India’s neighbours revisit maritime legislations

Sub Title : Economic and security requirements warrant a relook at maritime legislations

Issues Details : Vol 17 Issue 1 Mar – Apr 2023

Author : Dr Vijay Sakhuja, Former Director, National Maritime Foundation

Page No. : 12

Category : Geostrategy

: March 25, 2023

The United Nations Convention on the Law of the Sea, adopted in 1982 lays down rules governing the use of oceans and their resources.  In addition, countries in the Indian subcontinent  have their own Maritime Zone Acts. India has one of 1976 vintage. India’s neighbours are revisiting their maritime legislations. Currently there are no indications to suggest that India plans to amend the 1976 Maritime Zones Act. Keeping  economic and security (especially the proliferation of autonomous systems) aspects in mind, perhaps India should

Pakistan’s National Assembly passed the Maritime Zones Bill 2021 in February 2023. It supersedes the 1976 Territorial Water Maritime Zone (TWMZ) Act including the amendments made in 1997. The new Pakistan Maritime Zones Act, 2023 takes into consideration the various provisions contained in international maritime and customary laws and is in line with the 1982 United Nations Convention of the Law of the Sea (UNCLOS). It will enable Pakistan to exercise maritime rights over 240,000 square kilometers of Exclusive Economic Zone (EEZ) and 50,000 square kilometers of continental shelf and address issues concerning “rights of innocent passage, safety zones, offshore installations, pollution, dumping, jurisdiction on foreign ships, foreign warships, visit and search, piracy, armed robbery against ships, arrest, trial and punishment etc.”

Majority of the countries in the Indian subcontinent, including India, have signed the 1982 UNCLOS and ratified it. The Convention was opened for signatures on 10 December 1982 in Montego Bay, Jamaica. After nearly 14 years of work, the 1982 UNCLOS entered into force on 16 November 1994. In addition, they have also enacted Maritime Zones Acts (MZA) – India (1976) and Sri Lanka (1976) continue with the older MZAs enacted before the convention came into force. Meanwhile Bangladesh (2021); Maldives (1996); Myanmar (2017) have repealed and promulgated new MZAs.

There are at least three important reasons which have prompted these countries to review and revise their respective MZAs. First the critical need to assert jurisdiction and control over sea areas as entitled under the 1982 UNCLOS. This has been prompted due to the growing trends in transit passage and operational activity by military ships and aircraft of foreign navies who chose to exercise freedom of navigation and conduct unlawful maritime-military operations in waters under the jurisdiction of the coastal state. It is also their firm belief that operations such as the Freedom of Navigation Operations (FONOPS) by the United States Navy and other military related scientific activities impinge on national security. It is pertinent to mention that the United States has not ratified the 1982 UNCLOS.

In recent times, the exercise of FONOP by the US Navy has been an issue of contention. Although a large number of the FONOPs were and continue to be conducted in the western Pacific Ocean (targeted against China), FONOPs have been directed against many countries in South Asia – Myanmar, India, Pakistan, Bangladesh, and Sri Lanka. On 3 April 2021 the US Navy conducted FONOP in Sri Lankan waters and soon thereafter on 7 April, USS John Paul Jones (DDG 53) sailed and conducted exercises off the Lakshdweep Islands in Indian EEZ. The US 7th Fleet statement notes that the ship “asserted navigational rights and freedoms approximately 130 nautical miles west of the Lakshadweep Islands, inside India’s exclusive economic zone, without requesting India’s prior consent, consistent with international law. India requires (other navies to take) prior consent for military exercises or maneuvers in its exclusive economic zone or continental shelf, a claim inconsistent with international law. This freedom of navigation operation (“FONOP”) upheld the rights, freedoms, and lawful uses of the sea recognized in international law by challenging India’s excessive maritime claims.”

This act was in contravention to the 1995 Indian declaration which avers that “the provisions of the convention do not authorize other states to carry out military exercises or maneuvers in the EEZ and on the continental shelf, in particular those including the use of weapons or explosions, without the consent of the coastal state”. India was not spared notwithstanding the very high level of trust between the two navies who conduct maximum bilateral exercises that far exceed any of their alliance partners and even the NATO. A point of interest- over 60 counties including smaller ones in the Caribbean have experienced US assertive-coercive and illegal behaviour through FONOP.

Second, is the promise of Blue Economy which is increasingly seen as part of the national economy (as percentage of GDP in the form of goods and services). The EEZ generated under the 1982 UNCLOS requires governance (jurisdiction and assertion of rights). Furthermore, it requires marine spatial planning for coordinated development of EEZ under national jurisdiction, sustainability of resource development, and environment protection. Blue Economy is valued at nearly US$ 24 trillion and it is high on the agenda of national development plans.

