India, US and an eastward tilt

On an ordinary globe, India and the United States cannot be seen together, so far apart are they that when it’s daylight here it is night there. Yet, preachy, noisy democracies have a strange pull for each other. They now say that they are in the process of establishing a strategic relationship, which the cheerleaders declare will be the defining partnership of the 21st century. The facts on the ground suggest, however, that both sides continue to hedge and the framework of the relationship remains somewhat rickety.
The US is pressing India to sign a number of what it calls “foundational agreements” to operationalise India’s military commitments implicit in the Joint Strategic Vision for Asia-Pacific and the Indian Ocean arrived at during President Barack Obama’s visit to New Delhi in January 2015. Following the recent visit of US defence secretary Ashton Carter, it was announced that the two sides were close to signing a logistics support MoU, one of a raft of technical agreements aimed at bringing the militaries of the two sides to the point where they can operate together seamlessly.
There is, clearly, in the case of the US, a disconnect between the almost brash Pentagon wooing of India and the more sophisticated approach of the US Department of State, which says that the very existence of a stronger and economically vibrant India will serve US interests.
 



From the Indian point of view, there is another disconnect — between US eagerness for Indian participation in action in the South China Sea, and its lukewarm approach to an Indian connection in Afghanistan or, for that matter, the Persian Gulf and the Saudi peninsula.
Technically, the Joint Strategic Vision ought to cover the region, but the reality is that India is dealt with in the US politico-military system by the Pacific Command, headquartered in Hawaii, and whose responsibilities extend up to Diego Garcia. Beyond that, the Central Command, headquartered in Florida, “looks after” the Persian Gulf, Central Asia, Afghanistan and Pakistan. When we do military cooperation, the Indian Ocean does not quite include the northern Arabian Sea and the Persian Gulf.
However, both from the geo-economic and geo-strategic view, this is the most important external region for India’s security. We source 70 per cent of our oil from there, and 7 million Indian citizens working there send back $30 billion in remittances. As our energy needs increase, this area will only become more important. In the past, we have had to carry out large-scale evacuations of our nationals because of war-like situations in this region, most recently from Yemen in 2015.
The prognosis for the stability of the whole region is not particularly good. Yet, somehow, there are no drills, joint exercises or planning between the US, which is the dominant power, with a fleet headquartered in Bahrain, and India for conflict contingencies. It is a bit odd that all the exercises and activities take place in the east, which is largely stable and peaceful and none in the area may actually require cooperative military action. Whereas in East Asia, we are building trilateral partnerships with the US and its other partners like Japan, Australia and South Korea, in the Persian Gulf and Saudi peninsula, we appear to be ploughing a lonely furrow.

 Given the rapid rise of China and our own considerable difficulties with Beijing, having the US as a security partner is useful. With its million-man army and nuclear weapons, India does not really need the US for its existential security, certainly not from any direct threat from China. But we do need partnerships and coalitions to enable us to maintain a secure periphery that includes a region which will literally provide the fuel for it.
The US, for its part, wants India to play a role in creating a balance of power to keep China in check in East Asia. China may be well ahead of India in almost all measures of what is called comprehensive national power. But, India is the only country in Asia that can offset the massive gravitational pull of China. Yet, beyond the need to have open sea lanes in the South China Sea, India has little or no interest in facing off with Beijing in the area. Given its huge external trade, the biggest loser from any disruption would be China itself.
The success of a sound India-US partnership is to clearly think through some of these issues. The trick is not to be overwhelmed by rhetoric and keep national interest firmly in mind. The US, let’s be clear, is seeking Indian friendship to maintain its primacy in the world system. India, in turn, needs the US as a guarantor of a secure and stable world system, but especially as a security provider in the Persian Gulf region, where we have no military capacity.
So while the overall tenor of our relationship is excellent and we have growing convergence in East Asia, there is need to focus on the huge gap that exists in relation to the most vital area of our external interest.
Indian Express May 23, 2016

All eyes are on President Mukherjee's China trip

On Tuesday morning, President Pranab Mukherjee leaves for a four-day visit to China, the first by a President since 2010. At one level, the visit is a protocol response to that of President Xi Jinping to India in 2014. At another, it seeks to convey the intention of the two countries to maintain the tempo of high-level visits to each other’s countries. 

In 2014, Vice-President Ansari also visited China, and in 2015, the Chinese Vice-President Liu Yuanchao came to India and Prime Minister Narendra Modi went to China. Later this year, Modi will visit Hangzhou for the G-20 summit and Xi will come to Goa for the BRICS meet. 

