Author: Shashvat | ILS Law College, Pune | B.A. LL.B. Third Year
Abstract
India occupies an unusually exposed position within the contemporary international maritime order — simultaneously a committed UNCLOS signatory, a participant in the Quad security framework premised on a “free and open” Indo-Pacific, and a state whose domestic legislation sits in structural tension with the Convention’s own navigational architecture. The 2016 arbitral award in Philippines v. China brought these contradictions into sharp relief, not merely because of what it determined about China’s nine-dash line, but because of what India chose — and chose not — to say in response. This article argues that India’s engagement with UNCLOS is structurally bifurcated: it champions the Convention’s dispute-resolution legitimacy when that legitimacy serves its strategic interests, most visibly in the Bay of Bengal, yet retreats into studied diplomatic ambiguity when the Convention’s implications cut against its autonomy or its China calculus. The Enrica Lexie incident further complicates this picture. Through a critical reading of India’s state practice, domestic legislation, bilateral conduct, and judicial engagement, this article maps the fault lines between India’s legal rhetoric and its operational maritime reality, arguing that genuine doctrinal consistency — not selective invocation — is the only posture that can sustain India’s credibility as an Indo-Pacific norm entrepreneur.
To the Point
The core friction animating India’s UNCLOS posture is a structural paradox: the same legal regime India invokes to challenge China’s expansionist maritime behaviour in the South China Sea is one that India’s own domestic law partially subverts in the Indian Ocean. UNCLOS Articles 58 and 87 guarantee freedom of navigation and overflight in the Exclusive Economic Zone (EEZ) to all states — a principal India deploys rhetorically against Chinese assertiveness. Yet Section 7(4) of India’s Maritime Zones Act, 1976 purports to require prior permission for foreign warships conducting military activities
within India’s EEZ, a restriction the Convention’s drafting history does not support and which a significant majority of UNCLOS state parties do not recognise as lawful. This inconsistency was dramatised in April 2021 when the USS John Paul Jones conducted a Freedom of Navigation Operation (FONOP) within India’s EEZ near the Lakshadweep Islands without notification, prompting a public rebuke from New Delhi. The irony is structurally significant: India’s objection mirrors, in doctrinal form, the precise mare clausum logic it criticises Beijing for deploying. The post-2016 landscape thus reveals an India caught between the utility of a rules-based maritime order and the sovereign anxiety of a coastal state that has not fully reconciled its domestic legal architecture with the Convention it ratified in 1995. These are not peripheral contradictions; they go to the heart of whether India can credibly serve as a norm entrepreneur for UNCLOS compliance across the Indo-Pacific.
The Legal Architecture: Key UNCLOS Concepts in India’s Maritime Context
Any honest assessment of India’s maritime legal posture must begin with the foundational tension between mare liberum — the freedom of the seas championed by Hugo Grotius in the seventeenth century and later enshrined in the navigational freedoms underpinning modern ocean law — and mare clausum, which holds that states may exercise sovereign control over adjacent sea space. UNCLOS represents a carefully negotiated compromise, establishing a graduated hierarchy of maritime zones in which the coastal state’s authority progressively diminishes with distance from the baseline. India’s legal challenge lies in domestic legislation calibrated closer to the mare clausum tradition at a time when that tradition commanded wider international acceptance.
The EEZ regime under Part V of UNCLOS grants coastal states sovereign rights over living and non-living resources and jurisdiction over marine scientific research and environmental protection — but conspicuously does not grant sovereignty over the water column itself. The freedom of navigation guaranteed by Article 58 in the EEZ is not a concession from the coastal state; it is a residual right of all states preserved from the high seas regime under Article 87. China’s maximalist interpretation of coastal-state EEZ authority — precisely the interpretation India criticises — is structurally identical to the stance India’s Maritime Zones Act, 1976 adopts regarding foreign military activities. The doctrinal incoherence becomes acute when India advocates for a “rules-based order” in
the South China Sea while relying on domestic legislation that contradicts those very rules.
Other UNCLOS provisions acquire direct salience for India. The regime of innocent passage under Article 19 permits foreign vessels to transit the territorial sea continuously and expeditiously; India’s requirement of prior notification for warships is contested under Article 24, which prohibits coastal state requirements with “the practical effect of denying or impairing” innocent passage. Article 7 straight baselines — applicable where coastlines are deeply indented or fringed by islands — bear upon India’s Andaman and Nicobar entitlements in the Bay of Bengal and Andaman Sea. Finally, the regime of islands under Article 121(3), denying full maritime entitlements to rocks incapable of sustaining human habitation independently, was decisive in 2016 and has direct implications for India’s assessment of China’s artificial island construction programme.
