Raj Shekhar & Astutya Prakhar*
Introduction
The two nations of India and Sri-Lanka have shared a common history, intellect, culture, and religion for the past 2500 years.[1] Whether it be the incidents of Ramayana or the subsequent cultural ties, the island nation of Sri Lanka has always been regarded by India as its close ally. However, even after such strong bonds, the southernmost point of India and the Pearl Nation have been in direct conflict. What’s even more peculiar is the fact that such a conflict has no roots in diplomacy or exertion of supremacy, but rather it finds its cause in the fishing activities by both nations in the ‘Palk bay’region.[2] The issue becomes even more pressing because it has the potential to affect the lives of thousands of fishermen families in the coastal villages of India and Sri Lanka. The bay region becomes even more sensitive as it has the potential of affecting the economy owing to the fact that the Palk Bay region is a fishing hotspot, with thousands of species of marine fishes, prawns, and oysters alike due to its latitudinal position and absence of strong sea current. The effective say it could have in the GDP and the dependence of thousands of families in this region, the fishing and demarcation of fishing grounds have always been a bone of contention between the two countries. This article tries to understand the historical background, the present issues, and the potential recourse in the International Laws and Conventions that can help the two nations sort out the issue peacefully and without harming each other in any way.
The Palk Bay Fishing Dispute: Half a Decade and Still Continuing
Before the signing of the Indio-Lankan Maritime Boundary Agreements between 1974 and 1976,[3] the fishermen from both the countries fished in the Palk Bay region freely, with minimal governmental interventions. As there were no formal laws governing or demarcating the waters of the two nations, the fishermen often entered each other’s territorial waters without any retaliation from coastal guards. Owing to the demarcation of waters by the Maritime Boundary agreements lead to the creation of what we call as the International Maritime Boundary Line (IMBL)[4] which made the acts of entering each other’s waters an illegal act. This demarcation of the sea waters was the major reason that would lead to growing tension between the two nations.
The early decades after independence were not very prosperous for India and it found itself in a huge financial crisis. Though India was exploiting its agricultural limits to their heights, the marine industry vastly remained inactive. The government realized the issue and brought in policy revamps to promote marine fishing so that the products could be exported for strengthening the falling economy. This led to heavy fishing by the Indian fishermen in the Palk Bay region. Newer technologies were introduced and fishing was made more extensive. The initial years saw great growth in the marine product industry, however, the subsequent years saw the rise of demand for new fishing grounds. Even though there existed formal maritime agreements, the Indian fishermen started encroaching and fishing in the Sri-Lankan waters unabated. This in-action from Sri Lanka was a result of the internal civil war that has been ravaging since the start of the 1980s, which gave the pearl nation no room for even pondering over the issue of Indian Fishermen encroaching in their boundaries.
The End of Ethnic Civil War: The Sri Lankan Retaliation and the Indian Response
With the onset of the 1980s, Sri Lanka was burning in the flames of the civil war ravaging within its boundaries.[5] Large groups of armed rebellions were taking place, which not only overthrew the army but was claiming to form a whole new nation for the oppressed Tamil Community in Sri Lanka. There existed a state of emergency and the territorial borders as well as the aquatic borders were sealed and heavily restricted. All the movements on the land were monitored and the activities of fishing in the marine waters were temporarily suspended, leading to the decline in the Sri Lankan Fishermen revenues. The civil war continued for almost 30 years before being officially declared as ended in 2009.[6] As soon as the war ended, the Sri Lankan water borders were once again opened and the navy who were previously occupied with the issue of civil war started to patrol the marine waters yet again. This led to a heavy crackdown on the Indian fishermen who were fishing in the water borders of Sri Lanka. The Indian fishermen were captured and detained for years, without going through any legal procedures. This marked the beginning of the ‘Fishing Water’ conflict.[7]
The crackdown by the Sri Lankan Navy was inhuman and unethical. The fishermen who had unknowingly ventured were caught and detained for years even without serving them a warning to retreat. More than 1353 Indian Fishermen had been captured and a total of 256 boats were seized by the Sri Lankan Authorities from 2015-2018 as per the statistics released by the Ministry of External Affairs.[8] Though the numbers are pretty high, the Indian government has turned a blind eye towards the issue and apart from occasionally freeing a group of Indian fishermen, has done vastly nothing in this matter. As the Palk Bay region is a very beneficial fishing ground, none of the two nation’s people seem to be in a mood to forego their claim. In the tussle that continues, the families directly dependent on the fishing grounds continue to suffer.
