IV. STRATEGIC GEOGRAPHY or THE INDIAN OCEAN REGION
The international law of the sea applies throughout the Indian Ocean within a milieu of geography, politics, and rivalry. The politics in the region are dominated by India and Pakistan, rivals that have had virtually no official bilateral naval collaboration. Mutual hostility and suspicion between the two nations reduces their ability to peacefully manage a crisis.
Fishing in the disputed maritime zone seaward of the Sir Creek, a tributary that divides India's Kutch from Pakistan's Sind and flows into the Arabian Sea, has become a serious bilateral issue. Coastal fishermen on both sides are caught in the middle. In 2001, a group of retired admirals from the two nations met to begin a "Track II" dialogue to help resolve the issue. (116) The participation of the retired senior officers was influential in the release of detained fishermen on both sides. India released 160 Pakistani fishermen, and Pakistan reciprocated by returning eighty-four Indian fishermen. (117)
More recently, however, the Pakistan Maritime Security Agency (MSA) has detained more than 200 Indian fishermen and arrested nearly 500 Indian fishing boats. (118) In September 2011, Pakistan's MSA detained ninety-four Indian fishermen for maritime boundary violations, seizing twenty-one fishing boats. (119) The retired admirals on both sides have pressed their governments to arrest fishing vessels alleged to have been caught fishing illegally, but to release the crews in accordance with UNCLOS. Article 73 of UNCLOS mandates that detained civilian crew are entitled to "prompt release"--and expeditious repatriation to the flag state. Despite these efforts, however, the Indian Coast Guard and the Pakistani MSA could improve compliance with the requirement.
Even on land, there is little direct cooperation between India and Pakistan. The two rivals signed the Lahore Declaration in 1999, which committed the states to peaceful resolution of the conflict over Jammu and Kashmir. (120) Each side pledged to reduce the risk of accidental or unauthorized use of their nuclear weapons, and open a confidence-building dialogue concerning nuclear and conventional doctrine. The treaty also recognized that it is in the "supreme national interest" of both parties to have a stable Indian Ocean region. (121) The agreement also recommitted the parties to the principles of the UN Charter and expressed the goal of nonproliferation and universal disarmament. (122)
More practically, the Indus River watershed agreement remains the most functional relationship between the two countries. (123) There are glimmers of hope for greater cooperation, however. Retired officers from both countries have proposed other avenues of maritime cooperation between the two rivals, including the feasibility of an "Incidents at Sea" arrangement as a confidence-building measure (CBM) within a multilateral framework. Several maritime CBMs have been negotiated between India and Pakistan, but they have seldom been sustained during time of crisis. Further steps include a memorandum of understanding (MOU) as part of the Lahore Declaration. The MOU obliged both to conclude an agreement on prevention of incidents at sea in order to safeguard navigation by their naval vessels and aircraft and prescribed a joint review of bilateral communication links.
China and the United States are also significant factors in Indian Ocean security. It has been a decade since Indian warships assisted the United States in Operation Enduring Freedom by escorting high-value U.S. gray hull naval assets through the Straits of Malacca. (124) Although Pakistan is nominally a U.S. ally, the relationship with America has been contentious. Differences over the U.S.-led "war on terror," the embarrassing strike against Osama bin Laden on May 2, 2011, and increasing Indian-American coziness, are separating the two nations. The burgeoning U.S. relationship with India is a particularly grievous concern for Pakistan. While Pakistan has become virtually obsessed with India, India has moved on, viewing Pakistan as an irritant along its great power trajectory. This dynamic has helped to push Pakistan toward China. (125) Analysis of the interplay between international security and law of the sea emerges from a clockwise "walk" around the Indian Ocean, beginning with Pakistan and the Arabian Sea and entranceway to the Persian Gulf in the west.
Western Indian Ocean
The nations of the Western Indian Ocean include Iran, Pakistan, and Oman. The strategic reality of the region is that the nations surround the Arabian Sea, an oil lifeline to both India and China. In 2009, China followed the United States as the second largest oil importer in the world--4.3 million barrels per day, and India was the fourth largest energy consumer in the world, using 2.1 million barrels of oil per day. (126) While energy demand faltered throughout the world in 2009 due to the Great Recession, China and India experienced 12.4% and 6.9% economic growth, respectively. The economies of China and India could increase ten-fold by 2050, becoming the first and third largest economies in the world. (127) By 2050, India could become the largest oil importer in the world. As India shifts from biomass and dung sources of energy to cleaner fossil fuels, nearly all of India's oil supply will route through the western Indian Ocean.
