One of the crucial issues of the law of the sea which attains attention intermittently post the adoption of the United Nations Convention on the Law of the Sea of 1982[i] is the military exercises by foreign states in the Exclusive Economic Zone (EEZ) of coastal states. This article deals with the issue of foreign military exercises or manoeuvres in the EEZ of coastal states with a focus on India’s EEZ. Part one of the article provides brief information about the EEZ and recent U.S. freedom of navigation operation (FONOP) in India’s EEZ. Part two explains the U.S. FONOPs. Part three focuses on India and the EEZ, and part four on India and the U.S. FONOPs. Part five evaluates the military exercises in the EEZ in the context of the Law of the Sea Convention, and part six reflects on the legality of the U.S. FONOPs. Part seven provides the conclusion.
EEZ and Freedom of Navigation Operations (FONOPs)
EEZ is an innovative inclusion in the United Nations Convention on the Law of the Sea. This was not part of the discussions at the first and second United Nations Conferences on the Law of the Sea (UNCLOS). Developing countries played a critical role in conceptualizing it and determining its legal contours. In the runup to the third UNCLOS, developing countries sought to evolve a specific maritime zone beyond territorial waters that would provide rights to coastal states to explore and exploit the resources in it. These ideas evolved into the EEZ with a specific jurisdictional mechanism of its own, different from the territorial sea and the high seas. The EEZ shall extend up to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.[ii] These historical events set the background to the contending views on the foreign military exercises in the EEZ.
United States of America (U.S.) navy’s 7th Fleet issued a press statement on 7 April 2021 in which it stated that on 7 April 2021, ‘USS John Paul Jones (DDG 53) 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, consistent with international law.’[iii] The U.S. statement calls this action the freedom of navigation operation (FONOP). It asserts that it ‘upheld the rights, freedoms, and lawful uses of the sea recognized in international law by challenging India’s excessive maritime claims.’[iv] In response to this incident, the Ministry of External Affairs of India press release stated that India continuously monitored the USS John Paul Jones transiting from the Persian Gulf towards the Malacca Straits and conveyed its concerns regarding this passage through its EEZ to the Government of U.S.A through diplomatic channels.[v]
This kind of operations draw importance not only in the case of India but in the case of all those coastal states which understand the rights and obligations in the EEZ in a particular way and the same is seen as an excessive maritime claim and as contrary to the law of the sea by some other states.
U.S. Freedom of Navigation Operations (FONOPs)
The U.S. conducts FONOPs against maritime claims, which it considers excessive, asserted by coastal states that may include allies, partners, and other states.[vi] The U.S. has been formally conducting these operations from 1979 onwards.[vii] FONOPs emanate from the U.S. ocean policy, which underlines that it ‘will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the convention.’[viii] Thus, by its policy, the U.S. has been conducting FONOPs against many states. Importantly, these operations are repeated in several years against the same state, and in some years, multiple operations are conducted against the same state. The U.S. FONOPs programme consists of ‘(1) consultations and representations by U.S. diplomats (i.e., U.S. Department of State), and (2) operational activities by U.S. military forces (i.e., U.S. Department of Defense (DoD) FON Program).’[ix] Thus, it involves verbal or written communications and actual military operations.
The U.S. underlines several features of its FONOPs. It observes that these operations cover all rights, freedoms, and lawful uses of the sea and airspace available to all nations under international law. It is implemented against all states which make excessive maritime claims, based upon the U.S. global interest in mobility and access. It is a principle-based programme directed against excessive maritime claims and not based on the identity of coastal states, and accordingly, it is implemented not only against potential adversaries and competitors but also against allies, partners, and other states.[x] The last point is disputed as not always accurate. It is argued that the U.S. is selective in choosing the states that are targets of its FONOPs or in terms of the frequency of FONOPs. Ostensibly, ‘it has never conducted formal Freedom of Navigation operations against Australia or Canada, despite objecting to a number of their “excessive” claims.’[xi] Geopolitical priorities seem to play a role in determining the target states for these operations.
U.S. Department of Defense Freedom of Navigation Annual Report for the year 2020 claims that many states supported the United States’ peaceful vigilance of excessive maritime claims. The report further says that the U.S. invites other states to conduct their freedom of navigation operations and contest excessive maritime claims publicly and peacefully.[xii] There seem to be examples of similar operations undertaken by other states but not on an identical scale and regularity.[xiii] Despite not being a party to the Law of the Sea Convention, the US proclaims a 200 nautical mile EEZ.[xiv] Notably, the U.S. underlines that in its EEZ, ‘all nations will continue to enjoy the high seas rights and freedoms that are not resource related, including the freedoms of navigation and overflight.’[xv] This implies that the U.S. does not impose any restrictions on foreign military exercises in its EEZ.