Initiative 

The President of India is a largely ceremonially figure who must by law conduct himself at the advice of the government of the day. So, he is unlikely to undertake any negotiation or initiative on his own. But, as a seasoned politician, the President is not just an elder statesman, but an experienced hand in government who is fully cognisant of the issues of the Sino-Indian relations. 

In line with this, the government is using his visit to convey to Beijing that notwithstanding recent glitches relating to the Uighur visas, the Masood Azhar controversy, and the NSG contretemps, India attaches great importance to its relations with China and seeks a cooperative and mutually beneficial relationship at all times. 

The President will be prepared to take up a range of subjects with Beijing, but he will also wait for cues from the other side before taking up some of the issues. In other words, he will not want to put across that India is defensive about some policy measures, even while being ready to discuss any concerns the hosts may have. 

Another aspect of the visit will be to enhance the Sino-Indian business relationship - and to this end, in Guangzhou, Pranab will meet with Indian and Chinese business leaders and reinforce India’s commitment to better trade and investment relations with China. 

His message will be that India is open for business and warmly welcomes Chinese investment in all sectors of our economy, where it will find a level playing field. 

At a more practical level, in his talks with Premier Li Keqiang he will, no doubt, raise the important issue of righting the current imbalance of trade in favour of Chinese exports to India which is hurtful for the overall relationship. 

At the strategic level, he is expected to put across India’s policy perspectives, in particular its relationships with the US and Japan. India, he will convey, has no intention of being part of any “containment” of China.  

On the South China Sea, India does not take sides, it stands for the freedom of navigation and the right of overflight, and believes in the peaceful settlement of disputes. 

Counter-terrorism 

India would like to cooperate with China on all aspects of counter-terrorism and expects action on issues like the naming of Masood Azhar by the UN sanctions committee. 

India wants Chinese support for its membership of the NSG without being being bracketed with Pakistan. 

India would like to work together with China on Afghanistan, but would like greater clarity on Beijing’s policy. 

Beyond the visit, lies New Delhi’s efforts to find an equilibrium in its relations with China. Recent events have revealed a strange gaucheness. The decision to invite a cross-section of Chinese dissidents, Uighur nationalists and Falung Gong members for an aborted event at Dharamsala, the abode of the Dalai Lama and the Tibetan government- in-exile, seemed aimed at poking Beijing in the eye. 

So was the decision (now rescinded) to send two representatives for the inaugural of Tsai Ing-Wen, the new President of Taiwan. 

Unhappy 

China has not been very comfortable with the Joint Strategic Vision for the Asia Pacific and Indian Ocean that India has declared with the US. While it made its unhapiness known to the US, India, Australia and Japan over quadrilateral naval exercises iin 2007, it has not protested the Malabar trilateral exercises that India, US and Japan conduct. 

In fact even as the President is in China, Indian naval ships will be in a two-and-a-half-month deployment in the South China Sea and the North West Pacific. 

They will make several port calls and participate in the latest iteration of the Malabar Exercise off Okinawa. India’s desire to get even with China is understandable. Beijing has used Pakistan for the offshore balancing of India and broken some of the greatest taboos of the international system by supplying nuclear weapons and missile designs and materials. 

In the name of non-interference in other’s politics, China has given cover to Pakistan to abandon the state sponsorship of terrorism. 

India fears that in the next phase China will supply ballistic and cruise missile capable submarines to Islamabad. 

India by itself lacks the military and economic muscle to deal with China, hence its outreach to Washington and Tokyo. But both these countries have a many-layered and denser relationship with China than we have. So there is need to exercise a degree of caution. 

Mail Today May 22, 2016

Mending fences with our neighbour

For a moment in 2014, it appeared that India had reset its relationship with Nepal. During his visit, the first by an Indian PM in 17 years, Narendra Modi put himself across as an Indian leader who had no desire to interfere in the country’s complicated political affairs. He said as much in his speech to the Constituent Assembly. This was music to the ears of the Nepalese, who are ever sensitive to signs of overweening conduct of the Indians.

