INDIA AND THE INTERNATIONAL LAWS OF THE SEA PART 4/5: PEACETIME MILITARY ISSUES AND NAVIGATIONAL FREEDOMS (CONTD.)

Abstract: The preceding and current parts of this paper (Parts 3/5 and 4/5) analyse the convergences and divergences between India’s national law and policy vis-à-vis the provisions of international law relating to peacetime military issues. The preceding part (Part 3/5) published in the previous volume of IN Despatch examined issues in the Indian context relating to navigational freedoms for foreign military platforms in the maritime zones of coastal States, China’s grey-zone activities in the Indo-Pacific region, and the US freedom of navigation operations (FONOP). As a sequel, this part of the paper (Part 4/5) analyses the legal dimension of other salient peacetime military issues, such as the promulgation of operational zones for protection of military and strategic assets, establishment of air-defence identification zones (ADIZ), unintended military encounters between potential adversary States in and above international waters, and the status of sunken military platforms. The salience of these issues lies in the fact that these are not regulated by any substantive provisions in treaty-based international law. Therefore, the legal norms on these matters have either been developed over time as State practice; or as in case of peace-time maritime confrontations, are being regulated, albeit imperfectly, through bilateral military confidence-building agreements. Together with the preceding part of this paper, the envisaged aim of this writing is to foster a better understanding and refinement of India’s maritime-military operational-law doctrines, including the Navy’s standing peacetime Rules of Engagement (ROE).

Introduction

The preceding part (Part 3/5) of the paper analysed why and how, neither the United Nations Convention on the Law of the Sea,¹ 1982 (UNCLOS) nor any other treaty-based source of international law relating to maritime affairs could comprehensively address the military insecurities of coastal States posed by the major maritime powers. This legal inadequacy also affected the major powers, such as in terms of the denial of navigational and overflight freedoms to their military forces against the legal positions taken by the coastal States. Part 3/5 of the paper also examined the measures taken by the US to offset this void by formulating national laws and policies to undertake legal assertions through freedom of navigation operations (FONOP).

This part of the paper will examine some other salient military issues left untouched by the international laws of the sea, which bears upon national security interests of all States almost in equal measure, whether these are developing coastal States, or the major maritime powers of the UNCLOS III era. These interests pertain to the security of their critical national/ military-strategic assets from sea-borne or aerial threats, preventing unintended escalation of incidental maritime encounters between military units of potential adversaries, and even others, such as the US, with whom India has had decades of geopolitical dissonance until the 1990s. It will also examine how States have tried to overcome the legal voids pertaining to these issues through adoption of unilateral measures, such as promulgating security and identification zones for national self-defence and forging bilateral military confidence-building agreements. These measures have also contributed to the development of international law through State practice. The much-neglected issue pertaining to the legal status of sunken military platforms is also examined. This Part concludes with deductions for a better understanding of India’s maritime-military operational-law doctrines, including the Navy’s standing peacetime Rules of Engagement (ROE).

Operational Zones for Security

As mentioned in the second part (Part 2/5) of this series, during military exercises and weapon firings, States have been exercising their legitimate right to establish ‘temporary’ operational zones for safety of shipping and aircraft, beyond the UNCLOS provision of 500-metre ‘safety zone’ around offshore installations in its Exclusive Economic Zone (EEZ) and continental shelf. Promulgated through Notices to Mariners (NTM) and Notices to Airmen (NOTAM), such zones are clearly legal. Similarly, ‘temporary’ and ‘spatially-limited’ operational zones may be declared by States based for a well-defined security purpose, based on their inherent right of (national) self-defence. This is not prohibited by international law, and more importantly, it is supported by State practice. The major maritime powers have often established such zones for national security, particularly for protecting their military forces and other strategic assets against terrorists and other malevolent non-state entities. However, the temporal and spatial limits of such zone must be justified by, and be proportionate to the security purpose that it is meant to serve.

The US has been in the forefront of establishing State practice in this regard. Having learnt the lessons from the Al Qaeda bomb-laden speedboat attack on USS Cole (2000), within three days after the ‘twin-tower’ terrorist attack in the US on 11 September 2001, the US Coast Guard promulgated "protection zones" in all navigable waters of the country to regulate vessel traffic in the vicinity of large US warships.² Faced with the renewed Al Qaeda terrorist threat in the wake of Operation Iraqi Freedom in 2003, the US Navy promulgated its detailed “Navy Doctrine for Anti-terrorism/ Force Protection” in March 2004, which provides for a “Naval Vessel Protective Zone” for all its naval vessels, including the ships of its Military Sealift Command.³ The dimension of this zone varied based on the prevailing threat perception in the given operational area. For the Iraqi oil terminals, the US initially promulgated a two nautical mile (NM) security zone around the terminals, but this could not prevent the April 2004 terrorist attacks by bomb-laded dhows against Al Basrah and Khor Al Amaya oil terminals, killing three US servicemen.⁴ The US then adopted the concept of layered defence. The security zone was divided into the outer “warning zone” at 3,000 metres from the terminal, which was also the zone for ship-deployment and interrogation, and the inner “exclusion zone” at 2,000 metres. Whereas this represented an improvement in the earlier American practice of establishing a singular layer of protection, it was later argued that merely calling the inner layer as “exclusion zone” was not effective since it did not convey the ‘red-line’ to the terrorist as a “trigger” for engagement.”⁵

In contrast, the operational zones promulgated by India have articulated such “red-lines” more explicitly. For instance, in 2009, towards the closing phase of the Sri Lankan Civil War, the Indian Navy’s declared a layered force-protection zone against the Sea Tigers, the naval wing of the Liberation Tigers of Tamil Eelam (LTTE). The innermost layer of the zone was named “engagement zone”, which spelled out the trigger for engagement to the LTTE more clearly. Whereas the precise dimensions of this this three-tier zone are not known in the public domain, its outermost layer of was called “surveillance zone”, while the intervening middle layer was the “warning zone”. The nuances of concept and lessons thereof are critically essential for naval commanders, which may be lost unless it is articulated in detail in India’s naval doctrinal publications.

Air Defence Identification Zones (ADIZ)⁶

Analogous to operational/ security zone, Air Defence Identification Zone (ADIZ) is not expressly permitted in any treaty law, including the UNCLOS or the 1944 Convention on International Civil Aviation (Chicago Convention).⁷ Nonetheless, similarly, ADIZ is legally justified by State practice, based on the inherent right of national self-defence. However, since the ADIZ is only meant to facilitate identification, rather than to enable exclusion (as in case of operational zones), it may be permanent (not limited in temporal terms). Nonetheless, its spatial extent still needs to be limited and justifiable.