Persian influence is growing throughout the Middle East; and Bahrain, the Gaza Strip, Iran, Iraq, Lebanon, and Syria exist within Tehran's shadow and arc of power that Time Magazine's Joel Klotkin calls "Iranistan." (128) As a rising power, Iran is endowed with immense oil and gas reserves and a well-educated and rapidly growing population. Nominally considered the largest and strongest of the Gulf States, Iran also extends along the Indian Ocean between Pakistan and the Strait of Hormuz.
Iran is principally a land power. Accordingly, its Navy has not been prioritized in funding, even though it may be regarded as the military service of greatest strategic importance for Tehran. (129) Furthermore, Iran has little capability to project power into the Indian Ocean far beyond the Strait of Hormuz. Lacking in capital warships or the resources to develop ample conventional naval capabilities, the Iranian Navy and the irregular Iranian Revolutionary Guard Corps Navy are built around asymmetric forces, able to surreptitiously place at risk conventional navies and commercial shipping. (130) Iran operates a handful of aging frigates and two corvettes and possesses sea-based and land-based C-802 anti-ship cruise missiles. (131) The nation has acquired three older Kilo-class Russian diesel submarines. (132) The submarine base at Chah Bahar on the Gulf of Oman provides easy access to the Indian Ocean. (133) But the Iranian Navy's greatest punch resides in swarms of numerous patrol boats and fast attack craft armed with mines and missiles. These vessels routinely practice unconventional warfare methods to close the Strait of Hormuz to oil tanker traffic.
Both India and China seek good relations with Iran, which has sealed twenty-five year oil agreements with the two nations collectively valued at $150-200 billion. (134) Beijing and India are also deepening defense ties with Tehran. In 2010 India and Iran conducted their first-ever combined naval exercise, and India is assisting Iran in modernizing its Russian-built Kilo-class submarines and MiG fighter jets. (135) Given China's frequent protection of Iran against Western pressure in the UN Security Council, and considering India's credibility stemming from its leadership in the non-aligned movement of states, both Beijing and Delhi may expect to have productive, if not exactly cordial, relations with Tehran.
Geographically, Iran is ideally situated to impede traffic through the Persian Gulf, as it did during the 1980s "Tanker War." While Iran lacks the capability to project power deep into the Indian Ocean, it could disrupt the international supply of oil from the Gulf to India and China. Unlike the 1980s, however, when the United States assumed the mantle for protection of international shipping in the Gulf, any Iranian campaign to cut off the oil flow today likely would attract the ire of India and China, both of which are increasingly reliant on Gulf supply.
Oman has a variety of excessive maritime claims. Coastal state maritime claims of sovereignty or sovereign rights and jurisdiction over parts of the ocean adjacent to its shoreline are regulated by UNCLOS. When coastal states assert or enforce maritime claims that are greater than those permitted by UNCLOS, they purport to control portions of the seas that are properly open to shipping of all nations. (136) Excessive maritime claims are asserted at the expense of the rights and freedoms of navigation enjoyed by the international community. Although lacking in much ability to enforce its maritime claims, Oman has asserted a variety of excessive maritime claims that are inconsistent with the provisions of the international law of the sea.
First, the country maintains excessive straight baseline claims based upon an assertion of historic waters. (137) The United States has protested Oman's straight baselines using diplomatic demarche and operational assertions by warships. (138) The country of Oman consists of two noncontiguous regions separated by the United Arab Emirates. It extends to the northern extremity of the Ru'us (peninsula) al Jibal, comprising the Musandam Peninsula and offshore islands. In the south and west, the nation occupies an area below the 25th parallel of north latitude, along the shores of the Gulf of Oman and the Arabian Sea. (139) In general, the coastline of the country is quite smooth, and therefore inappropriate for the use of straight baselines.
Under Royal Decree, Oman also recognizes only the right of innocent passage rather than transit passage through...