Two years later, the relationship seems to be in a meltdown phase. Nepal recently called off a visit of its President Bidya Devi Bhandari and sacked its ambassador to New Delhi. Modi has cancelled his planned visit to attend the Buddha Purnia celebrations at Lumbini on May 21. These actions are in response to a revolt against Prime Minister KP Sharma Oli, who heads a coalition comprising his Communist Party of Nepal (Unified Marxist Leninst) and that of the United Communist Party of Nepal (Maoist) headed by Pushp Kamal Dahal ‘Prachanda.’
The hallmark of a regional power is the ability to shape the policies of countries in your neighbourhood in your own favour. By this measure, we are not doing too well. We have already had difficult relations with China, Pakistan and the Maldives, and now we have Nepal. Sri Lanka remains on the brink and, as for Bangladesh, our ties there depend on who runs the government.
Because it takes two hands to clap, New Delhi cannot be blamed for all the problems. The issue is not culpability, but the consequences that India must face. In each country of our neighbourhood, barring Bhutan, we are challenged by the rising power of China, which has the drive and the money, and is determined to shape the policies of the countries in its neighbourhood to our detriment.
Geography has locked Nepal into India and, given the asymmetry of size, the former is always apprehensive of the latter’s power. Given this situation, it is New Delhi’s responsibility to manage the relationship with its prickly neighbour. Anti-Indianism is a staple of Nepali politics, but effective handling can make it go away, just as it did in the period 2006-2014.
The current problem has its origins in the political chicanery by Nepal’s mainstream political parties who got together to introduce a Constitution in 2015 that was weighted against the Madhesi people of the Terai region, many of whom have ties of consanguinity with India. The Madhesis thereafter launched an agitation, supported by India, to blockade Nepal.
Uncharacteristically, India woke up to this constitutional sleight of hand too late and rushed foreign secretary Subrahmanyam Jaishankar to Kathmandu to urge the Nepalese parties to rethink but it was just too late.
CPN (UML) leader KP Sharma Oli, who became the prime minister of the country, took a hardline against the agitation and accused India of fomenting it. Only after efforts to rope in China to aid Nepal failed, did Oli and his associates agree to make a deal with the Madhesis on the issue of provincial boundaries and proportional participation of the plains people in the life of the country.
Oli’s six-day visit to New Delhi in the end of February to remove the “misunderstandings” did not go too well. Though various agreements were arrived at, especially for reconstruction assistance relating to the 2015 earthquake, both sides remained suspicious of each other. Their assessment was based on the plank of ultra-nationalism that Oli was adopting, depicting the Madhesis as agents of India.
Circumstantially, a case can be made out to see New Delhi’s hand in the effort to replace the troublesome Oli with a friendlier face, even if it was that of Prachanda (fierce), the Maoist leader. After a week-long visit to New Delhi in mid-April, the leader of the pro-India Nepali Congress, Sher Bahadur Deuba went back and offered to support a coalition led by Prachanda, if he agreed to walk out of the coalition with Oli.
Initially, Prachanda ageed and threatened to withdraw support from Oli, but later he backed off when he realised he didn’t have support within his own party. In exchange, Oli agreed to give amnesty for Maoists for crimes committed during the insurgency.
India-Nepal relations now seem to be in a freefall. Being joined at the hip, they cannot afford this situation. As the bigger party, New Delhi needs to act to retrieve the situation without necessarily pandering to Oli. In supporting the rights of Madhesis, New Delhi occupies the moral high ground, as well as serves its own interests of cementing its support among people who look to New Delhi for succor. But what is needed is effective political leadership in management of what has always been a difficult relationship.
Mid Day May 10, 2016

India needs to get real about its borders

The proposed government law on maps is yet another example of how Indians tend to accept symbolism as a substitute for reality. In this, the Modi government has proved to be no different from its predecessors. When confronted with a terrorist attack in Pathankot, it fought a mighty diplomatic battle in a UN committee and with China - instead of frontally dealing with the problem. 

The Bill 

Now, unable to resolve border disputes through negotiation and compromise, it has decided to solve the problem by passing a law which will prevent Indians from knowing that their borders are not recognised, as we would like to have them, by most countries in the world. 

 No matter what the Home Ministry (MHA) says about regulating geospatial information, it is actually the government’s long-standing neuroses over how India’s borders must be depicted that motivates the new law. 

Indian geospatial policy is a mess, with competing platform and services, and over-ridden by 19th century security concerns. 

In an era when the latitude and longitude of every point can be measured by the satellite-based GPS, India hesitates in giving digital map access to public. The MHA will argue that the main aim of the Bill is to set things right and create a regulated use of India’s geospatial information. 

But the ambition of the Bill is stupefying - all maps and changes to them will have to be vetted by the government. Companies that rely on geospatial services, whether or not they operate in India, will have to get a licence “to disseminate, publish or distribute any geospatial information of India outside India”, from the to-be-established Security Vetting Authority. 