The right of self-defence bestows all States the legitimacy to establish reasonable conditions of entry by all aircraft into their national airspace, not only during wartime but also during peacetime, analogous to the imposition of port entry requirements for ships entering a port or internal waters. Therefore, under the ADIZ practice, all aircraft (domestic or foreign) approaching national airspace are required to obtain air-defence clearance (ADC) by prior filing of flight plans, followed by identification and position reports even while in international airspace, as a condition of entry approval.⁸

The first ADIZ was promulgated by the US (in conjunction with Canada) in 1950. Since then, it has become a customary peace-time practice to establish such zones extending to international airspace adjacent to the national airspace. Today, about 20 States including India have established ADIZ.⁹ The latest coordinates of India’s ADIZ are contained in Aeronautical Information Publication (AIP) India, Amendment 03-22 of March 2022. India’s ADIZ is divided into six zones: ADIZ Central, ADIZ West, ADIZ East, ADIZ North, ADIZ South (including Lakshadweep Islands) and ADIZ South-East (subordinate to ADIZ South).¹⁰ India’s ADIZ—along with its Flight Information Region (FIR)—are also marked on Jeppeson Charts, which provide navigation aid (NAVAID) information for oceanic route planning and enroute navigation between major terminals in the northern Indian Ocean.¹¹ The Indian Navy’s Handbook on the Law of Naval Operations (INBR-1652) provides doctrinal guidance on the aspects of FIR and ADIZ.

Notably, due to the lack of a treaty law mandate for ADIZ, the State practice of establishing ADIZ is not uniform, in terms of both its geographic boundaries and its procedural requirements. The spatial scope of ADIZ is usually based on the threat perception, and the time available to the State to take appropriate air-defence measures against intruding/ unidentified aircraft, including scrambling of its fighters. Whereas the concepts of ADIZ and EEZ are not related in any manner, ADIZ does not usually extend beyond the EEZ of the State that has promulgated. In any case, as per practice, ADIZ is established without overlap with ADIZ promulgated earlier by other States and avoiding the airspace above undisputed territory. However, China’s East China Sea (ECS) ADIZ (promulgated in November 2013) overlaps with ADIZ of Japan and South Korea, besides Taiwan. It also includes the airspace over Senkaku/ Diaoyu Islands, which is contested with Japan. So, perceiving it as a move by Beijing to reinforce its island claim in the ECS. Tokyo protested against China’s ECS ADIZ declaration and scrambled fighters to intercept its inaugural ADIZ “air patrol.”¹²

ADIZ procedures of States also differ, which increases the complexity for the crew of commercial airliners to comply with the diverse requirements. The US, similar to many other States including India, adheres to the normative practice of applying ADIZ procedures only to aircraft that intend to enter a State’s national airspace.¹³ However, Bangladesh requires all aircraft operating in its ADIZ to “obtain prior permission and Air Defence Clearance (ADC)”, whether or not these are bound to enter its national airspace.¹⁴ Similarly, in ECS, China imposes ADIZ requirements to be complied with by all aircraft regardless of their destination.¹⁵ In protest, Japanese and South Korean commercial airliners flying through China’s ECS ADIZ ceased reporting flight plans to the Chinese authorities.¹⁶ However, US civil airliners continued reporting their flight plans. The same practice was adopted by Air India for its Delhi-Tokyo flight which crosses China’s ECS ADIZ.¹⁷ Nonetheless, since 2014, the US Navy has been conducting regular FONOP against the legal restrictions placed by China on aircraft flying in its ECS ADIZ not intending to enter Chinese airspace.

Another major variance pertains to the type of aircraft to which ADIZ procedures apply. India and some other States apply the procedures to all categories of aircraft. However, the US has adopted the position that these apply only to its civil aircraft, and not to its military aircraft,¹⁸ unless the US has specifically agreed to do so.19 In response to the promulgation of China’s ECS ADIZ, therefore, the US undertook an operational assertion against China by using its Guam-based B-52 bombers to fly training missions over the zone without reporting these flights to the Chinese authorities.²⁰ Evidently, the US position is meant ensure its military overflight freedoms across the global maritime common. However, exempting US military aircraft from adherence to ADIZ procedures could complicate the national air defence of other States. If India’s potential adversaries emulate the US practice, it could have some substantive security implications for India.

A key aspect is the ADIZ enforcement mechanism of States. Such mechanism essentially involves fighter aircraft, which need to adhere to standardised and well-publicised enforcement procedures to ensure compliance by foreign aircraft. Although the 1944 Chicago Convention does not apply to military aircraft (and other State aircraft), it contains specific guidance for the fighters to ensure compliance of regulations by foreign (civil) aviation within their national airspace. The guidance includes coercive measures and even the use of force against non-compliant civil aircraft if necessary. Whereas the Convention expressly acknowledges the right of the State to intercept a civil aircraft that has intruded into its airspace and force it to land, it also obliges the State to make all effort to avoid endangering the safety of the aircraft and the lives on board, and to refrain from the use of weapons against civil aircraft.

Since ADIZ is not supported by any international treaty law, the question of any such law standardising the enforcement procedure by military aircraft in the zone does not arise. More specifically, the 1944 Chicago Convention is silent on interception of civilian aircraft operating in the ADIZ outside sovereign airspace. This implies that the main purpose of ADIZ is to warn a foreign aircraft from an unreported entry into national airspace, and its interception can be justified only after it has entered national airspace. It also means that even in an extreme case where an intruding aircraft poses an imminent threat to national security, the aircraft may be shot down only within national airspace after all necessary measures to intercept it (using multiple warnings via voice and radio communications, warning shots, etc.) have been exhausted.

As State party to the 1944 Chicago Convention, India’s conformal provisions for interception of civil aircraft in Indian airspace are laid down in the latest AIP India of 2022. The document contains not only the geographical coordinates of Indian ADIZ (as mentioned earlier), but also the communication and other procedures pertaining to Air Defence Clearance (ADC) and interception of foreign aircraft. It makes it obligatory for all foreign aircraft in Indian airspace to report to the ATC if they are compelled due to any reason to deviate from the permitted Air Traffic Service (ATS) routes, specifically restricting such flights within 15 NM of India’s international borders. Within Indian ADIZ, the aircraft are obliged to fly with due ADC or by informing the ATC of any unplanned deviation, failing which the aircraft is liable to interception within national airspace.²¹ However, the insistence on some States like the US and Japan to exempt military aircraft from ADIZ procedures poses a functional challenge for Indian air defence.

Incidents at Sea/ Airspace

Unintended encounters between military units of potential adversaries in international waters and its superjacent airspace is another critical aspect that international laws of the sea are ill-equipped to address. This could lead to what are commonly referred to as “incidents at sea”, which bear the potential for military escalation, including into the realm of an international armed conflict.

