In a move that has deeply embarrassed the Indian government, a guided missile destroyer from the US 7th Fleet transgressed into India’s exclusive economic zone on April 7. Later that day, the fleet commander issued a statement saying, “This freedom of navigation operation (FONOP) upheld the rights, freedoms, and lawful uses of the sea recognised in international law by challenging India’s excessive maritime claims.”
Indian Prime Minister Narendra Modi has long hailed the special relationship between the two countries, highlighting his efforts to elevate India–US engagement to new levels. The US’s unannounced naval incursion has raised questions about whether the bonhomie that characterised bilateral ties under former US president Donald Trump will be reset by President Joe Biden.
The Japan-headquartered 7th Fleet is the largest of the US Navy’s forward-deployed fleets, and its statement was widely perceived as unusual, even combative. The USS John Paul Jones “asserted navigational rights and freedoms approximately 130 nautical miles west of the Lakshadweep Islands, inside India’s exclusive economic zone, without requesting India’s prior consent, consistent with international law,” it said, adding: “India requires prior consent for military exercises or maneuvers in its exclusive economic zone or continental shelf, a claim inconsistent with international law.”
Curiously, the “international law” the statement refers to is the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which the US hasn’t signed up to because it disagrees with certain provisions. UNCLOS has been ratified by 167 countries, including India, plus the European Union, but not by the US.
“The US 7th Fleet’s statement that it was ‘challenging’ India seems a provocation, suggesting that Washington disregarded the enduring strategic partnership it enjoys with New Delhi.”
While a country may not be legally obliged to inform another before it enters that country’s EEZ, it has a diplomatic and political responsibility to do so, especially when the two countries are “strategic partners,” as India and the US are. Both are also committed, together with their Quadrilateral Security Dialogue partners Japan and Australia, to check just such unprovoked forays by China into the South China Sea and the wider Indo-Pacific.
Evidently, the 7th Fleet’s incursion into India’s EEZ wasn’t impulsive or accidental and very likely had clearance from higher US authorities, naval or political. The fleet’s statement that it was “challenging” India seems a provocation, suggesting that Washington disregarded the enduring strategic partnership it enjoys with New Delhi.
These aspects were borne out when a US Department of Defense spokesperson, addressing journalists in Washington on April 10, reiterated what was said in the official 7th Fleet statement, but made no mention of the violation of India’s EEZ, maintaining instead that the Arleigh Burke-class destroyer had conducted “innocent passage” through the Maldives’ “territorial sea.” This island state lies 335 nautical miles off southern India.
UNCLOS grants each coastal state exclusive sovereignty over its EEZ, which extends 200 nautical miles from its coast. India’s EEZ measures 2.2 million square kilometres. To safeguard this sovereignty, the convention allows the coastal state to take necessary measures, including boarding, inspection, arrest and legal action, to ensure compliance with international laws and regulations.
UNCLOS grants “right of innocent passage” to foreign ships through a country’s territorial sea, but that right is conditional. Such passage must be “continuous and expeditious” and “[i]f it involves stopping and anchoring, it should be only incidental to force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.”
Under UNCLOS, the passage of a foreign ship is considered prejudicial to peace and security of the coastal state if the vessel engages in activities that include “any exercise or practice with weapons of any kind,” “the carrying out of research or survey activities,” or “any other activity not having a direct bearing on passage.” However, UNCLOS has no agency for suo moto action against the offender, but leaves it to the aggrieved state to take matters up for arbitration.
The Indian government may well have downplayed the intrusion, as it has done in the case of China’s border violations since last May. But the 7th Fleet’s defiant declaration precluded any such possibility.
“Washington’s maritime violation represents its increasing inclination to take India and its allegiance for granted.”
In a rejoinder issued on April 9, two days after the 7th Fleet’s statement, India’s Ministry of External Affairs emphasised the government’s stated position that UNCLOS doesn’t authorise other states to carry out any military exercises or manoeuvres in another’s EEZ, “in particular those involving the use of weapons or explosives, without the consent of the coastal state”. It added that the US destroyer “was continuously monitored transiting from the Persian Gulf towards the Malacca Straits” and that the government had conveyed its concerns about this passage to the US government through diplomatic channels.
Both the 7th Fleet’s mention of “military exercises or maneuvers” in its statement and the foreign ministry’s reference to “the use of weapons or explosives, without the consent of the coastal state”, imply that this was no “innocent passage”. Neither party has said what transpired during John Paul Jones’ transit or what the Indian authorities did to identify and/or prevent it. If it indeed undertook a military manoeuvre, John Paul Jones unmistakeably violated international law.
But the incident raises a niggling question for India: is its government being viewed as weak and incapable of defending its sovereignty?
The American naval intrusion took place when the US’s Special Presidential Envoy for Climate John Kerry was in India to hold “consultations on increasing climate ambition” with Indian leaders, including Modi.
Only last November, units from the 7th Fleet participated in Exercise Malabar 2020 carried out by the Quad in the Bay of Bengal. Captain Steven DeMoss, commodore of the Fleet’s Destroyer Squadron 15, had then pronounced, “India, Japan and Australia form the core of our strategic partners across the Indo-Pacific.”
There has also been a flurry of activity involving India and the US in recent weeks on several fronts. On March 12, Biden hosted an online Quad leaders’ summit. A week later, US Defence Secretary Lloyd Austin visited India on his first overseas tour to signal the Biden administration’s strong commitment to the bilateral partnership. This was followed by a two-day bilateral naval exercise in the eastern Indian Ocean region. And, at the end of March, the four Quad partners were joined by France in a three-day naval wargame amid the growing efforts of China to expand its influence in the region.
Thus, while it may appear intriguing, Washington’s maritime violation represents its increasing inclination to take India and its allegiance for granted, and to underscore India’s status as a very junior partner. India has little option but to remain on the back foot.
Sarosh Bana is executive editor of Business India and the regional editor for the Asia–Pacific of Naval Forces, published out of Germany.