Military Exercises in the EEZ and the Law of the Sea Convention
Law of the Sea Convention does not directly address the issue of military exercises in the EEZ. In the absence of a specific provision dealing with military activities in the EEZ, the relevant provisions in this regard are mainly articles 56 and 58 of the Convention. Article 56 focuses on the rights, jurisdiction, and duties of the coastal state in the EEZ. As the purpose of the EEZ is to allow the coastal states to explore and exploit the natural resources, article 56 provides the same. On the other hand, article 58 incorporates the rights and duties of other states. It says that the freedoms referred to in article 87 are applicable to other states. Further, article 58(2) says that ‘Articles 88 to 115 and other pertinent rules of international law apply to the EEZ in so far as they are not incompatible with this Part.’ Notably, articles 87 and 88 to 115 are in part VII of the Convention, which deals with high seas where states do not exercise sovereignty or sovereign rights.
Thus, articles 56 and 58 maintain a balance between the sovereign rights of the coastal states and freedoms of high seas applicable to all. Both the provisions are silent on military exercises. However, article 88 says that the ‘high seas shall be reserved for peaceful purposes.’ Hence, for states like India that impose restrictions on military activities in EEZ, reference to peaceful purposes in article 88 does not permit military exercises in the EEZ by foreign states.[i] On the other hand, article 87(1)(a) includes the freedom of navigation and article 90 underlines that all states have the right to sail ships flying their flag on the high seas. These are extended to EEZ through article 56. These provisions provide the ground for maritime powers to justify military activities in the EEZ of other coastal states. Article 56(2) says that while exercising rights and duties in the EEZ, coastal states should have due regard to the rights and duties of other states. Similarly, article 58(3) provides that in exercising their rights and performing their duties, states shall have due regard to the rights and duties of the coastal state.[ii] All these provisions seem to have been negotiated carefully to balance the contending rights and duties of coastal states and other states in the EEZ.
At the time of negotiations on the Convention, the issue of military activities in the foreign EEZs was one of the contentious matters. Despite being contentious, it did not get adequate attention during the negotiations.[iii] As a result, it still remains a contentious issue. Prior to the UNCLOS III, as there was no concept of EEZ, the sea beyond territorial waters was considered as high seas. However, several states started sovereignty claims beyond territorial seas after the Second World War.[iv] Developing countries particularly started arguing for the creation of a maritime zone for the exploitation of natural resources beyond territorial waters. As the developing countries were keen on clinching economic exploitation of the EEZ, seemingly, they did not expressly engage with the issue of military activities in the EEZ during the negotiations despite their opposition to the same. Thus, they favoured the inclusion of general and vague provisions which could give them the scope for contesting the legality of military activities in the EEZ in the future.[v] This could have been the probable reason for India not including a provision regarding foreign military exercises in its EEZ in its 1976 legislation. When India adopted its national legislation, the Law of the Sea Convention was being negotiated. As mentioned earlier, the relevant provisions on EEZ in India’s 1976 national legislation do not impose any restrictions on military activities by foreign states in its EEZ. At the same time, the same legislation has a provision on territorial waters which imposes certain restrictions on the innocent passage of foreign warships and submarines.[vi] However, India seems to have carefully left unaddressed the issue of military exercises or manoeuvres by foreign states in the EEZ. Therefore, India’s Declaration on EEZ might have been a thought-out inclusion after the Convention was adopted.
US FONOPs in India’s EEZ need to be contextualised in the backdrop of the careful balance incorporated into the Convention between the rights and duties of coastal states and other states in the EEZ, which is underpinned by silence on foreign military activities.
