Kachchativu – Transforming confrontation into cooperation

Katchatheevu is an uninhabited island-now in a sea of controversy-and sandwiched between India and Sri Lanka in the Palk Bay

• In the matter of Kachchativu too, it could have been taken before the ICJ or an Arbitration Tribunal, as in the case of the Rann of Katch dispute between India and Pakistan
• Article 15 of the 1982 Convention on the Law of the Sea, sets out the criteria for delimitation of the territorial sea between states with opposite or adjacent coasts
• In the case of India and Sri Lanka, the territorial sea in this area has been designated ‘historic waters’ and has been delimited by agreement

The Baltic Sea Fisheries Commission established under the Convention maintains equitable quotas between the member states so as to conserve the living resources of these waters. Similarly, India and Sri Lanka can work out such an agreement between them and can also set up a research station on Kachchativu for experiments by marine biologists and experts to increase and safeguard the marine resources and environment

At the end of the war the fishermen of the Northern Province found themselves competing against an armada of fishing vessels and trawlers from Tamil Nadu and other parts of Sri Lanka. Even their fishing nets and equipment were damaged and continue to be destroyed by the trawling methods. The frustration and suffering of these fishermen has to be mitigated, and the governments of Tamil Nadu and India must begin to take a proactive approach

Kachchativu is a small island a mile long, three quarter mile broad at its widest and area wise less than half a square mile, located about halfway between India and Sri Lanka close to the median in the Palk Strait. In the drawing of the maritime boundary between India and Sri Lanka, the question as to which country Kachchativu should be assigned to arose. Both countries put forward claims supported by evidence to show that it was within their sovereignty. In a similar case, Miniquiers and Ecrehos case ICJ reports 1953, the UK and France, requested the International Court of Justice (ICJ) to determine the country that held sovereignty over the islets and rocks in the Miniquiers and Ecrehos groups in the Channel Sea between England and France. France claimed sovereignty because it had fished in the waters and had historic title over the area from the Duchy of Normandy. The United Kingdom (UK) claimed that Jersey (an English county) had historically exercised administrative jurisdiction over them. The ICJ decided that sovereignty over the islands belonged to the UK. In the matter of Kachchativu too, it could have been taken before the ICJ or an Arbitration Tribunal, as in the case of the Rann of Katch dispute between India and Pakistan, for a conclusive declaration. But the two states concerned decided to negotiate and settle it by agreement. 
Article 15 of the 1982 Convention on the Law of the Sea, sets out the criteria for delimitation of the territorial sea between states with opposite or adjacent coasts. The section provides for the states to demarcate it by agreement or failing which by a median or lateral line every point of which is equidistant from the nearest point on the baseline. However the section itself states that this provision does not apply where it is necessary by reason of historic title or the specific circumstances to delimit the territorial sea of the two states in a way that is at variance thereto. In the case of India and Sri Lanka, the territorial sea in this area has been designated ‘historic waters’ and has been delimited by agreement.
It must be pointed out that under the Law of the Sea, the territorial state exercises sovereignty and exclusive jurisdiction which means that there can be no right of fishing in these waters by third states without the express permission of the coastal state. However, in the territorial sea there is a right of innocent passage by the ships of third states which are traversing these waters. But in the case of historic waters which are analogous to or treated as internal waters, there is no right to fishing or of innocent passage of vessels of third states. On the Indian side too, the waters are designated as historic waters. Historic title derives from these waters being claimed from time immemorial on the basis of the user of the Pearl and Shank fisheries in these waters. This was given legal recognition in the case of Annakkumaru V Muthuppayal heard before the appellate criminal division of the Madras High Court (Court ILR 1903/1904). 
It is this principle that is set out again in a 1976 exchange of letters (Memorandum of Agreement) between India and Sri Lanka and states that the fishermen of each country cannot fish in the others’ waters. It is possibly this Memorandum of Understanding (MoU) which is being referred to as the 1976 Treaty both in the press conference by the Indian Foreign Minister and elsewhere. The 1976 Boundary Treaty is quite distinct and extends the boundary in the Gulf of Mannar and the Bay of Bengal to the west and east respectively of the 1974 boundary. It is also necessary to explain the terms of the 1974 Boundary Agreement which is misunderstood. Article 5 gives Indian fishermen and pilgrims access to Kachchativu without travel documents in the context of the annual church festival of St. Anthony, on the Kachchativu Island.  Article 6 states that vessels of India and Sri Lanka will enjoy traditional rights. This refers to the right of innocent passage. As these are historic waters this right did not apply and had to be specifically provided for in the context that the waters in the Palk Strait are very shallow and in order to traverse them vessels of each state have to cross over into the others’ waters. That this right so given does not include traditional fishing rights is made clear from the exchange of letters (MoU) of 1976 which states that the fishing vessels and fishermen of either country cannot engage in fishing in the waters of the other country without express permission. So this article can be regarded as giving a right of innocent passage and not fishing rights and has been wrongly interpreted. 

