US FONOP in India’s EEZ: Storm in a teacup, but issue highlights residual baggage of Cold War era

It appears that the entire point of the exercise was to indicate to China that FONOPs are based on principles such as upholding the laws of the sea and not random muscle-flexing against strategic rivals

Sreemoy Talukdar April 12, 2021 12:08:32 IST
US FONOP in India’s EEZ: Storm in a teacup, but issue highlights residual baggage of Cold War era

USS John Paul Jones. Image courtesy US Navy photo by Mass Communication Specialist 3rd Class Joseph Pol Sebastian Gocong

An announcement by the US Navy’s 7th Fleet, that it conducted a patrol on Wednesday in India’s Exclusive Economic Zone (EEZ) in the western Indian Ocean near Lakshadweep without taking permission from New Delhi, has created a tsunami of outrage. For a while, it seemed all bonhomie of Quad has been washed away to the high seas before it was discovered that the issue was worth little more than a storm in a teacup.

The announcement and the sequence of events that followed leading to a mild statement of protest from India, however, drove home the reminder that despite a tectonic shift in the relationship and increasingly close strategic embrace, bilateral ties are still subject to historical baggage from the Cold War era, and residual misunderstandings fall somewhere between overinterpretation on India’s part and underthinking on the part of the US.

The furor started when the US Navy, in a statement issued by its 7th Fleet, declared that USS John Paul Jones, an Arleigh Burke-class guided-missile destroyer, had carried out Freedom of Navigation operations (FONOP) in India’s EEZ, challenging what it called “India’s excessive maritime claims”.

The readout stated: “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.” It acknowledged India’s position that “India requires prior consent for military exercises or maneuvers in its exclusive economic zone or continental shelf” and clarified that it is 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.”

The release further stated that all US daily operations in the Indo-Pacific region “are designed in accordance with international law and demonstrate that the United States will fly, sail and operate wherever international law allows.”

Before long, indignation against US Navy’s actions dominated social media with some pointing out the untrustworthiness of the US whose 7th Fleet had infamously sailed into the Bay of Bengal to back Pakistan and intimidate India when the Bangladesh liberation war was underway in 1971.

Indian media’s coverage of the incident reflected some of the outrages. Times of India called the US Navy’s public declaration of FONOP in India’s EEZ a “highly unusual move”. Economic Times said US Navy’s challenging of China’s maritime claims are common but “public announcement of similar patrols in Indian waters has come as a surprise.” The Hindu called the incident “a rare falling out between the two partners in the Quadrilateral Grouping that had recently committed to upholding freedom of navigation in the Indo-Pacific together.”

It is possible to locate India’s outrage within its colonial experience, the memory of the Cold War triggered by America’s militarized maneuver within its EEZ, and the public statement that seemingly derided India’s claim over its own waters in terms that appear too offensive for a Quad partner.

This controversy is futile. The Seventh Fleet’s actions in India’s EEZ were part of unexceptionable FON operations that the US Navy routinely conducts every year against a number of nations — including its treaty allies — to operationally challenge what it calls “excessive maritime claims” and to “preserve the rights, freedoms, and uses of the sea and airspace guaranteed to all nations by international law.”

The press note that has generated a lot of outrage in India is standard diplomates describing those operations. Consider another statement issued by the US 7th Fleet on April 7, the same day USS John Paul Jones passed through India’s EEZ. This statement is a declaration of the warship’s passage through the territorial sea of Maldives. It states that the USS John Paul Jones conducted “innocent passage” through Maldives’s “territorial sea and normal operations within its exclusive economic zone without requesting prior permission, consistent with international law.” The US Navy statement added: “This freedom of navigation operation (“FONOP”) upheld the rights, freedoms, and lawful uses of the sea recognized in international law by challenging Maldives’ excessive maritime claims.”

The irony here is that it is India whose Maritime Zones of India (MZI) Act, 1976, contains provisions that are inconsistent with the UNCLOS treaty that was passed in 1982. This implies that the US Navy, in passing through India’s EEZ unannounced, violated Indian laws that are not in conformity with the international law of the sea, even though India had ratified UNCLOS in 1995.

The issue has been explained well by ORF Distinguished Fellow Manoj Joshi in his interview with Ananth Krishnan of The Hindu. Joshi clarifies that UNCLOS allows for 12 nautical miles of the territorial sea, and “an additional 24 nautical miles as a contiguous zone where you can have some law and order, policing etc, and a 200 nautical mile EEZ which you are free to exploit, with fisheries or sea-bed mining but where you do not have territorial rights. Military ships can go through even territorial waters on what is called innocent passage. But India insists on notification not only for its territorial waters but even its EEZ.”

India also has a ‘straight baseline’ claim in Lakshadweep where New Delhi considers a significant portion of the sea around the islands as India’s ‘internal waters’.

As researcher Captain Abhishek Kumar shows in his 2019 dissertation on ‘Lakshadweep Islands Straight Baseline System’, UNCLOS does allow an archipelago state to claim a ‘straight baseline’, but “there is no provision in the laws of the seas for drawing straight baselines around mid-ocean island groups or archipelagos, by a continental state. As a result, there is scope for India’s neighbours as well as extra regional countries operating in the region to challenge India’s claims around the islands and undermine India’s position as the Net Security Provider in the region.”

What this implies is that India’s laws of seeking prior permission from warships that pass through its EEZ and ‘straight baseline’ claim around Lakshadweep are open for contestation, and US Navy has done precisely that.

