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US warship issue: Nothing in UN law supports India's stand, says Tharoor

Tharoor argued “our diplomacy should have negotiated” the situation

Shashi Tharoor Shashi Tharoor

 The freedom of navigation manoeuvre undertaken by a US Navy warship near the Lakshadweep Islands without India's consent last week continues to trigger debate.

Experts on law and foreign policy and former Indian Navy officers have commented on the issue from multiple perspectives, with most warning of an adverse impact on ties with the US.

Congress MP Shashi Tharoor on Wednesday gave his perspective on the incident via Twitter. Before plunging into politics, Tharoor was a veteran official of the UN, serving as under-secretary general.

In a series of tweets, Tharoor noted there was "nothing" in the United Nations Convention on the Law of the Sea (UNCLOS) that supported India's stand.

The UNCLOS, referred to as the law of the sea, was adopted in 1982 after nine years of deliberations involving members of the UN. UNCLOS provides for "full" monetary rights to countries to exploit resources in a 200-mile zone from their shore. This area would be regarded as the exclusive economic zone. UNCLOS came into effect in 1994.

Tharoor tweeted, "There's understandable anger in India over the US Seventh Fleet sailing near Lakshadweep in waters that are part of our exclusive Economic Zone (EEZ). However, there is nothing in UNCLOS (the Law of the Sea) that supports India’s stand on freedom of navigation through the EEZ."

The US had noted that the passage of its warship near the Lakshadweep through an Indian EEZ was "consistent with international law".

Tharoor reasoned the US could not be accused of breaking international law. "... the Americans are essentially doing near Lakshadweep exactly what they are insisting on doing in & through the South China Sea under the same Freedom of Navigation principle (FoNoPs). The US can be accused of not respecting our sensibilities but not of breaking int'nl law," Tharoor tweeted.

Tharoor noted the US did not undertake similar actions with nations such as Canada, UK and Australia as they were "treaty allies" of the US that had consultation agreements in place. Tharoor said, "India not, & is unlikely to ever be, an ally."

Tharoor conceded, "So the best we can hope for is an explicit undertaking to (1) inform India in advance as a courtesy and (2) not to publicize the fact that they have thumbed their noses at us. Our diplomacy should have negotiated this; nothing better would have been possible."

Tharoor said the legal position of the US, in not being a member of UNCLOS, was not relevant in this issue. Tharoor wrote, "USA hasn't signed UNCLOS, but since FoNoPs is not in UNCLOS, the legal position is irrelevant. We need a pragmatic political approach rather than outrage about a legal breach that hasn't occurred. There has been discourtesy & disrespect, which must be addressed diplomatically."

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