India and the EEZ
Along with other developing states, India supported the 200 nautical mile EEZ from the inception of the UNCLOS III negotiations.[xvi] Even when the UNCLOS III was underway, India adopted national legislation, the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976.[xvii] This legislation includes provisions on the EEZ. Section 7 of the Act deals with the EEZ. The Act provides under section 7(6)(a) that the Indian government can declare any area of the exclusive economic zone to be a designated area.[xviii]
On the other hand, section 7(9) provides that ‘ships and aircraft of all States shall, subject to the exercise by India of its rights within the zone, enjoy freedom of navigation and over flight.’ It is to be noted that when India enacted this legislation, the Law of the Sea Convention was only at the stage of negotiations. However, discussions on EEZ gained significant support by then for its inclusion in the future convention. Despite varying understandings of its substantive nature, there was general support emerging from states on the 200 nautical miles maritime zone for economic resource exploitation by the coastal states.[xix] Foreseeing the outcome of the UNCLOS III, India enacted this national legislation, inter alia, incorporating the EEZ and its legal status.
The Act does not expressly refer to military activities in EEZ either by way of prohibiting military activities by other states or restricting them in any manner. However, while becoming a party to the 1982 Convention, India appended a specific declaration regarding foreign military activities in its EEZ. India became a party to the Law of the Sea Convention in 1995.[xx] The Declaration states:
The Government of the Republic of 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.[xxi]
India is not the only country that imposes such restrictions on military exercises or manoeuvres in the EEZ. One study shows that 18 other states have similar conditions.[xxii] Except one, all these states are in Africa, Asia and South America.[xxiii] The apparent scope of India’s Declaration is not the complete prohibition of military activities by foreign states, nor is it a requirement of mere notification. It seeks the foreign state to ask for India’s consent. It does not impose any restrictions on the freedom of movement of warships in the EEZ. This Declaration is significantly different from the condition included in the Indian legislation concerning territorial waters. The provision dealing with the territorial waters condition provides that the foreign ‘warships including submarines and other underwater vehicles may enter or pass through the territorial waters after giving prior notice to the Central Government.’[xxiv] This kind of requirement is not included in the Declaration on the EEZ. Italy objected to India’s Declaration on the EEZ. Italy’s objection states that `the rights of the coastal State in such zone do not include the right to obtain notification of military exercises or manoeuvres or to authorize them’.[xxv] Several states made general declarations rejecting the declarations made by other states, which amount to impermissible reservations as they exclude or modify the legal effect of the provisions of the Convention.[xxvi]
India and the U.S. FONOPs
It is not the first time that the U.S. Navy conducted freedom of navigation operations involving India on 7 April 2021. U.S. Department of Defense Freedom of Navigation annual reports show that from 1991 the U.S. conducted freedom of navigation operational assertions against India in 19 fiscal years.[xxvii] In some years, these operations were conducted multiple times. During the initial years, these operational assertions were only against India’s requirement of prior permission for a warship to enter the territorial sea[xxviii] and historic claims to the Gulf of Mannar.[xxix] Later on, it was expanded to the issue of prior consent required for military exercises or manoeuvres in the EEZ and to the issue of security jurisdiction claimed in the contiguous zone[xxx] in 1999 and 2003 respectively. From 1991 to 2007, only once in 1999, the U.S. conducted the operational assertions against India’s requirement of consent for military exercises or manoeuvres in EEZ. The apparent reason for this must have been because of the fact that India imposed restriction on its EEZ only in 1995 while becoming a party to the Convention, through its Declaration. However, the U.S. did not conduct any operational assertions from 1995 to 2007 against India’s consent requirement for military exercises or manoeuvres in EEZ, despite the 1995 Declaration. From 2007 till 2020, with the exception of 2018 and 2020, when there were no FONOPs against India, the U.S. operational assertions consistently were against India’s requirement of consent for military exercises or manoeuvres in EEZ. Only in two years during this period, operational assertions were made against other issues, once each on the issue of prior notification required for foreign warships to enter the territorial sea and another on security jurisdiction claimed in the contiguous zone in 2011[xxxi] and 2016,[xxxii] respectively.
