(Written by Aditya Manubarwala and Bhavyata Kapoor)
Oceanic trade accounts for 95 percent of India’s total trade by volume and 70 percent by value. A recent Freedom of Navigation Operation (FONOP) conducted by an American warship, the USS John Paul Jones, in India’s Exclusive Economic Zone (EEZ) on April 7, 130 nautical miles west of the The strategically important Lakshadweep Islands highlighted the limits of India’s sovereignty in the regulation of its EEZ and its relationship with customary international law and the United Nations Convention on the Law of the Sea (UNCLOS). The incident is a reminder that India must have effective regulation of the EEZ despite the inherent limitations presented by CIL and UNCLOS.
UNCLOS prescribes the EEZ as an area of the sea in which a sovereign state has special sovereign rights regarding the exploration and use of marine resources, including the production of energy from water and wind. . It extends from the baseline up to 200 nautical miles (370 kilometers) from the coast of the sovereign state. Likewise, the territorial sea (TS) according to UNCLOS, is an area extending up to 12 nautical miles from the base of a country’s coastline. The difference between the EEZ and the TS is that a State has full sovereignty over the waters included in the EEZ, whereas with regard to the EEZ, the State simply has exclusive sovereign economic rights over the substances within. the surface of the sea.
The Foreign Office opposed FONOP, calling it a violation of Indian law, which required the United States to provide advance notice before entering India’s EEZ. It is interesting to note that the law mentioned by the MEA – The Territorial Waters, Continental Shelf, Exclusive Economic Zones and Maritime Zones Act, 1976 (Indian Act), in particular section 7, which concerns the EEZ – does not do anywhere reference to any notice. The obligation of prior notification of a Foreign Military Vessel (FMV) to the MEA, in accordance with section 4 of the Indian Act, only exists when the GMF wishes to enter the Indian TS, which is of any kind. way a sovereign Indian territory. In addition, Article 58 of UNCLOS encapsulates the principle of freedom of navigation and innocent passage in the EEZ for all vessels, including a GMF, regardless of the consent of the coastal state. Thus, there is no doubt that the United States did not commit any illegality by entering the Indian EEZ without notice since according to the CIL, the freedom of navigation in international waters and in the EEZ is an inalienable right.
What would be the ramifications if section 7 of the Indian Act hypothetically imposed the requirement of prior notice on a FMV before entering India’s EEZ (non-sovereign Indian territory)? And would that be in line with international law and UNCLOS?
The United States is not one of the 168 parties to UNCLOS, yet the Reagan administration of March 10, 1983, by an executive decision on firmly anchored ocean policy and considered itself bound by the principles of UNCLOS, particularly in with regard to the limits of the EEZ being 200 nautical miles, the exclusive sovereign economic rights of the coastal states in the EEZ, and the freedom of navigation, etc.
The International Court of Justice (ICJ), by its decision in Regarding the delimitation of the maritime boundary in the Gulf of Maine region (Canada / United States) , through. 94 and in Libya v Malta , through. 34, attributed the principles of the EEZ to Articles 57 and 58 of UNCLOS as CIL. Interestingly, the United States also grants CIL status to UNCLOS as a whole. It is a well-established principle of international law that the CIL is modified by the principle of State practice, which was established by the ICJ in the Case of the North Sea continental shelf .
In a nutshell, state practice occurs when a number of states act in a uniform and consistent manner over a period of time in a manner induced by the belief that to act in that particular manner is obligatory. To determine whether a principle has acquired the status of state practice, it is necessary to closely assess the evidence as reflected by the particular actions of sovereign states. Once a specific action reaches the status of state practice, it is ipso facto recognized as CIL. Any violation of the CIL is prohibited by international law, the violation of which is determined by the ICJ. Eighteen UNCLOS states have imposed some or other form of restrictions / regulations on FMVs intended to enter their EEZs. Interestingly, India, China, Bangladesh, Brazil, Pakistan, and Indonesia all fall under the category of the world’s 10 largest navies, indicating a clear and persistent state practice among countries. having large navies and long coasts of regulated JVM access in their EEZ. Without a doubt, the United States is also in the aforementioned overall list of the 10 best navies.
A good argument can be made against the United States being bound by coastal state regulations regarding GMF access into the EEZ. In addition, imposing a notice before access to the EEZ is in no way contrary to the principles of freedom of navigation enshrined in the CIL because it in no way restricts the right of a GMF to access the EEZ. It simply gives them a mandate to inform themselves beforehand before their arrival. Since states have sovereign economic rights to the EEZ, they could engage in economic exploration activities in a particular section of the EEZ, which could very well be disrupted by a large inbound FMV, thus infringing on their rights. sovereign economies. A GMF providing advance notice of its arrival could help the state plan its economic exploration in advance, thus balancing the sovereign economic rights of states with the CIL rights of the GMF.
India must amend the Indian Act to require JVMs to provide advance notice before entering its EEZ. In doing so, India would be fully within its rights under UNCLOS and State practice under the CIL, while not in any way violating the principles of freedom of navigation enunciated by the ICJ. in the Nicaragua case. India would have a good arguable case against non-UNCLOS parties like the United States under this amendment given the CIL status assigned to UNCLOS duly tempered by the principle of state practice.
Manubarwala, lawyer at the Supreme Court of India, formerly Special Advisor on International Law to the Office of the President of Afghanistan; Kapoor is a lawyer at the High Court of Punjab and Haryana