By Tanya Napolean
Introduction
A US (United States) guided missile ship sailed into India’s Exclusive Economic Zone (EEZ) without notifying India, breaching the Indian law. The USS John Paul Jones is a 9,000-tonne guided-missile destroyer that has been in service for the United States of America for more than a quarter-century.
On April 7, the US warship USS John Paul Jones, conducted a Freedom Of Navigation Operation (FONOP) in India’s Exclusive Economic Zone (EEZ), 130 nautical miles west of the strategically important Lakshadweep Islands, highlighting the limits to India’s sovereign rights in the regulatory oversight of its EEZ and its correlation with customary international law and the United Nations Cooperative Agreement (UNCLOS).
Despite the inherent restrictions imposed by CIL and UNCLOS, the situation serves as a reminder that India needs effective EEZ control.
- What is Freedom of Navigation Operation (FONOP)?[1]
Freedom of navigation is a concept of customary international law that stipulates that “ships carrying the flag of any sovereign state will not be interfered with by other nations, save as allowed in international law.”
- What is the EEZ? (Exclusive Economic Zone (EEZ)?[2]
An exclusive economic zone, according to the United Nations, is “an area beyond and adjacent to the territorial sea, subject to a specific legal regime” in which “the rights and authority of the coastal State, as well as the rights and freedoms of other States, are governed by the relevant provisions.”
The UNCLOS defines the EEZ as a region of the sea in which a sovereign nation has unique sovereign powers over the discovery and use of marine life and resources.
It extends from the baseline to a distance of 200 nautical miles or 370 kilometers from the sovereign nation’s shore. India’s EEZ is defined as “an area beyond and contiguous to territorial waters, with a limit of 200 nautical miles from the shoreline.”
United Nations Convention on the Law of the Sea – UNCLOS
The United Nations Convention on the Law of the Sea (UNCLOS) allows foreign ships the ‘right of innocent passage‘ across a country’s territorial sea, although this right is restricted.
This voyage must be “continuous and speedy,” and “if it requires halting and grounding, it should be solely because of unforeseen circumstances or distress, or to give help to individuals, ships, or airplanes in risk.”[3]
Under UNCLOS, each coastal state is granted exclusive control over its EEZ, which extends 200 nautical miles from its shore. The EEZ of India covers 2.2 million square kilometers.
The agreement permits the coastline state to take appropriate steps, including as board, examination, detention, and civil proceedings, to guarantee conformity with international rules and regulations, to protect its sovereignty.
According to UNCLOS, the journey of a foreign ship is regarded as prejudicial to the coastal state’s stability and peace if the ship interacts in activities such as “any exercise or practice with weapons of any kind,” “the carrying out of research or survey activities,” or “any other activity not having a direct bearing on passage.”
On the other hand, UNCLOS lacks a mechanism for acting against the offender, instead of relying on the offending state to bring the case to arbitration.
What was USA’s Response?
The Fleet declared in a statement that “India requires prior consent for military exercises or maneuvers in its exclusive economic zone [EEZ] or continental shelf, a claim inconsistent with international law. This 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,” according to the statement.
Over the previous three decades, FONOPS has repeatedly targeted India. In most situations, two justifications are given. Prior notification is required before entering the maritime boundary, and prior authorization is required for naval operations and exercises in the EEZ as in the recent USS John Paul Jones case.
Were any laws broken?
The FONOP was deemed a breach of Indian law by the Ministry of External Affairs, which mandated the US to give a warning before invading the Indian EEZ. The need that a foreign military vessel (FMV) gives prior notice to the MEA under Section 4 of the Indian Act applies only when the FMV wishes to enter the Indian TS, which is a sovereign National territory in any event.
Furthermore, there is no mention of any previous notice in the Territorial Waters, Continental Shelf, Exclusive Economic Zones, and Maritime Zones Act, 1976 (Indian Act), particularly Section 7, which deals with the EEZ.
The concept of freedom of navigation and harmless movement in the EEZ for all vessels, including an FMV, is enshrined in UNCLOS Article 58, which applies irrespective of the coastal state’s agreement. As a result, there is no doubt that the US entered the Indian EEZ without prior notification, like freedom of navigation in foreign seas and the EEs an inherent right under the CIL.
There is a compelling case to be made that the US should not be constrained by coastal state rules governing FMV access in the EEZ.
Furthermore, requiring a prior notice before entering the EEZ does not violate the freedom of navigation principles inherent in CIL since it does not restrict an FMV’s ability to enter the EEZ.
What was the response of Ministry of External Affairs, Government of India?
India’s external affairs ministry said it has addressed the issue of the USS John Paul Jones sailing into the EEZ with the US in a statement published.
“As it transited from the Persian Gulf to the Malacca Straits, the USS John Paul Jones was constantly watched. We have raised our concerns about its transit across our EEZ with the US government through diplomatic channels,” the statement added. India affirmed its commitment to the UNCLOS, stating that the treaty’s laws “Do not authorize other States to conduct military operations or movements in the Exclusive Economic Zone or on the territorial waters, in specific those entailing the use of weapon systems or explosive materials, without the consent of the coastal region.”[4]
Conclusion
India needs to change its law to force FMVs to give advance notification before entering its exclusive economic zone. India is well within its UNCLOS rights and national policy under CIL in doing so, while not infringing on the freedom of navigation principles articulated by the ICJ in the Nicaragua decision.[5]
The International Court of Justice (ICJ) ruled in Nicaragua v. United States of America (1986) that the US had broken international law by backing the Contras in their struggle against the Sandinistas and by mining Nicaragua’s ports.
Because of the CIL status accorded to UNCLOS, India might have a solid plausible case over non-UNCLOS countries like the United States because of this modification, balanced by the concept of legal systems.
Reference-
- Freedom of Navigation Operation (FONOP) – INSIGHTSIAS, INSIGHTSIAS, insightsonindia.com(last visited Jul 15, 2021). ↑
- WTO | Glossary – Exclusive Economic Zone (EEZ), Wto.org, wto.org (last visited Jul 15, 2021). ↑
- Overview – Convention & Related Agreements, Un.org, un.org (last visited Jul 15, 2021). ↑
- Passage of USS John Paul Jones through India’s EEZ, Mea.gov.in, .mea.gov.in (last visited Jul 15, 2021). ↑
- Judgments | Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) | International Court of Justice, Icj-cij.org, .icj-cij.org (last visited Jul 15, 2021). ↑