The US Seventh Fleet announced that one of its warships, USS John Paul Jones (DDG 53), had carried out a Freedom of Navigation operation (FONOP) west of Lakshadweep Islands.
In this context, it is imperative to understand the intent and interpretations of the incident by both sides and the further implications.
What is the U.S.’s intent in this regard?
The U.S. defended the military operation off India’s waters terming it “consistent with international law”.
For the U.S. Navy, FONOPs are a way of showing that the maritime claims of certain states are incompatible with international law.
India’s requirement of prior consent, U.S. officials believe, is a violation of the United Nations Convention on the Law of the Sea (UNCLOS).
Articles 56 and 58, Part V of the UNCLOS, entitle U.S. warships to high-seas freedoms in the 200-nautical mile EEZs of another coastal state.
To guard against any misreading of its intent by India, the U.S. Navy coupled its FONOP in Indian waters with another sail through the territorial seas of the Maldives.
The idea was to signal to China that the U.S. Navy is committed to uphold the rules-based order in the waters of opponents and partners alike.
How does India view this?
India interprets the maritime convention differently.
India understands that the UNCLOS provisions do not explicitly authorize other States to carry out in the EEZ and on the continental shelf military exercises or manoeuvres.
This position is consistent with India’s domestic law - the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones of India Act of 1976.
Why was FONOP not an area of conflict so far?
Despite disagreements over navigational freedoms, however, India and the U.S. have refrained from a public airing of differences.
India understands U.S.’s FONOPs as part of its military and diplomatic strategy that gives the U.S. Navy leverage in the contest with China in the South China Sea.
U.S., too, knows India’s real concern is the possibility of greater Chinese naval presence in Indian waters.
Even now, U.S. FONOPs in Indian EEZs have been relatively low key.
Since 2016, the U.S. Navy has carried out three forays through Indian EEZs keeping well outside Indian territorial waters.
In contrast, U.S. warships challenged excessive Chinese claims thrice in 2016, four times in 2017, six in 2018, eight in 2019, and nine in 2020.
Most patrols are said to have come within 12 nautical miles of the territorial sea limit around China’s islands.
So, U.S.’s choice now is mainly to check a box on the U.S. Navy’s record of activity in Asia.
Why Lakshadweep?
Maritime boundaries around the Lakshadweep are more settled than the Andaman and Nicobar Islands.
In the latter, straight baselines on the Western edge of the islands have, in the past, raised uncomfortable questions.
U.S. planners are thus likely to have known that a U.S. naval foray close to the ‘strategic’ Andaman and Nicobar Islands would be controversial.
Besides necessitating a response from New Delhi, that could have exposed the disagreement over interpretation of the UNCLOS.
So, the choice of Lakshadweep for the FONOP seem to be a conscious move; Indian officials could even afford to ignore the operation here.
What does the conflict indicate?
The U.S. Navy sail through the waters off Lakshadweep highlights a gap in the Indian and American perception of navigational freedoms.
This is complicating an already complex domain of international maritime law.
There are lessons for both India and the U.S. from this.
U.S. - The U.S. must recognise that FONOPs have implications for India that go beyond the infringement of Indian jurisdiction in the near seas.
Such operations normalise military activism close to India’s island territories that remain vulnerable to incursions by foreign warships.
The U.S. Navy’s emphasis on navigational freedoms in the EEZs encourages other regional navies.
They might violate India’s domestic regulations in the waters surrounding the Andaman and Nicobar Islands.
India - U.S.’s stance on the subject is not acceptable as Washington is yet to ratify the UNCLOS.
But New Delhi, too, must rethink its stand on freedom of navigation in the EEZs.
The reality is that India’s domestic regulation is worryingly out of sync with international law.
India’s declaration of straight baselines delineating zones around the Andaman and Nicobar Islands (on the Western edge), in particular, is a discrepancy.
This cannot be explained as a minor departure from the provisions of the UNCLOS.
