After a long hiatus.....
A Freedom of Navigation Operation (FONOP) by a US warship brought into fore the extent and legal limitations of the exclusive economic zone.
A US guided missile destroyer sailed through India’s exclusive economic zone (EEZ), 130 nautical miles west of Lakshadweep Islands, without intimating India – in alleged violation of Indian law. Almost all Indian news channels/websites accused the US Navy of having violated Indian law/international law. It is not clear whether the Arleigh Burke-class destroyer was merely transiting the Indian EEZ or carrying out manoeuvres.
A statement released by the US Navy’s Seventh Fleet 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.”
It said India requires prior consent for military exercises or manoeuvres in its EEZ or continental shelf, and added that this claim was inconsistent with international law.
This Freedom of Navigation Operation (FONOP) upheld the rights, freedoms, and lawful uses of the sea recognised in international law by challenging India’s excessive maritime claims, it said.
In a statement issued, India’s external affairs ministry said it had raised the matter of the USS John Paul Jones passing through the EEZ with the US.
“The USS John Paul Jones was continuously monitored transiting from the Persian Gulf towards the Malacca Straits. We have conveyed our concerns regarding this passage through our EEZ to the Government of U.S.A through diplomatic channels,” it said.
India reiterated its adherence to the UNCLOS and said that the laws under this “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.”
This incident has politico-diplomatic dimensions and international legal implications. This post is an attempt to analyse the international legal ramifications in the light of the provisions of the United Nations Convention on the Law of the Sea (UNCLOS), 1982 in respect of the coastal state’s rights and limitations vis-à-vis the Exclusive Economic Zone (EEZ).
For the purposes of the present incident, it is relevant to refer to Articles 55 to 58 of UNCLOS 1982.
Article 55 of the 1982 Convention stipulates that the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established under the Convention. The zone starts from the outer edge of the territorial sea but shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. In other words, the zone would effectively be only 188 nautical miles with the territorial sea being 12 nautical miles.
Article 56 provides that the coastal state in the EEZ has inter alia sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.
The key phrase in the above provision is “sovereign rights”. Sovereign rights are not the same as “sovereignty” which is conferred on a coastal state with reference to the territorial sea. In order to distinguish between sovereign rights and sovereignty, in this context, it is necessary to refer to Article 2 of the 1982 Convention which defines the territorial sea. Sub-clause 1 of Article 2 of the Convention of 1982 provides that the sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. Sub-clause 2 of Article 2 provides that the sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. Sovereignty in international law, is the exercise of power by a state. The sovereign rights, in Article 56 refer to the coastal state’s rights below the surface of the sea; surface waters are international waters. Thus, the rights available to a coastal state are confined to exploring and exploiting, conserving and managing the natural resources in the waters superajacent (that is lying over or above something else). The USS John Paul Jones was not violating India’s sovereign rights in the exclusive economic zone. In fact, under the Freedom of Navigation Operation it was merely transiting through India’s exclusive economic zone. Hence there was no infringement of either India’s sovereign rights or sovereignty. The only cause for provocation was the statement issued by the Seventh Fleet.
Article 58 of the Convention stipulates that in the exclusive economic zone, all states whether coastal or land-locked enjoy subject to the relevant provisions of the Convention, the freedoms referred to in Article 87 of navigation (which was purported to be exercised by the USS John Paul Jones), overflight and laying of submarine cables and pipelines and other internationally lawful uses of the sea related to these freedoms such as those associated with the operation of ships, aircraft and submarine cables and pipelines. The Article also provides that the states in exercising their rights and performing their duties, due regard should be had to the rights, duties and laws of the coastal state (something being emphasised by India).
The latter part of the above provision in italics was interpreted by the maritime powers to imply that the naval manoeuvres was legal in a coastal state’s exclusive economic zone which was covered broadly under the phrase “associated with the operation of ships.” However, some of the coastal states dissented and interpreted the said provision narrowly contending that the said provision did not entitle the other states to carry out military activities in the zone and that prior consent was necessary before carrying out such activities.
