American Freedom of Navigation Operations in the Indo-Pacific

A Legal and Geo-Political Perspective

American Freedom of Navigation Operations in the Indo-Pacific

On the 7th of April 2021, the United States 7th Fleet, USS John Paul, conducted a freedom of navigation operation (FONOP) around 130 nautical miles westward of the Lakshadweep Islands, inside India’s Exclusive Economic Zone (EEZ). While this is one instance amidst many of the United States’ FONOP activities in the Indo-Pacific, the surrounding global context and both the nations’ deepening maritime claims have further complicated the issue; as it has the fact that this was done without India’s prior consent. The general argument reiterated behind FONOPS is that it was conducted in a country’s territorial waters, contiguous zones or exclusive economic zones with the objective to demonstrate that the country is claiming sovereignty or maritime influence in excess of what is appropriate under the United Nations Convention on the Law of the Sea (UNCLOS).

The purpose of this article is to investigate this claim from a geo-political and legal perspective. In aid of this, it will first introduce the UNCLOS, specifically the components referring to the legitimacy of FONOPS, to understand whether these activities have a solid legal or precedential basis. Second, it will differentiate between the right of innocent passage in territorial waters against that of FONOPs, and analyse whether, and to what extent these fall under High Seas Freedoms. It will then provide a short examination of the United States of America’s actions in the Indo-Pacific region, to understand America’s increasing role in the area. Finally, it will attempt to examine the possible consequences of confrontations such as the one that is occurring presently in the Indian Ocean, in order to assess what it signals for the Biden administration’s approach to the Asia Pacific.

The marine and terrestrial environments are fundamentally different. Though certain basic principles of international customary law apply similarly to both of them, the goal of the international community to construct a rules-based international order ensured that the distinctions were appropriately focused upon. While a large swathe of the global history of conflict and peace was maritime, the focus has been on the politics on land in the recent era. However, this does not mean that the oceans are any less crucial to a country’s future, especially in South East Asia and the Indo-Pacific, as littoral nations battle for predominance in a primarily blue environment. The land is the natural habitat of man, and it provides the comfort of habitation and familiarity. The ocean is a fundamentally hostile environment that individuals must strive harder to influence. Though all land (except Antarctica) is politically controlled, the oceans are generally a part of the global commons and are politically uncontrolled. Wherever countries have attempted to control the ocean, it has always been in a limited area which could affect the politics of the land.

The UNCLOS

The United Nations Convention on the Law of the Sea (UNCLOS) is an international agreement between the Member States that arose from the third United Nations Conference on the Law of the Sea (UNCLOS III) concluded between 1973 and 1982 and replaced the 1958 Convention on the High Seas. Coming into force in 1994, the UNCLOS delineated the rights and responsibilities of countries pertaining to their use of the oceans, establishing the regulations for the conduct of free and fair business relations, and emphasizing the importance of conservation of the marine environment and natural resources. As all agreements between nations in the modern era are based on the equal status of all consenting parties, the UNCLOS was essential in demarcating the outer-limits of a State’s sovereignty over the ocean, so that the exercise of the maritime rights of one State do not impinge upon the freedom of another.

