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.[1]
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
Source: Chapter 2: Maritime
Zones – Law of the Sea (tufts.edu)
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:
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.[2]
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.[3]
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).
[1] Hyun Soo Kim, Military Activities in
the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict;
International Law Studies – Vol 80
[2] 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
