If the Quad wants to hold any moral authority on a global level, it should ensure its members observe the rule of law at sea.
The Quadrilateral Security Dialogue (Quad) countries are racking up a series of impressive firsts, progressing through to quadrilateral naval exercises in the Bay of Bengal in 2020 and an in-person leader-level summit at the White House in September 2021. The Quad is here to stay as a loose entente of like-minded democracies in the Indo-Pacific. But can it claim the moral high ground when it comes to the rule of law?
The idea of the Quad dates back to 2006 when the Bush administration, encouraged by the workings of the Tsunami Core Group formed in the wake of the 2004 Indian Ocean Boxing Day Tsunami, proposed that the four countries — as democracies with substantial naval capabilities — set up a platform for exchange of views on regional maritime challenges.
One of the foremost priorities of the grouping is to “champion adherence to international law, particularly as reflected in the United Nations Convention on the Law of the Sea (UNCLOS) to meet challenges to the maritime rules-based order”. Implicit in this view is that the Quad is a responsible custodian of the rule of law and good order at sea, especially in the context of Beijing’s presumptive threat to navigational freedoms and the “rules-based order”.
But how accurate or plausible is this premise, particularly as it applies to India?
In most respects, New Delhi’s observance of the rule of maritime law is just as questionable as Beijing’s — and in rare instances, even more so. In the territorial sea, India has maintained a prior notification requirement for innocent passage of foreign warships since 1976, much like China has maintained a prior authorisation requirement since 1992. Beijing is pilloried for this excessive claim as tantamount to a denial of free navigation. New Delhi is not.
It is relevant in this context that the Permanent Court of Arbitration in Philippines v China judged that Beijing did not consider the sea areas within the “nine-dash line” (beyond 12 nautical miles of the features it administers) to be equivalent to its territorial sea or internal waters. The “nine-dash line” is not a limit of China’s maritime sovereignty and the geographic extent of Beijing’s territorial overreach in the South China Sea is no different from New Delhi’s overreach from its outlying islands.
India draws straight baselines around the Lakshadweep group of islands in the Arabian Sea (since 2009), much like China drew similar baselines around the Paracel Islands in 1996. Neither India nor China are archipelagic states and these baselines exceed the maximum enclosable water-to-land ratio permitted by UNCLOS.
In the contiguous zone, New Delhi extends its territorial security prerogatives to this sea area, just as Beijing does. Both violate the UNCLOS rulebook which limits the extension of the coastal state’s territorial prerogatives in the contiguous zone to customs, fiscal, immigration and sanitary matters only.
India’s exclusive economic zone (EEZ)-related laws and regulations, contrary to UNCLOS, affect a wholesale extension of Indian penal law beyond the territorial sea — a point that New Delhi did not deny in its losing effort in the “Enrica Lexie” case (Italy v India).
New Delhi’s submarine cable regime, too, fails to legally distinguish between cables and pipelines, which are accorded different treatments on the continental shelf. India is just one of two Asian states that impede the freedom of user states to maintain and repair submarine cables on its continental shelf.
More broadly, New Delhi’s regulations on oceanographic surveys, compulsory measures against foreign warships, establishment of restricted navigation zones, and entry and exit of hazardous cargoes within its exclusive maritime zones are in principle no different from Beijing’s revised Coast Guard and Maritime Safety Traffic Law. Each exceeds the limits specified by UNCLOS.
To be fair, India deserves enormous credit for its unqualified adherence to adverse Law of the Sea tribunal awards. Indian nationalism is often no less pungent than China’s, yet a tough-minded Indian government has shown as much grace in submitting to tribunal awards as an equally tough-minded leadership in Beijing has shown a lack of grace.
India also deserves credit for the panoply of maritime boundary agreements that it has stitched up with most of its neighbours. And unlike Beijing, New Delhi does not inject its coast guard or navy provocatively in sensitive waters at the first hint of tension. Territorial disputes are not leveraged for geopolitical gain.
On the other hand, China has never denied freedom of transit in ways that India did in 2015 when the Modi government instituted a five-month blockade of land-locked Nepal. New Delhi was annoyed that certain provisions had not been adopted in the new constitutional settlement crafted by Kathmandu’s constituent assembly.
Even though 85 per cent of a fractious constituent assembly — itself elected by 78 per cent of the Nepalese electorate — had voted in favour of the constitution, and that this denial of transit aggravated the economic devastation wrought by a magnitude 7.8 earthquake in Kathmandu earlier that summer, it amounted to little in New Delhi’s eyes.
The Quad is still a work in progress. If it aspires to speak from a position of moral authority as a respectable custodian of the rule of law at sea, the Quad must first get its constituents to submit to and observe that rule of law.
The United States is not a party to UNCLOS.
This article was first published by East Asia Forum and is reproduced with permission.