April 15, 2021
Whose water is it, anyway?
To: either/view subscribers
Good afternoon. Today’s feature story is a long read on ‘Freedom of Navigation’ on the High Seas. The US and India have different perceptions about the international law which permits free navigation on the high seas under certain restrictions. It has led to the recent controversy involving the US Navy’s activities in Indian waters.
📰 FEATURE STORY
US Navy’s intrusion in Indian waters
On April 7, 2021, the United States of America’s 7th Fleet warship USS John Paul Jones (DDG 53) entered into India’s exclusive economic zone (EEZ) without India’s permission to assert its navigational rights. India has protested this patrolling mission of the US warship with the US government.
Article 87 of the United Nations Convention on the Law of the Sea (UNCLOS), 1982, titled “Freedom of the High Seas”, states the following:
- The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
- freedom of navigation;
- freedom of overflight;
- freedom to lay submarine cables and pipelines, subject to Part VI;
- freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
- freedom of fishing, subject to the conditions laid down in section 2;
- freedom of scientific research, subject to Parts VI and XIII.
- These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
UNCLOS notes that an Exclusive Economic Zone (EEZ) of a country “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”
Article 58 of the UNCLOS deals with the rights and duties of other states in the EEZ, and provides the following:
- In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.
- Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
- In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.
While India has ratified the UNCLOS treaty, the US has not done so. However, despite not ratifying the treaty, US considers UNCLOS as customary international law and takes the lead in adhering to and enforcing the law.
US Navy’s assertion:
The Commander of US 7th Fleet issued the following statement titled “7th Fleet conducts Freedom of Navigation Operation” on April 7, 2021:
“On April 7, 2021 (local time) USS John Paul Jones (DDG 53) 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. India requires prior consent for military exercises or maneuvers in its exclusive economic zone or continental shelf, a claim inconsistent with international law. This freedom of navigation operation (“FONOP”) upheld the rights, freedoms, and lawful uses of the sea recognized in international law by challenging India’s excessive maritime claims.
U.S. Forces operate in the Indo-Pacific region on a daily basis. All operations are designed in accordance with international law and demonstrate that the United States will fly, sail and operate wherever international law allows.
We conduct routine and regular Freedom of Navigation Operations (FONOPs), as we have done in the past and will continue to in the future. FONOPs are not about one country, nor are they about making political statements.”
The US Department of Defense has a Freedom of Navigation (FON) Program which states the following:
“As stated in the U.S. Oceans Policy (1983), the United States “will exercise and assert its rights, freedoms, and uses of the sea on a worldwide basis in a manner that is consistent with the balance of interests” reflected in the Law of the Sea Convention. Some coastal States assert excessive maritime claims — that is, claims to maritime zones or jurisdiction that are inconsistent with the international law of the sea and, if left unchallenged, could impinge on the rights, freedoms, and uses of the sea and airspace guaranteed to all States under international law. The United States, however, “will not…acquiesce in unilateral acts of other states designed to restrict the rights and freedom of the international community.””
Under the FON program (also referred to as FONOPs), the US has been routinely passing through the EEZs of several countries including India, China, Brazil, Japan, Malaysia, South Korea, Vietnam and Taiwan. However, this is the first time that the US has publicized its unauthorized entry into India’s EEZ in real-time basis.
India refers to Article 58(3) of the UNCLOS to claim that warships need prior permission before entering the country’s EEZ. The relevant Indian law protecting India’s rights is Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones of India Act, 1976. Section 7(9) of the Act states the following:
“In the exclusive economic zone and the air space over the zone, ships and aircraft of all States shall, subject to the exercise by India of its rights within the zone, enjoy freedom of navigation and over flight.”
The Ministry of External Affairs issued the following statement titled “Passage of USS John Paul Jones through India’s EEZ” on April 9, 2021:
“The Government of India’s stated position on the United Nations Convention on the Law of the Sea is that the Convention does not authorise other States to carry out in the Exclusive Economic Zone and on the continental shelf, military exercises or manoeuvres, in particular those involving the use of weapons or explosives, without the consent of the coastal state.
The USS John Paul Jones was continuously monitored transiting from the Persian Gulf towards the Malacca Straits. We have conveyed our concerns regarding this passage through our EEZ to the Government of U.S.A through diplomatic channels.”
🕵️ BEYOND ECHO CHAMBERS
For the Right:
- Indians must read Ambedkar who said tyranny of majority is no democracy.
For the Left:
- Indian government’s recognition of allied healthcare professionals is a paradigm shift.
🗳️ ELECTION WATCH
(126 constituencies – 3-phase polls)
- The 10-party alliance led by Congress party has submitted a memorandum to the Chief Election Commissioner asking for steps to ensure a transparent, fair and smooth counting of votes on May 2. The memorandum mentions a slew of directives including the request for video-recording of all counting tables, allowing representatives of candidates at the entrance of the strong room, among others.
(140 constituencies – 1-phase poll)
- State Higher Education Minister and Minister of Minority Affairs K T Jaleel has resigned from the Pinarayi Vijayan-led Left Democratic Front government on Tuesday. A Lokayukta report found him guilty of nepotism and recommended his resignation for gross abuse of power while in office.
(234 constituencies – 1-phase poll)
- In the wake of the public apprehending two men carrying EVM/VVPAT machines on a two-wheeler during the day of polling, the Election Commission has ordered a repoll in a booth in Velachery constituency. The repoll will be held in polling station no. 92 on April 17 from 7am to 7pm.
(294 constituencies – 8-phase polls)
- Rezaul Haque, the Congress candidate for Samsherganj assembly constituency, has died of COVID-19. He was undergoing treatment at a hospital in Kolkata. The constituency will go to the polls in the seventh phase of elections in West Bengal to be held on April 26.
🏴 STATE OF THE STATES
OMG! (Uttarakhand) – Officials have stated that there are no plans to cut short the Kumbh Mela in Haridwar due to rising COVID-19 cases. Nearly 1300 people who participated in the Kumbh Mela have been infected with the virus so far. Despite fears of this becoming a super spreader event, authorities have noted that it will not be curtailed. The Kumbh Mela will continue till April 30 as planned.
Missing elixir (Rajasthan) – Reports have emerged stating that 320 doses of Bharat Biotech’s COVID-19 vaccine Covaxin has been missing from a cold storage facility at HB Kanwatia government hospital in Jaipur. The hospital has filed a First Information Report (FIR) with the local police, and the investigation is ongoing.
One up (Punjab) – Shiromani Akali Dal (SAD) has promised to give the Deputy Chief Minister post to a person from the Dalit community if elected to power in 2022’s Punjab Assembly Election. Bharatiya Janata Party (BJP), which was previously an alliance partner of SAD, followed suit saying that a Dalit person will be made the Chief Minister if it came to power. Punjab Chief Minister and Congress leader Capt. Amarinder Singh has called the promises of SAD and BJP as political gimmick but promised 30 percent funds under all schemes for the welfare of Scheduled Caste community.
🔢 KEY NUMBER
₹26,311 crore – Consolidated revenue from operations of Infosys in the quarter ended in March 2021. The operating profit in Q4 FY21 stood at ₹6,440 crore.