The real motive of the Bill emerges from its drastic penalties for the display of information that is likely to affect the “security, sovereignty or integrity” of the country. 

But since when does a line on a map affect anything? Recall, the Mumbai attackers found their way to their targets in 2008 using commercially-available GPS devices purchased abroad. 

As of now, the rules are an irritant; magazines like The Economist are forced to black-out maps showing the Indian borders as they really are. But with the new law, instead of digitally connecting with the world, India may isolate itself from it. It is not the data which is a threat, but the people who misuse it. Surely, the MHA needs to focus on those people, organisations and entities and not create a regime in which a food delivery service is penalised because the maps they use have India’s boundaries in a particular way. 

History 

Forcing people to accept the official boundary has an old history in India. In 1948, a year after independence and in 1950, the government of the day issued a White Paper to define what “India” was all about from its component states upward and beginning with the advent of the British into India and detailing every aspect of the new successor entities including the privy purses given to the erstwhile rulers of princely states. 

Attached to it was a map, presumably authoritative, which showed India’s boundaries with China. In the north, from the Afghan to Nepal, the map was marked “border undefined” along the area that India believed was its border. In the east, the boundary including Arunachal Pradesh to India was clearly laid out, though the notation said “border undemarcated”. And of course, Sikkim, Bhutan and Nepal were shown as entities outside India. 

In 1954, Pandit Nehru’s border policy began to come apart so he decided that India would unilaterally stake out its border. All old maps, including the ones attached to the White Papers, were seized, and new maps were issued showing the borders as we see them now. 

Borders 

But, of course, this did not convince the Chinese or anyone else that the borders India had unilaterally drawn up were sacrosanct. They maintained their pressure and seized even more territory in Aksai Chin - though fortunately for us, they captured and returned Arunachal Pradesh. 

The border now is defined by a notional Line of Actual Control. No country in the world accepts the version of the border that India depicts on its maps, especially in Jammu & Kashmir. They believe that the final Sino-Indian and India-Pakistan border in Kashmir must be worked out through negotiation. 

In these circumstances, the new geospatial law could create endless problems for India and Indians. It could lead popular services like Google and Facebook to exit India, and deter others who want to offer geospatial services in the country. 

Though, ironically, geolocation technologies can ensure that when you open Google Maps in India, it shows the boundaries the way Indians want it; when you open the site elsewhere, it shows the real picture. 

Hopefully, the Ministry of Home Affairs has made a realistic assessment of India’s clout before going on to tilt the global geospatial windmills. But first, it should ask itself whether symbolic sleight-of-hand will give us the borders we want. 

Mail Today May 8, 2016

Swamy’s Attack on Brajesh Mishra Was Reprise of Old Feud

Brajesh Mishra and the US secretary of defence, Donald Rumsfeld, 2001. Credit: Helene C. Stikkel

You can trust Subramanian Swamy to lower the quality of any discourse, stir up the basest instincts, and stoop to the lowest level possible on any issue. His attack on Brajesh Mishra, barely disguised as innuendo, was missed by most reporters of the Augusta-Westland debate in the Rajya Sabha on Wednesday. Surprisingly, no one from within the BJP or NDA has chosen to speak out in defence of one of Atal Bihari Vajpayee’s closest aides.
Responding to the point by the Congress’s Abhishek Manu Singhvi that the height requirement of the Augusta helicopter was lowered in 2003 by Brajesh Mishra in 2003 who was the principal secretary to  Prime Minister Atal Bihari Vajpayee. Swamy noted, according to the uncorrected transcript of the Rajya Sabha proceedings,

“The question was raised as to who lowered it and they quoted Mr. Brajesh Mishra, who was a civil servant in the NDA Government. Of course, he was decorated by them. They gave him Padma Vibhushan, one less than Bharat Ratna. I was just wondering as to what was the service that required him to be given such a high honour. One day, I will discover it.”

