US Navy conducts Freedom of Navigation Operation in India’s waters ‘without prior consent’

In a highly unusual, even though not unprecedented move, the US Navy conducted a Freedom of Navigation Operation (FONOP) in the Indian Ocean region, and its warship entered India’s Exclusive Economic Zone (EEZ) near Lakshadweep without seeking prior consent from India. The US Navy said that the operation was consistent with international law and challenged India’s “excessive maritime claims”.

In a statement issued on April 7 by the 7th Fleet of the US Navy, which is the largest forward deployed naval fleets of the US, it said that its Arleigh Burke-class guided missile destroyer 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 upheld the rights, freedoms, and lawful uses of the sea recognized in international law by challenging India’s excessive maritime claims.”

The statement said that the US forces “operate in the Indo-Pacific region on a daily basis” and “all operations are designed in accordance with international law and demonstrate that the United States will fly, sail and operate wherever international law allows”.

However, the statement also stressed that the US forces conduct “routine and regular Freedom of Navigation Operations (FONOPs), as we have done in the past and will continue to in the future” and these operations are “not about one country, nor are they about making political statements”.

There was no immediate statement from India.

The operation comes at a time when military cooperation between India and the US is increasing, and the two navies were involved in a joint exercise, along with navies of Japan, France and Australia in the eastern Indian Ocean region, in the La Pérouse exercise between April 5 and April 7 led by the French Navy.

Further, it happened just weeks after US Defence Secretary Lloyd Austin visited India as part of his first international tour since US President Joe Biden’s administration took over in January and conveyed Biden administration’s “commitment towards strengthening the bilateral defence relations between the two countries”.

But it is worth noting that this is not the first time that US Navy has conducted such an operation in India’s Exclusive Economic Zone. The US Department of Defence publishes an annual Freedom of Navigation Report which is “an unclassified report identifying the excessive maritime claims that US forces operationally challenged”, the FON Report for 2020 stated.

The report mentioned that the US Freedom of Navigation Program was formally established in 1979 and “consists of complementary diplomatic and operational efforts to safeguard lawful commerce and the global mobility of U.S. forces”.

“‘Excessive maritime claims’ are attempts by coastal States to restrict unlawfully the rights and freedoms of navigation and overflight and other lawful uses of the sea. These claims are made through laws, regulations, or other pronouncements that are inconsistent with international law as reflected in the Law of the Sea Convention. If left unchallenged, excessive maritime claims could permanently infringe upon the freedom of the seas enjoyed by all nations,” the report stated.

India was not among the countries mentioned in the 2020 report where the US forces “challenged” the claims. India was last mentioned in the 2019 report, along with 21 other nations that included China, Russia, Pakistan, Sri Lanka, Bangladesh, Maldives and Saudi Arabia. Before that, India was mentioned in the 2017 and 2016 reports as well.

According to the UN Convention of the Law of the Sea (UNCLOS), countries cannot prevent ships, either commercial or military, from using the Exclusive Economic Zone. But Indian laws mandate that any foreign military needs to inform before conducting any activity in India’s EEZ.

As per the maritime claims reference manual of US Navy’s Judge Advocate General’s Corps, India’s Territorial Waters, Continental Shelf, Exclusive Economic Zone & Other Maritime Zones Act of 1976 requires foreign warships to provide notice before entering territorial sea. The reference manual for India, till 2016, mentioned that the US “does not recognize this claim” and protested it in 1976, 1983 and 1997. Further, it mentioned that the US forces “conducted operational assertions” in Financial Years “1985 through 89, 1991 through 1994, 1996, 1997, 1999, 2001, 2007, and 2011”.