Deter Adversaries, Don’t Alienate Friends

Context: United States has risked alienating India as an ally by conducting patrolling in the Indian Exclusive Economic Zone (EEZ) in the western Indian Ocean.

Background on United Nations Convention on the Law of the Sea, 1982:

• UNCLOS 1982 were essentially a struggle between the “haves” (the established European and North American maritime powers) and the “have-nots” — the emerging “third-world” — who began to stake their legitimate claims on the usage and wealth of oceans.
• Thus, to bring order to the situation of a confusing law, conferences for codifying laws of the seas were convened by the United Nations. It formalized the following maritime zones:
  • A 12-mile limit on the territorial sea;
  • A 24-mile contiguous zone; and
  • A newly conceived “Exclusive Economic Zone” (EEZ) extending up to 200 miles within which the state would have sole rights over natural resources.
• It was accepted that the seabed beyond the limits of national jurisdiction was not subject to national sovereignty but would be “the common heritage of mankind”.
• India has ratified the Convention, which came into force in 1994.

Issues with UNCLOS:

• Retaliated by the US: The US has not ratified the Convention and, thus, in the absence of any overseeing authority, has arrogated to itself a ‘global cop’ role.
• Signatories have chosen to remain silent on controversial issues with military or security implications and mandated no process for resolution of ambiguities.
  • Many states have expressed a preference for “negotiating in good faith”, instead of resorting to the International Tribunal for the Law of the Sea or a Court of Arbitration.
• Sharp divergence in the interpretation of the rules: Applicability of the EEZ concept to rocks and islets; the right of innocent passage for foreign warships through territorial seas; conduct of naval activities in the EEZ and the pursuit of marine scientific research in territorial waters and EEZ.

Way forward:

• FONOP campaign needs a careful reappraisal by US policy-makers: So that it doesn’t alienate friends (India) instead of deterring adversaries (China).
  • Thus, a rule-based maritime order needs to be strengthened in order to check China’s aggressive intent in controlling the South China Sea (SCS), which included creating artificial islands and rejecting the verdicts of international arbitrations.