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
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
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
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
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.
The Wire 2-5-2016