US and Indian Navy ships during the Malabar exercise in 2020

by Sandeep Unnithan

The US Navy’s Seventh Fleet conducted what it calls a Freedom of Navigation Operations (FONOPs) drill through India’s Exclusive Economic Zone (EEZ) on April 7. A strong and unusually worded release from the US Seventh Fleet headquartered in Yokosuka, Japan, said that the destroyer USS John Paul Jones asserted ‘navigational rights and freedoms approximately 130 nautical miles west of the Lakshadweep Islands, inside India’s EEZ or continental shelf’ without requiring India’s prior consent, consistent with international law. (The EEZ is a 200 nautical mile belt of oceanic territory around a costal state.)

India’s demand for prior consent for military exercises or manoeuvres in its EEZ was a claim inconsistent with international law, the release said. The ministry of external affairs (MEA) response on April 9, two days after the US statement, said it had ‘conveyed its concerns regarding this passage through our EEZ to the government of the USA through diplomatic channels’. The MEA said that the government of India’s stated position on the UNCLOS (United Nations Convention for the Law of the Sea) is that ‘the Convention does 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 explosives, without the consent of the coastal state. The warship was ‘continuously monitored transiting from the Persian Gulf towards the Malacca Straits’.

The US has used FONOPs over the past four decades as a way of asserting its right to sail through the EEZ of several coastal countries. It is the explicitly worded statement issued by the Seventh Fleet that has caused dismay in New Delhi. “To issue a press release is a change in approach and obviously a deliberate move,” says Lt General D.S. Hooda (Retd), former Northern Army Commander. It is this change that India will likely have to figure out in the days ahead. Could it be, for instance, a way of telling the Chinese that FONOPs are not China-specific but a principle that the US follows across the world, even with strategic partners.

While attention has been focused on the FONOPs that the US has used to challenge China’s expansive territorial claims in the South China Sea, what has gone unnoticed is a deliberate US policy to simultaneously conduct operational assertions through the EEZ of even close allies like Australia, Japan and South Korea. A study of the annual statements between 1992 and 2021 placed before the US Senate by the Department of Defence reveals only 10 occasions over the last 30 years that the US has not conducted ‘operational assertions’ through India’s EEZ. In the last such drill, in 2019, India was among 21 other countries, including Taiwan, through whose territorial waters the US sailed its warships.

The US Department of Defence identifies “excessive maritime claims” by coastal countries to unlawfully restrict the freedom of navigation and overflight and other lawful uses of the sea as reasons for its FONOP drills. UNCLOS, which came into effect in 1994, recognises the rights of coastal nations to exploit the resources of a 200 nautical mile belt of coastline outside their territorial waters. The US is yet to ratify it as 168 other countries have, because of Section XI of UNCLOS which governs the mining of deep seabed resources. In 2010, India had petitioned the UNCLOS, asking for its EEZ to be extended from 200 nautical miles to 350 nautical miles, which would greatly increase the area for the exploitation of natural resources. This proposal has yet to be accepted.

Interestingly, the USS John Paul Jones, which left the Persian Gulf, also carried out a FONOP drill through the territorial waters of the Maldives. The US issued a similar statement on the FONOPs through the Maldivian EEZ. The US and the Maldives signed their first framework agreement last September. The agreement was signed by the deputy assistant secretary of defence for South Asia. Earlier, in 2012, the US had proposed a Status of Forces Agreement, or SOFA, with the Maldives. The SOFA was a precursor to the US stationing its forces on Maldivian soil. New Delhi was then not in favour of the agreement and it died a quiet death but is believed to now favour closer ties between the US and Maldives to checkmate China’s growing presence in the Indian Ocean region.

“The irony is that the Chinese, who are signatories to UNCLOS, violate it all the time and the Americans, who have signed it but never ratified it, expect everyone else to stick to it,” says Rear Admiral Sudarshan Shrikhande, former ACNS Foreign Cooperation and Naval Intelligence.