It is estimated that Pakistan’s Blue Economy potential is over $100 billion but it currently contributes only approximately US$ 1 billion to the national GDP. The maritime tourism sector accounts for US $300 million of GDP. As far as the fishing industry in Pakistan is concerned, the country exports between US $ 250-300 million worth annually. It can be scaled up to US $2 billion annually by “applying correct method of fish catching and following hygiene protocols in packing”.

Likewise, Bangladesh has catapulted the oceans and seas high on its national agenda and the Bay of Bengal is fast emerging as a major economic hub.  In 2017 the country established the “Blue Economy Cell” under the Ministry of Foreign Affairs (MoFA) to coordinate Blue Economy projects among Sectoral ministries. As many as 26 sectors have been identified by the government including “coastal protection, maritime safety, and surveillance for the expansion of Bangladesh’s blue economy”. Similarly, for an island nation such as Maldives, in 2020 the tourism sector alone generated around US$ 1.41 billion which corresponds to 26.07 % of the GDP.

Third is the issue concerning the UN Sustainable Development Goals (SDG) to ‘end poverty, protect the planet, and ensure prosperity” through integrated and indivisible 17 Goals to be achieved by 2030. Goal 14 relates to the seas and lists 14 targets concerning the health of the oceans including regulating fisheries and curb overfishing and illegal unreported and unregulated (IUU) fishing.

Bangladesh has committed to accomplishing all targets applicable to SDG 14 and has declared 8.8% of its EEZ as Marine Protected Areas. It has amended Bangladesh Ship Recycle Act, 2018, and set a target of compliance with the Hong Kong Convention by 2023. In the case of Myanmar, the country has not been to achieve various targets due to a number of factors such as weak domestic political stability, military coup, human rights violations, and sanctions and more recently due to COVID19 pandemic.

Currently there are no indications to suggest that India plans to amend the 1976 Maritime Zones Act . Experts argue that the current Act is sufficient to respond to movement of foreign warships including submarines and other underwater vehicles entering or passing through Indian territorial waters. In the past there have been instances when foreign naval ships and scientific research vessels have conducted operations in Indian EEZ and these were responded to through diplomatic protests. Prominent among these are the intelligence and survey activities by USNS Bowditch and USNS Mary Sears and British Royal Navy HMS Scott in India’s EEZ. More recently, the Chinese surveillance ship Shiyan-1 was detected in waters off the Andaman and Nicobar Island and was directed to leave the area.

At another level, India’s “Maritime Vision Document-2030” is a 10-Year blueprint for the country’s vision of a sustainable maritime sector.  Blue Economy is currently assessed at nearly four per cent of India’s GDP and the government aims to increase its share in national GDP to double digits by 2047.

India is also set to join the elite group of countries – United States, United Kingdom, Germany, France, Russia, Japan, and China- to explore the sub-sea, and harness the unexplored wealth of the oceans on the seabed. As a Pioneer Investor, India was allotted 75,000 square kilometers in the Central Indian Ocean Basin. This Area contains nearly 380 million tons of Polymetallic nodules (Copper, Cobalt, Nickel, Manganese, Rare earths, etc.) and the Integrated Mining System developed by the National Institute of Ocean Technology (NIOT) under the Ministry of Earth Sciences (MoES) is primed for mining at depths of 5000-5500 meters.

The ‘Samudrayaan Mission’ is a mega project and is part of the Deep Ocean Mission announced by the Prime Minister on the occasion of the 75th Independence Day. Seabed resource development also dovetails into the Indian mission of development of the Blue Economy currently assessed at nearly four per cent of India’s GDP. The upcoming national Blue Economy policy aims to increase its share of GDP to double digits by 2047.

India may have to consider amending the 1976 MZI given that a number of technological developments concerning maritime-naval operations by unmanned and autonomous platforms require to be addressed particularly those of the US who has created Task Force 59 (TF 59) comprising unmanned platforms such as the high-endurance Saildrone USVs. As many as 100 of such vessels are expected to operate in waters of the Middle East by the summer of 2023. In January and February, about 80 unmanned systems were deployed in the North Arabian Sea crescent i.e. Persian Gulf-North Arabian Sea- Gulf of Oman-Red Sea. Similarly, China which has upped the ante in the South China by introducing giant-AI controlled research drone carrier to support its Gray Zone operation, may consider operating such platforms out of Gwadar, Pakistan. India needs to be geared both technically and legally.