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  • Tejaswini Kaushal

The 2047 Navy Atmanirbharta Goal: Analysing India's Maritime Power.

And India's Control of the Sea for Freedom of Navigation.


This article is authored by Tejaswini Kaushal, a 2nd-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow, holding a keen interest in cyber law, technology law, IP law and corporate laws.

Introduction

India is a maritime nation with a coastline of more than 7,500 km, and an extensive Exclusive Economic Zone (EEZ) of about 2.2 million square kilometers. As a result, India has a strong interest in promoting freedom of navigation and the rule of law in the oceans. The Navy is, therefore, essential to India’s defense, providing a robust and reliable presence on the seas. At Aero India 2023, Chief of the Naval Staff, Admiral R Hari Kumar, announced that the Indian Navy will become a fully self-reliant force by 2047, committed to fostering Atmanirbharta (“self-reliance”) in the defense arena. Furthermore, with a focus on the Indian Ocean region, the Navy’s partnership with the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (RCOC) in Seychelles allows for extended surveillance further south. In light of the proposed increase in the Indian Navy’s capabilities, India’s commitment to self-reliance in defense and becoming a significant maritime power must be consistent with international law and the rule of law. With this backdrop, it becomes essential to examine India’s maritime policies and outlook on sovereignty in light of principles of International Law.


Concepts of International Maritime Law Governing Indian Maritime Strategy

The concepts of Mare Clausum and Mare Liberum have historically governed maritime law. Mare Clausumrefers to the idea that a country could claim sovereignty over a particular sea and restrict access, while Mare Liberumadvocates for free navigation in the oceans. Today, freedom of navigation is a crucial principle in international maritime law, which asserts the right of all states to navigate and use the oceans without restriction. India has emphasized the importance of freedom of navigation in the Indo-Pacific region as part of its strategic interests and commitment to a rules-based order in the oceans.


India's Outlook on Sovereignty and Maritime Law

India is a nation deeply rooted in the notion of sovereignty, with a strong historical basis for its adherence to maritime law. This is exemplified in its stance of nonalignment; its constant adherence and support of being bound by the dictates of the United Nations Convention on the Law of the Sea (“UNCLOS“); its consistent emphasis on the importance of the freedom of navigation in the Indo-Pacific region, and its insistence on the right to self-determination. India’s commitment to sovereignty and maritime law is further strengthened by its commitment to protecting its territorial waters and exclusive economic zones and its active participation in regional and international forums to ensure the resolution of disputes through peaceful means. The Indian government has adopted a strong stance in favour of the freedom of navigation and has consistently rejected the notion of ‘innocent passage’ (“Right of Passage over Indian Territory (Portugal v. India)“) as well as any restrictions on the right to use international waters. India’s stance on sovereignty and maritime law is thus shaped by its long-standing commitment to freedom, autonomy, and the rule of law.


The Challenges Posed to India's Stance on Maritime Power and Control

India’s approach to maritime power and control of the sea raises some legal questions and concerns. Firstly, India’s approach to maritime power is characterized by a focus on naval modernization and acquisition of advanced maritime capabilities. India has been investing heavily in its naval forces, including the construction of aircraft carriers, submarines, and other advanced warships. While a strong navy is an essential element of maritime power, it is crucial to ensure that such capabilities are developed and deployed in a manner that is consistent with international law.


Under UNCLOS, coastal states have certain rights and obligations concerning their maritime zones, including the right to regulate navigation and other activities in their territorial waters and the right to exploit the resources in their EEZs. However, these rights are subject to certain limitations, including the freedom of navigation and overflight, which is an essential element of the international legal order. In this context, India needs to ensure that its maritime capabilities are not used in a manner that restricts freedom of navigation, or violates the rights of other states.


Secondly, India’s emphasis on control of the sea raises some legal questions, particularly in the context of the South China Sea dispute. India has been a vocal supporter of freedom of navigation and has conducted several naval exercises and patrols in the region to assert its presence and support for the rule of law. However, India’s approach to the South China Sea dispute has been somewhat ambiguous.


While India has expressed support for the principle of freedom of navigation, it has not taken a clear position on the territorial disputes in the South China Sea. India has emphasized the importance of resolving disputes through peaceful means and in accordance with international law. Still, it has stopped short of taking a clear position on the merits of the various claims. This has led to the criticism that India’s approach is inconsistent with its stated commitment to the rule of law in the oceans.


Thirdly, India’s approach to maritime power and control of the sea raises some concerns about the potential for escalation and conflict. The acquisition of advanced maritime capabilities by India and other regional powers has led to an arms race and increased tensions in the region. There is a risk that such tensions could escalate into a full-blown conflict, with severe consequences for regional security and stability.


To address these concerns, it is important for India to ensure that its approach to maritime power and control of the sea is consistent with international law and the principles of rule of law. India should continue to invest in its naval capabilities but should do so in a manner that respects the rights of other states and promotes freedom of navigation. India should also take a more active role in resolving the South China Sea dispute and promoting regional security and stability.


Analysis and Conclusion

India’s maritime laws and policies have not changed from their postcolonial past, even though diplomatic rhetoric and strategic outreach have shifted. This reflects a trend away from mare liberum, or freedom of the seas that has dominated for the past two centuries, and toward a more restrictive mare clausum approach. This shift is not exclusive to India, as many coastal nations are taking a more restrictive stance on freedom of navigation in their own waters. The trend has been to move away from the United States’ perspective on freedom of navigation. This is owing to the rise of other countries and the diversification of power in the international system, which is making the traditional American perspective less relevant. Even if India is increasingly aligned with the United States, the trend is towards more restrictive maritime regimes that place greater emphasis on coastal state control over navigation.


In a nutshell, India’s commitment to freedom of navigation and rule of law in the oceans is laudable. Still, its approach to maritime power and control of the sea raises some legal questions and concerns. India needs to ensure that its maritime capabilities are developed and deployed in a manner consistent with international law and the principles of rule of law. As stated previously, India should also take a more active role in promoting regional security and stability and in resolving the South China Sea dispute.

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