The late Brajesh Mishra had his critics, but no one called him a Congress agent or even corrupt. He was doggedly loyal to the man he served as principal secretary and national security adviser, Atal Bihari Vajpayee who valued his judgment and advice enormously. And that is perhaps the reason for Swamy’s ire.
It is no secret that Swamy hates Vajpayee, a feud that apparently goes back to the days when the Janata government took office after the defeat of Indira Gandhi in 1977.
Swamy has never forgiven Vajpayee for ensuring that he was not a full-fledged cabinet minister in the 1977 Janata government. Search “Swamy and Atal Bihari Vajpayee” in Google and you will find many old items and statements allegedly authored by Swamy making the most vulgar attacks on the former prime minister. Indeed, as this India Today story reveals, in March 1999, he held a tea party in Delhi where Sonia Gandhi was his guest of honour. The main aim was to bring down the Vajpayee government.
As long as Vajpayee was at the helm of the BJP’s affairs, there was no room for Swamy in its ranks. Those days are over and we have still to see what the post- Vajpayee BJP will deliver. All we can say is that it has huge shoes to fill and Prime Minister Modi knows that. Whenever he is confronted with a major problem – Kashmir, Pakistan or the nuclear issue, he invokes the Vajpayee legacy.
The irony is that when Swamy attacks Mishra, he is targeting the person who deserves the greatest credit for the achievements for which the Vajpayee government is remembered even today.
The aim of this write up is neither to analyse the Augusta deal, or to paint Swamy blacker than he already is. It is to point to the remarkable role played by Mishra, a role which was so full of achievement and, yet, balanced and sober, that even the successor UPA government saw it fit to honour him with a Padma Vibhushan.

Atal Bihari Vajpayee and Brajesh Mishra (R). Credit: PTI

To set the record straight, Brajesh Mishra was no “civil servant in the NDA government.” Since 1991, he had been a member of the BJP and its foreign policy cell where he grew close to Vajpayee who soon learnt to rely on his judgment and advice. Mishra formally resigned from the party to take up the office of principal secretary that Vajpayee offered him as soon as he formed his second ministry in New Delhi.
Prime Minister Vajpayee was an instinctive politician who had a unique ability to grasp an issue issue quickly, but thereafter he let his subordinates deal with the details.  Foremost among these was Mishra.
Perhaps Mishra’s greatest professional accomplishment was to ensure that India successfully carried out the nuclear weapons tests of May 1998. It was Mishra’s primary responsibility to coordinate the entire exercise once the PM ordered the tests and he did so brilliantly – ensuring total secrecy and surprise. Subsequently, Mishra shaped India’s nuclear policy and doctrine, wearing the additional hat of NSA.  Most people would consider Mishra’s post-Pokhran diplomacy as his finest hour. He managed to mollify Beijing which was upset by Vajpayee’s letter (drafted by Mishra) to the US president blaming China for the nuclear tests. He was able to blunt and then turn around the US anger and outflank European and Japanese  who were not happy with the Indian tests.
Mishra played a key role in working the finer details of Prime Minister Vajpayee’s bold Kashmir policy which nearly managed to get the militants to declare a ceasefire. Vajpayee’s repeated calls for resolving the Kashmir issue on the basis of “insaniyat” was accompanied by policy measures effected by Mishra which ensured that the 2002 state assembly election, fought under the shadow of guns, was considered the freest ever and went a long way in ensuring that the Pakistani effort to roil the state through the Kargil operation failed.
Indeed, the management of the Kargil crisis, itself, brought out Mishra’s capabilities, as did the post parliament house attack developments in 2001. But even more striking was his stewardship of Vajpayee’s Pakistan policy to which Mishra helped the prime minister to stick on to through thick and thin and finally deliver, first, the ceasefire on the Line of Control which still holds, and second, the dialogue process with Islamabad which was subsequently taken up by the Manmohan Singh administration.
People should not forget, either, the breakthrough in the policy towards China which was crafted by the Vajpayee-Mishra duo. Agreeing to resolve the border issue on a political plane was a key shift which, once again, brought us within close sight of a possible border settlement with China, manifested in the agreement on the political parameters and guiding principles of a border settlement in 2005.
Like all men, Mishra, no doubt made mistakes such as mis-handling the Kandahar hijack or the 2002-3 crisis with Pakistan, but it must be said of him, that he was painting the big canvas. The events that he handled and the things he did reverberate in our contemporary history and whose benign consequences will be there for a long time.  Not many people have had such an opportunity to serve their country. When weighed in the balance of real life achievements, Mishra’s, to paraphrase a Chinese saying, are heavier than Mount Tai. Swamy’s will always remain lighter than a feather.
The Wire 5/5/2016

What “Excessive Maritime Claims” is the US Challenging India Over?

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 permission.
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 resources.
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 EEZ.

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.

Delineation of zones under the UN Convention on the Law of the Sea. Credit: Wikimedia

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 territorial seas.
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