Thus, from 1991 to 2020, U.S. conducted operational assertions against India on four issues: prior consent required for military exercises or manoeuvres in EEZ (In 13 years: 1999, 2007 to 2017, and 2019); prior permission for a warship to enter the territorial sea (In 8 years: 1992 to 1994, 1996, 1997, 1999, 2003 and 2011); Gulf of Mannar as historic waters (In 3 years: 1993, 1994 and 1999); and security jurisdiction claimed in the contiguous zone (In 2 years: 2003 and 2016). Notably, going by the annual reports, 1999 is the only year in which the U.S. conducted operational assertions against India’s three claims of prior notification for a warship to enter the territorial sea, prior permission required for military exercises and manoeuvres in EEZ and the Gulf of Mannar as historic waters.[xxxiii] During other years, it is either against one or two claims.
[i] The United Nations Convention on the Law of the Sea of 1982 was adopted and opened for signature on 10 December 1982 in Montego Bay, Jamaica and entered into force on 16 November 1994.
[ii] United Nations Convention on the Law of the Sea, 1982, art. 57, Dec. 10, 1982, 1833 U.N.T.S 397.
[iii] 7th Fleet conducts Freedom of Navigation Operation, Commander, U.S. 7th Fleet, available at https://www.c7f.navy.mil/Media/News/Display/Article/2563538/7th-fleet-conducts-freedom-of-navigation-operation/, last seen on 10/08/2021.
[iv] Ibid.
[v] Passage of USS John Paul Jones through India’s EEZ, Ministry of External Affairs, Government of India, available at https://mea.gov.in/press-releases.htm?dtl/33787/Passage_of_USS_John_Paul_Jones_through_Indias_EEZ, last seen on 10/08/2021.
[vi] Excessive maritime claims are generally referred to as those claims made by coastal states to sovereignty, sovereign rights or jurisdiction over ocean areas that are not in consonance with the Law of the Sea Convention. Arguably, after the Second World War, more than 85 coastal states have made such claims. See J. A. Roach, Excessive Maritime Claims, 25 (4th ed., 2021).
[vii] U.S. Department of Defense Freedom of Navigation (FON) Program, Under Secretary of Defense for Policy, U.S. Department of Defense, available at https://policy.defense.gov/Portals/11/DoD%20FON%20Program%20Summary%2016.pdf?ver=2017-03-03-141350-380, last seen on 10/08/2021. See R.E. Odell, US should stop using naval operations to impose ‘international order’, Responsible Statecraft, available at https://responsiblestatecraft.org/2021/04/13/us-should-stop-using-naval-operations-to-impose-international-order/, last seen on 10/08/2021.
[viii] Statement on United States Oceans Policy, U.S. Navy Judge Advocate General’s Corps, available at https://www.jag.navy.mil/organization/documents/Reagan%20Ocean%20Policy%20Statement.pdf, last seen on 10/08/2021.
[ix] U.S. Department of Defense Freedom of Navigation (FON) Program: Factsheet, Under Secretary of Defense for Policy, U.S. Department of Defense, available at https://policy.defense.gov/Portals/11/Documents/gsa/cwmd/DoD%20FON%20Program%20–%20Fact%20Sheet%20(March%202015).pdf, last seen on 10/08/2021.
[x] Ibid.
[xi] R.E. Odell, Supra vii.
[xii] Annual Freedom of Navigation Report: Fiscal Year 2020, Under Secretary of Defense for Policy, U.S. Department of Defense, available at https://policy.defense.gov/Portals/11/Documents/FY20%20DoD%20FON%20Report%20FINAL.pdf, last seen on 10/08/2021.
[xiii] R. Strating, Defending the Maritime Rules-Based Order: Regional Responses to the South China Sea Disputes, 26 (2020).
[xiv] Supra viii.
[xv] Ibid.
[xvi] Third United Nations Conference on the Law of the Sea, Summary Records of Plenary Meetings of the First and Second Sessions, and of Meetings of the General Committee, Second Session, U.N. Document A/CONF.62/SR.27, 96, available at https://legal.un.org/diplomaticconferences/1973_los/docs/english/vol_1/a_conf62_sr27.pdf, last seen on 10/08/2021.
[xvii] The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976.
