India on April 9 had protested a U.S. decision to conduct a patrol in India’s exclusive economic zone near Lakshadweep
On April 9, India protested a U.S. decision to conduct a patrol in the western Indian Ocean in India’s exclusive economic zone (EEZ) near Lakshadweep. India reiterated its position, conveyed when it ratified the UN Convention on the Law of the Sea (UNCLOS), that military manoeuvres within its EEZ require consent. The U.S said it had conducted the “freedom of navigation operation” (FONOP) to challenge India’s “excessive” maritime claims. The latest FONOP underlines both countries have “huge differences” when it comes to what a “rules-based order” means for the region, says Manoj Joshi, Distinguished Fellow, Observer Research Foundation. Excerpts from an interview:
What does UNCLOS tell us about the statements from India and the U.S.?
UNCLOS is fairly straightforward on this. You have a 12 nautical mile territorial sea, an additional 24 nautical miles as a contiguous zone where you can have some law and order, policing etc, and a 200 nautical mile EEZ which you are free to exploit, with fisheries or sea-bed mining but where you do not have territorial rights. Military ships can go through even territorial waters on what is called innocent passage. But India insists on notification not only for its territorial waters but even its EEZ. In Lakshadweep, there is another complicated issue called Straight Baselines, which allows countries to claim a larger area of water around an island group. The U.S. has challenged that as well. UNCLOS does not permit continental states like India to claim Straight Baselines, but only archipelago states like Indonesia or the Philippines. So there is a dual challenge here, including to the Straight Baselines, which makes this latest FONOP different.
So India’s claims, both on notification and on Straight Baselines, are not backed by UNCLOS?
Absolutely. I must preface this by saying the U.S. of all countries has itself not ratified UNCLOS. At the end of the day, when the U.S. talks about a rules-based international order, India is not following it. Neither the straight baseline claim nor notification is rules-based. I wonder whether there is a message to both China and India. The message to China, whose extravagant claims the U.S. has challenged in the South China Sea, is ‘we don’t do this only to you’. To India, it is ‘straighten out your rules based order business’.
How does all this sit with the Quad – India, U.S., Australia and Japan – advocating a rules-based order for the region?
I presume when you say rules-based order, you’re talking about UNCLOS. I can’t see on what basis the Quad can implement UNCLOS. Do we do it on the U.S. based understanding or Indian understanding? There are huge differences.
At the end of the day, international law is about might being right. What the U.S. does as FONOPs, only the U.S. can do. When a Chinese surveillance ship came near the Andamans, the Indian Navy allegedly chased it away. Now, you don’t chase away the U.S. Navy. The other future scenario to consider is, will the Pakistan Navy come by and send a ship through India’s EEZ, or the Chinese and Pakistanis carry out a joint exercise there? Perhaps UNCLOS itself needs revisiting.