Indian Naval Despatch Monsoon Edition, Vol. 4 No. 2, “Rules-Based Maritime Air Order”1 by RAdm Sudhir Pillai.

RAdm Pillai’s emphasis on the need for deeper study of the Law of the Sea and the Laws of Naval Warfare should be seen as a crucial aspect of our professional development. Such knowledge is built at various stages of PME for naval leaders and is part of professional practice at sea and in the air. It is, however, also imperative to discern that both legal entities have their respective timeframes for application – peacetime and war.2

While internal laws (municipal laws) assisted India in coping with some challenges and constraints when the UNCLOS was being negotiated, the geopolitical environment and India’s place within are different today. Several States, as well as scholars, have expressed apprehensions regarding varying interpretations of the Law of the Seas. India's Municipal Laws, particularly the deviations in the Maritime Zones Act of 1976, with respect to the 1982 UNCLOS adopted a few years later.3 The MV Enrica Lexie incident, for example, sparked extensive debate among legal and academic sections of the nation. In reference to deviations in the interpretation of ICAO regulations, constraining State aircraft4 in the age of widespread informatisation and AI may limit tactical and operational flexibility for one’s own aircraft on the high seas. It is important to note that every practice and hesitation in acting by State aircraft could contribute to furthering other States’ illegal claims.5

We could consider an example. In general, whenever there exists a conflict between international law and municipal laws, the former shall always prevail under the established dispute resolution framework.6 Consider the case of the Kerch Strait in the Black Sea. While interpreting international law, the principle of lex specialis (Laws of Naval Warfare & Treaty of the Sea of Azov and the Kerch Strait, 2003) defines the application of specific laws, regulations, case laws, and treaties between states should disagreements arise. In the case of the Republic of Ukraine vs the Russian Federation, ITLOS upheld a few observations in favour of the Republic of Ukraine in the disputed Kerch Strait incident,7 having caused the Russian Federation to release Ukrainian Naval vessels and their personnel.8 This firmly implies the Russian Federation’s belief in and respect for international laws. Nonetheless, the Russian Federation had a strong legal case at the ITLOS with regard to the Kerch Strait incident. While realpolitik clearly is a threat to world peace and order, the same warrants that States build confidence with each other at all levels of leadership while concurrently aiming to develop capabilities and capacities to thwart other States if considered necessary.

In the realm of lawfare, a vulnerable position could be detrimental to a State’s reputation. The principle lex specialis derogat legi generali, which translates to ‘more specific rules will prevail over more general rules,’ will be unique to each case with ever-evolving international law.9 Therefore, this warrants appropriate measures at different levels of policy and decision-making to take note of each treaty, case law, confidence-building initiative, procedure and practice that affects our units on the high seas or the airspace over it. With the Government of India’s stance of keeping national interests first, the ultimate goal is to leverage all available tools at our disposal rather than relinquishing them due to a deficient comprehension of legal regulations. Drawing context, it may be perilous to expect military aircrew to balance ‘due regard’ and national interest with an assumed sense of ‘legal obligation’10 when flying over the high seas. An example of such lex specialis where aircrew remains involved is an agreement with Pakistan.

By the very nature of EEZ and the definition of international airspace, IN virtually lost autonomy of overflight11 and high seas freedom at the tactical level to patrol and surveil over the specified area.12 However, gaps in CBMs exist for exploitation, allowing military flights up to 12 NM of the Pakistani coastal baseline, this ambiguity exists for both States.13 CBMs are instruments of national policies and provide means of dispute resolution, albeit at the cost of constraining aircrew and may be avoided.

