India and the International Laws of the Sea, Part 3/5: Peacetime Military Issues and Navigational Freedoms

Abstract: The two preceding parts of this paper (Parts 1/5 and 2/5) were published sequentially in the preceding volumes of IN Despatch addressed India’s national laws and policy approach vis-à-vis the provisions of international law on security jurisdiction in the maritime domain.¹ This aspect of security encompassed non-State criminal activity at sea, and from the sea. The next two parts of the paper (Parts 3/5 and 4/5) aim to analyse the legal aspects of peacetime military issues in a similar manner, addressing the convergences and divergences between India’s national law and policy vis-à-vis the provisions of international law, including state practice. This part of the paper (Part 3/5) addresses the navigational freedoms of foreign military platforms in the maritime zones of coastal States like India. It specifically examines China’s grey-zone activity in India’s proximate seas, which bears upon India’s military security, and yet, an appropriate legal response to such activity presents a challenge for New Delhi. This part also presents an Indian perspective on the freedom of navigation operations (FONOPS) by the United States, which seek to prevent coastal States like India from establishing legal precedent over “excessive maritime claims” that impede America’s military mobility. In the next volume of the IN Despatch, Part 4/5 will address the legal nuances of some other peacetime military issues, including force-protection and airdefence identification zones, unintended encounters at sea, military confidence-building agreements, and the status of sunken military platforms. The key takeaway envisaged from these two parts of the paper is to contribute to a better understanding and refinement of India’s maritimemilitary operational-law doctrines, including the Navy’s standing peacetime Rules of Engagement (RoE).

Introduction

In the 1970s, the negotiations at the Third UN Conference on the Law of the Sea (UNCLOS III) witnessed extensive debates between the global maritime powers and the coastal States on the use of the seas. While the (developing) coastal States argued for sovereign control of resources in their adjoining seas, the global maritime powers were concerned about what they perceived as the creeping maritime jurisdiction of these coastal States, which could potentially restrict their military mobility across the world’s oceans. These debates and the ensuing bargains eventually resulted in a degree of accommodation on both sides, which led to the creation of navigational regimes like innocent passage through the territorial sea (TS) and unimpeded transit passage through international straits with overlapping territorial seas. The exclusive economic zone (EEZ) itself was a grand compromise between the interests of these two opposing parties.² In the EEZ, coastal States could exercise sovereign  jurisdiction over their economic resources, and yet, de jure, all states could exercise their high seas navigational and overflight freedoms including for their military forces, which de facto suited the major powers.

However, since military issues were contentious, these were not deliberated in detail at UNCLOS III. So the provisions of the UNCLOS on these issues are rather scanty and generic, such as the ‘dos and don’ts’ for foreign warships to exercise the right of innocent passage, and the sovereign immunity of these warships.³ UNCLOS does address some military issues specifically, but only where it was inescapable and absolutely essential, such as the prohibition for foreign submarines to undertake innocent passage in dived mode, and the right of warships to visit and search any foreign vessel in international waters.⁴ More importantly, the Convention did not address the military insecurities of the developing coastal States posed by the major maritime powers, which added to their existing anxieties over maritime crime in their maritime zones, as examined in Parts 1/5 and 2/5 of this paper. Notably, UNCLOS even provides the option to all States to exclude “disputes concerning military activities” from its “compulsory (dispute-settlement) procedures entailing binding decisions”.⁵

The voids in international law relating to peacetime military issues also concerned the major powers. For instance, such lack of legal clarity implied that these powers needed additional measures, such as the operational assertions by the United States Navy (USN) to prevent coastal States from interpreting international law in a manner that would be impede the navigational and overflight freedoms of their military forces.

In this context, this part of the paper examines the military issues that India encounters at sea during peacetime, and the conformity of India’s related national laws and policies with international law.

Territorial Sea Passage by Foreign Warships

The ‘Right of Innocent Passage’ embodied in UNCLOS (Articles 17 to 20) provides the freedom to all foreign-flagged vessels, including warships, to undertake unrestricted passage through the Territorial Seas of coastal States. No such passage through the Territorial Sea is allowed for foreign aircraft, including military aircraft. To ensure that this right does not impinge upon the coastal State’s security, UNCLOS provides a few caveats and exceptions on an impartial basis. However, at UNCLOS III, developing coastal States had sought much more emphatic ‘security’ assurances. Gabon, for instance, had proposed the need for “notification” and “prior authorisation” for foreign warships to undertake innocent passage. However, all such proposals were negated due to ‘behind the scenes’ diplomacy by the major powers at the Conference.

