Indian visitors to the official website of the Yokosuka-based Commander, US 7th Fleet, were bemused to read the following announcement: “On 7 April, 2021 USS John Paul Jones asserted navigational rights and freedoms… inside India’s EEZ, without requesting India’s prior consent.” With an equal mix of righteousness and chutzpa, the statement adds, “India requires prior consent for military exercises or manoeuvres in its EEZ… a claim inconsistent with international law… This freedom of navigation operation (FONOP) upheld international law by challenging India’s excessive maritime claims.”
In an atmosphere of rapidly warming Indo-US relations, this gratuitous public declaration, coming within weeks of the US-led Quad Leaders virtual meeting and on the heels of a major Indo-US naval exercise can only be seen as an act of breath-taking inanity. The impropriety becomes even more obvious when viewed against the background that the “international law” being cited by Commander 7th Fleet is a UN Convention which resulted from the third UN Conference on Law of the Seas (UNCLOS 1982).
India has ratified the Convention, which came into force in 1994, but there is rich irony in the fact that amongst the 168 nations who have either acceded to or ratified UNCLOS 1982, the US is conspicuous by its absence. The UN Secretariat has not charged any country with the role of overseeing or enforcing the implementation of UNCLOS. It is, therefore, intriguing to see that the US has arrogated to itself a “global-cop” role in its implementation. Since “rules-based maritime order” has become a much-used political catch-phrase, it is worthwhile examining the provenance of these rules and the role played by the US, so far.
At the risk of sounding doctrinaire, it must be said that the nine-year-long negotiations to formulate UNCLOS 1982 were essentially a struggle between the “haves” (the established European and North American maritime powers) and the “have-nots” — the emerging “third-world” — who began to stake their legitimate claims on the usage and wealth of oceans. The first major challenge to the old order came from the US when, in 1945, President Harry Truman unilaterally declared US jurisdiction over all natural resources on that nation’s continental shelf. This triggered a free-for-all, in which some states extended their sovereign rights to 200 miles, while others declared territorial limits as they pleased.
To bring order to a confusing situation, conferences for codifying laws of the seas were convened by the UN, and after torturous negotiations, an agreement was obtained on a set of laws that formalised the following maritime zones: (a) a 12-mile limit on territorial sea; (b) a 24-mile contiguous zone; and (c) a newly conceived “exclusive economic zone” (EEZ) extending up to 200 miles within which the state would have sole rights over natural resources. The EEZ was said to be unique in that it was neither high seas nor territorial waters.
It was accepted that the seabed beyond the limits of national jurisdiction was not subject to national sovereignty but would be “the common heritage of mankind” and this seems to have been at the root of the US opposition to UNCLOS. President Ronald Reagan was reportedly convinced that this utopian concept favoured the under-developed countries thereby denying America the fruits of its technological superiority. The US Senate, therefore, refused to ratify UNCLOS.
A major residual flaw in UNCLOS 1982 is that the signatories have chosen to remain silent on controversial issues with military or security implications and mandated no process for resolution of ambiguities. Resort to the International Tribunal for the Law of the Sea or a Court of Arbitration are amongst the options available, but many states have expressed a preference for “negotiating in good faith”.
Amongst the areas of major contention or sharp divergence in the interpretation of rules are: Applicability of the EEZ concept to rocks and islets; the right of innocent passage for foreign warships through territorial seas; conduct of naval activities in the EEZ and the pursuit of marine scientific research in territorial waters and EEZ. India had reservations regarding these issues and made certain “declarations” in this context while ratifying UNCLOS. The time has, perhaps, come for signatories of UNCLOS 1982 to convene another conference to review laws and resolve issues of contention.
In the meantime, it seems pointless for the US Navy to frighten Maldives, or friendly India, through intimidatory FONOP patrols and provocative messages while the real culprit — China — presents the world with a succession of fait accompli. Having insulated itself against US intervention, through the progressive development of its “anti-access, area-denial” or A2AD capability, which poses a layered deterrent threat to approaching US forces, China has accelerated its campaign to achieve control of the South China Sea (SCS).
In 2013, China commenced on an intense campaign to build artificial islands in the SCS using a fleet of dredgers to create 3,000-4,000 acres of land on top of reefs in the Spratly and Paracel groups. Today, three Chinese outposts, Fiery Cross, Mischief & Subi Reefs, have airstrips and harbours and are fortified with missiles and radars. In 2016, China disdainfully rejected the verdict of the UN Court of Arbitration in its dispute with the Philippines. Closer home, in 2020, PLA troops aggressively surged forward on India’s northern borders, to cross the Line of Actual Control.
So far, none of the US initiatives including Obama’s abortive US Pivot/Re-balance to Asia, Trump’s Indo-Pacific Strategy and Asia Reassurance Initiative Act, seem to have had the slightest impact on China’s aggressive intent and the unfolding grand strategy. Convening of the first-ever leader-level summit of the Quad by President Joe Biden seemed to have breathed fresh life into an initiative dismissed by Beijing as so much “sea foam.”
In this fraught environment, the ever-expanding, worldwide FONOP campaign needs a careful reappraisal by US policy-makers for effectiveness — lest it alienates friends instead of deterring adversaries.
This column first appeared in the print edition on April 12, 2021 under the title ‘Deter adversaries, don’t alienate friends’. The writer is a former chief of the Indian Navy