by Neville Ladduwahetty
It has been reported that President Anura Kumara Dissanayake is due to visit India during the latter part of December. He and Indian Prime Minister Narendra Modi are expected to have talks on grant assistance projects from India, debt restructuring, people centric digitisation (identity cards, for instance), finality of the Economic and Technological Co-operation Agreement (ECTA), housing projects from India, solar electrification of religious places, agricultural development, defence cooperation, infrastructure development in the North and collaboration in human resource development. President Dissanayake is expected to raise with Premier Modi the issue of Indian fishermen fishing in Sri Lanka’s territorial waters” (Sunday Times, December 1, 2024).
It is clear from the foregoing report that the scale and scope of India’s agenda overwhelmingly outweighs Sri Lanka’s agenda that is limited to a single issue, namely, “Indian fishermen fishing in Sri Lanka’s territorial waters”. Notwithstanding this serious imbalance, Sri Lanka could gain considerable mileage by expanding the scope of this single issue in its agenda to two issues that would make a significant impact not only to Sri Lanka’s security and its national interests but also to the wellbeing of the Sri Lankan fishing community.
The two issues are as follows:
1 Reparations for the damages inflicted on Sri Lanka’s marine resources by bottom trawling and the loss of revenue and wellbeing to Sri Lanka and its fishing community over decades.
2 The need to revisit existing maritime boundaries agreed to between India and Sri Lanka, which are based on historical practices and instead, establish fresh Maritime Boundaries based on International law recognized by the International Court of Justice (ICJ) relating to International Boundaries.
These two issues are interlinked because it is the determination of the international boundary, based on International Law, that becomes the basis to establish claims for Reparations. Therefore, it is only by establishing the location of the International Boundary, based on a judgment by the ICJ, that lawful assessment of the claim for Reparations could be established.
THE BACKGROUND
One of the issues that was of significant concern to Sri Lanka and India in the early 1970s was the “ownership” of the island of Katchativu since it was pivotal to the establishment of the maritime boundary between the two countries. This issue was resolved with the signing of the 1974 Agreement by the Prime Ministers of Sri Lanka and India and revised in 1976. However, since these Agreements are based on traditional practices of citizens in both countries and, therefore, had “no legal resolution of ownership” (MDD Peiris, November 24, 2024), at the operational level, adherence to the obligations in the Agreements are fluid. Consequently, the ceding of Katchativu by India to Sri Lanka as per the Agreements is considered by India to be an act of treachery; even Prime Minister Modi is of a similar view.
As long as such perspectives persist at the highest level in India, attempting to resolve these contentious issues through dialogue is a futile exercise even if the highest level is committed to policies such as “Neighbourhood First”. Therefore, the only option for Sri Lanka and India, as members of the UN Charter, is to jointly or separately refer the matter to the ICJ for a legal resolution of all issues involved, if there is to any justice under the policy of “Neighbourhood First”, for it to mean what it states and not India First in the neighbourhood.
REPARATIONS for VIOLATING SOVEREIGN RIGHTS
According to the UN Convention on the Law of the Sea (Article 56) the exploring, exploiting, conserving and managing living and non-living natural resources of a Coastal State within its Exclusive Economic Zone (EEZ) is a sovereign right. Despite this, thousands of trawlers from India enter Sri Lanka’s EEZ and not only exploit its resources but also destroy marine resources by resorting to bottom trawling, evidence of which abound.
In a United Nations-Nippon Foundation of Japan Fellowship Programme of 2016, Aruna Maheepala claims: “There are over 5,000 mechanised trawlers in Tamil Nadu and nearly 2,500 of them enter Sri Lankan waters on Mondays, Wednesdays and Saturdays and often coming at 500 m of the shoreline (emphasis added) … More than 50,000 marine fishers live in the Northern fisheries districts (Jaffna, Kiliinochchi, Mannar, Mulative), which is around one fourth of the marine fishers of the country. Before the commencement of the war (1982) around 40% of the fish production of the country came from Northern fishery districts (except Killinochchi). However, the contribution of the fish production in the Northern fishery district drastically dropped to 5% in the peak period of the war (2008) and gradually increased after 2009. Furthermore, livelihoods of Sri Lankan fishers’ have been drastically affected as a result of the Indian poaching”.