The UNCLOS Info 1
The UNCLOS

These limits are measured from a precisely calculated baseline that generally follows the low-water line unless the coastline is heavily indented, in which case, straight baselines may also be used. The Internal Waters include all water and waterways landward of the baseline and are entirely a part of the State’s sovereign territory. All laws that apply domestically on land, therefore, apply here, and accordingly, the State may set laws, regulate the access and use, and exploit any resources in this region, prohibiting the right of passage of any foreign vessel. Territorial Waters lie 12 nautical miles seaward from the baseline, and here the State holds sovereignty similar to its Internal Waters extending to the airspace, water column and seabed, with the exception of the right to innocent passage, that allows foreign vessels to pass continuously and expeditiously through these waters without injuring the order, peace and security of the State. Thus, this right excludes, among others, activities such as threat or use of force against the State, military exercises, surveillance operations, loading or unloading illegal goods or individuals and launching or landing aircraft or military devices. The use of military vessels (such as USS warships) in innocent passage serves to complicate these distinctions. The Contiguous Zone is located 24 nautical miles seaward from the baseline, and here, the State only holds partial sovereignty, and can only enforce laws in the areas of customs, immigration, taxation and pollution. As the State may not exercise control here for security purposes. According to the UNCLOS, High Seas Freedoms begin from here though the High Seas commence from beyond the Continental Shelf. The Exclusive Economic Zone (EEZ) is situated 200 nautical miles seaward and includes the Contiguous Zone. Here, the State only holds limited sovereignty restricted to the exclusive right to exploit any natural resources on the seabed and the water column. The Continental Shelf is the natural prolongation of the land territory into the sea and may not exceed 350 nautical miles from the baseline to seaward, nor 100 nautical miles beyond the isobath.

The High Seas Freedoms Info 2
The High Seas Freedoms

FONOPs

The High Seas Freedoms codified as Article 2 in the 1958 Convention on the High Seas, and later in Article 87 of the UNCLOS. It professes that the high seas are open to all States, be they coastal or land-locked, and all States may exercise their High Seas Freedoms without the prior notification or permission of the coastal State. These freedoms include the freedom of navigation, freedom of overflight, freedom to lay submarine cables and pipelines, freedom to construct artificial islands and other installations, and the freedom of fishing, subject to restrictions of the UNCLOS and other treaties and conventions of international law. For this article, the freedom of navigation is crucial, and essentially entails that as per customary international law, flag-ships of any sovereign State may not suffer any interference from any other State in their ability to freely move their vessels, enter ports, utilize plants and docks, load and unload goods, and transport goods and passengers in the areas defined under the UNCLOS. Freedom of Navigation Operations (FONOPs) are conducted to operationalise and enforce this freedom, in defence of relevant international law and customs, and is meant to constrain a State’s excessive maritime claims over the coastal seas, in order to balance sovereign equality with international interdependence. The United States of America’s Department of Defense has institutionalised the FONOPs enforcement mechanism, and as part of its Freedom of Navigation Program, challenges what it considers to be excessive claims by States over airspace and the world’s oceans through diplomatic communications, operational assertions, and bilateral and multilateral confrontations.

FONOPs vs Right of Innocent Passage Info 3
FONOPs vs Right of Innocent Passage

 The most prevalent justification of FONOPs is that if maritime powers are allowed to claim sovereign authority in excess of what is permitted by the UNCLOS, over time, these assertions will become part of the customary law and will cause an imbalance between itself and the existing customary law and be a detriment of the freedom of navigation of other States. These excessive maritime claims are contentions made by States inconsistent to the UNCLOS, which are thus unlawful or illegal. These include claims that are incompatible with legal framework corresponding to the ocean or the airspace (such as a State’s Territorial Sea extending beyond 12 nautical miles), or restrictions on the rights of navigation and overflight (such as requiring advance notification or authorisation for innocent passage of warships through the Territorial Sea). It is here that FONOPs become different from the right of innocent passage. The main distinction is that the latter concedes to the authority of the coastal State over their territorial sea, whereas the former challenges it. The innocent passage is deferential in its acknowledgement that it is sailing through a country’s Territorial Waters, while FONOPs maintain that they are sailing in the High Seas. The former proceeds swiftly and cautiously, with radars and drones deactivated and ship-bound, while the latter manoeuvres vigorously and multidimensionally through the area.

Why US Conducted FONOPs?