During the height of Cold War super-power rivalry, the naval and air forces of the Western and Eastern Blocs often encountered each other in and above international waters, sometimes even crossing into the other’s sovereign maritime boundaries, leading to incidents at sea. These led to collisions and confrontations triggered by espionage, intimidation and harassment, which also led to loss of lives of military personnel. The confrontations between Soviet and US/ NATO nuclear attack/ ballistic-missile submarines (SSN/ SSBN) as results of trailing, counter-shadowing, and “crazy-Ivan” manoeuvres were potentially more serious and consequential.²² Even though none of the worst-case scenarios involving a nuclear-weapon exchange or the melt-down of their nuclear reactors ever came to pass, some submarines were lost at sea, and the details of many such incidents continue to remain classified.

An incident at sea could be triggered by a variety of reasons. Often, it is a result of a military platform engaged in close surveillance of the adversary’s forces to ascertain its capabilities and preparedness. The military platforms best suited for such intelligence-gathering missions are aircraft, including UAVs, by virtue of their mobility and stand-off attribute; and submarines, due to their stealth. A military aircraft may ‘buzz’ an adversary’s warship, not only for messaging of dominance, but also for snooping. During the maiden passage of the newly commissioned INS Ranjit from Poti (USSR) to Mumbai (then Bombay) in 1983, the destroyer was buzzed by a Pakistani maritime patrol aircraft, ostensibly for intelligence collection. The warship’s Commanding Officer ordered his ship’s fire-control radar (FCR) to “illuminate” the snooper aircraft. The aim was to let the snooper’s electronic support measures (ESM) identify the threat posed by the FCR’s lock-on. The activation of the FCR was accompanied with laying of the ship’s main guns on to the aircraft, signalling the Ranjit’s readiness to respond. Such a threatening tactical escalation was considered necessary to force the Pakistani aircraft to relent and cease its activity, which eventually occurred.²³

Based on the interpretation of UNCLOS, buzzing of warships by a foreign military aircraft may be considered unlawful since such a threatening gesture interferes or deprives the former’s exercise of its right of high seas freedoms as provided for in UNCLOS Article 87. Arguably, the act also contravenes UNCLOS Article 88 that says that “the high seas shall be reserved for peaceful purposes”. However, such action may also be legally justified as its legitimate functional requirement of a military aircraft to identify a vessel in international waters, which is not violative of the Convention. UNCLOS Article 110 bestows the legal right to military aircraft in the high seas to inter alia, verify a ship’s right to fly a flag.

Hence, the on-scene commander alone must decide how to respond to such an incident based on the prevailing circumstances. For instance, if the buzzing aircraft approaches the warship in a low-level flight or dives dangerously close to it, simulating a bombing/ torpedo run, the commander’s judgement will need to balance the risk of escalation with the security of the warship and its personnel. The ROE in force will provide a vital input to the commander’s judgement.

Besides national policy, such ROE must also appropriately account for the prevailing geopolitical and security environment because a foreign military aircraft engaged in surveillance of one’s own surface force may not necessarily belong to a potential adversary. In 1997, for instance, during its passage from Mumbai to Lankgawi, the newly commissioned INS Delhi encountered a low-flying maritime-patrol aircraft in the Bay of Bengal. The aircraft was identified as an Australian P3C Orion. The aircraft circled the Indian destroyer, and dropped two sonobuoys in close vicinity. The warship’s commanding officer reacted instinctively by switching-off all onboard machinery to prevent compromising its acoustic signature to the sonobuoys. With the ship stopped dead on its tracks, the ship’s boat was lowered to recover the sonobuoys, which were later handed over to the Naval Physical and Oceanographic Laboratory (NPOL) for analyses. As the aircraft altered its course southwards retreating from an unaccomplished mission, INS Delhi sent a typically-naval jovial radio message to the P3C’s commander, saying “you should now head back home as Mama is waiting for you.” A few days later, New Delhi lodged a diplomatic protest against Canberra over the incident.²⁴

Since keeping a watch on a potential adversary’s military capabilities and preparedness is a routine function of all military forces around the world, even Indian naval forces undertake such surveillance missions in international waters. In 2009, a Chinese media report stated that the PLA Navy had detected an Indian Sindhughosh-class submarine spying on Chinese warships deployed for counter-piracy mission in the Gulf of Aden. The report added that the PLA Navy anti-submarine helicopters had forced the Indian submarine to surface.²⁵ The report was not confirmed by the Indian Navy, and its authenticity remained suspect. Nonetheless, it does underscore the likelihood of an escalation involving submarines. Owing to the increasing submarine inductions by navies in the Indo-Pacific region and the attendant issue of water-space management, this could assume serious proportions since it involves the safety of submarine crews.

Some scenarios may involve a military unit shadowing or impeding the manoeuvres of the adversary’s naval formation at sea during a peacetime exercise. In November 2010, PNS Babur attempted to disrupt India’s Defence of Gujarat (naval) Exercise (DGX) in the Arabian Sea.²⁶ The Pakistani warship not only pierced through the Indian carrier battle group (CBG) formation, but also stationed itself at a distance of 2.5 cables (a quarter of a nautical mile) on the port-quarter of the Indian aircraft carrier INS Viraat. There is no multilateral treaty law that lays down specific rules or code of behaviour for a naval vessel operating in the vicinity of a foreign naval formation, or a naval vessel engaged in other operations that impose similar navigational constraints. The Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGS-72) does say that “a vessel engaged in the launching or recovery of aircraft” has the right of way over other vessels. However, this provision is merely premised on the fact that aircraft carriers engaged in air operations are categorised as “vessels restricted in their ability to manoeuvre”. Premised on the same consideration, COLREGS 1972 also provides the right of way to naval vessels engaged in diving operations, underway replenishment (UNREP) and minesweeping.²⁷ These voids in international treaty law may nonetheless be addressed by bilateral military confidence-building agreements, which will be examined later.

As mentioned in the preceding part (Part 3/5) of this series, notwithstanding its legal position on the matter, India has not yet resorted to the use of force against unauthorised foreign military activities in the Indian maritime zones. However, an incident at sea in such a scenario cannot be ruled out, if India perceives such activity of its potential adversary as a direct threat to its national security. Such military altercations may also occur due to ultra vires act by the commander of a foreign military unit against one’s own forces. Such act is unlawful as it is driven be his/ her personal nationalistic fervour, rather than being duly authorised by the State controlling the military unit. In a 2011 case, PNS Babur came dangerously close to INS Godavari, which was escorting MV Suez in the Gulf of Aden, and even brushed against the Indian frigate, damaging its helicopter-deck stanchions.²⁸ Although this incident did not occur in the Indian maritime zone, it exemplifies an ultra vires act, which could occur anywhere, including in the Indian EEZ.