News 1st reported on 14 April 2021: “Indian fishing vessels illegally fishing in Sri Lankan waters pillage around Rs, 900 billion worth of valuable marine resources in the Northern seas of Sri Lanka” (Northern Province Fisheries Asso. Chief, M.V. Subramanium).
“Assessing reparation of environmental damage by the ICJ”, (Questions on International Law, QIL) cites the case of compensation for environmental damage in Nicaragua/Costa Rica, the ICJ’s Judgment was:
“To shed light on the case, the Court sought support in international law and decisions of arbitral tribunals. In 1927, the ICJ already underlined in its judgment related to the Factory of Chorzów that a breach involves an obligation to make a reparation ‘in an adequate form’. The Court recalled that it had in a previous judgment, in 2015, assigned sovereignty over the area to Costa Rica, and Nicaragua’s activities were, therefore, in breach of that sovereignty. As such, the obligation for Nicaragua to make reparation was no longer to be disputed. Reparation in the form of compensation, as applied in the present case, was determined by the judgment in 2015.
Before addressing the issue of compensation in itself, the Court deemed it appropriate to follow a two-fold approach. The Court first determined the existence and extent of the damage to environmental goods and services caused by Nicaragua’s wrongful activities, and then went on to assess the existence of a direct and certain causal link between such damage and Nicaragua’s activities. This section will successively examine the Court’s analysis of the points of contention, its choice of method, and the assessment of the damage as established by the Court”.
BASIS for MARITIME BOUNDARIES in INTERNATIONAL LAW
A meeting was held in 1921, between the Colonial Governments of India and Ceylon “in order to avoid over-exploitation of maritime resources and the possibility of competition between the fishermen of India and Sri Lanka in the same waters for their catch, the colonial Governments of Madras and Colombo agreed to delimit the waters in the Gulf of Mannar and the Palk Bay. The two parties met in Colombo on October 24, 1921. The Indian team was led by Mr. C. W. E. Cotton and the team representing the government of Ceylon was headed by Hon. B. Horsburg”.
“Both parties accepted the principle of equidistant and the median line could be the guiding factor”. However, since at Kachchathivu the principle of equidistant “would considerably narrow the area of operations for the Indian fishermen”, the Ceylon delegation proposed a line that was three miles west of the island “so that there would be an equitable apportionment in the fisheries domain for both Sri Lanka and India”. The proposal by the Ceylon delegation was based on the fact that “Sri Lanka’s sovereignty over Kachchathivu was never in question, was beyond any doubt and was not a matter for negotiation. He (Hon. B. Horsburg) quoted from the correspondence that the Survey Department and the Department of Public Works in Colombo had exchanged with the counterparts in India, in which the sovereignty of Sri Lanka over Kachchativu had been taken for granted by the Indian authorities… After discussion the delimitation line was fixed three miles west of Kachchativu” (Jayasinghe, p. 14,15).
Agreement between the two parties is reflected in the letter from the head of the Indian delegation, C. W. E. Cotton, in which he states: ” … we unanimously decided that the delimitation of the new jurisdiction for fishing purposes could be decided independently of the question of territoriality. The delimitation line was accordingly fixed, with our concurrence three miles west of Kachchativu and the Ceylon representatives thereupon agreed to a more orderly alignment south of the island than they had originally proposed…” (Ibid, p. 130).
What is relevant from all of the above is that regardless of the basis for establishing a boundary under colonial rule, such boundaries morph into territorial boundaries of independent states under the “Doctrine of UTI POSSIDETIS”.
DOCTRINE of UTI POSSIDETIS
Black’s Law Dictionary has defined the legal Doctrine of “Uti possidetis juris” as “the doctrine that old administrative boundaries will become international boundaries when a political subdivision achieves independence (Hansal & Allison, “The Colonial Legacy and Border Stability”, p. 2; quoting Garner 1999).
