International law only permits the right of “innocent passage” for military vessels in the territorial sea, which means no manoeuvres and no gathering intelligence, but a straight passage through the 12 nm zone.
On April 19, the US Department of Defence put out a two-page document detailing what it said were the “excessive maritime claims” of certain countries. The purpose of this annual exercise, which has been around for the past decade and more, is to list the countries as well as mark the fact that the US Navy has challenged the claims, in some instances multiple times, in a particular calendar year.
In 2015, India again fell into the category of countries whose claims had been challenged “multiple times” for the “excessive claim” of requiring countries to seek prior consent for military exercises and manoeuvres in its exclusive economic zone (EEZ). The US began formally protesting India’s position in 1976 and fitfully thereafter, but the “operational challenges” have been a feature since 2008. What the Indian Navy did in response to this is unclear. In ratifying the United Nations Convention on the Law of the Seas (UNCLOS), New Delhi had declared that in its understanding the treaty did not authorise other states to carry out military exercises on its EEZ without India’s permission.
One of the interesting ironies is that the US has yet to ratify the 1982 UNCLOS, yet it is most zealous in insisting on its application by the other nations of the world. Because it is not a party to the treaty, the US cannot challenge States through the UNCLOS dispute redressal mechanism and so, its challenge comes through the instrumentality of its mighty navy, by definition, a destabilising proposition.
The US says that it “observes” the UNCLOS as customary international law. However, there is a difference between the uncoded customary observance that is open to interpretation and the very specific international agreements that have gone into every aspect of maritime life, from borders, to disputes, military movement and exploitation of resources.
What we can infer from the Pentagon document, since the government of India has said little or nothing about this, is that it challenges India’s stance that the US Navy cannot conduct exercises within the Indian EEZ without India’s permission, since the whole idea is to cock a snook at New Delhi’s “excessive claims”.
This is somewhat puzzling since India and the US are also the best of the friends, and conduct a lot of military exercises together, such as the well-known Malabar exercise. In recent months, we have also come to know that the two sides were readying to conduct joint patrols, although the Indian defence minister subsequently clarified that it would not happen ‘for now’. The obvious question would be whether we could be a party to military exercises without the permission in an EEZ of a coastal State elsewhere, when we object to other states doing so in our EEZ.
The Chinese conundrum
Of course, India is not the only country in this boat. Thirteen countries have been listed as having drawn the attention of the US Department of Defence. India is a minor culprit among them. Among the bigger ones are countries like China who are in the dock for having too many “straight baselines”, claiming jurisdiction over the airspace over the EEZ, passing a domestic law that criminalises survey activity by foreign entities in the EEZ and demanding foreign military ships seek prior permission before passing through the territorial seas.
A lot of this is the arcana of maritime boundaries. A baseline is where the land boundary ends at low tide and the maritime boundary begins and 12 nautical miles out, it constitutes our territorial sea. Another 12 nautical miles constitutes the “contiguous zone” and 200 nautical miles out is the EEZ.
The baseline naturally follows the curve of the coast. But where there are many indentations, states draw straight baselines for the sake of convenience, something which the US is not particularly happy about with regard to China and some other countries.
International law permits the right of “innocent passage” for military vessels in the territorial sea, which means no manoeuvres and no gathering intelligence, but a straight passage through the 12 nm zone. But China requires a prior permission, like it requires permission for military activity and surveys in the entire EEZ. In 2012 and 2013, US Navy ships sailed through Chinese territorial waters without notifying Beijing first.
The US insists on an unconditional right of innocent passage through the territorial seas and maintains that no prior permission is needed for military activities in the EEZ. To its credit, last August, the US did not blink when five Chinese naval ships carried out a patrol off Alaska. Not only were they in that region for the first time, but they also passed through the territorial waters of the US within 12 nm of the coast. The US spokesman accepted that this was “legal transit” and done “in accordance with the Law of the Sea convention.”
At one level, there is nothing remarkable about the US disagreement with India. The US, which prepositions a great deal of military equipment and operates out of Oman for example, still questions its ally’s “excessive maritime claims” which, in this case, is the state’s requirement for prior permission for even innocent passage through its territorial seas.