A more serious issue relates to the fact that the sea-based component of India’s nuclear-weapons triad is on the anvil of being fully operationalised. To be able to neutralise India’s nuclear second-strike capability in the worst-case scenario, the tracking of Indian SSBNs is likely to be among the principal missions of the PLA Navy, besides that of the Pakistan Navy. The likely tools to track the Indian SSBNs would be their submarines and uncrewed underwater drones deployed in India’s eastern maritime theatre. The Indian Navy needs to be well-prepared to respond to the related confrontations in the underwater domain. This refers not only to the professional acumen of Indian submarine commanders (including the knowledge of operational law) but also the policy exactitude of the higher military leadership that leads to formulate appropriate ROE for these commanders.

Furthermore, as India’s naval presence expands across the Indo-Pacific region, the Indian Navy must also factor a possible scenario of a maritime conflict when India is not a belligerent, but its warship or military aircraft operating in the immediate vicinity of belligerent naval operations comes under an inadvertent attack by one of the warring parties. The case of the 1987 Exocet attack on USS Stark by an Iraqi Mirage F-1 fighter mistaking the warship for an Iranian tanker is a case in point.²⁹

Military Confidence-building Agreements

In the absence of any substantive provision of treaty-based international law to prevent incidents at sea/ airspace between potential adversaries, States began to forge bilateral agreements for military confidence building. Many of such pacts have the force of international law under the 1969 Vienna Convention on the Law of Treaties. The rule of pacta sunt servanda (literally, Latin for “agreements must be kept”) embodied in the Convention implies that “Every treaty in force (between States) is binding upon the parties to it and must be performed by them in good faith.”³⁰

The most well-known example of such an agreement is the US-USSR Agreement on the Prevention of Incidents on and over the High Seas (INCSEA), signed by the US and the Soviet Union in May 1972, which now applies to Russia as the successor state of the Soviet Union.³¹ The agreement provided a slew of measures, including communication codes, inter alia to prevent collisions, norms for engaging in surveillance, non-interference in the other’s military “formations”, prohibiting simulated attacks and launching of objects against the warships of the other side, prohibiting aerobatics by aircraft over them, or dropping hazardous objects near them, and informing them if own submarines were exercising in vicinity. More such pacts were signed during the Cold War, such as one between the Soviet Union and Canada in 1989.³²

As part of confidence-building measures (CBM), in 1991, India and Pakistan signed a similar bilateral agreement called “Advance Notice of Military Exercises, Manoeuvers, and Troop Movements, 1991.”³³ It creates an assertively binding obligation on the two signatory States by stipulating that their military forces “will avoid (and alternatively, seek permission for) holding major military manoeuvres and exercises in close proximity to each other.”³⁴ For naval forces, the word “major” refers to manoeuvres/ exercises “involving six or more ships of destroyer/frigate-size and above, exercising in company and crossing into the other's Exclusive Economic Zone (EEZ).” If such an exercise is conducted, 30 days advance notice should be provided to the other side along with details. Also, if any change in exercise area or participating units is necessitated after submitting the initial notice, such changes need to be notified at least 15 days in advance for naval exercises.

Besides the advance notice of major military exercises, the agreement also carries other provisions for preventing incidents at sea. It stipulates that in international waters, naval ships and submarines of either side are not to close less than three NM of the other side. Hence, the imposition of PNS Babur well within one NM of INS Viraat in 2010 (as mentioned earlier) was clearly a violation of the agreement.

The treaty also stipulates that Indian and Pakistani aircraft will refrain from buzzing surface units and platforms of the other country in international waters. Furthermore, “combat aircraft (fighter, bomber, reconnaissance, jet military trainer and armed helicopters) will not fly within 10 km of each other's airspace including ADIZ” without permission, except when these aircraft are operating from airbases of either side located within 10 km of border, in which case, the no-fly zone is reduced from 10 to five km. Furthermore, “unarmed transport and logistics (military) aircraft including unarmed helicopters and Air Observation Post (AOP) aircraft” will be permitted up to 1,000 metres from each other's airspace including the ADIZ. The details of these provisions applicable to the air forces of the two sides are contained in a follow-up “Air Agreement” signed on the same day called the Agreement between India and Pakistan on Prevention of Air Space Violations and for Permitting Over Flights and Landings by Military Aircraft, 1991.³⁵ Both agreements came into effect on August 19, 1992, and were registered at the United Nations on 15 December 1994.

Clearly, these CBM-based agreements have not prevented military confrontations. This is exemplified by many incidents, in addition to the attempt of the PNS Babur to disrupt an Indian naval exercise in Arabian Sea in 2010 (as mentioned earlier). On August 10, 1999, an Indian Air Force (IAF) MiG-21 fighter shot down a Pakistan Navy’s Atlantique aircraft.³⁶ In June 2013, Pakistan protested against an airspace violation by India, stating that two Indian fighters intruded four km inside Pakistani airspace over Attari (Fazilka sector), and exited after two minutes, only after Pakistan scrambled its own fighters.³⁷ Clearly, therefore, the current military confidence-building agreements with Pakistan have not been effective enough to address bilateral military confrontations, including incidents at sea.

The India-Pakistan CBMs are also marked by legal nuances, which may pose functional challenges to both sides in the future. The first involves the question: Does the 1991 India-Pakistan agreement address incidents at sea involving the Pakistan Maritime Security Agency (PMSA) and the Indian Coast Guard (ICG)? Since the PMSA is a constituent element of the Pakistan Navy (PN), its units are considered as warships and military aircraft, and therefore, the India-Pakistan military agreements apply to the PMSA. However, these agreements do not apply to the ICG ships during peacetime, unless these are commanded by naval officers, which is now rare. Whereas India’s domestic legislation (Coast Guard Act, 1978) designates ICG as an “armed force”, its vessels designated “CGS” are considered warships, only when operating under the command of a commissioned officer, which is an essential prerequisite of warships. Since ICG officers are not commissioned officers, the ICG vessel may be classified as a warship either when a commissioned naval officer holds the command of the vessel directly, or if the vessel commanded by a ICG officer is integrated into the naval command chain during wartime. Similarly, the agreements do not apply to ICG aircraft, since these are not ‘military aircraft’ in legal terms. (The same is the case with the coast-guards of China and Japan,³⁸ though it differs in case of the US Coast Guard.³⁹) This places Pakistan at a disadvantage vis-à-vis India in case of a possible altercation between the ICG and PMSA. In case of such a confrontation, only the PMSA unit (not the ICG unit) would need to stand scrutiny against the legal provision of India-Pakistan military confidence-building agreements.