[xviii] Giving effect to this provision, India issued a notification declaring certain areas as designated areas. Ministry of External Affairs, Notification S.O. 643(E), the Gazette of India, Extraordinary, Part II, Section 3(ii) (19/9/1996), available at https://upload.indiacode.nic.in/showfile?actid=AC_CEN_10_10_00002_197680_1517807318455&type=notification&filename=SO%20643%20(E)%20of%2019.09.1996.pdf, last seen on 10/08/2021.
In furtherance of this notification, another notification was issued on 16/06/1999 prohibiting the entry of any ships within the designated areas. Ministry of External Affairs, Notification S.O. 643(E), the Gazette of India, Extraordinary, Part II, Section 3(ii) (16/06/1999), available at, https://upload.indiacode.nic.in/showfile?actid=AC_CEN_10_10_00002_197680_1517807318455&type=notification&filename=Notification%20regarding%20prohibition%20of%20entry%20to%20India%20any%20ship%20within%20the%20designated%20area.pdf, last seen on 10/08/2021.
[xix] See O. P. Sharma, The International Law of the Sea: India and the UN Convention of 1982, 134-136 (2009).
[xx] India became a party to the United Nations Convention on the Law of the Sea, 1982 on 29/06/1995.
[xxi] Declarations and Reservations, United Nations Convention on the Law of the Sea, United Nations Treaty Collection, available at https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec, last seen on 10/08/2021.
[xxii] See R. E. Odell, Mare Interpretatum: Continuity and Evolution in States’ Interpretations of the Law of the Sea (PhD Thesis), 234, MIT Libraries, Massachusetts Institute of Technology, Department of Political Science, available at https://dspace.mit.edu/handle/1721.1/130597, last seen on 10/08/2021.
[xxiii] These states are: Bangladesh, Benin, Brazil, Cape Verde, Ecuador, India, Iran, Kenya, Malaysia, Maldives, North Korea, Pakistan, Peru, Portugal, Thailand, Uruguay, Venezuela and Vietnam. Ibid, at 191.
[xxiv] S. 4(2) of The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976. For a historical overview of India’s position on this issue, see supra xix, at 74-78.
[xxv] Supra xxi.
[xxvi] See supra vi, at 15-18.
[xxvii] DoD Annual Freedom of Navigation (FON) Reports, Under Secretary of Defense for Policy, U.S. Department of Defense, available at https://policy.defense.gov/OUSDP-Offices/FON/, last seen on 10/08/2021.
[xxviii] According to section 4(2) of The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, foreign warships including submarines and other underwater vehicles may enter or pass through the Indian territorial waters only after giving prior notice.
[xxix] In exercise of the powers conferred by sub-section (1) of section 8 of The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, the Indian Government notified that the historic waters of India beyond the appropriate baseline in the Gulf of Mannar area of sea have the same status as the territorial waters of India. Ministry of External Affairs, Notification G. S. R. 17. (E), the Gazette of India, Extraordinary, Part II, Section 3(i) (29/01/1977), 54-55, available at https://www.egazette.nic.in/WriteReadData/1977/O-1130-1977-0005-50140.pdf, last seen on 10/08/2021. For a discussion on the historical background to the legal status of the Gulf of Mannar, see V.S. Mani, India’s Maritime Zones and International Law: A Preliminary Inquiry, 21(3) Journal of the Indian Law Institute 336, 344-347 and 373-375 (1979).
[xxx] S. 5(4)(a), The Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and other Maritime Zones Act, 1976.
[xxxi] Challenges to Excessive Maritime Claims, Under Secretary of Defense for Policy, U.S. Department of Defense, available at https://policy.defense.gov/Portals/11/Documents/gsa/cwmd/FY2011%20DOD%20Annual%20FON%20Report.pdf, last seen on 10/08/2020.
[xxxii] Annual Freedom of Navigation Report: Fiscal Year 2016, Under Secretary of Defense for Policy, U.S. Department of Defense, available at https://policy.defense.gov/Portals/11/FY16%20DOD%20FON%20Report.pdf?ver=2017-03-03-141349-943, last seen on 10/08/2021.
[xxxiii] Annual Report to the President and the Congress, 2000, Under Secretary of Defense for Policy, U.S. Department of Defense, available at https://policy.defense.gov/Portals/11/Documents/gsa/cwmd/FY1999%20DOD%20Annual%20FON%20Report.pdf, last seen on 10/08/2021.
This article has been authored by Dr. Srinivas Burra, Assistant Professor, Faculty of Legal Studies, South Asian University, New Delhi. He was assisted by Mr. Pranav Agarwal, a student of RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues. Read the second part of this article here.