While UNCLOS was still being negotiated, India enacted its Maritime Zones of India (MZI) Act of 1976. Whereas the Act allowed all foreign ships to undertake innocent passage through its Territorial Sea, it stated that foreign warships (including submarines) should do so “after giving prior notice to the Central Government”.⁶ India has since maintained this legal position. Many other coastal States in Asia, Africa and Latin America—all of which were developing countries during UNCLOS III—placed similar restrictions on innocent passage by foreign warships, as reflected in their declarations on ratification of UNCLOS or in their national laws. The regional countries that need ‘prior notification’ (like India) include Bangladesh, Egypt, Indonesia, Iraq, France, Malaysia, Mauritius, South Korea and Taiwan. The countries that seek a more restrictive, ‘prior authorisation or permission’ include Algeria, Cambodia, Maldives, Myanmar, Iran, Oman, Pakistan, the Philippines, Seychelles, Sri Lanka, UAE, Vietnam, and Yemen. China maintains a deliberate ambiguity in this regard. In its June 1996 declaration upon ratifying UNCLOS, Beijing reaffirmed its “right… to “obtain advance approval or prior notification” for innocent passage by foreign warships.⁷ By imposing either of the two restrictions on a case-to-case basis, China’s legal position thus deviates from the fundamental legal principle of impartiality. Australia and Thailand are among the only Indo-Pacific countries that place no such restriction on innocent passage.

Although not party to the UNCLOS, the United States (US) claims to adhere to all UNCLOS provisions relating to navigational freedoms, including for its warships and military aircraft. Since these provisions are also contained in the 1958 Geneva Conventions on the Laws of the Sea,⁸ these are treated by the US, among all other States, as customary international law. The US, therefore, maintains the position that the legal requirement of “prior notification” or “prior authorisation/ permission” by coastal States for innocent passage by foreign warships amounts to an “excessive maritime claim”, which necessitates operational assertion by the US Navy through Freedom of Navigation Operations or FONOPs (this aspect is examined later). Notably, however, the legal position of the US does not conform to the UNCLOS (or the customary international law) about innocent passage by US submarines and overflight restrictions in the Territorial Sea of coastal States. Specifically in the context of submarines, UNCLOS Art 20 (Innocent Passage) says, “In the territorial sea, (foreign) submarines and other underwater vehicles are required to navigate on the surface and to show their flag”. However, the latest US Commanders’ Handbook (March 2022) says,

 “UNCLOS does not prohibit passage (of foreign warships and aircraft) that is non-innocent, such as overflight of or submerged transit in the (coastal State’s) territorial sea. However, a coastal State has a right to take the necessary steps in and over its territorial sea to prevent passage that is not innocent, including, where necessary, the use of force…”⁹

 Indeed, the UNCLOS has no provision on foreign "non-innocent” passage or overflight in the territorial sea. This has enabled the US to take advantage of the legal dictum: “what is not expressly prohibited (by law), is permitted”. A US legal expert law clarifies this position, saying,

“The innocent passage provisions of the Convention set forth conditions for the enjoyment of the right of innocent passage in the territorial sea, but do not prohibit or otherwise affect activities or conduct that is inconsistent with that right… In other words, a submarine can transit on the surface and enjoy the right of innocent passage. However, if it elects to transit submerged, it has not conducted an internationally wrongful act but simply loses the protections it has under the right of innocent passage and would be subjected to an appropriate coastal State response, if detected (for example, an order to surface and leave the territorial sea).”¹⁰ 

Ostensibly, to preserve the stealth of their submarines, the US submarine commanders have been directed to undertake dived passage in the Territorial Sea of coastal States. This US position contradicts not only UNCLOS, but also Article 14(6) of the 1958 Convention on the Territorial Sea and the Contiguous Zone, which obliges submarines exercising the right of innocent passage “to navigate on the surface and to show their flag”.¹¹ It is important to note that the 1958 Convention is legally applicable to the US since it constitutes customary international law. This US position also runs counter to Article 25(3) of UNCLOS, which confers the right to the coastal State to impartially and temporarily suspend innocent passage of foreign ships in specified areas of its territorial sea, such suspension is essential for the protection of its security, including weapons exercises. How can a coastal State, practically and effectively, exercise this right against a dived foreign submarine?

Furthermore, as per customary law, foreign aircraft have no right to overfly a coastal State’s territorial sea, since the “State has complete and exclusive sovereignty over the airspace over its territory, including territorial sea”¹² The only exceptions are in case of responding to a distress at sea or other extra-ordinary and unforeseen contingencies of force majeure. The US position on its right to overflight through territorial sea of coastal States also runs counter to Article 9 of the 1944 Chicago Convention, which confers the right to States to (impartially) restrict or prohibit foreign aircraft, including civil airliners, to overfly certain areas of its territory “for reasons of military necessity or public safety”.