The right to innocent passage and the FONOPs may not always be mutually exclusive. However, in the current confrontation with India, the USA conducted the FONOPs to challenge India’s excessive claim as per India’s 1976 Territorial Waters, Continental Shelf, Exclusive Economic Zones and Other Maritime Zones Act, which requires that ships provide and obtain advance authorization to move through the Exclusive Economic Zone, which is inconsistent with the principles of the freedom of navigation defined in the UNCLOS. All States have the right to an innocent passage from beyond the limits of the Internal Waters, and thus though the FONOPs here are transiting under innocent passage, they are also disputing India’s claims that impede the freedom of navigation. India believes that the UNCLOS may not be interpreted as allowing other States to carry out military exercises or manoeuvres in the EEZ or in the Continental Shelf without the coastal State’s prior permission, whereas the statement by the US Navy claims that these requirements by India are inconsistent with international law and are excessive maritime claims. India also propagates a ‘straight baseline’ claim along the Lakshadweep Islands, even though there is no provision in the UNCLOS that allows for the same around mid-ocean island groups and archipelagos. Having both signed and ratified the UNCLOS, India’s municipal laws must reflect the standards of the international convention, which they fail to do here, thus jeopardising India’s claim to being the Net Security Provider in the Indian Ocean Region (IOR).

Complications Info 4
Complications

Legally, therefore, it seems that the FONOPs as enforcement actions conducted by the United States of America do enjoy protection under international law, and the confrontation occurring off the Lakshadweep coast is a consequence of conflicting interpretations of the regulations of the UNCLOS. However, several other realizations complicate this assumption. Firstly, the United States has not signed or ratified the UNCLOS. The fact that the country considers it a part of its role as the global policeman to take enforcement action on behalf of it is therefore problematic because it implies that, exemplified by generations of American exceptionalism in policymaking, America is holding other nations to standards it does not conform to itself. Though the use of a destroyer or military warship is permitted under UNCLOS under innocent passage, and America professes that the provisions of UNCLOS that are based on customary international law are already part of its municipal law, it is doubtful whether these explanations would have been accepted unquestioningly by the international community, had it been any other country. When India had signed the UNCLOS in 1994, it had also issued a reservation that asserted that regardless of the provisions of the Convention, no manoeuvres using weapons or explosives may be carried out in the EEZ without prior consent of the coastal State. The question here is that can a State not having signed or ratified the UNCLOS justifiably undertake enforcement measures in defence of it against a State that has done so, with some reservations, utilising customary international law as an alibi? The fact that America extends its global policeman role to oceans several hundred kilometres away from its mainland, in a generally unproblematic region of the IOR (whereas conducting them in the more strategic Andaman and Nicobar Islands would have caused more controversy), elucidates that these FONOPs were a statement to Chinese ascendency in the region rather than an operational imperative. Indeed, analysts observe that these efforts were a part of America’s endeavour to prove to China that its FONOPs in the South China Sea are not unusual or directed solely against the latter but against all States.

The US, FONOPs and the Indo-Pacific

FONOPs by the USA are not uncharacteristic in the Indo-Pacific, where FONOPs have been directed against India every year from 2007 to 2021 (with the exception of 2018 and 2020). However, what was unusual was that this time there was a public announcement of it, threatening to embarrass India even though it is a strategic partner of the Quadrilateral Grouping in the region. Though the United States continues to stress that it conducts FONOPs as a matter of operational efficiency in the implementation of standards of international law in the global maritime commons, against both allies and rivals, it has never conducted one against Australia or Canada despite their ‘excessive claims’ in the Anxious Bay, Encounter Bay and Abrolhos Islands, or in the Northwest Passage, respectively. On the other hand, there have been several FONOPs undertaken by every American administration against key States in the IOR including Malaysia, Maldives, Sri Lanka, Cambodia, Indonesia, Taiwan and in the South China Sea. The claim that this is a part of innocent passage is also complicated by India’s brutal history of colonisation and experience of the Cold War. It has reiterated the reality that regardless of the alliance systems and partnerships that exist today, Cold War-era suspicions abide to a certain extent in the region. For India, this incident has determined that alliances with America are subject to terms and conditions which may be unwelcome and unpleasant. The rules-based international order is an artefact of existing power relations between powerful States, and India is still treated as an outsider to that elite club.

