These Freedom of Operations are also meant to assert that the oceans are ‘global commons’ and therefore there is no restriction on the presence of warships of any country
By Commodore Anil Jai Singh
One of the defining features of the USA’s displeasure at China’s belligerence and domination of the South China Sea has been the frequent Freedom of Navigation Operations (FONOPS) undertaken by US Naval warships in the South China Sea and also the Taiwan Straits. These have repeatedly drawn China’s ire as it views this as a transgression of its maritime sovereignty. However, this has not deterred the USA and is often viewed as a prelude to the inevitable confrontation between the two navies that is anticipated sooner rather than later. These FONOPS are also meant to assert that the oceans are ‘global commons’ and therefore there is no restriction on the presence of warships of any country. It is also an expression of the importance being attributed by the ‘arc of maritime democracies’ which also includes India and the other members of the Quad to a Free and Open Indo-Pacific (FOIP) and the maintenance of a rules-based international order.
It therefore came as a surprise when the USS John Paul Jones, a US Navy guided missile destroyer, undertook a Freedom of Navigation patrol west of India’s Lakshadweep islands. The statement that followed from the US Seventh Fleet that this operation was “…inside India’s Exclusive Economic Zone, without requesting India’s prior consent , consistent with international law” raised more than a few eyebrows. Infact, the statement went on to suggest that India had unlawful maritime claims which led India’s Ministry of External Affairs to respond with due indignation stating that “we have conveyed our concerns regarding this passage through our EEZ to the Government of USA through diplomatic channels.”
This incident has raised many issues, not least being the ambiguities and interpretations that exist in defining the right of passage of warships in the oceans as stated in the UN Convention on the Law of the Sea (UNCLOS) 1982, the guiding document for ensuring a rules-based order at sea. The UNCLOS, which has been accepted by most nations was ratified by India in 1995 but the United States, which champions the cause for a rules-based international order has yet to ratify it. India’s stance has been that while it has no objection to warships taking passage through its EEZ, it should be done with prior notification. Apparently, the USA does not think that is necessary and considers it “inconsistent with international law,” the very law it has chosen not to sign even four decades after its promulgation.
The USA also went on to say that this is not the first time it has undertaken a FONOPS in the Indian EEZ. If that is indeed true and there is little reason to believe it is not, it raises three important issues; firstly, has it on previous occasions also done so without informing India; secondly, if it has done so, has India turned a blind eye and was forced to raise its concern this time only because the USA chose to make a statement and thirdly, if this has been happening in the past, what provoked the USA into making such a strongly worded statement? In any case, it is a poor reflection on India’s much vaunted strategic autonomy, its credibility in ensuring adherence to its stated position on the use of its EEZ and perhaps most importantly, on the ‘strategic‘ depth of the US-India relationship which has been described by leaders on both sides as the ‘defining partnership of the 21st century.
This is of even more significance in the maritime domain where this relationship is underlined by the frequent bilateral and multilateral engagement at sea between the two navies and the four foundational agreements signed over the last few years which are meant to further cement this relationship.
It is also significant that never before in all these years has the USA even broadly hinted that India’s conduct is “inconsistent with international law” despite frequently operating in and transiting through the Indian Ocean. Infact, the tone and tenor of the statement could lead one to believe that the reference was to a competitor rather than a partner, notwithstanding the US assertion that there was nothing unusual about it. Till now, India has been firmly on board with the US on criticising China’s flouting of the rules-based order and disregard for UNCLOS. It now finds itself in the uncomfortable position of not only being subjected to the same by the US but also being humiliated by the language used in the statement. For years now, senior military and defence functionaries from the USA have been visiting India and waxing eloquent on India’s importance in the Indo-Pacific. There have been repeated efforts by the US to involve India in its South China Sea imbroglio by participating in joint patrols with the US Navy to counter Chinese belligerence which India has resisted and rightly so.
It may be recalled that the US Defence Secretary had visited India less than a month ago and both sides had commented on the warmth of the interaction. While thorny issues like the imposition of CAATSA were neatly sidestepped during the deliberations or so it seemed from the statements that emanated from his visit, this unusually strong statement after the current FONOPS could not have been made without the approval of the US political leadership and in particular the Defence Secretary coming as it did so soon after his visit to India in the third week of March. Infact, he may well have been aware that this was going to follow.
One cannot but have a passing thought that this might have been a message to India which hosted the Russian Defence Minister Sergei Lavrov less than three weeks after Lloyd Austin’s visit. This visit included discussions on the issues related to the space, nuclear and military domains. India has often reiterated its intent to proceed with the acquisition of the S-400 system that the US is so vehemently against. India has a long-standing relationship with Russia, which though less strategic and more transactional than the one with the former Soviet Union still has strong strategic underpinnings. The Indian military still has a large Russian inventory. The Brahmos missile, arguably amongst the best in the world is a highly successful joint Indo-Russian development; the USSR/ Russia has on two occasions leased India a nuclear attack submarine with a third that may follow which is unprecedented with no other country having ever done so. While the USA, with sales of over USD 20 Bn worth of contemporary military equipment has considerably enhanced India’s combat capability, it has also created a vulnerability and an import dependence since little or no transfer of technology has followed.
Why the USA has chosen to make such a strong statement on the FONOPS it undertook 130 miles west of the Lakshadweep islands in India’s EEZ and thereafter publicly highlighted that is “consistent with international law” thus suggesting that India’s position is ‘inconsistent’ has cast a shadow on the relationship that was supposed to be on an unprecedented upward trajectory. It has underlined the fact that US national interest reigns supreme which is par for the course but the lack of sensitivity in undermining India’s stance on the UNCLOS with such an unexpected public statement has certainly flummoxed many.
China has often questioned the legitimacy of the US-led rules based international order in the maritime domain, and not without reason if one were to look at US actions in the region in the last seven decades or so. After this incident, India could well be thinking the same.
Strategic autonomy is the cornerstone of India’s foreign policy and as a responsible democracy, it has every right to make its own choices which the world should respect. This incident has clearly shown that for it to be credible, it must be backed by adequate national power or it risks being undermined time and again as has been done so blatantly in this case.
(The author is Vice President of the Indian Maritime Foundation, and a former submariner. Views expressed are personal and do not reflect the official position or policy of the Financial Express Online.)