The aforesaid position of the US on passage of foreign submarines and aircraft through the territorial sea of coastal States is not shared by US allies like the United Kingdom,¹³ Japan¹⁴ and Germany. A renowned German legal  expert comments,

“Germany takes the view that the territorial sovereignty of the coastal State is limited by the rules on innocent passage only. Therefore, any passage that is not in compliance with those rules, including the requirement for submarines to navigate on the surface, are considered a violation of the territorial sovereignty of the coastal State. The coastal State will then be entitled according to Article 30 UNCLOS to require the non-compliant submarine to leave the territorial sea immediately. If the submarine does not comply, the coastal State may take all necessary measures, including the use of force, to terminate the violation of its territorial sovereignty.”¹⁵

Australia’s position on the issue is not known.¹⁶ It may be argued that Canberra may conform to the US position considering their growing antiChina military-strategic convergence in the Indo-Pacific leading to the AUKUS-class nuclear attack submarine (SSN) deal.¹⁷ Besides, since nuclear submarines are noisier than conventional ones, Australia has a good reason to follow the US to preserve the stealth of these submarines while these are navigating through the territorial sea of coastal States, particularly China. On its part, irrespective of Australia’s position on this issue, China is likely to emulate the legal position of the US. This has notable ramifications for India, necessitating a review of Indian Navy’s standing rules of engagement (RoE).

Returning to the subject of the coastal States seeking “prior notification” or “prior authorisation/ permission” for innocent passage by foreign warships in their territorial seas, a couple of key issues are germane. The first is whether the major maritime powers support and conform to the legal positions of the coastal States. This is clearly not the case with the navies of the US and other western powers operating in the Indo-Pacific region. Take the case of India itself as a naval power in the Indian Ocean. Whereas the Indian maritime forces have been empathetic to the security concerns of its smaller neighbours, this has not prevented politicodiplomatic friction on this issue. In 2018, the IN’s offshore patrol vessel INS Subhadra was transiting through the Traffic Separation Scheme (TSS) promulgated by Sri Lanka in its territorial sea, astride the busy International Shipping Lane (ISL) South of Dondra Head. Since the Indian warship did not seek prior permission for its innocent passage in accordance with Sri Lanka’s legal position, its patrol vessels in the vicinity reported the Indian warship’s “illegal” action to their base commander. This was followed up by Colombo raising a diplomatic protest against New Delhi.¹⁸

The second issue is whether the coastal States possess adequate capacity to enforce their national law and prevent violations by major military powers. If such capability is inadequate to deter violations, maintaining such a position is of little practical value. The answer may lie in the coastal States, including India, dispensing with their current legal positions that reflect merely charade of security against foreign warships in the territorial sea, and instead augment operational capacity-building measures like enhanced Maritime Domain Awareness (MDA), including Undersea Domain Awareness (UDA), and revise the standing RoE of their respective maritime-security forces.

Foreign ‘Assistance Entry’ into Territorial Sea

The right of foreign warships and military aircraft to enter the territorial sea (or archipelagic waters, if applicable) of a coastal State for “assistance entry” is another relevant issue. Customary international law places the obligation upon all States and their mariners to render rapid and effective assistance to persons, ships or aircraft without regard to nationality or location. Its origins may be traced to the first International Convention on Safety of Life at Sea (SOLAS), 1914, which ensued after the unfortunate sinking of RMS Titanic in April 1912.¹⁹ This obligation is also codified in UNCLOS,²⁰ and amplified in the 1974 SOLAS Convention²¹ and the 1979 Maritime Search and Rescue Convention.²²

The US military has codified this legal provision across its command chain from its latest (2022) Chairman of the Joint Chiefs of Staff Instructions (CJCSI)²³ to The Commander’s Handbook on the Law of Naval Operations. The US position in the Handbook may be summarised as follows: US warships (and military aircraft) have the duty to enter a foreign State’s territorial sea without its permission when there is reasonable certainty (based on the best available information) that a person is in distress, their location is reasonably well known, and the rescuing unit is in position to render timely and effective assistance. However, the right does not extend to conducting area searches when the distress location is not yet reasonably well known. Also, the warship or aircraft conducting the rescue shall provide timely notification to the coastal State’s search and rescue authorities.”²⁴

 Bound by international law, India also practices the right of assistance entry. However, it is not formally articulated in India’s joint military doctrine, maritime doctrine or even in the Handbook on the Law of Maritime Operations (INBR-1652), 2013.²⁵ The provision is stated in the Navy’s 1999 document, “A Seaman’s Guide to International Law” (INBR1650), but in a sketchy manner. The document merely amplifies the right of Assistance Entry as “…Under certain circumstances, aircraft too, may enter the national airspace over the territorial sea (without the coastal State’s permission)”. It does not explain the “circumstances”.²⁶

Foreign Military Activities in EEZ

The EEZ is a sui generis zone—a unique zone not linked to other maritime zones— wherein coastal States have sovereign rights to harness the living and non-living marine resources, and yet it is considered at par with the high seas regarding navigational and overflight freedoms. The issue of foreign military activities in the EEZ hinges on UNCLOS Article 58 on the “Rights and Duties of other States in the EEZ”. The “rights” emanate from UNCLOS Article 87 provision on “Freedom of the High Seas”, which assures high seas freedoms to all States, inter alia for navigation and overflight without discriminating between military and civilian platforms. The “duties” refer to their obligation to exercise such freedoms with “due regard to the rights… of the coastal State and (compliance with its) laws and regulations…”.²⁷

As per the strictest interpretation of UNCLOS, the “rights of the coastal State” refer to preservation of their economic resource-based interests, and those closely related to it, viz. marine scientific research (MSR) and the preservation of the marine environment. Even by such interpretation, foreign military activities involving weapon firings may cause harm to living resources in the coastal State’s EEZ, besides denying its fishing-folk access to fishing areas.²⁸ However, the insecurities of coastal States go beyond it to other foreign military activities in their proximate seas.