In any case, India has a complicated history with the Seventh Fleet, where during the 1971 Indo-Pakistan War, Richard Nixon and Henry Kissinger sailed the Fleet off the coast of Vietnam, into the Malacca Straits and the Bay of Bengal to intimidate India and influence a ceasefire before Pakistan fell on the eastern front, in Bangladesh. India’s fear that these FONOPs may be intelligence-gathering surveillance missions in its EEZ are not therefore, unfounded, as there is no reason other than taking America at its word, that its actions are guided by principle and not identity or vested interests. Indeed, India had also formally protested in 2001 and 2004 against the USNS Bowditch, and in 2007 against the USNS Mary Sears, when they conducted civilian-manned survey activities in its EEZ. In the matter of resisting Chinese expansion in the Indo-Pacific and Southeast Asian region, India’s politics are wrought with difficulties. While it considers it essential that Chinese claims be offset and constrained in the South China Sea and has committed itself to defence partnerships with the United States to challenge Chinese control, it has also balked at participating in any joint patrols with America in the South China Sea. This is understandable because it fears retaliation by the People’s Liberation Army Navy in Indian waters, which it does not possess the capability or capacity to counter effectively. On the other hand, as New Delhi resists the utilisation of American naval force in its EEZ, it seems elbowed to the same side as China, thus undermining the legitimacy of its claims against Beijing.

US approach to the Asia Pacific

There has been a notable policy continuum from the Trump administration to that of Biden’s. The former had exponentially increased its FONOPs in the South China Sea under its policy of “strategic predictability, operational accountability”, whereas the latter has repeated similar objectives. Nevertheless, it is conspicuous that this particular FONOP has been the one that has been publicised, whereas those in the Trump years were generally conducted to strengthen the ‘Buy American’ policy by increasing American arms exports to India and assenting to Indian demands for the MH-60R helicopters, Sea Guardian UAS, more P-8 maritime surveillance aircraft, and MK 45 5 inch/62 calibre anti-surface naval guns. It seems that the preceding administration’s emphasis was on maximising India’s evolving Southward, Navy-oriented security calculus to counterbalance China’s rise in the region. The establishment of the Fusion-Centre Indian Ocean Region (IFC-IOR), commitments to which have been reiterated recently by the Commander of US Indo-Pacific Command, is evidence of the same. However, there are a few other critical components that come into play. Fundamental to American-Indian defence ties are the unimpeded provision of American military hardware, which may be hindered by the Biden administration’s unease over the worsening conditions of civil liberties and human rights in India. Even if defence relations could overlook what Senator Robert Menendez (Chairman of the Senate Foreign Relations Committee) has termed the “deteriorating situation of democracy”, the administration is also contemplating imposing secondary sanctions on India due to its procurement of the S-400 missile system from Russia. It is evident that the Indian policy of regional balance and partial non-alignment makes such US-India defence alliances unsustainable, which is problematic because the United States has a generally black-and-white policy approach of either allies or foes in the international milieu. Additionally, India’s fiscal limitations may obstruct defence purchases, as could shifting preferences and a return to the traditional land-centric, army-based perception. Under these circumstances, Biden’s focus has been on bolstering operational and policy-level synergies with India, unlike the Trump administration, which generally focused on the former to energise the latter. Operationally, collaborations have been through the Joint February 2021 Yudh Abhyas between the armies of both the countries where India participated with the US-made CH 47 Apache Chinook and AH 64E Apache Attack Helicopters and the Joint Special Forces Exercise Vajra Prahar. On the policy-level, there are efforts to hold Indian foreign maritime policy accountable to Prime Minister Modi’s statement declaring that India supports “freedom of navigation and overflight, as well as an inherence to international law”, which was rendered suspect by India’s policies requiring prior notification similar to China. Therefore, these FONOPs may also be observed as a tool for the United States to seek a more feasible alignment of American and Indian security perceptions in the IOR.

References

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