Legality of U.S. FONOPs
India’s press release in response U.S. FONOP on 7 April 2021 contains a paragraph similar in language to the Declaration appended at the time of ratification of the Law of the Sea Convention. This paragraph is followed by another, which states that the USS John Paul Jones was continuously monitored transiting from the Persian Gulf towards the Malacca Straits and concerns regarding the same were conveyed to the U.S.[vii] The second paragraph does not say that the U.S. conducted military exercises or manoeuvres. There is an apparent contradiction between these two paragraphs. The first paragraph, which partly reproduces India’s Declaration to the Convention, opposes the military exercises or manoeuvres without the coastal state’s consent. In contrast, the second paragraph expresses concern for the USS John Paul Jones movement through its EEZ. Going by the language of the first paragraph, India should not have objections in USS John Paul Jones passing through its EEZ. However, the U.S. navy’s 7th Fleet press statement of 7 April 2021 clearly states that 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.’[viii] Going by this statement, the U.S. action was clearly in the form of military exercises as it was intended to challenge India’s excessive maritime claim which requires its consent for foreign military exercises in its EEZ and continental shelf. Surprisingly, India considers it as a mere passage rather than as military exercise or manoeuvre.
Arguably, U.S. conducts FONOPs to prevent the state practice of coastal states from emerging into international law, particularly customary international law. The U.S. says that it does not ‘acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.’[ix] By way of conducting FONOPs, U.S. attempts to persistently object to the state practice of coastal states, which it considers excessive maritime claims. India’s Declaration on the military activities in the EEZ intends to impose restrictions. However, it is not expressly mentioned in the Convention. As the U.S. is not a party to the Convention, it does not have the possibility of formally objecting to the Declaration through the depository as any such objection to a Declaration can be made only at the time of signing, ratifying or acceding to the Convention. Therefore, its intention to register protest is what purportedly makes it resort to FONOPs. This persistent objection arguably would prevent the emergence of customary international law on the requirement of coastal state consent for conducting military exercises or manoeuvres.
U.S. FONOPs are essentially unilateral. They do not have any legal basis in the Law of the Sea Convention. They are not navigational necessities but are conducted for the sake of registering protest. Their repeated assertion is plausibly justified as a persistent objection to the emergence of customary international law. However, operational assertions in the form of deeds do not necessarily constitute permissible forms of persisting objection under international law. In accordance with the persistent objector rule, when a state persistently objected to the emergence of a rule and continues to object it after it has emerged then that rule cannot be made applicable to the objecting state.[x] While states and international bodies doctrinally accept the persistent objector rule, its expression in the form of physical actions needs careful examination. Physical actions are not considered as necessary for the expression of persistent objection. The International Law Commission, while observing that there is no requirement that the objection be made in a particular form, underlines that ‘clear verbal objection, either in written or oral form, as opposed to physical action, will suffice to preserve the legal position of the objecting State.’[xi] While there is no prohibition on physical actions, they are not necessary as written or oral objections would suffice.
Physical Action as a Form of Persistent Objection
Physical action as a form of persistent objection has some fundamental challenges that make it an untenable mode of expression of persistent objection. Firstly, persistent objections with physical action are necessarily provocative and can be potential destabilising factors at the bilateral and regional levels, with implications at the international level. We can understand this situation with an example. If a state decides to persistently object to the emergence of customary international law prohibition of nuclear weapons, persistent objection through physical action requires it to use the nuclear weapons with whatever intensity. Such situations pose a fundamental threat to States. Secondly, if the state, against whom the persistent objection involving physical action is made, intends to counter it with physical action, it would lead not just to legal uncertainty but would pose a threat to general peace and security. These situations may lead to conflicts and crises.[xii] Thirdly, physical actions favour the powerful states. Registering objections by executing physical actions necessarily involves preparation and participation of various agencies with required technological and other forms of expertise. More importantly, they require economic resources. This is possible only for those states which can afford them. Fourthly, they create a hierarchy between physical action objections and verbal or written objections. Suppose a state persistently objects through physical actions. In that case, it intends to implicitly convey the seriousness of the objection. Such objections have the potential to generate hierarchy between physical action objections and verbal or written objections. By engaging in physical actions, a state foregrounds its objection. It leads to a situation where those states capable of making physical actions prevail over others resorting to verbal or written assertions in relation to a particular practice.