Such insecurities were tabled and discussed during UNCLOS III deliberations, but being contentious, these were side-stepped, as mentioned earlier. Hence, while the (developing) coastal States acceded to UNCLOS and harmonised their national laws with it by applying the principle of high seas freedoms in their EEZ, they declared some legal caveats to preserve their security interests in this zone. This is best exemplified by the Indian case. In consonance with the spirit of high-seas freedoms codified in UNCLOS, the MZI Act 1976 is states that

 “In the EEZ 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 overflight”.²⁹

However, while ratifying UNCLOS in 1995, India made a declaration stating that

 “The provisions of the Convention do not authorise other States to carry out in the EEZ 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.”³⁰

According to Prakash Gopal,

“By placing constraints on activities of foreign naval vessels within its maritime zones, India sought to create pre-emptive domestic legal structures to mitigate anticipated security threats… Whilst the merits, utility, and legitimacy of such stipulations are debatable, the fact that a number of India’s perceived maritime security challenges were recognised as a result of the LOSC (Law of the Sea Convention, ie.  UNCLOS) and its outcomes merits acknowledgment.”³¹

Indeed, India’s security concerns echoed among the other developing coastal States of Asia, Africa and Latin America. Nearly all these States made similar declarations seeking prior consent for foreign military activities in the EEZ to preserve their national security.³² This included China, which has traditionally shared the position held by the other developing countries (since the days of UNCLOS III negotiations), and maintains it to this day regarding its maritime periphery, wherein it is insecure due to US military activities in its maritime zones.

However, the position of the US and the other major naval powers on this issue has been different. The latest US Commanders’ Handbook (Mar 2022) says,

“Some coastal States have claimed the right to establish military security zones of varying breadth in which they purport to regulate the activities of warships and military aircraft of other States by restrictions such as… prohibitions on various operational activities… International law does not recognize the right of coastal States to establish zones during peacetime that would restrict the exercise of non-resource-related high seas freedoms beyond the territorial sea.The United States does not recognize the validity of any claimed security or military zone seaward of the territorial sea that purports to restrict or regulate the high seas freedoms of navigation and overflight.”³³

 To prevent these coastal States from setting any legal precedence that is not in conformity with its interpretation of international law, the US government has tasked its Navy to undertake operational assertions under its ‘Freedom of Navigation Programme’. While this aspect is examined in detail later, at this stage, it is necessary to understand the basis of the legal divergence, and the responses of coastal States to foreign military activities in their EEZ.

Military Survey versus Marine Scientific Research

To interpret the law relating to foreign military activities in the EEZ, the most contentious issue is the permissiveness of ‘military surveys’. UNCLOS Article 246 permits foreign marine scientific research (MSR) in the EEZ of a coastal State with the latter’s prior consent, since it is related to its resource-based interests. (This provision is also codified in Indian domestic law.)³⁴ However, the Convention is silent on ‘military surveys’, including hydrographic and bathymetric surveys, and acoustic mapping, which involve collection of data that has substantive applications for underwater warfare. The Convention also omits provisions on other forms of military intelligence-gathering like electronic intelligence (ELINT), which collectively erode the concerned coastal State’s defences, thereby constituting a threat to its national security. The major powers consider it their right to conduct such surveys/ activities in the EEZ of coastal States, also justifying it based on its need for safe navigation of warships. Accordingly, the US states that:

“Although coastal State consent must be obtained in order to conduct MSR in its EEZ, the coastal State may not regulate hydrographic surveys or military surveys conducted beyond its territorial sea, nor may it require notification of such activities.”³⁵