On February 21, 1999, India and Pakistan signed the Lahore Memorandum of Understanding (MoU). The MoU stated that “the two sides shall conclude an agreement on prevention of incidents at sea in order to ensure the safety of navigation by naval vessels, and aircraft belonging to the two sides.”⁴⁰ Potentially, this could address the incidents at sea involving the vessels and aircraft of ICG and PMSA. However, the agreement was never signed. In 2005, the two countries signed a MoU to establish a communication link between the ICG and PMSA, essentially for EEZ violations, incidents of marine pollution, search and rescue, disaster-response and prevention of drug-trafficking.⁴¹ The MoU has since witnessed successive five-year extensions through mutual diplomatic consent. Although an international instrument of a less formal kind, a MoU has the force of international law since it is an inter-governmental (executive) agreement. However, the ICG-PMSA MoU does not address incidents at sea and airspace comprehensively.

The second nuance relates to the question: Are the India-Pak agreements counterproductive in terms of constraining India’s military manoeuvre and operational options? The answer involves the legal relationship between a bilateral military agreement (such as 1991 India-Pakistan agreement) and multilateral treaties. As lex specialis (Latin for “law governing specific subject matter”), the former overrides multilateral treaty-based Conventions such as UNCLOS. In doing so, it places additional constraints on military units relating to their navigational and overflight freedoms than those imposed by the multilateral Conventions. Hence, analysts argue that such military agreements may be counter-productive for India.⁴² For instance, notwithstanding the overflight freedom bestowed by UNCLOS in the airspace over international waters, Article 4 of the 1991 India-Pak Agreement on “preventing airspace violations” virtually translates into a prohibition for Indian military aircraft to operate in Pakistani EEZ (since the southern edge of Pakistan’s South ADIZ covers more than 75 percent of its EEZ), thus impeding India’s aerial surveillance over these international waters.⁴³ Likewise, Article 1(b) of the 1991 India-Pakistan agreement on “Advance Notice of Military Exercises, Manoeuvres, and Troop Movements” constrains the Indian Navy to freely operate a group of large warships in Pakistan’s EEZ (international waters), notwithstanding the navigational freedom bestowed by UNCLOS.⁴⁴ These agreements may, nonetheless, be essential for India at the politico-diplomatic level for maintaining stable relations with Pakistan and China, with whom, bilateral ties are adversarial in nature.

With China, India entered into the foundational Border Peace and Tranquillity Agreement, 1993 (BPTA),⁴⁵ which, together with its follow-on agreements on specific measures signed in 1996,⁴⁶ 2005,⁴⁷ 2012⁴⁸ and 2013,⁴⁹ created legal obligations upon the two States to desist from using, or threatening the use of force (and “military capability”) against each other and to keep their military forces in areas in the areas along the Line of Actual Control (LAC) to a “minimum level compatible with the friendly and good neighbourly relations between the two countries.” Whether the 2020 military confrontation in Galwan valley (Ladakh) was a breach of China’s legal obligation as claimed by India is a moot issue, which this paper does not intend to address.⁵⁰ The more germane issue here is that these treaties are meant only for military confidence-building across the LAC involving land and land-based air forces, and have no provision to address bilateral military confrontations at sea. This represents a major void considering the increasing likelihood of incidents at sea involving the Indian Navy and the PLA Navy, especially in the Indian Ocean. Some analysts have realised the increasing imperative of an India-China confidence-building naval agreement on the lines of the 1972 INCSEA, as mentioned earlier.⁵¹ However, it may not be in China’s interest to sign such an agreement with India, since it would place legal restrictions on the former’s military mobility in the Indian Ocean. India is not even a part of the Code of Unplanned Encounters at Sea (CUES) which is a voluntary multilateral military mechanism instituted in 2014 under the Western Pacific Naval Symposium (WPNS).⁵² Notably, on Beijing’s insistence, the CUES is not legally-binding and does not include the activities of coast-guards and other state-controlled vessels, which are currently salient in the South China Sea.⁵³ Nonetheless, it does have value of diplomatic persuasion against disruptive naval activities, which applies to all international waters. Whereas the CUES was initially intended for the 21 navies of the Pacific littoral,⁵⁴ given the increasing importance of the Indo-Pacific regional construct, its application could be expanded to the Indian Ocean, or even to the Indian Ocean Naval Symposium (IONS), if a key actor like India joins the mechanism.

Status of Sunken Warships and Military Aircraft

Although the UNCLOS provides for sovereign immunity of warships and military aircraft,⁵⁵ it does not contain any provision on the status of such sunken military platforms. As per customary international law, sunken warships and military aircraft remain the property of the flag-State, until the title is formally relinquished, whether the cause of sinking was accident or enemy action, unless the warship or military aircraft was captured (as booty) before it sank. Also, as a matter of widespread practice based on national policy, irrespective of the circumstances of the sinking and location of these sunken wrecks, States do not grant permission for their salvage. Whereas these wrecks are likely to contain hazardous unexploded ordnance, the principal reason for the State practice is to honour the remains of the deceased service personnel.

In February 2024, the Indian Navy’s deep submergence rescue vehicle (DSRV) discovered the wreck of PNS Ghazi (S-130) sunk in Indian waters off Visakhapatnam during the 1971 India-Pakistan War. The wreck was located barely 1.5 NM from the coast in Indian territorial sea in a relatively shallow water depth of 100 metres.⁵⁶ Since the cause of its sinking has been disputed between India and Pakistan. its salvage could have provided valuable revelations for the common naval history of the two countries. Nonetheless, in consonance with customary international law based on State practice, the wreck was not salvaged. Similarly, the wreck of the Imperial Japanese Navy (IJN) submarine RO-110 off Rambili coast adjoining Visakhapatnam has not been salvaged. The submarine was sunk by the depth-charges of allied warships HMAS Launceston and HMIS Jumna on February 12, 1944 during the Second World War. The same is the case with the wreck of HMS Sheffield sunk during the 1982 Falklands/ Malvinas war, which still lies undisturbed in the South Atlantic.⁵⁷ The case of HMS Coventry during the same war is among the few exceptions to such State practice. The ship sank within barely 20 minutes, leaving behind classified cryptographic material, which needed to be retrieved due to fears that these could fall into the hands of the Soviet Navy.⁵⁸

Although this tenet of international law is not reflected in any treaty, it has been codified in domestic legal position of some States. For instance, the UK’s Protection of Military Remains Act of 1986 forbids any interference with the wreckage of any crashed, sunken or stranded military aircraft or designated vessel without a licence. This is irrespective of loss of life or whether the loss occurred during peacetime or wartime.⁵⁹ Similarly, the US Sunken Military Craft Act of 2004 is meant “to preserve and protect from unauthorized disturbance all sunken military craft that are owned by the United States government, as well as foreign sunken military craft that lie within U.S. waters.”⁶⁰ The US Commander’s Handbook on the Law of Naval Operations (2022) elaborates on this national law, stating that “as a matter of policy, the U.S. Government does not grant permission to salvage sunken U.S. warships or military aircraft that contain the remains of deceased service personnel or explosive material. Requests from foreign countries to have their sunken warships or military aircraft, located in U.S. national waters, similarly respected by salvors, are honored (sic).”⁶¹ India needs to enact a similar law, and the same be articulated in India’s military doctrines, including in INBR-1652.

