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America and India need a little flexibility at sea

YB WEB DESK. Dated: 4/17/2021 11:21:16 AM

New Delhi, Apr 16 Headlines recently shrieked outrage in India after an April 7 announcement from the U.S. 7th Fleet that it had conducted a freedom of navigation operation (commonly referred to as a FONOP) in the Indian Ocean targeting Indian claims. Some Indian commentators were shocked to learn that the United States, a burgeoning strategic partner, was publicly boasting about sailing warships through Indian waters to challenge India’s “excessive maritime claims”—an indignity they assumed was reserved for mutual rivals like China. The operation generated a mini firestorm in India, providing fuel for sceptics opposed to stronger India- U.S. ties. It was paraded around as evidence of America’s unreliability, an affront to Indian sovereignty, and an act of hypocrisy from a country that has yet to ratify the United Nations Convention on the Law of the Sea (UNCLOS). But there’s nothing new in this. The United States has conducted FONOPs directed at Indian maritime claims regularly since at least 1992. The U.S. Navy conducted at least six Indiarelated FONOPs between then and 2003 and, with two exceptions, every year between 2007 and 2021. It’s a position consistent with the long-standing U.S. commitment to freedom of passage: one that gains credibility by not being directed at strategic rivals alone. The FONOP program, which began in 1979, is designed to challenge maritime claims the United States finds inconsistent with international law. The operations “involve naval units transiting disputed areas to avoid setting the precedent that the international community has accepted these unlawful claims.” In the India operation this month, the United States “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.” In recent years, FONOPs have become a part of the mainstream discourse due to a surge in operations directed at China’s unlawful claims in the South China Sea, including around the artificial islands it began constructing there in the mid- 2010s. But the program is much broader than that. In fiscal year 2018, U.S. FONOPs challenged the claims of U.S. treaty allies like Albania, Croatia, Japan, and the Philippines. While a FONOP directed at India wasn’t new or unusual, issuing a real-time press release about the operation was. Here, the 7th Fleet deviated from past practice of burying routine operations in the annual Freedom of Navigation Report released by the Department of Defence. Upon review, it appears the 7th Fleet has begun making public statements about all or most FONOPs this year, which may signal a shift by the Biden administration toward more consistent, realtime public messaging on these operations. In most cases, such transparency would be welcome. However, FONOPs present a unique case where greater discretion might be advisable. At the very least, the India operation provides an opportunity to assess the merits of this shift toward greater public reporting on FONOPs and to review where India stands on the key freedom of navigation fault lines that divide the United States and China.