Arguably, since the UNCLOS does not explicitly prohibit foreign military survey in the EEZ, such activities may be permitted until these impinge upon the economic and related rights of the coastal State. This has often led to bilateral confrontations, such as those involving the US, China and India. For instance, in March 2001, the Chinese PLA confronted the US hydrographic ship USNS Bowditch operating in the Yellow Sea and ordered it to leave China’s EEZ. Later in 2002-03, India expelled the same ship  (USNS Bowditch) from within Indian EEZ in the Bay of Bengal.³⁶ In September 2019, India expelled the Chinese research vessel Shiyan 1 operating without authorisation off Port Blair (Andaman and Nicobar Islands).³⁷ Chinese hydrographic surveys in the Indian Ocean have lately 37 been focused on the underwaters ridges located near the A&N island chain, such as the Ninety East Ridge, located West of the Nicobar Islands. These ridges create an underwater topology, which the PLA Navy submarines need to be familiar with. Knowledge of such topology for submariners is useful, either to avoid the extensive stretch of shallow waters where they face a higher risk of detection, or to hide in the ‘acoustic shadow’ of these elevated ridges. China’s Undersea Domain Awareness (UDA) in the Indian Ocean is not limited to studying the underwater topography but goes beyond it to record the seasonal variation in sea temperature and salinity profiles that have a major bearing on the directivity of sound waves for detection of submarines. An accurate assessment could enable a PLA Navy submarine use thermal and salinity layer to their tactical benefit, thereby making it difficult for Indian anti-submarine sensors to detect it. As for any other navy, the UDA for PLA Navy goes beyond this. It strives to collate a databank pertaining to the acoustic signature of Indian warships and submarines, especially its nuclear ballistic missile submarines (SSBN).

Within Indian maritime zones, India’s aerial and satellite-based surveillance has been bolstered significantly in recent years. India’s legal position relating to prior consent for foreign military activities in its EEZ is also well known. Hence, China seems to have shifted its military survey activities in Indian EEZ to the ‘grey-zone realm. Such activities are now being conducted by China’s maritime militia borne in fishing vessels, and by its dual-use Underwater Unmanned Vehicles (UUV) launched from its survey ships.³⁸ In December 2023, Indian naval sources reported a trend involving “hundreds of Chinese vessels venturing close to the coast of Mumbai and Gujarat in the Arabian sea… (which) double up as 'mini spy ships' that can gather data ranging from the location of submarines to secret pipelines and activities of Indian ports”.³⁹ India’s response to these activities is addressed later in the next section.

India’s national security is also threatened by Chinese ‘grey-zone’ operations in the broader Indian Ocean beyond the maritime zones of India. Beijing has been actively engaging with India’s neighbours like Sri Lanka and Maldives to conduct military surveys in their waters. The 2024 docking of Chinese marine research ship,” the Xiang Yang Hong 03, in Malé is case in point.⁴⁰ Notably, in January 2021, in the same ship had switched off its Automatic Identification System (AIS) transponders to attempt a disguised passage to the Indian Ocean through the Indonesian straits. However, the Xiang Yang Hong 03 was intercepted by the Indonesian Coast Guard. A month earlier, Indonesia had discovered a Chinese Haiyi (Sea Wing) UUV in its waters, which indicates the surreptitious means being employed by China to undertake such surveys in the waters of Indian Ocean littoral States.⁴¹ While purportedly conducting MSR, these research vessels could map the ocean’s seabed, and study the seasonal sea salinity, thermal and ocean current profiles for optimising submarine deployment and naval mine-laying. The data on ocean surface winds will also be valuable to the PLA Navy for its carrier-borne air operations in the Indian Ocean. China has also increased the deployment of its intelligence ships in the northern Indian Ocean to monitor India’s land and sea-based ballistic missile tests.⁴² Though  this is essentially a geopolitical issue with military-strategic connotations, it also has a major legal dimension. If a State-owned ship of more than 300 gross tonnage involved in an international voyage ‘goes dark’ by switching off its AIS, it is clearly a contravention of the 1974 International Convention for the Safety of Life at Sea (SOLAS), whose provisions were reinforced by the UN General Assembly Resolution of November 2001.⁴³ Only warships are exempted from this rule,⁴⁴ and China has not classified  Xiang Yang Hong 03 as a warship.

Coastal State Response to Foreign Military Activities

When a coastal State’s legal position on foreign military activities in its Territorial Sea or the EEZ is infringed upon, international law permits the State a limited range of response options. These options must be exercised with due cognisance to sovereign immunity accorded by law to all foreign State platforms, including warships. The specific actions to be undertaken by the military or law-enforcement forces of the coastal State are based on the prevailing operational scenario and the maritime zone and are dictated by their standing rules of engagement (RoE), which reflect the national policy of the concerned State.⁴⁵

 Until two decades ago, States have rarely resorted to the use of military force to enforce their positions against foreign military activities within their EEZs. Very few States like China, North Korea and Peru have done so, and under exceptional circumstances. The 2001 mid-air collision of a Chinese J-8B fighter with the US EP-3E near Hainan⁴⁶ was a result of pilot error rather than leading from the intent to use military force. North Korea has been undertaking military enforcement in its EEZ since 1977, when it declared a “military zone” of 200 NM in the Sea of Japan from its eastern coast, and a similar zone extending westwards 50 NM into the Yellow Sea.⁴⁷ This case stems from the rare fact that ‘technically’, the country is still at war since the 1950-53 Korean War. Peru, a non-party to UNCLOS, which has used military force to enforce its sovereignty in its 200 NM “Maritime Domain” (considered synonymous with Territorial Sea). Even in this case, force has not been used against foreign military activities. In November 1955, Peruvian warships and military aircraft intercepted and seized four foreign whaling vessels operating in the area.⁴⁸ 

