I.O. 2.0: Indian Ocean security and the law of the sea.

Author:Kraska, James
Position:Introduction through III. Law of the Sea, p. 433-462
  1. INTRODUCTION II. POLITICAL CONTEXT III. LAW OF THE SEA A. The Baseline B. Territorial Seas and International Straits C. Exclusive Economic Zones and the Continental Shelf D. Archipelagic States 1. Mauritius 2. The Maldives 3. Seychelles E. Declarations of States F. Seabed Mining in Areas Beyond National Jurisdiction IV. STRATEGIC GEOGRAPHY OF THE INDIAN OCEAN REGION A. Western Indian Ocean 1. Iran 2. Oman 3. Pakistan B. Central Indian Ocean 1. India a. Maritime Boundaries b. Maritime Power 2. British Indian Ocean Territory 3. Southern Indian Ocean C. Eastern Indian Ocean 1. China IV. CONCLUSION A. American Power and Freedom of Navigation B. A New India I. INTRODUCTION

    In his recent book Monsoon, inveterate traveler and political observer Robert D. Kaplan recounts a tour of contemporary Indian Ocean geopolitics. (1) Kaplan journeys from Oman to Pakistan to Burma and Indonesia, highlighting the historical, cultural and geographic features of the region. Piracy, ethnic conflicts, and hostile control of choke points like the Strait of Malacca, are some of the prominent threats. The rivalry between India and Pakistan dominates an arc of instability that stretches from Iran to Burma. As the British liberal inheritance quickly fades in Islamabad, the government in New Delhi vacillates between stagnant socialism and dynamic entrepreneurship.

    Thus, while nuclear weapons are the backbone of Indian and Pakistani security policy, strategic deterrence and therefore regional stability on the subcontinent is elusive. The story in Monsoon is one of a precarious region on the edge of a precipice, between religious turmoil coming from the Middle East and a tantalizing model of super-charged economic development from East Asia.

    This Article provides a political and legal roadmap of Kaplan's majestic work, analyzing the most pressing issues affecting Indian Ocean security against the backdrop of international law. The Indian Ocean provides a look at regional politics from the maritime perspective, which is a fundamentally different lens than that obtained by focusing on the land terrain. (2) At the intersection of geographic--and therefore geopolitical--dimensions of the Indian Ocean and the international laws--regimes and rules that serve as a backdrop against which geopolitics unfolds--this Article serves as a complement to Monsoon by providing a vision of how the international law of the sea will help to shape strategy.

    The central narrative arc in this drama involves a collision of two rivalries--the India-Pakistan security dyad, and the gathering competition between China and the United States. These two adversarial security relationships may be thought of as two concentric circles that overlap in the Indian Ocean, with China supporting Pakistan and the United States moving closer to India (even as it moves farther from Pakistan). India, Pakistan, China, and the United States dominate the politics of the Indian Ocean region, even though China and the United States are located outside of the maritime terrain.

    This Article argues that the international law of the sea has served to help alleviate, as well as in some ways facilitate conflict in the Indian Ocean. In Section II, this Article outlines the political and historical context for the current state of geo-politics in the Indian Ocean region. Section III continues by examining the international law of the sea by drawing on examples from interested parties in the Indian Ocean. Finally, Section IV examines the contribution of the law of the sea to the complex strategic geography of the Indian Ocean region.


    The strategic and historical context shapes the legal environment. Beginning with the break-up of the British Raj in 1947-48, India and Pakistan have fought three wars. While Russia and China have large nuclear arsenals, both are members of the Nuclear Nonproliferation Treaty (NPT). India and Pakistan, however, have successfully detonated nuclear devices, and both possess nuclear weapons and the means to deliver them, but neither country is a party to the NPT. The highest altitude conflict in the world--Kashmir--continues to drive a wedge between the two nuclear-armed neighbors, and the stage is set for dangerous confrontation on the subcontinent.