It is a known fact that the present-day interpretation of international law is a reflection of lex ferenda (how the law should be interpreted in the future) of the Western powers, which suits their geopolitical interests. India's status can be enhanced by establishing a reputation for compliance and respect for international laws, ultimately forming cooperative agreements like the QUAD that can benefit all party States. Adherence to international law is regarded as a crucial aspect of any State’s interest; it does not necessarily require the implementation of enforcement mechanisms akin to those commonly associated with domestic law. However, by adhering to lex lata (present-day law) interpretations, a State can further evolve lex ferenda (Indian strategic culture) amongst like-minded States and establish a positive perception of collaboration, thereby advancing its objectives in the realms of global affairs & trade and ultimately securing the support of external stakeholders.14 Through cooperative arrangements, a State may achieve more rather than by unilateralism and realistic politics (‘realpolitik’), which would clash with the interests of other States and stimulate enmity and antagonism.

Specific to states like China and the US, to name two of the great powers, abstract legal principles may carry little weight for their notions of law; however, such notions offer no regulatory framework for resolving disputes. This brings unpredictability to such States’ interactions, leaving room for mistrust and loss of credibility in their political, diplomatic and military leaderships at the geopolitical stage. Not abiding by lex lata interpretations brings incidents like Iran shooting US drones and that of MV Enrica Lexie, causing momentary rifts between States.

The IN will require subject matter experts on several States to understand and interpret the lex specialis between India and other such States. The insights of these experts would contribute to the refinement and development of our policy framework, as previously discussed in relation to lex ferenda. India and its Navy stand at a point in history where it must emerge as a trustworthy and law-abiding maritime power while unequivocally asserting our freedom over the global commons.

Endnotes

  1. RAdm Sudhir Pillai (Retd), “Rules-Based Maritime Air Order”, Indian Naval Despatch, Monsoon Edition, Vol 04 No 02, 2023.

  2. Lt Cdr Pranav Pandey, “A Legal Analysis on Freedom Of Maritime Air Operations Under International Law”, Indian Naval Despatch, Spring Edition, Vol 04 No 01, 2023, p 63; “The original article limited its scope to peacetime air operations, whereas Laws of Naval Warfare are limited by their application to International Armed Conflict.”

  3. Writ Petition (Civil) No. 135 of 2012, “Republic of Italy vs Union of India & Others”, Supreme Court of India, 2012.

  4. Lt Cdr Pranav Pandey, “A Legal Analysis on Freedom of Maritime Air Operations Under International Law”, Indian Naval Despatch, Spring Edition, Vol 04 No 01, 2023, p 68-71.

  5. Lt Cdr Pranav Pandey, “A Legal Analysis on Freedom of Maritime Air Operations Under International Law”, Indian Naval Despatch, Spring Edition, Vol 04 No 01, 2023, p 71.

  6. Article 2, UN Charter.

  7. Permanent Court of Arbitration, “Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait”, 2020, p136-141.

  8. DW, “Russia returns Ukraine's navy vessels”, https://www.dw.com/en/russia-returns-navy-vessels-seized-from-ukraine/a-51286196, accessed 03 December 23.

  9. Christopher Greenwood, “Sources of International Law”, 2008, https://legal.un.org/avl/ pdf/ls/greenwood_outline.pdf, accessed 01 Dec 23.

  10. Lt Cdr Pranav Pandey, “A Legal Analysis on Freedom of Maritime Air Operations Under International Law”, Indian Naval Despatch, Spring Edition, Vol 04 No 01, 2023, p 67.

  11. Article 4, UN Agreement No. 31419 between India and Pakistan, “Prevention of Air Space Violations and for Permitting Over Flights and Landings by Military Aircraft”, 6 April 91.

  12. Article 1(b), UN Agreement No. 31420 between India and Pakistan, “Agreement on advance notice on military exercises, manoeuvres and troop movements”, 6 April 91.

  13. Article 2(a) and Article 6, UN Agreement No. 31419 between India and Pakistan, “Prevention of Air Space Violations and for Permitting Over Flights and Landings by Military Aircraft”, 6 Apr 91; “No aircraft of any side will enter the airspace over the territorial waters of the ether country, except by prior permission.”

  14. Article 1, Article 2(4), UN Charter.