AT present, relations between Pakistan and India are incredibly tense, with almost daily military and civilian casualties on both sides of the LoC due to firing and mortar shelling. Pakistan recently shot down an Indian spy UAV on its side of the LoC, and conducted an impressive military exercise near the border (dubbed ‘strike of thunder’) to demonstrate its military preparedness against potential Indian armed aggression.
But the most alarming recent development has been the detection of an Indian nuclear-powered submarine near Pakistan’s territorial waters on Nov 14, with the apparent objective of conducting submerged espionage on Pakistan.
India denied this but the Pakistan Navy released aerial surveillance footage as evidence, as well as an official statement strongly rebuking India. Many in the navy feel that India’s long-term aim is to hinder an increase in maritime traffic generated from the operationalisation of Gwadar Port.
India’s submarine intrusion violated our sovereignty under UNCLOS.
Initial reports suggested that the submarine was detected around 40 nautical miles (nm) off Pakistan’s coast, which would place it in Pakistan’s Exclusive Economic Zone (EEZ). Under the UN Convention on the Law of the Sea (UNCLOS) — which both Pakistan and India have ratified — a coastal state enjoys different levels of sovereignty based on three sea zones beyond which lie the high seas.
The first zone is the territorial sea, extending up to 12nm from the state’s baseline, in which the state enjoys virtually full sovereignty. The next 12nm are classified as the contiguous zone — claimed by Pakistan — in which the state exercises limited forms of jurisdiction to prevent or punish “infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea”.
This zone is also part of the EEZ, which extends up to 200 miles from the baseline, and in which a state has special rights regarding the exploration and use of marine resources. Lastly, the continental shelf of a state comprises the seabed and subsoil of the submarine areas, and allows exploitation thereof up to 350nm from the baseline.
State sovereignty over the territorial sea is subject to one major exception: in peacetime, a coastal state has to grant ‘innocent passage’ to both commercial ships and warships through these waters. Innocent passage requires passage to be continuous and expeditious, and bars spying. Under Article 19(2)(c) of UNCLOS, “any act aimed at collecting information to the prejudice of the defence or security of the coastal state” would render the passage non-innocent.
Submarines, by their nature, are clandestine vehicles; it thus stands to reason that under Article 20 of UNCLOS, to be consistent with the principle of innocent passage, submarines and other underwater vehicles are required to navigate on the surface of a coastal state’s territorial sea and display their flag of registry.
Under UNCLOS states also have the right of ‘continuous and expeditious’ transit through an international strait (a body of water used for international navigation between one part of the high seas or an EEZ and another part of the high seas or EEZ). Submarines have the right to pass submerged through an international strait.
We are seeing a rapid expansion of submarine fleets worldwide, including both nuclear-powered and nuclear-attack. All major powers, including the US, Russia and China, have been implicated in submarine espionage in coastal states’ territorial seas and EEZs, and in the last two decades the presence of US navy jets and surveillance ships in the South China Sea (within China’s EEZ) has led to clashes. Conversely, the US has protested Chinese interference with its naval vessels as a violation of its sovereign immunity.
India’s espionage inside Pakistan’s territorial sea would constitute a clear violation of Pakistan’s sovereignty under UNCLOS. Nor are there any international straits in the vicinity to otherwise enable an Indian submarine to remain submerged.
Espionage in EEZ, however, is more complicated under international law. But Pakistan has a strong case in arguing that the recent Indian intrusion even within its EEZ was with prejudice to the defence and security of its coastal areas, and that it was a clear violation of UNCLOS Article 301 (which requires peaceful uses of the seas and, in relation to activities at sea, obliges states to refrain from the threat or use of force or from acting in any other manner inconsistent with the principles of the UN Charter).
This incident cannot be viewed in isolation. Both countries must realise that, while any individual act of aggression might not cross the requisite threshold to qualify as an armed attack under the UN Charter’s Article 51, taken together, continued transgressions will eventually trigger the right of self-defence and could give rise to armed conflict.
The writer is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.
Published in Dawn, November 27th, 2016