United Nations Convention of the Law of the Seas (UNCLOS): The Lapses on Part of Governments and the Way Forward
The Indian and the Sri Lankan Governments are not just mere signatories but rather ratifiers of the United Nations Convention of the Law of the Seas (UNCLOS)[9]. What has left the International Community perplexed is the fact that even though a high-level tension exists and both the nations are ratifiers, why hasn’t any of the two taken recourse in International Litigation, as the UNCLOS Tribunal has the Power of ‘Settlement of Disputes’ as per Part XV.[10] The answer lies in the deep-rooted political, economic, and social factors. As already said before, the history of both nations has deep and intertwining origins, which means that the same is true for its people too. Sri Lanka is an island country, with India being the major importer and exporter of good to it. Raising this water dispute on an International forum can lead to straining of this economic co-operation. Any sort of resistance shown to the Tamil-Indian fishermen can be seen as an indirect attack on themselves by the Sri Lankan residents of Tamil Origin. This could not only sway the results of political elections but owing to the fact that the country has once seen an ethnic conflict could also lead to the start of yet another, which shall be really disturbing from the Sri Lankan point of view.
As with every Convention there exists certain obligations on the parties to the UNCLOS too. The ratifiers are obligated to act towards the preservation of marine resources. However, India has failed miserably at this front, as while it gave the fishermen a free hand to fish, it failed to regulate the fishing techniques that were used. As a result of such a lapse, the fishermen soon indulged in the practise of ‘trawler’ fishing[11] which is a form of fishing in which nylon nets are sunk in the ocean waters and dragged by water boats at high speed. Not only such methods pose a serious risk of over exploitation of edible fishes, but they also critically endanger the life of certain rare species which are not generally poached. Such kind of unconventional fishing has a hugely detrimental effect on the marine environment and resources. Additionally, the treaties that were signed between India and Sri Lanka were not in accordance with the UNCLOS guidelines. When maritime boundaries are drawn, they are in a form of medial lines that are equidistant from the coastal boundaries of the two neighbouring nations. However, in the bilateral maritime boundary treaties signed in the 1970s, this approach was foregone and another form of linear calculation was implemented, which did not prevent one nation from gaining at the expense of others. This fact coupled with the already confusing political scenario that existed confused a lot of fishermen who decided that non-compliance would be a more profitable approach for them. Sri Lanka could also raise the claim that India has failed to act with sufficient diligence in preventing illegal fishing in Sri Lanka’s waters. The major issue of the Sethusamudram Shipping Canal Project[12] can also be raised by Sri Lanka as it poses a great risk to the marine environment.
Another major concern will be The International Tribunal for the law of the seas (ITLOS),[13] which can hold India accountable under Article 206, which mandates for marine conservation and non-introduction of projects which are contrary to this spirit. In the South China Sea arbitration[14], China’s failure to prevent its fishers from engaging in harvesting in a manner that was severely destructive of the ecosystem, in this context the use of dynamite and propeller chopping, violated the UN Convention, the trawler fishing by Indian Fishermen can be seen ejusdem generis to be violative in nature. Also, Article 123 of UNCLOS calls for “Cooperation of States bordering enclosed or semi-enclosed seas” and Article 197 calls for “Cooperation on a global or regional basis”, both these articles collectively mandate the parties to co-operate. This is one of the major fronts at which both the national governments have failed. Not only had the Indian government failed to initiate fruitful talks, but the Sri Lankan government has also gone even a step forward and take an aggressive approach.Though after a series of bilateral talks the “Joint Work Group on Fisheries”[15] has indeed come into existence but it is seen as a ‘too little too late’ development.