Conclusion

As examined in the preceding part of this paper (Part 3/5), the UNCLOS and other treaty-based sources of international law relating to maritime affairs have not adequately addressed this aspect of military security for the erstwhile developing coastal States like India. This led these States to adopt appropriate domestic laws to preserve their national security, which were often inconsonant with the interpretation of international law by the major western powers. Even though most of these powers share a broader geopolitical and strategic congruence with New Delhi, it may not be feasible for India to align its legal position with their interpretation of law owing to its current national security imperatives. Therefore, India would need to continue contending with the measures adopted by the western powers to preserve their military mobility across the maritime common, such as the operational assertions being undertaken by the US Navy.

The current part of the paper (Part 4/5) examined other peacetime military issues, which remain unaddressed by international law, largely due to the lack of any multilateral treaty. Some of these legal voids are being filled through State practice, such as the declaration of transient security or operational zones and ADIZ, and the status of sunken military platforms. A few other legal voids are being addressed by States entering into bilateral military confidence-building agreements, especially with their potential adversaries. An example in Indian context is the 1991 agreements with Pakistan, which may not have been effective enough, and which also lead to operational restrictions for India. Nonetheless, this is the best recourse for States to preserve amity with their adversarial neighbours. The grey areas that could lead to unintended military escalation would thus need to be addressed by the commanders at sea based on their best judgement, which appropriately balances the risk of escalation with their assigned mission and the safety of their platforms and crew. Such judgement needs to be honed and supported by appropriate rules of engagement, doctrinal documentation and professional military education.

Endnotes

1. Whereas the phrase ‘International Law of the Sea’ (singular noun) is used to refer to the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), the phrase “International Laws of the Sea” (plural noun) is used in the paper to refer not only to UNCLOS, but also to the other treaty-based Conventions relating to affairs of the sea.

2. W. Surko and Kenneth G. Bullard, “Running Gear Entanglement Systems Protect Ships and Facilities,” Proceedings 130, no. 12, (December 2004).

3. Navy Doctrine for Anti-terrorism/Force Protection, Navy Warfare Publication NTTP 3-07.2 (Rev. A), Office of the Chief of Naval Operations, Department of the Navy, (March 2004): 7-4, https://info.publicintelligence.net/Navy ATForceProtection2004.pdf.

4. Patrick J. McDonnell, “Suicide Boats Attack Iraqi Oil Installations in Gulf,” Los Angeles Times, April 25, 2004, https://www.latimes.com/archives/la-xpm-2004-apr-25-fg-iraq25-story.html.

5. Neil Brown, “Legal Considerations in Relation to Maritime Operations against Iraq,” The War in Iraq: A Legal Analysis, ed. Raul A. “Pete” Pedrozo, International Law Studies 86 (Newport, RI: U.S. Naval War College, 2010):135, https://digital-commons.usnwc.edu/ils/vol86/iss1/9/.

6. ADIZ should not be confused with Flight Information Region (FIR) established to facilitate airspace/ air traffic management, wherein a subjacent State has undertaken responsibility for providing air traffic control services.

7. Annex 15 the 1944 Chicago Convention promulgated in 2015 refers to ADIZ to standardise international practices relating to Aeronautical Information Services (AIS). See ‘Aeronautical Information Services’, International Standards and Recommended Practices, Annex 15 to the 1944 Convention on International Civil Aviation, 16th Edition, October 22, 2015, p.1-2 and 6-1. https://www.icao.int/ESAF/Documents/ICAO-IATA-EURO%20CONTROL%202017/FINAL%20%20PDF%20Papers/DP-1D%20-%20Consolidated%20%20Annex%2015.pdf.

8. “Air Defense Identification Zones,” International Law Studies (Stockton Center for International Law, US Naval War College, Newport), vol 97, 2021, https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=2939&context=ils.

9. These States include Bangladesh, Canada, China/ Taiwan, Finland, Iceland, India, Indonesia, Iran, Japan, Myanmar, Pakistan, North Korea, Norway, the Philippines, Russia, South Korea, Sweden, the UK, the US and Vietnam.

10. Aeronautical Information Publication (AIP) India, Amendment 3-22, March 10, 2022, Aeronautical Information Service (AIS), Airports Authority of India (AAI). https://aim-india.aai.aero/eAIP_Archive/21-04-2022/amendment/CoverSheet.pdf and https://aim-india.aai.aero/eaip-v2-02-2024/eAIP/IN-ENR%205.2-en-GB.html.

11. ATS Route chart of India, Aeronautical Information (updated as on July 01, 2020), ATC Guild I n d i a , A i r p o r t s A u t h o r i t y o f I n d i a ( A A I ) , h t t p s : / / w w w. a t c g u i l d . i n / d o c s / ATS%20ROUTE%20CHART.pdf.

12. Michael Green et al. “Counter-Coercion Series: East China Sea Air Defense Identification Zone,” Asia Maritime Transparency Initiative (AMTI), CSIS, June 13, 2017, https://amti.csis.org/counter-co-east-china-sea-adiz/.

13. United States Navy, The Commander’s Handbook on the Law of Naval Operations (NWP 1-14M), (March 2022): 2-17, https://usnwc.libguides.com/ld.php?content_id=66281931.

14. Establishing Air Defence Identification Zone over Bangladesh, AIP Supplement 01/18, February 01, 2018, Aeronautical Information Services, Civil Aviation Authority, Bangladesh, http://caab.gov.bd/aip/sup/aipsup01-18.pdf

15. “Announcement of the Aircraft Identification Rules for the East China Sea Air Defense Identification Zone of the People's Republic of China,” Xinhua/ China Daily, November 23, 2013, https://www.chinadaily.com.cn/china/2013-11/23/content_17126618.htm.

16. Michael Green et al. “Counter-Coercion Series: East China Sea Air Defense Identification Zone,” Asia Maritime Transparency Initiative (AMTI), CSIS, June 13, 2017, https://amti.csis.org/counter-co-east-china-sea-adiz/.

