Opinion: US Navy intrusion in Indian EEZ is beyond comprehension but objectionable

Written By: Achal Malhotra
New Delhi Published: Apr 11, 2021, 09:00 PM(IST)

US military vessel (file photo) Photograph:( Others )

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As two sovereign countries, India and the USA have the legitimate right to differ with each other on any given matter. However, the irresponsible and amateurish manner in which the US Navy decided to highlight this difference of opinion and enforce its own position and make it public is in complete contrast with the rapid growth in India-US ties

The unauthorised passage of a US naval ship through India’s Exclusive Economic Zone (EEZ) has created a highly avoidable controversy, which prima-facie may appear to be a case of the conflict arising out of the interpretation and application of international and national laws but in fact, there is more than what meets the eyes and remains to be revealed.

The US 7th Fleet Commander announced (from an unspecified location in Arabian Sea) that “on 7th April 2021, the USS John Paul Jones (DDG53) (a guided-missile destroyer) 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”. It said its act was “consistent with international law”. 

The statement did not stop here but went on to add that India’s requirement of “prior consent for military exercises or manoeuvres in its exclusive economic zone or continental shelf”, was  “inconsistent with international law”. 

As if to add insult to injury, the US Navy asserted that the Freedom of Navigation Operation (FONOP) “upheld the rights, freedoms, and lawful uses of the sea recognized in international law by challenging India’s excessive maritime claims”. Placing restrictions on the passage of ships through its territorial sea waters and EEZ etc. by any state is described by the USA as “excessive maritime claims” 

It is apparent from the official statement that the US Navy’s decision not to send a prior notice or seek India’s prior consent was by design and not by default or any oversight. Besides, asserting the freedom of navigation in international waters, the US objective was also to challenge India’s national laws and stated position on the requirement of obtaining prior consent and also to act in defiance of India’s national laws. A serious enough matter.

Yet, India’s public response was reasonably guarded, dignified and restrained. According to an official statement by the Foreign Office (April 9), India has conveyed its “concerns regarding this passage through our EEZ to the Government of USA through diplomatic channels.” 

No further details were made public. 

Read | India protests US Navy's transit through its exclusive economic zone

However, India has countered the US position by stating that the “Government of India’s stated position on the United Nations Convention on the Law of the Sea (UNCLOS) is that the convention 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”.

The Statement also puts on record that the ship’s movements were being monitored throughout, implying that the Indian Navy was alert and not caught by surprise.

The US Navy has repeatedly justified its act as being consistent with “international law”. The UNCLOS 1982 is the only well-established international law on the subject under reference. Interestingly– or rather ironically- the US has not yet ratified UNCLOS, though it claims to adhere to several of its principles.  

India is a signatory to UNCLOS and has also ratified it. In addition, there is national legislation governing the coastal regions within the sovereignty of India known as the Territorial Waters, Continental Shelf, Exclusive Economic Zone and others under Maritime Zones Act, 1976.

Section 4(2) of this act allows foreign warships including submarines and other underwater vehicles to enter or pass through the territorial waters after giving prior notice to the Central Government. They are also required to navigate on the surface and show their flags. 

India is not the only country that imposes restrictions on the innocent passage of foreign military ships.

Even though one of the fundamental principles of UNCLOS is that all ships of all states, including both civilian and military vessels, enjoy the right of innocent passage through the territorial sea of other states, the fact of the matter is that not all countries agree with this interpretation, particularly where the innocent passage of military vessels is concerned.  

According to a briefing paper of June 2017 by the Harvard Kennedy School, titled “Freedom of Navigation in South China Sea: A Practical Guide", over 40 states impose restrictions on the innocent passage of military ships, including requiring permission or notice prior to transit under innocent passage.

The significance of this episode is not only in the legal aspects of the case. The cause of serious concern is the arrogant manner in which the US Navy has acted deliberately to challenge India’s position and has also gone public without caring for the implications.

The USA is known to challenge the “excessive maritime claims” by other states either through diplomatic communications, or bilateral/multilateral discussions or operational assertions. It is not clear as to whether the USA has exhausted the first two options with India before opting for “operational assertion” on April 7.  

Most probably not.

As two sovereign countries, India and the USA have the legitimate right to differ with each other on any given matter.

However, the irresponsible and amateurish manner in which the US Navy decided to highlight this difference of opinion and enforce its own position and make it public is in complete contrast with the rapid growth in India-US ties culminating into “comprehensive global strategic partnership”; this is true in particular in defence and security areas. 

For instance, in 2016, the United States designated India as a Major Defence Partner; in 2018, India was elevated to Strategic Trade Authorization Tier 1 status, which allows India to receive license-free access to a wide range of military and dual-use technologies regulated by the US Department of Commerce. 

India and US have concluded the four defence and security related foundational agreements namely Logistics Exchange Memorandum of Agreement (LEMOA), Communications, Compatibility and Security Agreement (COMCASA), the Industrial Security Agreement (ISA) and Basic Exchange and Communication Agreement (BECA).

The US’s total defence trade with India has increased from near zero in 2008 to over $20 billion in 2020.  The two countries have been participating in regular joint multilateral military exercises such as Malabar and tri-services exercises e.g. Triumph. 

It is noteworthy that the incident took place in close heels of the Quad Summit (March 13) when both India and USA (along with Australia and Japan) reiterated their commitment to freedom of navigation in the Indo-Pacific region which they would like to see as open, free and inclusive, where the rule of law prevails.
 
Further, in the first outreach by the Biden Administration, the US Defence Secretary Lloyd Austin paid a three-day visit to India from March 19, 2021, during which he termed India as a “great partner” and reaffirmed the importance which the USA attaches to India in promoting peace and stability in Indo-Pacific region. 

The US fully realises the important role which only India can play in support of the US plans to contain China. 

In the above backdrop, the manner in which the US Navy has conducted itself publically is beyond comprehension but for sure objectionable. 

It is difficult to digest- as being speculated by some international affairs analysts- that India was targeted with the objective of sending a message to China whose assertive, aggressive and expansionist behaviour in the Indo-Pacific is of concern to USA as well as many other countries in the region, including India. 

It would be even more absurd to suggest that it was an operation jointly scripted by the USA and India to target a common adversary namely China.

The canvas of the Indo-US relations at the moment is extremely broad; this incident is, therefore, unlikely to cause any serious dent. It is important at the same time that the required measures are taken immediately to prevent the recurrence of such or similar incidents. A publicised damage control measure by the US Navy would be a bonus.

(Disclaimer: The views of the writer do not represent the views of WION or ZMCL. Nor does WION or ZMCL endorse the views of the writer.)

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