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US challenge to India due to misinterpretation of international law
Sunilchandra Dal | Wednesday, 25 May 2016 AT 12:24 PM IST
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Last year, the US challenged India under its Freedom of Navigation Operation (FONOP). This is interesting, as India and the US are evolving into strategic partners. India has handled the situation with tact. The US says that military exercises by other states are allowed in India’s Exclusive Economic Zone (EEZ), while India insists on prior consent.

The FONOP report for 2015, released recently, says that among other countries, India made ‘excessive maritime claims’ in the following way: “Prior consent required for military exercises or manoeuvres in the EEZ” and to which the US responded with multiple challenges.

The FONOP reports are put up on the website of the US Undersecretary of Defense for Policy, Department of Defense. In its 1992 report, the US explains that it exercises its navigation and overflight rights consistent with the 1982 Law of the Sea Convention (also known as United Nations Convention on Law of the Sea or UNCLOS) through its armed forces. The US does not accept curbs imposed by other nations on the grounds that if the navigation rights are not exercised, the curbs come to be accepted as binding. Thus the US protests against ‘excessive claims’ through its FONOP.

When India ratified UNCLOS on June 29, 1995, it made this declaration: “The Government of the Republic of India understands that the provisions of the Convention do not authorise 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.” This declaration has been put up on the UN website.

What does UNCLOS say about EEZ? Part V (Articles 55 to 75) of UNCLOS deal with EEZs. None of the articles state that military vessels can carry out exercises or manoeuvres in the EEZ of a coastal state. Thus, India’s stand is correct.

However, we could go a step further: According to Article 58, all states enjoy the freedoms referred to in Article 87 of navigation and overflight and laying of submarine cables and pipelines in the EEZ of any coastal state.

Article 58 also states that Articles 88 to 115, which deal with the high seas, apply to the EEZ. The important provision here is Article 88, which states: “The high seas shall be reserved for peaceful purposes.” When this is applied to the EEZ, it is clear that the US claim of the right to carry out military exercises and manoeuvres in EEZ of another state is inconsistent with international law.

Thus, US naval ships may pass through India’s EEZ, but cannot carry out military exercises or manoeuvres without India’s consent. The US has misinterpreted UNCLOS.

The US has not ratified UNCLOS, as it found unfavourable the terms which deal with the seabed. However, the US has accepted that the remaining terms of UNCLOS as customary international law.

The debate on whether or not to ratify UNCLOS is still on in the US. Interestingly, in 2012, then Secretary of State and current presidential aspirant Hillary Clinton spoke in favour of ratifying the treaty.

After the US ratifies UNCLOS, the issue could be resolved through the dispute redressal system under UNCLOS. Till then, India can get in touch with coastal states and work out a consensus.

INDIA AND EEZ
India’s territorial waters extend to 12 nautical miles (1 nautical mile = 1.852 km) from the coast, followed by the contiguous zone of 24 nautical miles. The EEZ, in which India has sovereign rights for exploiting living and non-living natural resources, extends to 200 nautical miles. India has laid claim to the continental shelf, in accordance with UNCLOS, which would extend its EEZ to 350 nautical miles.

- SUNILCHANDRA DAL
 
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