Between two fires

March 10, 2019

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The writer is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School.
The writer is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School.

INDIA’S maritime intrusion on March 4, reported by Pakistan Navy, demonstrates its military adventurism and determination to use force, which either causes measurable military or civilian loss to Pakistan or a significant violation of its sovereignty. Following India’s ineffective use of aerial force against Pakistan, the fear is that it is now attempting to flex its muscles through its navy.

It is clear that India has used, and is attempting to use, force against Pakistan on the pretext of pre-emptive self-defence, a contravention of Article 51 of the UN Charter, which qualifies the inherent right of self-defence and requires the occurrence of an actual armed attack. It’s also irrelevant that India targets what it calls non-military targets, as any armed attack on Pakistani soil is a violation of its sovereignty and territorial integrity under Article 2(4), irrespective of who is being allegedly targeted. India’s deliberate targeting of ‘non-military targets’ also raises concerns under the international law of armed conflict, which explicitly prohibits military action directed towards non-military and non-combatant elements of one’s opponent.

There are serious questions regarding the incursion, such as whether the underwater vehicle was in fact a nuclear submarine, whether it was submerged at any point, and whether it intended to, attempted to or did enter Pakistan’s territorial sea. Under Article 3 of the UN Convention on the Law of the Sea (UNCLOS), territorial sea extends to 12 nautical miles measured from coastal baselines. In this zone, Pakistan’s sovereignty is essentially absolute. Beyond it lies the Exclusive Economic Zone (EEZ) extending up to 200nm from the coast, in which Pakistan has sovereign rights over the natural resources of the waters superjacent to the seabed and of the seabed and its subsoil, and its continental shelf extending up to 350nm in which it exercises sovereign rights over the seabed and subsoil of the submarine areas.

A right of transit passage for other states exists in an EEZ adjacent to a coastal state if a strait is located therein that is used for international navigation and does not fall within the latter’s territorial sea. The Indian Navy does not possess this right, which has to be continuous and expeditious, in Pakistan’s EEZ because there is no international strait in its vicinity. Even if such right was exercisable, India would still be in violation of Article 39 of UNCLOS as it would be obliged to refrain from any threat or use of force against the sovereignty, territorial integrity and political independence of states bordering the straits.

There are serious questions regarding India’s naval incursion.

If the Indian submarine was attempting to enter or had entered Pakistan’s territorial sea, it would be a more serious breach of international law. Within the territorial sea, other states enjoy a right of innocent passage, which is navigation for the purpose of traversing that sea without entering the internal waters of a coastal state. This passage must be continuous and expeditious and is not innocent if a foreign ship engages in any threat or use of force against the sovereignty, territorial integrity and political independence of the coastal state, or any act aimed at collecting information to the prejudice of the defence or security of that state.

In this regard, under Article 20 of UNCLOS, all underwater vehicles are required to navigate on the surface and show their flags. It seems that with this incursion India’s intention was not to transverse that sea but to covertly threaten Pakistan. It is equally clear that India either entered or intended to enter Pakistan’s territorial sea to demonstrate its aggression, ie not innocent passage, which is a direct violation of international law. Pakistan, under Article 25, may take necessary steps in its territorial sea to prevent passage that is not innocent, and it seems it has exercised this right. Pakistan also has the option, once it duly publishes notice thereof, to suspend all innocent passage to protect its security. Pakistan should also consider approaching the International Tribunal for the Law of the Sea to highlight India’s violation.

Unfortunately, India’s recent aggression prompted precautions and security measures that imposed substantial costs and loss of funds for Pakistan. Pakistan’s airspace and airports were closed for several days, resulting in significant revenue loss and the diversion of international air traffic — often towards India, which kept its airspace open in the south and east. India’s naval incursion, apart from intending to threaten Pakistan militaristically, might also be intended to undermine Pakistan’s commercial maritime environment and its ports, currently being developed under CPEC. Pakistan is getting caught between a rock and a hard place, and it must effectively engage its allies to pressure India to back down from its military adventurism.

The writer is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School.

Published in Dawn, March 10th, 2019