The Proof: India’s State Practice and Strategic Calculations
India’s response to the July 2016 PCA award was a study in deliberate understatement. The Ministry of External Affairs urged all parties to respect UNCLOS and resolve disputes peacefully — without naming China, and without explicitly endorsing the award. Measured against Japan, Australia, and the United States — all of which called directly on Beijing to comply with the binding ruling — India’s formulation was conspicuously neutral. This was not oversight. In April 2016, months before the award, External Affairs Minister Sushma Swaraj co-signed a trilateral communiqué with her Russian and Chinese counterparts affirming that maritime disputes should be addressed through direct negotiations between the parties — a formulation that implicitly questioned the legitimacy of the very arbitral process about to rule against China.
The strategic logic behind this positioning was transparent. India in 2016 was managing a complex triangular relationship with China and the United States, unwilling to alienate either. Yet equivocation carried real costs: it weakened normative consensus around the award and left smaller ASEAN claimant states with a diminished sense of great-power support for UNCLOS-based resolution. The shift, when it came, was strategically timed rather than juridically motivated. The Galwan Valley clashes of June 2020 substantially recalibrated India’s China calculus, accelerating Quad integration and deepening defence ties with Manila and Hanoi. By May 2023, India deployed warships to joint ASEAN naval exercises in the South China Sea — the first such deployment in the
region’s waters. Most significantly, the India-Philippines joint statement of July 2023 explicitly called for adherence to “the UNCLOS and the 2016 Arbitral Award on the South China Sea” — India’s first unambiguous public endorsement of the ruling by name, seven years after its issuance.
China’s August 2023 standard map — extending maritime claims through a ten-dash line overlapping Indian-administered Arunachal Pradesh — added an additional dimension to India’s maritime legal positioning. New Delhi formally protested, but the episode clarifies why UNCLOS’s rejection of historic rights matters to India beyond freedom of navigation: the doctrinal logic that defeats China’s nine-dash line in the South China Sea simultaneously forecloses any future Chinese attempt to assert historical maritime entitlements in the Bay of Bengal or the broader Indian Ocean, making the Convention not merely a rhetorical instrument but a durable structural shield for Indian territorial and broader maritime strategic interests in the region.
Case Laws: Jurisprudence That Shaped India’s Maritime Legal Standing
Philippines v. China (PCA, 2016)
The award is remarkable not merely for its substantive conclusions but for the jurisdictional theory it advanced over China’s active opposition. China had invoked its 2006 declaration under Article 298, purporting to exclude maritime delimitation and questions involving historic title from compulsory dispute settlement under Part XV, Section 2. The tribunal’s response — that the Philippines’ submissions required no resolution of sovereignty or delimitation questions and therefore fell outside the carve-out
— was a significant doctrinal development in the law of compulsory arbitration. By disaggregating sovereignty disputes from maritime entitlement disputes, the tribunal asserted jurisdiction that China characterised as ultra vires but which most international law scholars regard as textually defensible under UNCLOS’s architecture.
On the merits, the tribunal concluded that UNCLOS had extinguished China’s pre-existing historic rights within the nine-dash line to the extent they were incompatible with the EEZ and continental shelf regime — confirming that UNCLOS is a consolidating instrument that displaces inconsistent prior claims. For India, the ruling under Article 121(3) carries particular institutional value: finding that no Spratly feature qualifies as a fully entitled island forecloses the possibility of China generating EEZ entitlements in the
Indian Ocean through artificial island construction, a scenario Indian naval planner have not dismissed. Ironically, the same juridical consistency India benefits from in the South China Sea demands it reform its own domestic EEZ legislation.
Bangladesh v. India — Bay of Bengal Arbitration (PCA, 2014)
The 2014 award is India’s most consequential contribution to the UNCLOS dispute-settlement record — consequential precisely because India was on the losing side. Bangladesh initiated Annex VII proceedings in October 2009 after eleven rounds of failed negotiations. India did not contest jurisdiction — a critical distinction from China’s South China Sea conduct — and participated fully. The tribunal awarded Bangladesh approximately 19,467 square kilometres out of 25,602 contested, adjusting the provisional equidistance line to remedy the cut-off effect produced by the Bay’s concave configuration, and creating a “grey area” of divided continental shelf and EEZ jurisdiction that Indian marine authorities continue to navigate.