Theoretically, therefore, a coastal State may legally use deliberate military force in self-defence against the foreign military activity in its maritime zones. However, such measures are rarely resorted to since the cost often outweighs the benefit and may trigger an armed conflict. As a response to an ‘isolated’ incident, these may not be easy to justify under Article 51 of the UN Charter. Hence, the option chosen more frequently by coastal States against foreign military violations is to lodge a diplomatic protest and directing the subject foreign vessel to leave its territorial sea or EEZ, as the case may be. However, in exceptional circumstances, an unintended escalation of military assertions cannot be ruled out. For instance, if China detects a foreign dived submarine in its territorial sea (presuming it to be an American or Australian submarine for reasons as mentioned above), the PLA Navy is likely to use all force to make it surface, or even attack it, and this action would not contravene international law. Similarly, if a dived US or Australian submarine is detected by India in its territorial sea, the challenge of decision-making to respond appropriately will be very complex since the submarine could well belong to China.

Since the turn of the 21 Century, China has preferred a ‘grey zone’ st response to foreign military activities in the waters that it claims. As mentioned earlier, after the PLA Navy Jianghu III frigate ordered the USNS Bowditch to leave China’s EEZ in March 2001, the US research vessel complied forthwith, but returned to Yellow Sea with an armed escort.⁴⁹ When China discovered the Bowditch in its waters again in September 2002, it ordered a Chinese fishing boat to collide with it.⁵⁰ Although both sides preferred to play down the incident, it was an inflexion point signalling Beijing’s turn to grey-zone operations. In the following years, China adopted an explicitly aggressive posture against US military activities in its EEZ, while skilfully managing escalation within a threshold to avoid triggering America’s military response. In March 2009, five Chinese vessels including two fishing trawlers manoeuvred dangerously close to the US surveillance ship USNS Impeccable operating 75 NM off Hainan. One trawler dropped wooden objects in the Impeccable’s path to stop it. The other trawler employed a grappling hook to ensnare the ship’s towed-array sonar.⁵¹ In its protest statement, Beijing alleged that the Impeccable was gathering underwater acoustic data for anti-submarine operations.⁵² In 2016, China even seized the UUV operated by USNS  Bowditch barely 100 NM from the Philippines’ port of Subic Bay, though it soon returned the drone to the US based on its ‘sovereign immune’ status.⁵³ More recently, China has also been employing grey-zone tactics against the Philippines to counter what it perceives as Manila’s transgression into Chinese “sovereign” waters. In March 2024, the China Coast Guard (CCG) used water-cannons against Filipino vessels. The vessels were engaged in a routine resupply mission to BRP Sierra Madre, a Filipino military outpost in the Second Thomas Shoal. China’s action caused damage and injuries to four Filipino personnel, albeit without crossing the threshold of conflict (viz. the ‘red line’ for the Philippines).⁵⁴ Ostensibly, this emboldened China.  It led to the June 2024 incident wherein CCG speed-boats rammed into two Philippine naval vessels, and Chinese soldiers used axes and spears to puncture the inflatable Filipino boats employed in the same mission, thereby injuring at least eight Filipino soldiers, including one who lost his thumb.⁵⁵ This is reminiscent of the grey-zone tactics used by the PLA against India in the 2020 Galwan Valley confrontation.⁵⁶

Under similar circumstances, India’s response has been different. Whereas India has been protesting US and Chinese intelligence-gathering activities in its EEZ, it has not yet resorted to an aggressive posture, such as the one adopted by Beijing in the 2009 USNS Impeccable case, ostensibly to abide by the 1972 COLREGs. India’s approach has traditionally been a‘soft’ one consonant with international law, such as demanding the intruding foreign vessel to leave the Indian EEZ, followed by a diplomatic protest, as exemplified by the USNS Bowditch of 2002-03. However, India’s approach is becoming ‘smart’, in terms of using international law as a leverage. In the USNS Bowditch incident more than two decades ago (2002-03), India’s protest was based on a well-publicised allegation that the US vessel was engaged in intelligence-gathering against India.⁵⁷ However, following the September 2019 case of the Shiyan 1 operating off Port Blair, India ordered the Chinese ship to leave Indian EEZ without explicitly alleging that it was engaged in military survey. As the Indian naval chief later clarified, India’s rationale for expelling the ship was that it ship was conducting research and exploration activities (viz. MSR) in Indian EEZ without consent, thereby contradicting Article 246 of UNCLOS, and India’s domestic law (MZI Act 1976).⁵⁸ India thus denied the opportunity to Beijing to make a plausible counter-assertion that the UNCLOS does not prohibit military surveys.

