Foreign Affairs & International Law

The Indian Ocean as A Region of Future Contestation

Vijay Gokhale

For two thousand years until the advent of European domination, the Indian Ocean had been the world’s center of economy and trade. All manner of goods moved through it from Asia to the markets of Europe, and the Indian peninsula was central to both trade and security. European maritime advances at the turn of the 16th century gradually turned the Indian Ocean into a British lake. The economic and political center of gravity shifted initially to the Atlantic and then to the Pacific Oceans, and even the discovery of oil in the Arabian Peninsula in the early 20th century could not restore the Indian Ocean’s primacy. After the Second World War, the Americans replaced the British in the Indian Ocean as the principal provider of international security public goods, primarily to ensure uninterrupted energy supplies, but the region was neither a major post-war economic hub nor a region for political contestation.

In the 21st Century, the Indian Ocean once more stands on the cusp of change, and for good reason. Asia has the highest concentration of the world’s fastest-growing economies and a significant proportion of global trade again moves through the Indian Ocean. Asian economies host critical segments of the global supply chain for manufacturing hubs from Tokyo to Dusseldorf. The Middle East still holds the keys to global energy security. Asian demographics are determining global consumption on which the prosperity of the rest of the world depends. The Indian Ocean has three critical choke-points – the Baba-el-Mandeb, the Straits of Hormuz and the Malacca Straits. If any of these key waterways are hindered by accidents, blockade, piracy, terrorism or war, the consequent disruption of energy and trade flows would have global repercussions. The law concerning transit passage through the straits was one of the contested issues as part of the negotiations of the 1982 UN Convention on Law of the Sea (UNCLOS).

The Indian Ocean region also faces geopolitical stresses. Some of these are long-standing such as the contestation between India and Pakistan or the rivalry between Iran and Saudi Arabia for supremacy over the Islamic World; but others are newer, such as the tension between Iran and the United States, the threat posed by Islamic radicalism to the safety and security of sea-lanes of communication, and the threat to international shipping from piracy off the coast of Somalia or in the Mozambique channel.

One geopolitical challenge, however, will dominate the Indian Ocean in the coming decades – the contestation between America and China for global supremacy. As a rising China seeks to dominate the Eurasian landmass and the Indian Ocean rimland as the ‘axial’ state, it is rubbing up against the current hegemon, America, and nowhere is this more apparent than in the Indian Ocean. China’s influence, which is already expanding in Asia as a result of its global economic share and through the pursuit of geo-economic strategies like the Belt and Road Initiative, is poised to gain a military edge. China is undertaking the most ambitious warship building program of this century, including three aircraft carriers, and, by one estimate, will surpass the combined number of American and Indian warships by 2030 [Capt. James Farrell: China’s Global Navy Eyeing Sea Control by 2030, Superiority by 2049, The Sunday Guardian, 13 June 2020]. Given that 80% of China’s energy, 43% of raw material consumed and more than 55% of China’s exports go through the Indian Ocean, it could be said that China has legitimate interests in protecting this economic life-line, but recent actions suggest that China’s naval ambitions have strong geo-strategic impulses as well. The new military base in Djibouti and the dual-use ports that it is building in the Indian Ocean close to the choke-points, as well as its stated intention to use the navy to safeguard China’s developmental interests abroad [China’s Official Defence White Papers 2015 & 2019], appear to suggest a hidden agenda. America is still, by far, the dominant security guarantor in the Indian Ocean but its run appears to be nearing the end. Prima facie, the Americans still outspend the Chinese on defence by a ratio of 4:1, but when looking closer at the trends it becomes clear that while US defence expenditure over the ten years from 2007 to 2016 actually declined by 4.8%, China’s spending in the same period increased by 118% [SIPRI Report 2017].

The Trump Administration’s recently declassified document titled ‘US Strategic Framework for the Indo-Pacific’ [released by the White House on 12 January 2021] recognizes China as the primary State actor of concern in the Indian Ocean going forward. It considers the building of alliances and partnerships as, possibly, the only way to offset its relative decline and to counter the domination of the Indo-Pacific by China. Not surprisingly, India is identified as a key strategic partner (outside the formal US alliance partners), and a stated goal is to accelerate India’s rise and capacity to serve as a net provider of security in the Indian Ocean. It should come as no surprise that India’s proximity to the US has increasingly caused concern in Beijing. Some Chinese scholars have recently averred that China has made up its mind that India will lean towards the US, and that China will be the object of containment [Ye Hailin: The Influence of Identity Perception Bias in India-China Relations, India-China Dialogue, November 2020, and Liu Minwang: A New Crossroads in Sino-Indian Relations, Pangoal Thinktank, October 2020]. India is thus, willy-nilly, being dragged into the Sino-US competition in the Indian Ocean. India’s greatest test in the coming decade will be how to establish a balance between these two, that will also allow India to recover its position as the fulcrum State in the Indian Ocean in terms of both economics and security.