The question of whether a foreign country has the right to conduct military activities in the exclusive economic zone of a coastal state was subject matter of controversy when the text of the 1982 Convention was being negotiated. The maritime powers pitched for a broad range of military activities in consonance with the traditional high seas freedom (which are provided for in the 1958 Geneva Convention on the High Seas). The maritime powers have sought to interpret the phrase “other internationally lawful uses of the sea related to these freedoms” to include military activities such as task force maneuvering, flight operations, military exercises, naval surveys, intelligence gathering and weapons testing and firing. Many years ago one operational commander from the United States wrote that the EEZ regime did not permit the Coastal State to limit traditional non-resources related high seas activities in the EEZ, such as task force maneuvering, flight operations, military exercises, telecommunications and space activities, intelligence and surveillance activities, marine data collection, and weapons testing and firing”. This was vehemently objected to, by some coastal states because these activities posed a threat to these states. The Convention itself is silent on this controversial issue. And further this issue has not come up for judicial interpretation before the International Court of Justice or the International Tribunal for the Law Of the Sea.
Maritime Zones Schematic
India’s legal position
India enacted the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976. Sub-section (9) of Section 7 of the said Act provides: “In the exclusive economic zone and the air space over the zone, ships and aircraft of all States shall subject to the exercise by India of its rights within the zone, enjoy freedom of navigation and over flight.”
However, India, at the time of ratifying the UNCLOS in June 1995 issued the following declarations:
“(a) The Government of the Republic of India reserves the right to make at the appropriate time the declarations provided for in articles 287 and 298, concerning the settlement of disputes.
(b) The Government of the Republic of 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, in particular those involving the use of weapons or explosives without the consent of the coastal State.”
While recognizing the freedom of navigation and overflight in the EEZ, India carved out a reservation while ratifying the 1982 Convention prohibiting other States from carrying out military exercises or manoeuvres without its consent. The legal validity of the above reservation, in the opinion of the writer, is questionable.
It is pertinent, here, to refer to the Maritime Delimitation in the Black Sea (Romania v Ukraine) 2009 ICJ 61, wherein the International Court of Justice was asked to consider a RUD (reservations, understandings and declarations) adopted by Romania when it ratified UNCLOS, a treaty that prohibits most reservations but allows interpretative declarations as long as they do not purport to exclude or modify the legal effect of the convention. Romania had issued an interpretative declaration regarding Article 121 which lays down the definition of an island as “a naturally formed area of land, surrounded by water, which is above water at high tide” and distinguishes rocks that cannot sustain human habitation or economic life of their own in Article 121 (3) as not having an exclusive economic zone or continental shelf. The interpretative declaration allowed for a more preferable delimiting boundary by not considering rocks as part of the delimitation of maritime spaces. The ICJ while holding against Romania observed that the declaration could not modify the legal effect of the UNCLOS provisions. So also, India could not import vide a municipal legislation (the 1976 Act) a restriction on the navigational freedom and other lawful uses of the sea with respect to the exclusive economic zone.
It is also relevant to point out that the US Navy protested this restriction in 2007 and has stated that it did not recognize this claim and in pursuance thereof also conducted operational assertions in 1999, 2001 and 2008 through 2014 thereby attempting to establish a state practice.
In conclusion, it needs to be pointed out that FONOPS are well recognized in law and practice and the statement issued by the Seventh Fleet and its fallout needs to be tackled at the diplomatic or political level in the larger interests of securing India’s geopolitical objectives in the Indo-Pacific through the Quadrilateral Security Dialogue (QUAD).
 Hyun Soo Kim, Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict; International Law Studies – Vol 80
 Eric Chung, The Judicial Enforceability and Legal Effects of Reservations, Understandings and Declarations; The Yale Law Journal Vol 126 2016-17 Yale Law Journal - The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations