US Defense Secretary Lloyd Austin (left), with Indian Defense Minister Rajnath Singh, addresses a joint media briefing in New Delhi on March 20, 2021. Photo: AFP / Money Sharma

The April 7 announcement by the US Navy that it had conducted a freedom of navigation operation (FONOP) in India’s exclusive economic zone (EEZ) generated a surge of anti-American sentiment that could erode advances in US-India relations. This could have been avoided by recognizing the reality that FONOPs convey political messages.

FONOPs are US “challenges to other states’ explicit maritime claims” that are not consonant with international law – as interpreted by the US. The Pentagon considers them routine and “not aimed at any country.” But many countries view a top-of-the-line US warship purposefully violating their laws as intimidating – indeed, a threat to use force. To them it is at the very least an unfriendly act that can influence relations in other spheres.

The administration of former US president Donald Trump had moved the case-by-case decision-making out of the White House to the Pentagon. The idea was that the Pentagon would submit a yearly plan of FOPNOPs for approval and once the plan was approved they would be undertaken as scheduled – regardless of the political implications.

Also read: Did Delhi just yield the Indian Ocean to the US?

The intent was to make FONOPs ”routine” and apolitical. This was folly. FONOPS have always had a political purpose – to enforce the US interpretation of the “international order,” in this case the Law of the Sea.

In this case, the US Arleigh Burke-class guided-missile destroyer John Paul Jones undertook a FONOP in India’s EEZ challenging India’s requirement of prior consent for military exercises or maneuvers. It was the latest case of bad political timing for a FONOP.

It came on the heels of a March 19-21 visit by US Secretary of Defense Lloyd Austin to India intended to boost US-India defense relations. Austin had said that his Asia trip was meant to further “credible deterrence against China.”

Needless to say, the US announcement of the FONOP did not go over well in India and was probably a setback for the US hope of better security relations. India expressed its concerns to the US government and contested the US position.

But it does not matter in the short term who is legally right or wrong. The public violation of India’s law and the unusual in-your-face public announcement thereof was a diplomatic faux pas that embarrassed its leaders.

It is hard to believe that Austin was not aware of the pending FONOP. Yet judging from the reaction of India’s leaders, he apparently did not prepare them for it. Even if he did, it did not mollify the reaction of India’s nationalists. And if he was unaware, the US military has a serious internal communication problem.

Indeed, while not the first, the timing of this particular FONOP gave ammunition to those opposed to closer US-India ties. The Indians saw it as “evidence of America’s perfidy and unreliability and an hypocritical affront to Indian sovereignty.” More bluntly, it was disrespectful and hurt Indians’ “sensibilities.”

Why is this faux pas so important? India is critical to helping shore up the western flank of the Quadrilateral Security Dialogue that the US hopes will become a loose security arrangement among itself, India, Australia and Japan to contain China.

It is already on shaky ground as China is using its economic might to prevent these countries from joining the US against it.

Moreover, India’s participation in a security arrangement is even shakier. The US is gambling that India and others will join its anti-China security grouping.

India is the principal potential country of concern to China in such a grouping. However, India is steadfastly nonaligned and moreover does not measure up to US preferred standards of democracy and human rights. These differences could present serious obstacles to a closer relationship.

Moreover, China can apply pressure on India to demur and delay joining any security arrangement by withdrawing desperately needed assistance in infrastructure development, making more military mischief along their disputed border, beefing up its presence in the Indian Ocean and providing increased military aid to India’s arch-enemy Pakistan. Further, the prospects of a trade war between India and the US will not help boost India’s interest in the Quad.

The FONOP and its timing and US-instigated publicity may have made India’s leaders realize that they and the US have very different views of the meaning of “the international order” and a “Free and Open Indo-Pacific” – two concepts that Washington has been proselytizing in Asia.

Unlike India, the US has not ratified the UN Convention on the Law of the Sea, which is the basis of the “international order” at sea. Many countries argue that the UNCLOS is a series of package deals and that non-ratifiers are not entitled to the “benefits” of the bargains while picking and choosing which of the provisions – or their interpretations thereof – it wishes to abide by.

They contend that interpretation of key terms in the Convention relevant to freedom of navigation – such as “abuse of rights,” ”due regard,” and “peaceful use/purpose” – are evolving rapidly through state practice and that non-ratifiers like the US do not have the legitimacy to interpret them unilaterally to their advantage.

It may now seem to India’s leaders that the US is saying “it is my interpretation of these concepts and terms – or else.” This is in principle the same fundamental divide that the US has with many other countries – including China, the very country it is trying to enlist India’s help against.

Many countries also believe that FONOPs are not necessary to demonstrate the US legal position. Non-acquiescence to another country’s position can be effectively and sufficiently demonstrated by verbal and written diplomatic communiqués. This diplomatic option seems to be sufficient for other nations, including maritime powers whose rights the US claims to be protecting.

Indeed, diplomatic protest rather than “gunboat diplomacy” is more consonant with the UN Charter. It requires that “all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

In this particular case, other countries such as Malaysia, Brazil, Bangladesh and Pakistan have similar prohibitions in their EEZs to those of India. These regimes are stricter than those of China, which does not have a blanket requirement for prior notification or permission for military vessels in its EEZ. But it does object to some military activities there that in its view do not pay the UNCLOS-required “due regard” to its laws governing marine scientific research and environmental protection.

Moreover, as Indian naval expert Abhijit Singh has written, “The US must recognize that FONOPs have implications for New Delhi that go beyond the infringement of Indian jurisdiction” – like normalizing a US naval presence in Indian waters and “encouraging other regional navies to follow suit.”

The US already carries out intelligence, surveillance and reconnaissance missions in India’s EEZ, presumably to hunt Chinese submarines and to “prepare the battle field.” India has been relatively accommodating to these probes. But this could change. So there was a lot at risk with this FONOP.

The point is the US needs to re-examine both the necessity and timing of its FONOPs on a case-by-case basis lest they undercut its strategic objectives in the region. If deemed to be necessary at all, the purpose, place and timing of FONOPs should be decided by political, not military officials.

Indeed, the decision-making on FONOPs should be on a case-by case basis by the White House rather than remain in the hands of the military.

Mark Valencia

Mark J Valencia is an internationally recognized maritime policy analyst, political commentator and consultant focused on Asia. Most recently he was a visiting senior scholar at China’s National Institute for South China Sea Studies and continues to be an adjunct senior scholar with the Institute. Valencia has published some 15 books and more than 100 peer-reviewed journal articles.