Himanshu Saraout & Tahhira Somal*
The USS John Paul Jones carried out a Freedom of Navigation Operation (‘FONOP’) approximately 130 nautical miles west of the Lakshadweep Islands. According to the US 7th Fleet Public Affairs[i], the FONOP was asserted without consent on the Indian side to challenge India’s ‘excessive maritime claims’. The US’s position states that this was consistent with international law. On the other hand, according to a press release[ii] by the Ministry of External Affairs on the Indian side the position is that the UNCLOS does not authorize foreign military activities in the EEZ without the consent of Coastal States. In light of these recent events, this article considers the root of these contradictory claims by assessing the UNCLOS and customary international law surrounding freedom of navigation in order to think of a way forward.
Modern law of the sea has its roots in the European age of discovery and the associated legal developments in the navigational and property treatment of the high seas. Hugo Grotius, the father of International Law first articulated the principle most commonly known today as the “Freedom of Navigation”[i]. The argument made was essentially that ownership of the high seas was to be forbidden and every nation was to have completely unfettered navigational access. Over time, this principle took hold in the international family of nations and became recognized as the customary law of the sea. At the same time, the nascent principle of limited territoriality and sovereignty was in development[ii]. As opposed to claiming ownership of the whole sea, it was considered more reasonable and acceptable to have a certain limit of coastal waters be under the territorial sovereignty of the coastal state.
Territorial Waters and the High Seas
The exact limit of such waters was variously argued for, however in 1793 the cannon range rule advanced by Bynkershoeki.e. “the dominion of the land ends where the power of the arms ends”, was first practiced as three nautical miles in diplomacy[i]. By the 20th century, although a universally agreed rule of distance had not yet emerged as to territoriality, the bifurcation of the legal regime between territorial waters and the high seas was firmly in place. The freedoms of the high seas had become an entrenched and articulated principle codified in Article 2 of the High Seas Convention[ii] and further added to Article 87 of UNCLOS[iii]. Whilst not codified, free navigation of military warships on the high seas was indeed a well settled traditional component of such freedoms[iv]. Simultaneously, UNCLOS restricts territorial waters to twelve nautical miles[v]. This was the pinnacle of the codification of the extant customary regime of exclusive coastal state sovereignty in the territorial waters and complete freedom of navigation given the total absence of state sovereignty in the high seas. Furthermore, the right of “innocent passage” in territorial waters and “peaceful use” of the high seas was codified in articles 17 and 88 respectively[vi]. Other than precisely delineating and codifying principles of customary law, UNCLOS also introduced the EEZ and otherwise provided for other such maritime zones between the aforementioned dichotomy of territoriality and the High seas[vii]. Previously, the legal status of such zones was a vexed issue in law.
Whereas the mutual rights and liabilities of the parties were already well understood in customary law (and were codified more precisely in UNCLOS) the precise status of the intermediary EEZ is less clear.
Freedom of Navigation v. Sovereign Rights in the EEZ
It is in this context that the US is conducting freedom of navigation operations in India’s EEZ. The text of the treaty confers on the coastal state permanent sovereignty over the natural resources in the EEZ and other economic rights of exploitation and building of artificial platforms etc. under Article 56, subject to the rights of other states[i]. By virtue of Article 86, EEZ is explicitly not part of the high seas yet Article 58 incorporates all the provisions of Article 87 and makes them applicable to the EEZ, namely, freedom of navigation as the right of other states, it also incorporates Article 88 requiring “peaceful use” of the high seas. The interlocking regime gives coastal states limited economic sovereignty to the coastal state, the full weight of freedom of navigation to other states with the ambiguous limitation of making “peaceful use”. India in exercise of Article 310, made a declaration to the effect of making the “innocent passage” standard of use and access to the territorial waters applicable to the EEZ[ii]. Other states have opted to impose similar limitations in their EEZ. The United States claims this practice an “excessive maritime claim”[iii]. The complaint and the associated FONOP has to be considered under the conventional and customary parallel regimes to fully grasp the causes and consequences and potential remedies.
Within the UNCLOS regime, the key limitation on declarations as well as the application of the pertinent articles laid out above is that they are subject to provisions of the convention. The provisions have the effect of carving out separate areas extending outwards from the coast, diminishing in sovereignty and increasing in freedom of access. Interpreting the Article 88 requirement of “peaceful use” with Article 19(2)’s innocent passage exception for other states, has the effect of importing the territorial regime into the EEZ. It detracts from any meaningful distinction between the two zones and is unable to preserve the internal structure of the convention. On the other hand, a full unfettered reading of Article 87 with reference to the customary law and celebrated ICJ Jurisprudence in the Corfu Channel case[i] yields the understanding that it does not prima facie greatly perturb or depart from the provisions of the convention. The economic sovereignty detailed in Article 56 can be accommodated with the full force of Article 87 without necessitating prior consent rules. Therefore, it appears that the dynamic tension between Article 56(2) and 58(2) i.e. between Article 87 and 88 is more consistent with the FONOP intervention than the “innocent passage” rule. The precise delimitation of the boundaries was not contemplated in the convention text however neither was the destruction of the EEZ category via confusion and conflation with territoriality. Similarly, the declaration under Article 310 is strictly regulated by the aim of harmonizing UNCLOS with domestic law in a manner not inconsistent with the convention provisions.