17. Ananth Krishnan, “AI flights ‘unaffected’ by Chinese air zone,” The Hindu, December 07, 2013, https://www.thehindu.com/news/national/ai-flights-unaffected-by-chinese-air-zone/article5434051.ece.

18. National Security and Interception Procedures, Chapter 5 (Section 6) of Aeronautical Information Manual (AIM), US Federal Aviation Administration (FAA), March 21, 2014, https://www.faa.gov/air_traffic/publications/atpubs/aim_html/chap5_section_6.html.

19. The Commander’s Handbook on the Law of Naval Operations (United States) NWP 1-14M, (March 2022): 2-17. https://usnwc.libguides.com/ld.php?content_id=66281931.

20. Julian E. Barnes, “U.S. Sends B-52s on Mission to Challenge Chinese Claims,” The Wall Street J o u r n a l , N o v e m b e r 2 7 , 2 0 1 3 , h t t p s : / / w w w . w s j . c o m / a r t i c l e s / SB10001424052702303281504579221993719005178.

21. “Interception of Civil Aircraft – Identification and Interception Procedures,” Aeronautical Information Publication (AIP) India, ENR 1.12-1, May 25, 2017. https://aim-india.aai.aero/eaip-v2/eAIP/EC-ENR-1.12-en-GB.pdf.

22. Practiced during the Cold War by the Soviet submarine commanders, “crazy-Ivan” manoeuvre entailed a rapid 180-degree turn. As soon as the submarine completed the turn to reciprocal course, it would immediately switch-on its active sonar to detect the enemy submarine pursuer, which was hitherto un-detectable by the sonar due to the noise of the own submarine’s propeller-wash.

23. The occurrence of the incident is derived from folklore among Indian naval officers, and the same is validated by a related media opinion-piece published in 1999, even though this paper does not endorse the opinion. Arvind Lavakare, “Of A Grotesque Hunk & Vishnu Bhagwat's Fantasies,” Rediff.com News, April 06, 1999, https://m.rediff.com/news/1999/apr/06arvind.htm.

24. Anup Singh, Indian Navy (Retd), E-mail interview, June 08, 2025.

25. Manu Pubby, “Indian submarine spooked warship: Chinese media,” The Indian Express, February 04, 2009, https://indianexpress.com/article/india/india-others/indian-submarine-spooked-warship-chinese-media/.

26. “Pakistan’s Babur tries to disrupt naval exercise for Gujarat’s defence,” Desh Gujarat, June 22, 2011. https://deshgujarat.com/2011/06/22/pakistans-babur-tries-to-disrupt-indias-naval-exercise-for-gujarats-defence/?utm_source=perplexity and Manu Pubby, “Babur tried to disrupt war game,” The Indian Express, June 22, 2011. https://indianexpress.com/article/news-archive/web/babur-tried-to-disrupt-war-game/.

27. Convention on the International Regulations for Preventing Collisions at Sea, 1972, Rule 3(g)(ii) to (v). https://cil.nus.edu.sg/wp-content/uploads/2019/02/1972-Convention-on-Regulations-for-Preventing-Collisions-at-Sea.pdf.

28. Ministry of Defence, Government of India, “Damage to INS Godavari,” Press Release, August 02, 2011. https://pib.gov.in/newsite/PrintRelease.aspx?relid=73848 and Ministry of External Affairs, Government of India, “India lodges protest against PNS Babur’s risky manoeuvres,” Press Release, August 18, 2011. https://www.mea.gov.in/press-releases.htm?dtl/532/India+lodges+protest+against+PNS+Baburs+risky+manoeuvres.

29. Alex Brummer and David Hirst, “US navy ordered to hit back after Exocet kills 28, Iraqis a p o l o g i s e f o r ‘ i n t e r n a t i o n a l ’ i n c i d e n t , ” T h e G u a rd i a n , M a y 1 9 , 1 9 8 7 , https://www.theguardian.com/world/1987/may/19/ir aq.davidhirst.

30. Vienna Convention on the Law of Treaties, 1969 (Done at Vienna on 23 May 1969. Entered into force on 27 January 1980 ) , United Nations, Treaty Series, Article 26 , https://legal.un.org/ilc/texts/instruments/english/conventions/ 1_1_1969.pdf.

31. United States-Union of Soviet Socialist Republics, Agreement on the Prevention of Incidents on and over the High Seas, May 25, 1972, Agreement No 12214, United Nations Treaty Collection (UNTC), https://treaties.un.org/doc/Publication/UNTS/Volume%20852/volume-852-I-12214-English.pdf.

32. Union of Soviet Socialist Republics and Canada, Agreement concerning the Prevention of Incidents at Sea beyond the Territorial Sea, November 20, 1989. Agreement No 27323, United Nations Treaty Collection (UNTC). https://treaties.un.org/doc/Publication/UNTS/ Volume%201568/volume-1568-I-27323-English.pdf.

33. India and Pakistan, Advance Notice of Military Exercises, Maneuvers, and Troop Movements, April 06, 1991. Agreement No 31420, United Nations Treaty Series, https://treaties.un.org/doc/ publication/unts/volume%201843/v olume-1843-i-31420-english.pdf.

34. The text of the 1991 Treaty clearly indicates its legally-binding nature. Besides the affirmative text mentioned in its preamble and the chapeau of the substantive provisions, each of their obligations are expressed by the assertive phrase “will provide”, rather than ‘may provide’ or ‘should provide’. The Treaty even avoids using the term ’shall’, ostensibly because although ’shall’ is more obligatory than ’should’, it is sometimes interpreted as non-binding.

35. India and Pakistan, Agreement on Prevention of Air Space Violations and for Permitting Over Flights and Landings by Military Aircraft, April 06, 1991. Agreement No 31419, United Nations Treaty Series, https://treaties.un.org/doc/publication/unts/volume%201843/volume-1843-i-31419-english.pdf.

36. The Atlantique debris was located on both sides of the international border. Pakistan claimed that the “unarmed” aircraft was shot down two km within its own airspace, in violation of 1991 bilateral agreements. India claimed that it had intruded into Indian airspace for intelligence gathering. Even if the aircraft was within two km of the border, Pakistan violated the 1991 agreements since the anti-submarine Atlantique is categorised as “combat aircraft”. Vijay Jung Thapa, “ Creek Crisis: Atlantique Downing,” India Today , August 23 , 1999 ,https://web.archive.org/web/20081222215123/http://www.india-today.com/itoday/19990823/ creek.html.

