy in South China and East China Sea. On the contrary, despite its wariness to negotiating its sovereignty and reluctance to seek international arbitration for settling maritime territorial disputes, India in 2014, has accepted an UN verdict which was largely in favour of Bangladesh that tripled Dhaka’s EEZ by three times in Bay of Bengal.

On the contrary, China has refused to accept the binding 2016 PCA (Permanent Court of Arbitration) verdict which dismissed Beijing’s historical nine-dash line. Also, Beijing has reclaimed various territorial features in the SCS, nebulously incorporated the nine-dash line concept and cartographically altered and expanded its claims in maritime commons. To consolidate its claims Beijing aggressively reclaimed the islands within the stated nine-dash line which is nearly 90% of SCS, installed military hardware on these islands, declaring new government began administering reclaimed islands as new provinces and turned SCS into a China lake. It even established Air Defence Identification Zone (ADIZ) in the East China Sea.

In fact, unlike the India’s MZA, China not only demands prior notification of foreign vessels engaging in innocent passage but also authorization. As of now, China has passed three maritime laws with each law, China has stratified its authority over its alleged territorial waters and the intricate layering replete of ambiguity has become amenable tool for Beijing’s selective and warped interpretation.

US FONOPs and its patronising justification has also exposed its abject lack of understanding of strategic behaviours of India and China. China is mired in maritime disputes with five other countries- Vietnam, Philippines, Taiwan, Brunei and Malaysia in the region and has an abysmal record of maritime hostilities, dangerous brinkmanship, coercive intrusions and harassment. On the contrary, India never occupied or made any illegal claims and has been defender of law of the sea.

Irked by the kind of the language used for a Quad partner, India has expressed its displeasure stating- “the government of India’s stated position in the UNCLOS is that the conventions doesn’t authorise other states to carry out in the EEZ 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”. Also, “the USS John Paul was continuously monitored transiting from the Persian Guld towards the Malacca Straits. We have conveyed out concerns regarding this passage through our EEZ to government of USA through diplomatic channels”³.

It has been a common refrain that US’s FONOP are part of intelligence and survey missions. But in these fraught times when Quad nations have come together to counter assertive China, the deliberate (recurrent) violation of India’s domestic law and concomitant assertion of the same through public statement is bound to create valid doubts in India.

For all its tall claims of conducting FONOPs against all countries, Australia and Canada never featured in its list despite their excessive claims. Rachel Esplin Odell in her paper hypothesized that “US used FONOPs as part of a strategic effort to shape international maritime norms in ways that sustain its command of the sea by legitimating its naval access to key straits and littorals”⁴. Clearly, if that has been the driving motive behind the FONOPs US will be better served to first invest in building its naval power as China has now emerged as the largest naval power fledging its tentacles across the globe. Unlike in 1990s the time since US started releasing annual records of its FONOPs when it has been the dominant super power, Washington’s dominance is now challenged militarily, scientifically, economically and technologically by China.

Due to its protectionist policies and evident retrenchment policies from geopolitics, America’s influence in the Indo-Pacific has declined. By resurrecting Quad, US is trying to revitalise its ties with the region. At this juncture, taking on a Quad member and an emerging power in Indo-Pacific region advocating FOIP is going to be counterproductive.

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