Functionally, India could counter the grey-zone operations of Chinese maritime militia (fishing vessels) in its maritime zones by applying the provisions of its domestic law, including the MZI Act 1981. The enactment of Marine Fisheries Bill 2021 that prohibits all foreign fishing in the Indian EEZ⁵⁹ (as examined in Part 2/5 of this paper) will enhance India’s legal capacity against Chinese high-seas fishing fleet. However, lawenforcement against intelligence-gathering by China’s UUVs would present a functional challenge. Whereas the UUV would enjoy sovereign immunity (alike any other foreign vessel on government non-commercial service), it may not be feasible for Indian maritime forces to evict a UUV (unlike a manned vessel) through real-time voice communication with its controllers. In such a scenario, it would be legal to bring to bear proportionate force upon the UUV to disable it, and even study it, before the drone is handed over to the Chinese authorities based on its sovereign immune status.⁶⁰ Notably, China is emulating the US in developing extralarge unmanned and autonomous submarines.⁶¹ One inducted into the PLA 61 Navy, alike in the US Navy, these uncrewed submarines are likely to be designated as ‘warships’. Whereas this issue has been contentious, according to the most recent restatement of international law relating to naval warfare based on current State practice, these uncrewed submarines will be legally entitled not only to sovereign immunity but will also enjoy belligerent rights. Such rights are applicable not only during armed conflict, but also during heightened state of readiness involving India and China.⁶² This aspect needs to be specifically factored by the Indian Navy, including by updating its standing peacetime RoE, as may be required.

US Freedom of Navigation Operations (FONOPs)

The US launched its “Freedom of Navigation (FON) Program” in 1979. Since then, the US Navy has been authorised to conduct “operational assertions” against coastal States, some of which even include America’s closest military allies. The aim of these Freedom of Navigation Operations (FONOPs) is to prevent these ‘target’ States from establishing legal precedence over their “excessive maritime claims”, which could restrict America’s military mobility across the global maritime common in any manner that is inconsistent with the US interpretation of international law.⁶³ Since 1991, the US Department of Defence (DoD) has been promulgating Freedom of Navigation (FON) reports on an annual basis.⁶⁴ The broad  categories of these “excessive claims” targeted by the US FONOPs are as follows: 

• Territorial sea and EEZ restrictions.
• Transit passage restrictions through straits.
• Excessive baseline claims. 
• Expanded maritime zones (including historic bays and waters).
• Air restrictions.
• Archipelagic issues (pertaining only to Indonesia and the Philippines).
• Other restrictions.

 Countering the restrictions on passage and activities of military platforms, especially in the territorial sea and EEZ, constitutes the major effort of the US FONOPs,⁶⁵ and which apply to India. The FONOP by USS John Paul James off Lakshadweep Islands conducted in August 2021 was mainly to challenge India’s position necessitating consent for foreign military activities in its EEZ.⁶⁶ To assert its own divergent interpretation of international law, it became necessary for the US to publicize this FONOP,⁶⁷ which led to India’s protest based on the legal position that it has upheld since its 1995 ratification of UNCLOS. (Hypothetically, if the US had not declared the activity of USS John Paul James in Indian EEZ as a “FONOP”, India could have interpreted the US warship’s activity in its EEZ as a mere passage, not warranting any protest. However, in this case, the US Navy would not have achieved the aim of its “operational assertion”). Hence, notwithstanding the India-US politico-diplomatic congruence on upholding freedom of navigation and rules-based maritime order in the Indo-Pacific, a functional dissonance exists between their respective interpretations of the law.

The annual US DoD FON reports, as mentioned above, contain a list of the coastal States against whom the US Navy conducted FONOP in that year. An analysis of these reports indicates that over the years, the US has conducted FONOPs against India every year except in 1991, 1995, 1998, 2004-06, 2018, 2022 and 2023. Also, most of these operational assertions have been directed against India’s requirement of “consent” for any foreign military activity in its EEZ. Other legal positions taken by India have also been challenged occasionally. For instance, the US FONOPs in 1992-94, 1996-97, 1999-2003 and 2011 were directed against the requirement for “prior notification” for innocent passage by warships in India’s territorial sea. In 2000-03 and 2016, the US FONOPs challenged the security jurisdiction claimed by India in its contiguous zone. The FONOP in 2021 challenged the NAVAREA notice⁶⁸ issued by the Indian Navy in February 1998, which obliged all vessels entering Indian EEZ “with cargoes including dangerous goods and chemicals, oil, noxious liquid and harmful substances and radioactive material" to provide a “24-hour prior notice”.⁶⁹ The US FONOPs of 1993-94 and 1999 were directed at India’s claim to “Historic Waters” in the Gulf of Mannar. This aspect is assessed separately in the subsequent part (Part 5/5) of this paper.

