Is the United States violating international law of the sea by using FONOPs and are other powers like China following it?
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Countries such as Brunei, Indonesia, Malaysia, the Philippines, Taiwan and Vietnam have been outraged by China's growing intrusion into the South China Sea and widespread claims of sovereignty.) Now it is claimed sovereignty. The United States (US), in response, is tightening its sacred and military presence in the region and engaging in a growing number of exercise navigation freedom (FONOPs).
Is FONOP a tool to intimidate others?
A FONOP was organized by the US in April 2021 in Indian territory. The issue came to the fore last year when US naval cruiser USS John Paul Jones encroached on the Indian islands of Lakshadweep in India’s exclusive economic zone and this led to a number of incidents. It is well known that there are differences between India and the US (and indeed many Asian coastal states and Western powers) over the explanation of some of the provisions of the UNCLOS.
The USS, John Paul Jones, guided-missile destroyer, claimed the right of navigation on April 9, 2021, 130 nautical miles west of Lakshadweep Islands. This was because it was in India's special economic zone and without India's prior consent (consistent with international law). Media reports have suggested that the US has claimed as an FONOPS activity that the oceans are ‘global commons’ - which are seen as potential economic resources that are beyond national jurisdiction and have a legal definition.
FONOPS gives the US immunity and the right to seamless transit and navigation in the waters of the exclusive economic zone, high seas and archipelagos anywhere in the world.
FONOPs have targeted US strategic partners, for example, allies such as Japan, South Korea, the Philippines, Taiwan and Thailand; Friends like India, Saudi Arabia, Oman and the United Arab Emirates (UAE), neutrals like Indonesia, Malaysia, Sri Lanka, Maldives and Sweden; And enemies like Russia, China, and Iran. However, some Indian analysts believe that the US has violated the EEZ by entering the Indian exclusive economic zone in April 2021 and violated the principle of communication.
This led to a literal and soulless violation of international law. The FONOP program, originally launched in 1979, was designed to challenge US maritime claims in accordance with international law. FONOPS gives the US immunity and the right to seamless transit and navigation in the waters of the exclusive economic zone, high seas and archipelagos anywhere in the world. At this point an important question must be posed - how ubiquitous is the international law of the sea, the UNCLOS, since the United States never recognized it?
What is being referred to as ‘international law’ is the 1982 United Nations Convention on the Law of the Sea, which the United States has refused to recognise.
According to UNCLOS 1982, ‘a country’s sovereign sea extends up to 12 nautical miles from its shores and its exclusive economic zone extends between 12 and 200 nautical miles. ‘Therefore, what UNCLOS does almost everywhere is the enactment of laws and regulations whose widespread acceptance is believed to have greatly reduced the number, frequency and potential of inter-state conflicts, which would have occurred in its absence. But there is a lot of ambiguity about UNCLOS.
The first significant development in this context is the legal sanctification of 200 nautical miles of exclusive economic zones (EEZs), on which the states have the sovereign right to explore the "high seas" which are the common access areas of mankind.
The first significant development in this context is the legal sanctification of 200 nautical miles of exclusive economic zones (EEZs), on which the states have the sovereign right to explore the "high seas" which are the common access areas of mankind. In the high seas, while the law is responsible for important narrow straits for “transit passages,” no country is allowed to assert its jurisdiction. This area follows a special dispute resolution mechanism. This controversial issue is further complicated by the fact that the United States has not recognized UNCLOS.
FONOPs: An example for other players?
China is an emerging maritime power that has accused the world of violating the UNCLOS and disobeying international law. The U.S., which supports keeping tabs on South China Sea territory, does so by regularly holding FONOPS to challenge China’s aggressive territorial claims and disputes in the South China Sea. As mentioned earlier, China has stepped up its campaign to gain control of the South China Sea and has restrained itself against US involvement. The 2016 Standing Court of Arbitration in The Hague announced its decision on the Philippines ’UNCLOS claim against China, ruling in favor of the Philippines on practically every issue. However, China has refused to comply with the law. So, This brings us to another important question - have FONOPs set a precedent for countries like China to violate other countries ’territorial waters at will? Is this a potential threat to India as well?
The U.S., which supports keeping tabs on South China Sea territory, does so by regularly holding FONOPS to challenge China’s aggressive territorial claims and disputes in the South China Sea.
Certainly, this needs to be answered in terms of amending existing laws. In particular, UNCLOS 1982 needs to be revised, especially with regard to its framework. It is time for UNCLOS signatories to convene a new conference to examine legislation and resolve disputes. UNCLOS's framework format means "not all disputes need to be resolved"; Instead they can be “managed”. With the caution of UNCLOS, we may sooner or later fail to adequately protect our global commons.
Finally, in the context of the expansion of Indo-US defense and security relations, the FONOP incident of April 2021 certainly underscores the growing need for both the USA and India to take into account each other’s sensitivities. Especially at a time when both countries are publicly seeking to enhance cooperation through strategic alliances such as QUAD and the Indo-Pacific Ocean Initiative. Both countries are committed to creating a strong maritime environment and the feasibility of joint operations should be assessed in light of resolving our differences against UNCLOS. Despite allegations surrounding Lakshadweep's FONOP, the two nations have sought to reduce their differences.
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