    The stark example of nonparticipation in a cornerstone multilateral regime by the two most powerful states in the region is a reminder that international law and international politics on the Indian subcontinent are intertwined. At sea, the situation is even more complex--both in terms of maritime geopolitics and international law. The reason: unlike the contiguous land territory, the Indian Ocean is a domain of movement. Shipping traffic from throughout the world passes through the region, and the naval forces of distant water states such as the United States and China can affect the strategic balance. (3) Whereas most contemporary articles on the subject of the Indian Ocean are dedicated to the strategic and political aspects of the region, the legal context in this Article--including rules for resolving resource and maritime boundary disputes, navigational fights and freedoms, and flag state and coastal state authorities--is an important dimension of Indian Ocean security.

    Meanwhile, the United States is cementing ties with allies old and new in order to balance China's increasing assertiveness in the South China Sea and East Asia. Thus, while Australia and Japan strengthen ties with the U.S. Navy in a not so subtle response to China's bold claims over the Spratly and Paracel Islands, the Philippines has found a new reason to move closer to the United States, while Vietnam--an ancient Chinese enemy and Cold War adversary of the United States--opens up to developing strategic relationship with the United States.

    The Indian subcontinent divides the Arabian Sea in the West and the Bay of Bengal in the East, and these regional seas are part of the Indian Ocean, the world's second largest. These two regions--each vast and heavily populated--separate the volatile mix of Arab politics and Islamic extremism in the West from the Confucian and Buddhist societies and booming economies of Southeast Asia in the East. India is the dominant geographic feature of the region, and the nation possesses several large island chains extending throughout the Indian Ocean.

    As a global thoroughfare, the Indian Ocean is anchored by some of the most important geographic infrastructure and chokepoints on the planet. Traffic entering the Arabian Sea from the north must pass through two strategic chokepoints. From the Mediterranean, ships bound for the Indian Ocean must travel through the Suez Canal, Red Sea, Strait of Bab el Mandeb and Gulf of Aden; farther to the northeast, vessels may enter the Arabian Sea from the Persian Gulf via the Strait of Hormuz and Gulf of Oman. From East Asia, vessels entering the Indian Ocean do so through the Straits of Malacca and Singapore, or farther south, through the Sunda Strait. These key strategic straits are important for commercial and naval shipping, with one million ships passing through the gateways each year. The rules set forth in the international law of the sea govern their use. Thus, the experience of state practice and the application of international law of the sea pertaining to transit through straits used for international navigation colors Indian Ocean security.

    In the western Indian Ocean, abutted by East Africa and the Somali Basin, warlords rule the land and pirates roam the seas. The threat of piracy from Somalia serves as a reminder that the problems in East Africa are greater than those of any of the continent's five geographic regions. It is no wonder that at the U.S. Department of State only the Africa Bureau has a maritime security affairs component. The International Maritime Organization has grappled with the threat of maritime piracy since the early-1980s. But with the ascendancy of Somali pirates, the UN Security Council has become involved. In 2008, the Security Council adopted Resolution 1816, which provided authority for warships of all nations to interdict pirates inside the territorial sea of Somalia. In December 2008, the Security Council adopted Resolution 1851, authorizing military action against pirate safe havens on Somali land territory. Over the past three years, the Security Council has updated and expanded the legal authority for counter-piracy operations in the Somali Basin, and the Indian Navy has been a leading force to suppress pirates in the western Indian Ocean.

    Since 2006, Somali pirates steadily have increased their operating range so that now they operate as far as India's Lakshadweep Islands, off the west coast of India. In 2011, Indian naval and coast guard forces intercepted pirates from Somalia, Burma, and Thailand, operating in the area. (4) Through the middle of 9011, India has had 350 seafarers captured by pirates. But Somali piracy has also been a boon for the region's naval forces. The Indian Navy has escorted 1,700 ships in antipiracy patrols in the Gulf of Aden since October 9008. (5) Anti-piracy naval operations in the East Arabian Sea have substantially increased since November 2010, and the number of ship hijackings in the area has fallen. (6)

    The threat of maritime piracy has also helped India to work with other nations to develop and implement new collective security mechanisms and legal measures to promote maritime security. India, for example, has been a leader in counter-piracy operations and in capacity building in the region. Indian dhows are frequent victims of Somali pirates, which have extended their reach virtually to the shores of Kochi. The Indian Navy is one of the most active and effective forces operating in the region against Somali piracy. India also is assisting Mauritius in installing ship borne sensors on Mauritius patrol ships and constructing coastal surveillance networks on shore. (7) Delhi...

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