37. “Indian fighter jets violate Pakistani airspace: PAF,” The Dawn, June 11, 2013, https://www.dawn.com/news/1017525/indian-fighter-jets-violate-pakistani-airspace-paf.

38. The units of CCG and JCG are not designated as warships and military aircraft.

39. Since the USGC is designated as a military force (although under the Department of Homeland Security), all its officers are commissioned officers who command most USCG vessels (except the smallest classes of cutters commanded by enlisted personnel). Therefore, most USCG vessels are considered warships. All USCG aircraft are designated military aircraft.

40. Ministry of External Affairs, Republic of India, The Lahore Declaration, February 21, 1999, United States Institute of Peace, https://www.usip.org/sites/default/files/file/ resources/collections/peace_agreements/ip_lahore19990221.pdf.

41. MOU between India & Pakistan for the establishment of a Communication Link between ICG and the PMSA, 03 October 2005. https://www.mea.gov.in/Portal/LegalTreatiesDoc/ PA05B1822.pdf.

42. Pranav Pandey, “Rules-based Maritime Air Order – Passive Resilience to Realpolitik,” Indian Naval Despatch (INDES), vol. 5, no. 1 (2024): 11.

43. India and Pakistan, Agreement on Prevention of Air Space Violations and for Permitting Over Flights and Landings by Military Aircraft,” April 06, 1991. Agreement No 31419, United Nations Treaty Series, https://treaties.un.org/doc/publication/unts/volume%201843/volume-1843-i-31419-english.pdf

44. Article 1(b) of “India and Pakistan: Advance Notice of Military Exercises, Maneuvers, and Troop Movements”, 06 April 1991. Agreement No 31420. https://treaties.un.org/doc/ publication/unts/volume%201843/volume-1843-i-31420-english.pdf.

45. “Agreement on the Maintenance of Peace and Tranquility along the Line of Actual Control in the India–China Border Areas,” September 1993, PA-X Peace Agreements Database, https://www.peaceagreements.org/viewmasterdocument/2 86.

46. Ministry of External Affairs, Government of India, “Agreement Between the Government of the Republic of India and the Government of the People's Republic of China on Confidence-Building Measures in the Military Field Along the Line of Actual Control in the India-China Border Areas,” November 29, 1996, https://www.mea.gov.in/Portal/LegalTreatiesDoc/ CH96B1124.pdf.

47. Ministry of External Affairs, Government of India, “Agreement between the Government of the Republic of India and the Government of the People's Republic of China on the Political Parameters and Guiding Principles for the Settlement of the India-China Boundary Question,” April 11 , 2005 , https:// www. mea. gov. in/ bilateral- documents. htm? dtl/ 6534 / Agreement+between+the+Government+of+the+Republic+of+India+and+the+Government+of+the+Peoples+Republic+of+China+on+the+Political+Parameters+and+Guiding+Principles+fo r+the+Settlement+of+the+IndiaChina+Boundary+Question.

50. Ministry of External Affairs, Government of India, “Agreement between the Government of the Republic of lndia and the Government of the People’s Republic of China on the Establishment of a Working Mechanism for Consultation and Coordination on lndia-China Border Affairs,” January 17, 2012, https://www.mea.gov.in/Portal/LegalTreatiesDoc/C H12B0194.pdf.

51. Ministry of External Affairs, Government of India, “Agreement between the Government of the Republic of India and the Government of the People's Republic of China on Border Defence Cooperation,” October 23, 2013, https://www.mea.gov.in/bilateral-documents.htm?dtl/22366Agreement+between+the+Government+of+the+Republic+of+India+and+the+Government+of+the+Peoples+Republic+of+China+on+Border+Defence+Cooperation.

52. Ministry of Defence, Government of India, “Text of Raksha Mantri Shri Rajnath Singh Statement in Rajya Sabha on September 17,” Press Release, September 17, 2020, https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1655521.

53. Monish Tourangbam, “Avoiding Incidents at Sea between India and China,” Stimson, April 26, 2018, https://www.stimson.org/2018/avoiding-incidents-sea-between-india-and-china/.

54. Sam Lagrone, “Document: Code of Unplanned Encounters at Sea,” CUES Version 1.0 (April 2014), USNI News, June 17, 2014, https://news.usni.org/2014/06/17/document-conduct-unplanned-encounters-sea.

55. CUES Article 2.8.1 lists the circumscribed naval activities like weapon discharge and simulated attacks. However, it is silent on maritime law-enforcement actions by State vessels like those of China Coast Guard and its maritime militia, which often resort to using water-cannons, bumping/ shouldering and even using knives and axes to puncture the inflatable boats of the adversary in the South China Sea.

56. These navies comprise those of Australia, Brunei, Cambodia, Canada, Chile, China, France, Indonesia, Japan, Malaysia, New Zealand, Papua New Guinea, Peru, the Philippines, Russia, Singapore, South Korea, Thailand, Tonga, the United States and Vietnam.

57. UNCLOS Art 95 and 236.

58. Nalla Babu, “Indian Navy's DSRV locates wreckage of Pakistan submarine Ghazi off Vizag coast,” Times of India, February 22, 2024, https://timesofindia.indiatimes.com/city/visakhapatnam/indian-navys-dsrv-locates-wreckage-of-pakistan-submarine-ghazi-off-vizag-coast/articleshow/107921274.cms.

59. Darren Burke, “HMS Sheffield: Remembering the victims on 40th anniversary of the sinking of the Royal Navy ship,” The Star, May 04, 2022,https://www.thestar.co.uk/news/hms-sheffield-remembering-the-victims-on-40th-anniversary-of-the-sinking-of-the-royal-navy-ship-3680063. 58 “Protecting the secrets of a wreck – diving on HMS Coventry,” Navy Lookout, September 29, 2022, https://www.navylookout.com/protecting-the-secrets-of-a-wreck-diving-on-hms-coventry/.

59. United Kingdom, Protection of Military Remains Act 1986, ICRC International Humanitarian Law Database website, https://ihl-databases.icrc.org/en/national-practice/protection-military-remains-act-1986-0#:~:text=Protection%20of%20Military%20Remains%20Act%201986% 20%5B8th%20July%201986%5D%20%3A,remains%20%3B%20and%20for%20connected% 20purposes.

60. United Status, Sunken Military Craft Act of 2004, H.R. 4200, Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Website of the Naval History and Heritage Command, https://www.history.navy.mil/research/underwater-archaeology/policy-and-resource-management/sunken-military-craft-act/smca.html.

61. The Commander’s Handbook on the Law of Naval Operations, Navy Warfare Publication NWP 114M (March 2022), Office of the Chief of Naval Operations, Department of the Navy, 21, https://usnwc.libguides.com/ld.php?content_id=66281931.