While a number of domestic measures, that include substantial new investment in capital assets for the Indian Navy, the development of indigenous capabilities in unmanned underwater vehicles, improvement of ports, development of coastal shipping, economic use of off-shore islands and so on, will be needed to strengthen our regional economic and military capacities to become a net security provider in the northern Indian Ocean, rule-setting and rule-making will be just as critical. Just as Europe saw a wave of legal and quasi-legal agreements that established new rules for security and peace after the Second World War, and like East Asia which is currently grappling with a Code of Conduct for the South China Sea, India will need to engage with the littoral States and outside powers to establish a rules-based order in the Indian Ocean. None exists at present.

The challenge that we already confront is the encroachment by Chinese (and American) maritime research & survey vessels into our Exclusive Economic Zone (EEZ) and Continental Shelf (CS). India has legislation (Act No. 80 / 1976) requiring foreign marine scientific vessels to seek prior license but interpretation of law, as well as enforcement, is a challenge. The Law of the Sea Convention is open to different interpretations on the question of military uses and scientific surveys in the EEZ of coastal states.  Survey work is now being undertaken by naval vessels under the cover of freedom of the high seas or in the name of ‘lawful’ uses of the sea. The challenge, therefore, is one of improving the law through negotiation of codes of conduct or mutually agreed understandings and of enhancing military capability for deterrence and interdiction.

A second challenge is the possibility that China might conduct Freedom of Navigation operations (FONOPs) by sailing warships along our coasts or in the waters off our island territories, just beyond the 12 nautical mile limit, on the grounds that this is ‘innocent passage’ by naval vessels. The Law of the Sea Convention says that military vessels have ‘right to innocent passage’ to traverse the territorial sea of a coastal state without entering internal waters so long as it is not prejudicial to peace, good order and security of the coastal state. Since Chinese warships are probably not acting ‘innocently’ [See the various activities that UNCLOS specified, in Article 19, when involved as part of the passage of foreign ships through the territorial waters that make the same as non-innocent. See also articles 21 and 24 in this regard], we might need to challenge such activity, but India does not have protocols or a legal framework to such encounters.

A third, imminent, challenge is the deployment of unmanned underwater drones (which might be armed) inside our EEZ or in ways that might threaten our warships on the open seas. The importance of developing a regional or multilateral legal framework to handle this is now pressing. It will need a sound understanding of both current international conventions relating to the seas as well as new technologies. It is important that India is active in shaping the framework in a way that preserves its freedom of action and security.

A fourth challenge is the handling of piracy and other threats to international shipping from non-State actors. India, as a fulcrum State, will be expected to provide international security public goods for such purposes. [The Enrica Lexie case between India and Italy highlighted several aspects governing national and international action concerning piracy in the Indian Ocean and efforts on the part of the IMO, the coastal States in the region including India to contain and eliminate pirate attacks and the laws or regulations that are in effect]. Protocols on joint patrols [similar to the Malacca Straits Patrol by Malaysia, Singapore, Thailand and Indonesia] as well as institutionalized cooperation between States Parties in handling environmental and other marine disasters that might overlap territorial boundaries, will require legal frameworks and structures.

Finally, as India becomes a major maritime power, bilateral and multilateral agreements to deal with close encounters at sea with other navies is becoming a necessity.

With China’s near-permanent presence in the Indian Ocean likely in this decade, and the growing rivalry with America, India has no choice but to pro-actively try to shape the future of the Indian Ocean in its favour. This can be done, provided that we invest in developing both military and legal expertise in order to create a multilateral framework that maintains India’s supremacy in the Indian Ocean as it once again becomes the centre of the world’s stage.

Mr. Gokhale is a retd. Indian Foreign Service officer, who served as the 32nd Foreign Secretary of India from January 2018 to January 2020. Currently, he is a non-resident Senior Fellow at the Carnegie Endowment for International Peace.

Image Credits: Clarisse Dupont / Marine Nationale