India accepted the adverse award without challenge and publicly commended the process as a model for peaceful dispute resolution. That acceptance is not trivial: the contested terrain included hydrocarbon-rich seabed, and the jurisdictional complexity of the grey area was real. That India nonetheless honoured the result provides it with genuine moral authority to demand comparable compliance from China. India’s Bay of Bengal conduct constitutes, in this respect, an implicit rebuttal of Beijing’s persistent claim that UNCLOS arbitration is a mechanism wielded by powerful states against weaker ones
— and it is precisely this record of voluntary compliance with an adverse binding award, with no subsequent political retraction, that most credibly and substantively distinguishes India’s UNCLOS engagement from China’s posture of studied non-compliance.
Italy v. India — The Enrica Lexie Incident (PCA, 2015)
The Enrica Lexie case arose from the killing of two Indian fishermen by Italian marines aboard an Italian-flagged tanker in February 2012, approximately 20.5 nautical miles off the Kerala coast — outside the territorial sea but within the contiguous zone and EEZ. India asserted criminal jurisdiction and arrested the marines; Italy initiated Annex VII arbitration in 2015, arguing that Articles 97 and 100 read with the high seas regime vested exclusive flag-state jurisdiction. The tribunal ruled in 2020 that Italy held primary criminal jurisdiction over military personnel acting in official capacity and that India had violated Italy’s freedom of navigation rights.
What is analytically significant is India’s initial resistance: New Delhi contested the PCA’s jurisdiction on grounds that the dispute concerned criminal enforcement rather than UNCLOS interpretation. This posture — resisting compulsory arbitration as respondent while advocating for it as beneficiary — reveals the same structural tension visible in the South China Sea context. India’s UNCLOS engagement is selectively activated depending on whether the Convention’s mechanisms protect or constrain Indian interests, a pattern that complicates its self-image as a model participant and undermines its normative credibility when demanding compliance from China.
Conclusion
India’s relationship with UNCLOS is best characterised not as hypocrisy but as strategic ambivalence — a condition common to aspiring great powers that are simultaneously rule-takers where rules benefit them and reluctant rule-followers where rules constrain sovereign autonomy. What makes India’s case particularly acute is the ambition of its self-description: a “net security provider,” a champion of the rules-based international order, a responsible power whose Bay of Bengal conduct validates the UNCLOS dispute-settlement regime. These aspirations are not without empirical foundation, but they generate obligations India has not yet fully met — obligations that grow more visible with each round of Quad-aligned Indo-Pacific positioning.
Three corrective steps would substantially strengthen India’s credibility. First, a systematic reconciliation of the Maritime Zones Act, 1976 with UNCLOS Part V — specifically a clarification that India does not assert authority to regulate foreign military activities in its EEZ beyond what the Convention permits — would eliminate the doctrinal inconsistency China exploits to suggest equivalence between its maritime claims and India’s. Second, India should formally affirm the 2016 South China Sea award as standing policy in multilateral forums — the Indian Ocean Rim Association, the East Asia Summit
— rather than limiting endorsement to bilateral joint statements. The 2023 shift was meaningful; institutionalising it would be decisive. Third, India must engage more genuinely with Part XV’s full architecture, including Article 287 jurisdiction-accepting declarations that signal commitment to compulsory dispute settlement as respondent, not only as claimant-aligned actor.
The UNCLOS regime, despite its enforcement deficits, remains the most sophisticated legal framework governing the global commons. Its degradation — through
China’s explicit rejection of arbitral awards, or through the subtler erosion of selective application by aspirant powers — poses systemic risk to a maritime order from which India, with a 2.02 million square kilometre EEZ and critical trade routes through the South China Sea, benefits enormously. India’s unique legal capital — having both accepted an adverse arbitral award and championed freedom of navigation — is an asset no other Indo-Pacific power currently holds. Deploying that capital selectively, in service of short-term China hedging, is a strategically costly bargain. A genuinely consistent UNCLOS posture, grounded in domestic legal reform and multilateral norm leadership, is the only framework that can sustainably advance India’s long-term maritime ambitions and consolidate its credibility as the Indo-Pacific’s indispensable legal actor and norm leader.