Conclusion
India’s guarded and feeble response to U.S. navy’s 7th Fleet FONOP of 7 April 2021 might have been a considered response keeping in view the strategic factors and bilateral relations. It may also reflect its changing attitude towards military exercises or manoeuvres by foreign states in EEZ in general. However, its legal position does not change as long as its Declaration to the Convention remains. The scope of India’s Declaration is precise and pointed and does not offer many possibilities for contextual deviation for India.
Law of the Sea Convention is silent on the foreign military exercises or manoeuvres in EEZ. Relevant provisions governing the EEZ in the Convention make it different from the high seas while retaining certain features of the latter. Therefore, any high seas freedoms in the EEZ need to be evaluated within the limits imposed by the EEZ legal framework. Although that may not lead to the prohibition of foreign military exercises in the EEZ, their regulation to uphold the primary nature of the EEZ, which is the right of coastal states to engage in economic exploration and exploitation, is not contrary to the Law of the Sea Convention.
Even if a particular aspect of international law is unambiguously established as a rule of international law, a state can still challenge its legality. This can happen by way of not becoming a party to the relevant treaty that incorporates that rule, or express reservations or declarations to that particular rule in a treaty, or persistently object to the emergence of a particular rule as customary international law. The legality of such challenges requires an evaluation independent of the legality of the rule to which such a challenge is made. Thus, even assuming that there is a general acceptance of India’s Declaration and similar interpretations on military exercises in EEZ as not contrary to the Law of the Sea Convention, U.S. still can maintain its objections to such maritime claims. Those objections need to be examined separately. Therefore, the legality of U.S. FONOPs needs an appraisal independent of the legality of military exercises in the EEZ.
As the U.S. has been conducting FONOPs against India and other states for decades, their legality in general remains a fundamental issue. U.S. conducts FONOPs unilaterally. The international law of the sea does not support such operations. U.S. FONOPs are a clear demonstration of U.S. naval superiority in challenging the maritime claims of other states across the oceans. Most importantly, it is an assertion of its economic, political and strategic interests across the world. Since the U.S. has not signed or acceded to or ratified the Law of the Sea Convention, it does not have the possibility of objecting to the purported excessive maritime claims within the framework of the Convention provisions. Thus, the legality of FONOPs is attempted to be drawn from the doctrinal position of persistent objector rule. While this rule is acceptable for states and international bodies, their expression through physical actions needs careful evaluation. Physical actions may have far-reaching implications that make them an untenable mode of expressing persistent objection.
[i] See O. P. Sharma, The International Law of the Sea: India and the UN Convention of 1982, 157 (2009).
[ii] For a discussion, see Anmolam & F. Ahmad, Navigation with Permission, The Hindu (15/04/2021), available at https://www.thehindu.com/opinion/op-ed/navigation-with-permission/article34320149.ece, last seen on 10/08/2021.
[iii] See R. E. Odell, Mare Interpretatum: Continuity and Evolution in States’ Interpretations of the Law of the Sea (PhD Thesis), 170, 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; See supra i, at 155.
[iv] See supra iii, at 167-170.
[v] Ibid, at 170-171.
[vi] Section 4(2) of The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 provides: Foreign warships including submarines and other underwater vehicles may enter or pass through the territorial waters after giving prior notice to the Central Government…
[vii] 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.
[viii] 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.
[ix] 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.
[x] Report of the International Law Commission Seventieth Session, 30 April, 2018-1 June, 2018 and 2 July, 2018-10 August, 2018, U.N. General Assembly, Official Records, Sess. 73, Suppl. 10, U.N. Document A/73/10, 152, (2018) available at https://legal.un.org/ilc/reports/2018/english/a_73_10_advance.pdf, last seen on 10/08/2021.
[xi] Ibid, at 153.
[xii] See J. M. Smith, Freedom of Navigation: A Critical Security Imperative, Observer Research Foundation, available at https://www.orfonline.org/research/freedom-of-navigation-a-critical-security-imperative/, last seen on 10/08/2021. Also see W. H. V. Heinegg, The Difficulties of Conflict Classification at Sea: Distinguishing Incidents at Sea from Hostilities, 98(2) International Review of the Red Cross 449, 449-464 (2016).
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 first part of this article here.