The increasing incursions and the broad claims of sovereignty made by China in the South China Sea have enraged countries like Brunei, Indonesia, Malaysia, the Philippines, Taiwan, and Vietnam.). China has brazenly sabotaged international treaties by reclaiming and developing artificial islands since 2013 in the disputed territories and now claims sovereignty over it. The United States (US), in response, has been hardening its posture and military presence in the region and has been engaging in an increasing number of Freedom of Navigation of Exercises (FONOPs).
Is FONOP a tool to intimidate others?
a FONOP was conducted in the Indian Territory in April 2021 by the US. The issue surfaced last year when the American Naval cruiser USS John Paul Jones transgressed into the Indian Islands of
Lakshadweep, well within India’s Exclusive Economic Zone causing a farrago of events. It is well-known that there are differences between India and the US (and indeed between many Asian littoral states and western powers) on the interpretations of certain provisions of UNCLOS.
The USS, John Paul Jones, guided-missile destroyer, asserted navigational rights 130 nautical miles to the west of the Lakshadweep Islands on 9 April 2021. As this was inside India's Exclusive Economic Zone and done without requesting India’s prior consent (consistent with International Law) this caused suspicion. Media reports indicated that the US claimed this as a Freedom of Navigation Operations (FONOPS) activity meant to assert that oceans are ‘global commons’—which are seen as potential economic resources that lie beyond national jurisdiction and have a contested legal definition.
FONOPS gives the US the immunity and the right of innocent transit and navigational rights in the Exclusive Economic Zone, the high seas, and archipelagic waters anywhere in the world.
FONOPs have targeted strategic partners of the US, for instance, allies like Japan, South Korea, the Philippines, Taiwan and Thailand; friends such as India, Saudi Arabia, Oman, and the United Arab Emirates (UAE), neutrals such as Indonesia, Malaysia, Sri Lanka, Maldives, and Sweden; and adversaries like Russia , China, and Iran. However, certain Indian analysts believe that the US has violated the EEZ by entering the Indian Exclusive Economic Zone and the principle of communication in April 2021.
This undermined the international law in letter and in spirit. The FONOP programme which initially began in 1979 was designed to challenge maritime claims that the US found consistent with International Law. FONOPS gives the US the immunity and the right of innocent transit and navigational rights in the Exclusive Economic Zone, the high seas, and archipelagic waters anywhere in the world. An important question must be raised at this point—how ubiquitous is the International Law of the Sea, i.e., UNCLOS, with the US never having ratified the same?
The ‘International Law’ being referred to is the 1982 United Nations Convention on the Law of the Sea, which the United States has refused to ratify.
The United Nations Convention on the Law of the Sea (UNCLOS) has been ratified by 167 nations, including India and the European Union.
According to UNCLOS 1982, ‘a country's sovereign seas extend up to 12 nautical miles from its coastline, and its exclusive economic zone extends between 12 and 200 nautical miles. ‘So, what the
UNCLOS almost universally does is lay down laws and rules whose wide acceptance is believed to have greatly reduced the number, frequency, and potential for inter-state conflicts, which would have taken place in its absence. But there remains much ambiguity around the UNCLOS.
The first important development in this context is the legal sanctification of Exclusive Economic Zones (EEZs) of 200 nautical miles, over which states have sovereign rights to explore “High Seas” which are areas of common access to humankind.
The first important development in this context is the legal sanctification of Exclusive Economic Zones (EEZs) of 200 nautical miles, over which states have sovereign rights to explore “High Seas” which are areas of common access to humankind. In the High Seas, while the law has accounted for key narrow straits for “transit passage”, no country is allowed to assert their jurisdiction. The area follows a special dispute-settlement mechanism. This contentious issue becomes more complicated as the US has not ratified the UNCLOS.
FONOPs: a precedent for other players?
China is one emerging maritime power that has presented the world with a series of fait accompli, being accused by many countries of violating UNCLOS and not adhering to the international rules-based order. The US, which justifies keeping tabs on the South China Sea region, does so by regularly conducting FONOPS to challenge China’s aggressive territorial claims and tussles in the South China Sea. China has escalated its drive to obtain control of the South China Sea as mentioned in the beginning, having insulated itself against US involvement. The 2016 Permanent Court of Arbitration in The Hague released its decision on a UNCLOS claim made by the Philippines against China, ruling in the Philippines’ favour on practically every point. However, China has refused to obey this legislation. So, this brings us to another important question—are FONOPs creating a precedent for countries like China to violate other countries’ territorial seas at will? Is this a potential threat for India as well?
The US, which justifies keeping tabs on the South China Sea region, does so by regularly conducting FONOPS to challenge China’s aggressive territorial claims and tussles in the South China Sea.
Certainly, this needs to be answered in the context of reforming existing laws. In particular, UNCLOS 1982 requires reform, especially with regard to its framework. The time has come for signatories of the UNCLOS to organise a new conference to examine legislation and settle disputes. The framework nature of UNCLOS means that “not all disputes have to be settled”; they can instead be “managed”. With caveats of the UNCLOS, we might sooner or later sufficiently
fail in preserving our global commons.
Lastly, in the context of the expanding India–US defence and security relationship, the FONOP incident of April 2021 certainly highlights the increased need for both USA and India to take into account each other’s sensitivities. Especially at a time when both countries are publicly seeking increased cooperation via strategic alliances like QUAD and Indo-Pacific Oceans Initiative, the Indian Navy should consider joint operations with the US Navy in the Western Pacific. Both countries remain committed to building a robust oceanic environment, and the possibility of joint operations must be evaluated in light of resolving our differences vis-á-vis the UNCLOS. Both nations have sought to downplay their differences, despite recriminations surrounding the FONOP off Lakshadweep.
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