HAVING endorsed US Freedom of Navigations on the South China Sea, the Indian government had a rude awakening. It discovered, from a US Seventh Fleet announcement on its website, that the US had conducted a similar Freedom of Navigation Operations in India’s Exclusive Economic Zone (EEZ) around Lakshadweep on April 7. This was done without requesting India’s prior consent. The US has identified many such ‘differences” with India and has conducted FONOPs in these areas in the past as well.  It reports its FONOPs every year to the US Congress.

The US believes its warships, carrying even nuclear weapons, have the unfettered right to carry out military exercises and manoeuvres without the consent of the coastal states. India, as many other countries, does not believe that the existing international law gives any country this right. India has enacted a law – The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 – to explicitly codify what it believes its rights are. The US has just shown that it does not care a fig for what India believes.

For the Modi government, the US doing a Freedom of Navigation Operations (FONOP) in its backyard is seen to be only a case of US “mismanagement”. This is also the media line of a host of US friendly “experts” who have been over the moon with India becoming a part of QUAD and joining the US policy of containment of China. For them, the problem is not the US carrying out its FONOPs, but the optics of putting it out in the public domain. After all, the US has been carrying out such operations in Indian waters and EEZ in the past as well.

On the question of the rights of coastal states, it is the US and its NATO allies that are the outlier. Most countries in the world are much closer to India’s interpretation of its rights as a coastal state. And the US is entirely alone in enforcing what it believes its rights are through a military assertion which is what a FONOP conducted by US warships is.

India was also caught out badly in not only endorsing the US understanding of freedom of navigation in the South China Sea, but also calling it “global commons”. The Chinese differences with its neighbours – the Philippines, Vietnam, Malaysia, Indonesia – are not about Freedom of Navigation in the South China Sea as claimed by the US or it being global commons. As littoral states, China and its neighbours dispute who has what economic rights – fishing, mineral rights, producing energy – in the South China Sea. This is far removed from the South China Sea being global commons.

The international law on the seas is the United Nations Convention on the Laws of the Seas (1982) or UNCLOS. On the question of navigation, India’s declaration while signing UNCLOS was, “that the provisions of the Convention do not authorize 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." This is similar to declarations that China, Vietnam, Indonesia and other countries have also made in UNCLOS. On the issue of freedom of navigation of warships China, India, Indonesia, Vietnam are on a completely different page than the US.

While 161 countries have signed UNCLOS, one significant holdout is the US. Its reason for not signing UNCLOS is important. The US right-wing opposition opposes handing over power over the oceans and sea bed to an international body. The first point of Heritage Foundation in the campaign of the US not signing UNCLOS says, “US membership in the convention would not confer any maritime right or freedom that the US does not already enjoy. The US can best protect its rights by maintaining a strong US Navy, not by acceding to the convention.” In other words, might is right, no law required.

While the US couches its language for its freedom of navigation in terms of international law, it carefully does not state what this law is. The problems that the US has with UNCLOS (1982) is that for a coastal state, it created an Exclusive Economic Zone 200 nautical miles (370 kilometres) and extended its territorial waters from 3 to 12 nautical miles. The dispute that the US has with most countries and UNCLOS is its belief that freedom of navigation is not restricted by any law of the coastal states. UNCLOS, as most countries hold, circumscribes such freedom with reasonable restrictions. And asking countries to give prior notification to coastal states for war ships involved in military exercises and carrying nuclear weapons or other hazardous materials, in view of most nations and experts, is a reasonable restriction.

The second problem with the US carrying out so-called FONOPs is: who has given the US the right to assert its understanding of freedom of navigation militarily? On whose authority is the US asserting this freedom? Simply put, not only does the US believe that it has the right to interpret international law any way it pleases, but also that it can enforce its understanding on others with its warships.

When the Modi government endorsed the US understanding of freedom of navigation, it also implicitly endorsed the US understanding that the law of the hegemon is international law, not the international treaties and the United Nations. This is what the western powers are peddling as “a rule based international order”, where they get to make the rules. This is the “heritage” of western colonialism, settler colonial states, and its empires. A small matter that these empires were accompanied by genocide, slavery and loot. Its 21st-century version is the re-emergence of gunboat diplomacy masquerading as freedom of navigation operations.