The principle behind this doctrine dates back to Roman times. The principle first emerged in the modern sense with the decolonization of Latin America when each former Spanish colony agreed to accept territories that were “presumed to be possessed by its colonial predecessors” (Ibid). The same doctrine was accepted by former colonies in the African continent. The International Court of Justice (ICJ) has “argued for its relevance across the world” (Ibid).
“This principle was stated most directly in the ICJ’s 1986 decision in the Frontier Dispute/Burkina Faso Republic of Mali case. The ICJ had been asked to settle the location of a disputed segment of the border between Mali and Burkina Faso, both of which had been part of French West Africa before independence. In their judgment over the merits of this Frontier Dispute case the ICJ emphasized the legal principle of uti possidetis juris”:
“The ICJ judgment in the Mali-Burkina Faso Dispute case also argued that the principle of uti possidetis should apply in any decolonization situation regardless of the legal or political status of the entities on each side of the border”:
“The territorial boundaries which have to be respected may also derive from international frontiers which previously divided a colony of one State from a colony of another, or indeed a colonial territory from the territory of another independent State…There is no doubt that the obligation to respect pre-existing international frontiers in the event of State succession derives from a general rule of international law, whether or not the rule is expressed in the formula of uti possidetis” (ICJ 1986, Ibid).
Based on the ICJ Judgment, the Maritime Boundary between India and Sri Lanka should be what existed during Colonial times and continue as the International Maritime Boundary when India and Sri Lanka gained independence. The fact that Sri Lanka failed to use the provision of Uti Possidetis has cost Sri Lanka’s economy dearly and continues to do so in terms of treasure and human suffering.
CONCLUSION
The issue of Indian fishermen fishing in Sri Lanka’s territorial waters was resolved in 1921, when the Colonial Government of India and then Ceylon unanimously agreed on what the Maritime Boundary was to be. Accordingly, the island of Kachchativu was to be part of Sri Lanka’s sovereign territory as it had been before Ceylon was colonized. Following independence of both countries, the boundaries that were recognized while under colonial rule should have been recognised as the boundaries of independent India and Sri Lanka in keeping with the internationally recognized doctrine of UTI POSSIDETIS cited above.
Instead of staking Sri Lanka’s claim on the principle that colonial boundaries transform into international boundaries upon gaining independence, Sri Lanka opted to base their claim on traditional and historical practices and agreements were signed by the Prime Ministers of India and Sri Lanka.in 1974 and revised in 1976. The opportunity to stake Sri Lanka’s claim on the basis of international law was lost, perhaps due to unfamiliarity with related legal provisions.
While sovereign countries are free to forge agreements between themselves, their durability is dependent on varying personal political agendas of political actors in each country. Consequently, what is acceptable today may be unacceptable tomorrow. Since these agreements are not based on international law, Indian political leaders, such as Prime Minister Modi, refuse to accept them. These perspectives have emboldened Indian fishermen to violate Maritime Boundaries and destroy marine resources by resorting to bottom trawling. Furthermore, the numerous discussions between the two governments have failed to resolve substantive issues and have resulted ONLY in the India government’s focus being on the release of arrested Indian fishermen and their vessels.
Therefore, since the issue of maritime boundaries has a direct bearing on illegal entry into Sri Lanka’s sovereign territory and destruction of marine resources, the ONLY durable way to resolve this contentious issue is to seek the assistance of the ICJ to rule on a legal determination as to the location of maritime boundaries based on the principle of UTI POSSIDETIS, on which depends claims for reparations for damages to maritime resources inflicted over decades. In this regard, Sri Lanka should be encouraged by the ICJ determination in the case of Nicaragua and Costa Rica in 2015 cited above.
The opportunity presented by the forthcoming visit of President Dissanayake to India should NOT be missed by the new government because all previous governments and their advisors have failed to address this all-important issue, either because of their timidity or ignorance of relevant International Laws. If Dissanayake fails to inform India that Sri Lanka has no option but to seek the assistance of the ICJ to resolve the issue of maritime boundaries, Sri Lanka will have to accept the bitter prospect of the plunder of its resources and the sovereign rights of the People and the Nation forever.
