In April, the USS John Paul Jones carried out a freedom of navigation (FON) operation in India’s Exclusive Economic Zone (EEZ) 130 nautical miles (nm) west of the Lakshadweep islands. The US regularly conducts FON operations when they feel that states have gone beyond the provisions of the United Nations Convention on the Law of the Seas (UNCLOS) to assert “excessive” maritime claims. The US has conducted 19 such exercises in the last 30 years in Indian waters, but they were not publicized like the latest one.
The program was started in 1979 to challenge maritime claims the US felt were inconsistent with UNCLOS.[i] As per Articles 58 and 87 of UNCLOS, “freedom of navigation” refers to the rights the states enjoy in the EEZ and high seas, paying due regard to the rights of coastal states. Under the US FON Program, “freedom of navigation” includes the right to innocent passage through the territorial sea, navigation and overflight rights in the EEZ and the high seas, and the use of EEZ and high seas for military purposes.[ii] Hence the major difference between the two approaches is that the US considers military exercises in the EEZ a part of FON. The US is yet to ratify the Convention and considers it a part of customary international law and complies with all the provisions in practice.
The US generally conducts the FON operations in the South China Sea to dispute excessive maritime claims by China and several other nations. The South China Sea is a region that has geopolitical significance and is home to longstanding territorial disputes.[iii] Most of the disputes revolve around the Paracel and Spratly Island groups. China, which is also a signatory to the UNCLOS, has expressed strong objections to such operations time and again. Its domestic law mandates that the territorial seas should be measured from straight rather than normal baselines in direct violation of UNCLOS.
The US did not seek India’s prior consent for the recent FON operation as required by the domestic legislation because it believes that the requirement violates Articles 56 and 58 of the UNCLOS. India’s interpretation of said provisions is different.[iv] While ratifying the Convention, India stated that it interprets the provision to not authorize other states to conduct military exercises or maneuvers without prior consent.[v] The US also considers the maritime claims by India in the Lakshadweep islands as excessive because India calculated the contiguous zone from the islands using straight baselines. The option to use straight baselines is only given to island states like the Philippines and Indonesia instead of using the general polka dot pattern for calculating the maritime boundary.[vi] For countries with islands like India’s Andaman and Nicobar and Lakshadweep islands, they generate further maritime boundary (12 nm for territorial waters + 24 nm for contiguous zone + 200 nm for EEZ) in addition to the claims from the land boundary based on the same calculation.[vii] If there are outlying rocks, they generate a contiguous zone of 24 nm. Through a 2009 notification, India claimed boundaries using straight baselines from the Lakshadweep islands. This is inconsistent with the provisions of UNCLOS since such provisions are not available to continental states.[viii] Barring Pakistan and the US, no one has challenged this move. Hence, the US conducts operations to challenge claims in excess of those provided by the treaty. Additionally, if they did not challenge excessive claims by countries other than China, it would show them in a poor light and as hypocrites.
The US carries out these operations to avoid setting a precedent that the international community accepts these claims. They also feel that it is their duty since they are one of the strongest nations in the world and by regularly conducting the exercises, they want to make their intentions clear. Furthermore, if they do not exercise the rights consistently, they will be lost over time and excessive claims would become valid. A provision of the Vienna Convention allows for “subsequent practice” to be considered while interpreting a treaty under Article 31 (3)(b).[ix] The FONOPs have become a part of the mainstream discourse because of an increase in these operations directed at unlawful claims by China in the South China Sea.
The US issued a statement right after the exercise in the Indian waters, unlike previous times when the list of such operations worldwide was published annually. This shows a policy shift from the previous administrations.[x] While the FON operation was legal and in line with principles of international law, that the US immediately issued the statement shocked many. This might have been an attempt to showcase how even if they are on good terms with a nation, if they feel that maritime claims are excessive, they will not stop from challenging them.
[i] Lynn Kuok, “The U.S. FON Program in the South China Sea: A lawful and necessary response to China’s strategic ambiguity”, Centre for East Asia Policy Studies at Brookings, July 2016.
[ii] Lynn Kuok, “The U.S. FON Program.
[iii] Eleanor Freund, “Freedom of Navigation in the South China Sea: A Practical Guide”, Belfer Centre, June 2017.
[iv] Abhijit Singh, “Not on the same page at sea”, Observer Research Foundation, April 14, 2021.
[v] Abhijit Singh, “Not on the same page”.
[vi] Manoj Joshi, “UNCLOS, an American Ship and India’s Maritime Boundary”, The Wire, April 19, 2021.
[vii] Manoj Joshi, “UNCLOS, an American Ship
[viii] Manoj Joshi, “UNCLOS, an American Ship”.
[ix] Lynn Kuok, “The U.S. FON Program.
[x] Kashish Parpiani, “US FONOP in India’s EEZ is indicative of Biden’s agenda for US-India defence ties”, Observer Research Foundation, April 13, 2021.