Customary International Law
The United States has not ratified UNCLOS largely because the codification of rights and liabilities therein are already available and have been exercised and enforced by the United States as a matter of national policy since before the coming into force of UNCLOS[i]. In the ICJ Gulf of Maine case[ii] 1984, the opinion of the court implied considering UNCLOS as a codification of pre-existing customary international law. It is this regime that the US is more likely to be enforcing and upholding in the rules based international legal order than the minute details of India’s UNCLOS ascension. The non-treaty regime is much more fragmentary on the question of intermediary maritime zones without a clear balance of coastal sovereignty and third-party freedom. On the other hand, it also has much less respect for and historical state practice in honoring sovereignty (whether economic or otherwise) outside the territorial waters. The classical customary distinction is between the exclusive sovereignty and complete freedom. UNCLOS was in part a reaction to the unilateral expansions in the territorial limits in the post-world war period by various states in a fragmentary manner, for economic reason alongside worries that the abrupt end of the limit in as near as three nautical miles potentially exposes the shore to direct military bombardment by advanced hostile states[iii]. From a purely customary perspective, India’s claims appear as one such manifestation – a clear cut and considerable departure from extant rule sets and Juridical categories. At the same time, it may be argued that a completely unfettered Freedom of navigation beginning immediately outside the territorial waters is an unsustainable and unbalanced praxis especially as military technology has rapidly improved. As the UNCLOS prescribes (but does not define) the freedoms of the high seas are to have “due regard” for the rights of the coastal state among which is “peaceful use “of the EEZ.
The balance between the nexus of articles viz. Article 56(2) & 58(3), Articles 87 & 88 is ultimately set by the “provisions of the convention” with which the state activity has to accord to be legitimate. This entire saga exists to adjudicate the tenuous balance of the two state interests in the EEZ – where the ultimate judge as far as the conventional regime is concerned, i.e. UNCLOS, lacks the definition needed to know the nature and identity of the EEZ. In the absence of such knowledge, state interpretation has departed to the point that it makes the extant structure absurd and is therefore inferentially not preferable to the FONOP interpretation. However, the United states is operating with a customary law position which provides even less specificity and uniformity in handling intermediary zones like the EEZ. The existing FONOP praxis does not seem to disrupt the legitimate economic interests of the coastal state (at least under the UNCLOS regime) or to breach the peace but should it – the extent of the customary law remedy is unclear, indeed whether there is any at all. On the other hand, in the conventional regime, states are applying the “innocent passage” standard to the EEZ. The need of the hour is a unificatory regime at two levels – a more precise meeting of the minds of the states on the nature, authorizations and limitations within the EEZ and what kind of legal regime(s) are to be used and at what scale (bilateral, multilateral, universal).
About the Authors
Himanshu Saraout is an LLM student of International trade and investment law at OP Jindal Global University, India. He publishes regularly on various branches of international law and allied fields.
Tahhira Somal has a degree in Global Affairs from OP Jindal Global University, India. She has assisted on two books on India and US foreign policy. She is pursuing a degree in law with a concentration in International law. She is also a Board member of the Jindal Society of International Law.
[i]Jing Geng, The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS, 28 merkouriosutrecht journal of international and european law 22-30 (2012).
[ii] Delimitation of Maritime Boundary in the Gulf of Maine Area (Canada v. United States) (1984) ICJ Rep 165
[iii] Oceans & Law of the Sea United Nations, The United Nations Convention on the Law of the Sea (A historical perspective) UN (1998), https://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm. (last visited April 2, 2021)
[i] Case concerning Corfu Channel (United Kingdom v. Albania) (1949) ICJ Rep 4.
[i]UNCLOS, supra note vii, at art. 56.
[ii]Jing Geng, The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS, 28 merkouriosutrecht journal of international and european law 22-30 (2012).
[iii] George V. Galdorisi& Alan G. Kaufman, Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict, 32 CAL. W. INT’l L.J. 290 (2002).
[i] Leslie M. MacRae, Customary International Law and the United Nations’ Law of the Sea Treaty, 13 CAL. W. INT’l L.J. 181 (1983).
[ii]Convention on the High Seas art. 2, Apr. 29, 1958, UNTS 6465
[iii]United Nations Convention on the Law of the Sea (‘UNCLOS’) art. 87, Dec. 10, 1982, UNTS. 397
[iv]MacRae, supra note v
[v]UNCLOS, supra note vii, at art. 3.
[vi]UNCLOS, supra note vii, at arts. 17 and 88.
[vii]UNCLOS, supra note vii, at Part 5.
[i] Albert J Hoffmann, Freedom of Navigation, MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (2011), https://cil.nus.edu.sg/wp-content/uploads/2017/11/A.J.Hoffmann-Freedom-of-Navigation-EPIL.pdf.
[ii] Raul Pedrozo, Is it Time for the United States to Join the Law of the Sea Convention, 41 JOURNAL OF MARITIME LAW AND COMMERCE 151–166 (2010).
[i]Press Release, U.S 7th Fleet Public Affairs, 7th Fleet conducts Freedom of Navigation Operation (Apr. 6, 2021), https://www.c7f.navy.mil/Media/News/Display/Article/2563538/7th-fleet-conducts-freedom-of-navigation-operation/>
[ii] Press Release, Ministry of External Affairs, Passage of USS John Paul Jones through India’s EEZ (Apr. 9, 2021) https://www.mea.gov.in/press-releases.htm?dtl/33787/Passage_of_USS_John_Paul_Jones_through_Indias_EEZ