ORF senior fellow and formal naval officer Abhijit Singh points out on Twitter that the “US navy’s choice of the LKW (Lakshadweep) for this ops (FON) isn’t incidental. A FONOP close to the more ‘strategic’ Andaman Islands would have been far more controversial — guaranteed to draw a response from Delhi. That could have exposed a wrinkle that neither side wants to highlight.”

Singh adds that “for its part, the USN (that maintains its FONOPs uphold maritime principle in waters of allies and opponents alike) can claim it isn’t making an exception fr (sic) India. A US sail through a safe space like the EEZs off Lakshadweep is, in fact, a win-win (of sorts) for both sides…” 

It appears that the entire point of the exercise was to indicate to China that FONOPs are based on principles such as upholding the laws of the sea and not random muscle-flexing against strategic rivals. Interesting to note that an unnamed Indian official in the “security establishment” concurred with the possibility that the US was “conveying to China that we consider friend and foe alike when it comes to freedom of navigation in the global commons,” in comments published by Times of India.

The answer to the question of whether the US maneuver in India’s EEZ was “highly unusual” is therefore an emphatic ‘no’. As a research fellow at Heritage Foundation Jeff Smith points out, “the US has reported a FONOP directed at India every year from 2007-2021 with the exception of 2018 and 2020. It also conducted FONOPs directed at India in 1992, 1994, 1996, 1997, 1999, 2000-2003. In other words, this isn’t new or unusual.”

It may be asked why has the US targeted so many FONOPs at democratic India while it woos New Delhi as a key strategic partner and a counterweight to an authoritarian China? It appears that the US takes its role as a ‘keeper of the law of the sea’ seriously and has challenged maritime claims of nations such as China, Russia, Vietnam, Sri Lanka, India, the Maldives and even treaty allies such as the Philippines, South Korea, and Japan — indicating that when it comes to the question of freedom of navigation against maritime entitlements, the US has not distinguished between friends and foes. The US Department of Defense’s (DoD) annual report to the US Congress on FONOPs is recorded since (fiscal) 1991, though the program was formally established in 1979. The US claims that “FONOPs are not focused on any particular claimant, and they are not executed in response to current events. Rather, their purpose is to reinforce international law peacefully and in a principled, unbiased manner…” The 2020 annual report, for instance, shows the US Navy executed FONOPs challenging “a wide variety of excessive maritime claims made by allies, partners, and competitors” including Brazil, China, Taiwan and Japan, among others. A US 7th Fleet readout released on 15 December, 2020, states: “USNS Alan Shepard (T-AKE 3) asserted navigational rights and freedoms in the vicinity of Tsushima Strait near Japan. The ship conducted normal operations within claimed territorial seas to challenge excessive maritime claims and preserve access to the waterways as governed by international law.” Japan is a treaty ally. So is South Korea. On 31 March this year, “USNS Charles Drew (T-AKE 10) asserted navigational rights and freedoms in the vicinity of the Kuk-To Island, consistent 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 the Republic of Korea's excessive straight baseline claim.” However, there are some inconsistencies in the US approach that also bear mention. The US claims to preserve the “rules-based international order (RUBIO)” through FON operations whose purpose is to challenge “excessive maritime claims” inconsistent with international law as reflected in the UN Convention on the Law of the Sea (UNCLOS). However, the US itself has so far failed to ratify the UNCLOS, and therefore its moral claim as the upholder of RUBIO is a little cloudy. Critics have also pointed out that “though the US does conduct FONOPs against not only rivals but also allies and partners, it still picks and chooses. Most notably, the US has never conducted formal Freedom of Navigation operations against Australia or Canada, despite objecting to their ‘excessive’ claims”, as Rachel Esplin Odell, a research fellow in the East Asia Program at the Quincy Institute, writes on Twitter. 

Apart from the apparent inconsistency in its principles of upholding the law of the sea, and the fact that it is yet to ratify the convention that it cites, the US Navy seems to have revised its policy on declaration of FONOPs. Instead of an annual statement compiling all the operations, the 7th Fleet is now releasing a press note against each, or at least most of the FONOPs.

The press note accompanying the 31 March FONOP in the territorial waters of South Korea, and the statement on April 7 announcing another such operation challenging India’s maritime law, are two recent examples. This seems to be the proximate cause behind the outrage and confusion (some would say overreaction) that occurred in India.

Previously, these operations were clubbed in one annual report and no one paid any heed to it. The issue, as we can see, was never flagged in India prior to April 7, 2021, despite US Navy executing several such operations over decades against India’s maritime laws.

The lack of publicity of these operations also allowed the Indian government and Navy to play down or remain silent on the US assertions on its EEZ. The move to individually publicize each operation this time made it difficult for India to remain silent amid huge domestic outcry. The MEA still played down the incident, releasing an anodyne statement that “the USS John Paul Jones was continuously monitored transiting from the Persian Gulf towards the Malacca Straits. We have conveyed our concerns regarding this passage through our EEZ to the Government of U.S.A through diplomatic channels.”

Ultimately, even though US Navy’s actions were not exceptional, the publicising of the operation was “both uncalled for and unnecessary — especially in the context of a friend and strategic partner”, as former Navy chief Admiral Arun Prakash was quoted, as saying in The Print.

If the US virtue-signaling was aimed at China, then it proved counterproductive by putting the Indian government in a spot of bother. And China doesn’t care about virtue-signaling and moral assertions anyway.

 

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