In contrast, the US operational assertions against Pakistan have been sparse, having been conducted only on eight occasions in the past 32 years since 1991. In two of these eight years (1992 and 1997), the FONOPs disputed Islamabad’s requirement of “prior permission” for innocent passage by foreign warships. The assertions of 1998-99 were directed at its “claimed security zone/ restrictions on (foreign) military activities in EEZ”. This aspect has been repeated in the increasing FONOPS against Pakistan since 2016. Interestingly, however, the US did not conduct any FONOP against Pakistan for 16 years from 2000 to 2015.

US FONOPs began to focus upon China around the year 2007 (in earlier years, the US had conducted more such assertions against India vis-à-vis China). These assertions are directed against the legal restrictions that China imposes on innocent passage for foreign warships, security jurisdiction in its contiguous zone, surveys in its EEZ and overflight in the airspace over its EEZ, besides in its Air Defence Identification Zone (ADIZ) examined in the next Part (Part 4/5) of this paper. The operational assertion by USS Lassen in October 2015 in the Spratly group occupied by China—and other claimants—is known to be America’s first operational assertion in South China Sea (SCS).⁷⁰ Since then, the US FONOPs have challenged China’s “historic rights” in the South China Sea (SCS) and the legal entitlements of the mid-sea SCS features, which are not legally entitled to the maritime zones as claimed by China, notwithstanding Beijing’s ‘island-building’ reclamation activities. The US FONOPs against China have also challenged China’s straight baselines in the SCS, beginning with operational assertion in year 2000 against Taiwan’s baseline (discussed separately in the forthcoming Part 5/5 of this series). Interestingly, the US has often undertaken operational assertions in Taiwan Strait, sometimes, jointly with its allies.⁷¹ Such assertion is to reiterate that that the 97 NM-wide Strait is a high-sea corridor under UNCLOS, not even subject to the transit passage regime, much less being an internal strait of China subject to its sovereignty, as Beijing sees it. However, such assertion does not figure in any of the US DoD’s FON Reports, which is understandable given the US adherence to the ‘One-China’ policy. Such assertions are conducted more implicitly, but not without adequate publicity. For instance, soon before Taiwan’s pro-independence Democratic Progressive Party (DPP) took office in May 2024 after winning the Taiwanese election, USS Halsey undertook a passage across the Taiwan th Strait, which was “publicly hyped” with the statement of the US Navy’s 7 Fleet, which said that the Halsey “conducted a routine Taiwan Strait transit on May 8 through waters where high-seas freedoms of navigation and overflight apply in accordance with international law.”⁷²

Conclusion

To a very large extent, India’s national security is shaped by foreign military activities in its maritime zones and the adjoining seas. It is, however, amply clear that the UNCLOS and other treaty-based sources of international law relating to maritime affairs have not adequately addressed this aspect of military security for coastal States like India. Furthermore, approaching international courts for redressing their insecurity emanating from foreign military activities in their maritime zones is not an option since, as mentioned at the outset, the UNCLOS provides the option to all States to exclude disputes concerning military activities from its compulsory dispute-settlement mechanism.

As a result, coastal States like India have reacted by adopting national laws and positions to preserve their national security. These are constantly at odds with the interpretation of international law by the major western powers, most of which like the US, ironically, are among India’s closest strategic partners. India does have the option to align its legal positions with these major powers, in terms of rescinding its legal positions on prior notification for innocent passage by foreign warships and consent for foreign military activities in its EEZ. However, considering China’s increasingly overbearing military presence in India’s maritime periphery, this will not be an easy decision for the Indian government to take, at least in the foreseeable future. An alternative viewpoint suggests that since India’s is a proponent of the established international maritime order and enjoying strategic convergence with the western status quo powers, New Delhi could opt for a selective enunciation of it legal position that is more permissive of western naval activity in Indian maritime zones vis-à-vis the PLA Navy. Adopting such a position may not be in India’s geopolitical interest, since it would blunt New Delhi’s predominant narrative that by placing selective restrictions on innocent passage of foreign warships in its territorial sea, China’s domestic law is duplicitous and deviates from the fundamental legal principle of impartiality (as mentioned earlier). Another rationale that runs counter to this view is that India needs to continue to maintain its benign influence among the countries of Global South as a reassuring power. New Delhi’s ‘legal’ rebalance in favour of the West will not be helpful to this end. Therefore, to preserve its national security interests, India may need to prevail upon its current legal positions and continue to respond to future developments and incidents with the most appropriate and nuanced interpretation of international law in the given circumstances.

Meanwhile, it is essential for the Indian Navy to firmly articulate its operational law doctrine in concurrence with India’s stated legal position that seeks to preserve its geo-political interests, which range from benign issues of human safety to the harder issues of national security. This would also entail a review of the Navy’s standing RoE, which would need to factor the potential intentions of India’s potential adversaries, based on their legal positions.

The next part of this paper (Part 4/5) will examine and analyse from the Indian perspective, the legal nuances of some other salient peacetime military issues, such as promulgation of security zones for protection of military and strategic assets, unintended military encounters in international waters/ airspace, military confidence-building agreements, and the status of sunken military platforms.