CONTEXT 

• Last week, India’s strategic community was agitated when the USS John Paul Jones carried out a freedom of navigation operation (FONOP) 130 nautical miles west of the Lakshadweep Islands.
• The disquiet in Delhi was heightened by an unusual press release by the Commander, U.S. 7th Fleet, that said the operation, which was carried out in India’s exclusive economic zone (EEZ), “asserted navigational rights and freedoms… without requesting India’s prior consent”.
• At a time when the U.S.-India relations are on a high, many consider this as political signalling by the U.S.

DIFFERENT INTERPRETATIONS

U.S NAVY

• In the aftermath of the incident, the U.S. Pentagon defended the military operation off India’s waters terming it “consistent with international law”.
• For the U.S. Navy, FONOPs are a way of showing that the maritime claims of certain states are incompatible with international law.
• Hence, India’s requirement of prior consent for the passage of foreign warships through Indian EEZs, they believe, is a violation of the United Nations Convention on the Law of the Sea (UNCLOS).
• Also, they point out that articles 56 and 58, Part V of the Law of the Sea, entitle U.S. warships to high-seas freedoms in the 200-nautical mile EEZs of another coastal state.

INDIA

• India interprets the maritime convention differently.
• When it ratified the convention in 1995, New Delhi stated, “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.”
• This position is consistent with India’s domestic law — the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones of India Act of 1976 — and remains unchanged.
• Hence, according to it, UNCLOS does not explicitly permit the passage of military vessels in another state’s EEZ.

UNDERSTANDING INTENTIONS BEHIND

• Despite disagreements over navigational freedoms, India and the U.S. have refrained from a public airing of differences.
• Indian observers have come to accept U.S. FONOPs as an instrument in Washington’s military and diplomatic toolkit that gives the U.S. Navy leverage in the contest with China in the South China Sea.
• U.S. officials, too, have learnt to take Indian posturing in their stride.
• Washington knows New Delhi’s real concern is the possibility of greater Chinese naval presence in Indian waters.

LAKSHADWEEP: A SMART CHOICE

• The choice of Lakshadweep for the FONOP doesn’t seem incidental.  
• Hence, naval operation in the waters off Lakshadweep, where maritime boundaries are more settled than the Andaman and Nicobar Islands (where straight baselines on the Western edge of the islands have in the past raised uncomfortable questions), was a smart move.
• The idea, ostensibly, was to signal to China that the U.S. Navy is committed to uphold the rules-based order in the waters of opponents and partners alike.
• It even allowed that Indian officials to ignore the operation.
• The error occurred only when, U.S. 7th Fleet released a press statement that set the issue ablaze.

BRIDGING THE DIVIDE

• There are lessons for both India and the U.S. from happening in Lakshadweep.
• The U.S. must recognise that FONOPs have implications for New Delhi that go beyond the infringement of Indian jurisdiction in the near seas.
• Such operations normalise military activism close to India’s island territories that remain vulnerable to incursions by foreign warships.
• It also encourages other regional navies to violate India’s domestic regulations in the waters surrounding the Andaman and Nicobar Islands.
• Further, U.S. such actions on the subject isn’t acceptable as Washington is yet to ratify the UNCLOS.
• New Delhi too, must rethink its stand on freedom of navigation in the EEZs.
• It isn’t enough for Indian officials and commentators to say U.S. FONOPs are an act of impropriety. The reality is that India’s domestic regulation is worryingly out of sync with international law.
• India’s declaration of straight baselines delineating zones around the Andaman and Nicobar Islands (on the Western edge), in particular, is a discrepancy that cannot be explained as a minor departure from the provisions of the UNCLOS.

The U.S. Navy sail through the waters off Lakshadweep highlights a gap in the Indian and American perception of navigational freedoms, complicating an already complex domain of international maritime law. Yet it is not the betrayal of a friend that many have sought to portray the FONOP to be.

Reference:

1. https://www.thehindu.com/opinion/op-ed/not-on-the-same-page-at-sea/article34304977.ece