When China was a weak country it had little choice but to accept US ships coming into its territorial eaters on “innocent passage” or US ships in the contiguous zone or EEZ gathering intelligence or surveying the seas. Now that it is becoming stronger, it is working systematically to strengthen its maritime position and the first thing on its agenda is to get the US Navy surveillance and survey ships away from its coast. China has repeatedly demanded that US avoid surveillance operations within its EEZ.
The issue of the South China Sea is a red herring of sorts because the US has not recognised anyone’s claims nor does it challenge China’s control of some of the islands. The only area that is in question is China’s weakest link — the fact that under UNCLOS, no artificial island can claim territoriality of the seas around it. So it is not as though the US is challenging the Chinese claim on the Spratlys, but only on some features on which China is building islands, which under the UNCLOS cannot claim the usual territorial sea, contiguous zone and EEZ.
The application of domestic law to the EEZ
Another potential problem with the US arises from India’s application of its criminal law to the EEZ. This was evident in the Enrica Lexie case in which India is trying two Italian marines in the deaths of two Indian fishermen 20.5 nautical miles out to sea, which is within India’s contiguous zone and the EEZ. Article 33 of the UNCLOS is quite clear — the coastal state can act against and punish “infringement of its customs, fiscal, immigration or sanitary laws and regulations” in the contiguous zone. But whether the accidental shooting of two fishermen by the Italians comes under this is not clear.
However, the Indian view is that Section 188A of the Code of Criminal Procedure and section 7(7) of the Maritime Zones Act of 1976 provides that India can proceed against any person who commits a crime in its EEZ, which means 200nm out to sea. These notifications were made before India ratified UNCLOS in 1982 and so India believes that its laws are not inconsistent with UNCLOS, but it argues that even if they were deemed to be so, Indian domestic law will prevail.
So far, there has been no reason for India to invoke this with the US, but had it been US marines, instead of the hapless Italians, you can be sure that the outcome would have been different because the US would not accept the extra-territorial application of Indian law, never mind it own belief that its own laws have universal application. Such are the virtues of global primacy.
Resolving the issue
Going into these issues and trying to work out a common approach is important as US and India move into a mode of enhanced cooperation in the Indian Ocean and Asia Pacific, as per the Joint Strategic Vision adopted during US President Barack Obama’s visit to New Delhi last year. There is a need for the two countries to ensure that they do not tangle with the international law, their own interpretation of that law as well as that of other countries.
The easiest solution is that the US ratify the UNCLOS and India reconcile its commitments to it by modifying its domestic laws. As of now, the US, in particular is in a peculiar position where the only challenge it can offer to what it terms “excessive maritime claims” is full-fledged military action, rather than using the dispute resolution mechanisms that already exist in UNCLOS.
The Chinese position here is even more complex. China is a signatory to the UNCLOS, though at the time of ratification it made a declaration that it would require foreign states to obtain advance approval or prior notification for the passage of warships through its territorial sea. In 2006, it made another declaration that it would not accept any of the procedures of compulsory dispute settlement in relation to maritime boundaries with neighbours and those involving historic bays and titles, disputes covering military activities and certain kinds of law enforcement activities or disputes where the UN Security Council is exercising its functions. There is nothing unique about this, since France, too, has made a similar declaration. India has reserved the right to make such a declaration in the near future.
The problem is even more difficult when it comes to the South China Sea where the Chinese have established, at least on maps, a nine-dashed line without clarifying whether this is their national boundary, or they are claiming islands within the nine-dashed line. Under UNCLOS, the nine-dashed line as a maritime boundary is simply not tenable, especially since such boundaries can only be established through agreement with the neighbour. China vaguely talks of historical and legal evidence for its claims, but while it can claim the islands, it is not clear how it claims the seas that are often beyond the 200 nm limit of the nearest island.
What becomes clear is that like the US, China wants to cherry-pick the UNCLOS for those parts that are to its advantage and leave out those which are not. But unlike the US, China is a signatory to the treaty. As Chinese capacities grow, it will be in a piquant position where it will try to keep foreign navies away from its EEZ, while it would want to operate off the coasts of other countries.
Manoj Joshi is a distinguished fellow, Observer Research Foundation, New Delhi.