Context: The US Navy carried out a freedom of navigation operation in the Indian waters near Lakshadweep Islands on Wednesday without New Delhi's prior consent to challenge India's "excessive" maritime claims, according to an official statement. A statement issued by the Commander of the US seventh fleet said that the operation was conducted by the guided-missile destroyer USS John Paul Jones on April 7. India requires prior consent for military exercises or manoeuvres in its exclusive economic zone or continental shelf, a claim the statement said was inconsistent with international law. Reacting to the development, the Ministry of External Affairs adhered to the government's stand on not allowing military exercises in its exclusive economic zone without consent and said it has conveyed its concerns to the US government through diplomatic channels. In this edition of Big Picture, we will analyse the freedom of navigation issue between India and the US.

India’s Protest

• India’s stated position on the United Nations Convention on the Law of the Sea (UNCLOS) is that the Convention does not authorise other States to carry out in the EEZ 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.
• It is only when it is “military manoeuvres” in Indian EEZ that nations need to seek India’s permission and not if they are simply transiting through.
• The term military manoeuvres is not defined anywhere.
• Seventh Fleet to carry out FON missions in Indian EEZ in violation of Indian domestic law (Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976).

About Freedom of Navigation Operations (FONOP)

• It involves passages conducted by the US Navy through waters claimed by coastal nations as their exclusive territory.
• It reaffirms the US policy of exercising and asserting its navigation and overflight rights and freedoms around the world.
• This communicates that the US does not accept the excessive maritime claims of other nations, and thus prevents those claims from becoming accepted in international law.
• This is the first time the US Navy has issued a public statement giving details of the operation.

Note: USA is not signatory to the UNCLOS

Significance of FONOPs

• FONOPs are a method of enforcing UNCLOS (United Nations Convention on the Law of the Sea) and avoiding these negative outcomes by reinforcing freedom of navigation through practice.
• It is exercised by sailing through all areas of the sea permitted under UNCLOS, and particularly those areas that states have attempted to close off to free navigation as defined under UNCLOS.

Is FONOP violative of India’s EEZ?

• As per India’s Territorial Waters Act, 1976, the EEZ of India “is an area beyond and adjacent to the territorial waters, and the limit of such zone is two hundred nautical miles from the baseline”.
• India’s “limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline”.
• Under the 1976 law, “all foreign ships (other than warships including submarines and other underwater vehicles) shall enjoy the right of innocent passage through the territorial waters”.

About Exclusive Economic Zone (EEZ)

• UNCLOS defined the EEZ as a zone in the sea over which a sovereign nation has certain special rights with respect to the exploration and usage of marine resources, which includes the generation of energy from wind and water, and also oil and natural gas extraction.
• It can extend to a maximum of 200 nautical miles from the baseline. The baseline is normally measured is the low-water line along the coast as indicated on large-scale charts officially approved by the coastal state.
• The EEZ does not include the territorial sea and also does not include the continental shelf beyond 200 nautical miles.
• The EEZ includes the contiguous zone.
• Within the EEZ, the country has rights over natural resources. The country has jurisdiction over some activities for the reasons of environmental protection, among others.
• It also has to respect the rights of other countries in the EEZ such as the freedom of navigation.
• The difference between territorial sea and the EEZ is that the former confers full sovereignty over the waters, whereas the latter is merely a “sovereign right” which refers to the coastal nation’s rights below the surface of the sea. The surface waters are international waters.

About UNCLOS

• United Nations Convention on the Law of the Sea (UNCLOS) is an international treaty which was adopted and signed in 1982.
• It lays down a comprehensive regime of law and order in the world's oceans and seas establishing rules governing all uses of the oceans and their resources.
• It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed as a whole.

Road Ahead

• What US did was wrong but problem also stems from the fact that freedom of Navigation is looked at differently by different countries. India has taken up this issue with Washington diplomatically and that is the right thing to do. This must not blown out of proportion as India and US are coordinating on several fronts and we need to continue to build synergies and ensure that our larger interests are protected. We also need to have clear do's and dont's for ships entering our Exclusive Economic Zones and it needs to be clearly communicated, so that we don't see this happening again.