Cooperation between the two countries

I turn now to the second part of my article. Article 123 of the 1982 Convention on the Law of the Sea calls for co-operation between states bordering enclosed or semi-enclosed seas. The seas known as the Sethu Samuthram i.e. the area constituted of the Palk Strait, the Palk Bay and parts of the Gulf of Mannar are semi-enclosed or land locked seas. This fact was referred to in the case of Annakkumaru V Muthupayal as early as 1903. Hence it could be said that the mandatory requirements of Article 123 of the Convention are applicable to these seas so that the states bordering them should coordinate the management, conservation, exploration and exploitation of the living resources of these waters. An example of such co-operation can be seen in the Baltic Sea which is also a semi-enclosed sea. Under the Convention on Fishing and Conservation of the Living Resources of the Baltic Sea and Belts, the states bordering the Baltic Sea i.e. Latvia, Lithuania, Poland, Russian Federation and the European Union co-operate in the resource management of this Sea. The Baltic Sea Fisheries Commission established under the Convention maintains equitable quotas between the member states so as to conserve the living resources of these waters. Similarly, India and Sri Lanka can work out such an agreement between them and can also set up a research station on Kachchativu for experiments by marine biologists and experts to increase and safeguard the marine resources and environment.  

Fisher folk of Tamil Nadu 

With regards to the fishing disputes that are taking place and the Indian fishermen crossing the International Maritime Boundary Line (IMBL), I would suggest that we distinguish between the actual fisher folk of the coastal districts of Tamil Nadu using traditional methods and small boats, and of the businessmen, owners of trawlers or multi-day boats who are not necessarily inhabitants of the coastal districts around the semi-enclosed sea. Considering the cultural and ethnic bonds between the peoples of Sri Lanka and Tamil Nadu we should be willing to come to some accommodation with this category i.e. the small boat fishers, as they too have fished in these waters from time immemorial. Talks can be initiated between the fishermen organisations on both sides and subject to the consent of the fisher folk of the Northern Province. A quota system could be worked out under which certain days and times could be marked for each group to fish in the others’ waters. These fishermen using traditional methods and small boats will not damage the marine environment whereas those using bottom trawling and multi-day boats should be banned as they are presently, and not allowed to fish in these waters. Such boats that transgress the IMBL should be prosecuted. The Tamil Nadu authorities must also take action to sensitise such persons to the damage being caused by their methods and the pain, suffering and deprivation being caused to the fishermen of the Northern Province by their actions. The fisheries ministries of Tamil Nadu and the Northern Province can collaborate under the auspices of the governments of India and Sri Lanka. 
Further every effort must be made by the governments of Tamil Nadu and India to move multi-day boats and trawlers to fish in deeper waters of the Exclusive Economic Zone (EEZ) on the eastern and western coasts of India which extend up to 200 nautical miles, rather than compete with the fishermen of the Northern Province in the waters of the Palk Strait, Palk Bay and the Gulf of Mannar where they continue to deplete the resources by overfishing and trawling. 
It must be remembered that the fishermen native to the Northern Province faced severe restrictions in carrying out their fishing activities during the three decade long armed conflict, and thus suffered immeasurably, whereas those from Tamil Nadu were able to use these waters during that period. At the end of the war the fishermen of the Northern Province found themselves competing against an armada of fishing vessels and trawlers from Tamil Nadu and other parts of Sri Lanka. Even their fishing nets and equipment were damaged and continue to be destroyed by the trawling methods. The frustration and suffering of these fishermen has to be mitigated, and the governments of Tamil Nadu and India must begin to take a proactive approach. 

Nallur Convention

Finally I would say in passing, that the Government of India agreed to relinquish the Island of Kachchativu by drawing the border one mile west of the island of Kachchativu, and in doing this they took into account evidence of Sri Lanka’s administration and sovereignty from the time of Portuguese rule and through the Dutch administration to theBritish period. The Kings of the Kingdom of Jaffna, the Ariya Chakravarthys, held the title ‘Sethu Kavalar’ meaning protector of the Sethu Samuthram which includes the Palk Strait, Palk Bay and the Gulf of Mannar. When at the Nallur Convention in 1619, the nobles of the Kingdom of Jaffna on behalf of the people swore allegiance to the King of Portugal as their King, this title and sovereignty over these waters passed to the Portuguese, then to the Dutch and then the British by right of conquest applicable at that time, and then to the newly independent Ceylon now Sri Lanka. So there is weighty evidence to prove Sri Lanka’s title. In accepting the weight of evidence, there is no discredit to Srimathi Indhira Ji’s status as a patriotic Indian leader; her action in showing respect for the valid claims of a small neighbour should be regarded as a leavening factor in international relations.