Conclusion
The nations of India and Sri Lanka are seen as two of the most dedicated nations when it comes to abiding by international conventions. Pursuing the course of international litigation may be seen as a hostile move between countries, it actually takes a major bilateral issue off the table and allows discussion on other important topics between the parties while the case runs its course and that too neutrally. Directly engaging in a fight against its neighbour, who also happens to be a major market, may prove too daunting for Sri Lanka owing to its dependence on India. However, going forward its negotiating position with India should at least be strengthened that too when there exists an international legal system at its disposal to support Sri Lanka in stopping damaging fishing practices in its part of the Palk Strait. India needs to do away with its abnegating tendencies and needs to strongly move towards arriving at a solution. Though the tension exists between the nations, it has a profound impact on the lives of thousands of fishermen who look forward to their national governments to move forward with a strategy. Though we have indeed seen some major developments in this regard, it will be really interesting to note as to how the two governments arrive at a potential solution for the existing conundrum.
*Raj Shekhar & Astutya Prakhar are Students of National University of Study and Research in Law, Ranchi (NUSRL).
.[1]Ministry of External Affairs, ‘India – Sri Lanka Relations’ (November 2017), https://www.mea.gov.in/Portal/ForeignRelation/Sri_Lanka_November_2017_NEW.pdf , accessed 8th June, 2020.
[2]Waterbodies.org, ‘Palk Bay’ (Water bodies, 2020), http://www.waterbodies.org/waterbody/palk-bay, accessed 8th June, 2020.
[3] V. Suryanarayan, ‘The India–Sri Lanka Fisheries Dispute: Creating a Win-Win in the Palk Bay’ (Carnegie India, 26th September 2016), https://carnegieindia.org/2016/09/09/india-sri-lanka-fisheries-dispute-creating-win-win-in-palk-bay-pub-64538 , accessed 8th June, 2020.
[4] N. Manoharan and M. Deshpande, ‘Fishing in the Troubled Waters: Fishermen Issue in India–Sri Lanka Relations’ (2018), 74(1) India Quarterly 73, 91 (doi: 10.1177/0974928417749643).
[5]Jayshree Bajoria, ‘The Sri Lankan Conflict’ (Council on Foreign Relations, May 18th 2009), https://www.cfr.org/backgrounder/sri-lankan-conflict , accessed 9th June, 2020.
[6]Matthew Weaver and Gethin Chamberlain, ‘Sri Lanka declares end to war with Tamil Tigers’ (The Guardian, 19th May, 2009), https://www.theguardian.com/world/2009/may/18/tamil-tigers-killed-sri-lanka, accessed 9th June, 2020.
[7]Sugandh Juneja, ‘India fishing in troubled Sri Lankan waters’ (DownToEarth, July 4th 2015), https://www.downtoearth.org.in/news/india-fishing-in-troubled-sri-lankan-waters-42677, accessed 9th June, 2020.
[8]Ministry of External Affairs, ‘Question No 1619 Release of Fishermen in Custody of Sri Lanka’ (December 28th, 2018),https://www.mea.gov.in/rajya-sabha.htm?dtl/30839/QUESTION+NO1619+RELEASE+OF+INDIAN+FISHERMEN+IN+CUSTODY+OF+SRI+LANKA, accessed 9th June, 2020.
[9]United Nations Convention on the Law of the Sea, 1982 https://www.un.org/Depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm .
[10]United Nations Convention on the Law of the Sea 1982, Part XV https://www.un.org/Depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm.
[11]Karthikeyan Hemalatha, ‘India’s first attempt at regulating fishing trawlers underway’ (Mongabay, January 28th 2019) https://india.mongabay.com/2019/01/indias-first-attempt-at-regulating-fishing-trawlers-underway/, accessed 10th June, 2020.
[12]Ripunjoy Kumar Sarma, ‘What is this Sethusamudram Project?’ (The Economic Time, July 5th 2005), https://economictimes.indiatimes.com/what-is-this-sethusamudram-project/articleshow/1160315.cms, accessed 10th June, 2020.
[13]The International Tribunal for the law of the seas (ITLOS), https://www.itlos.org/.
[14]Blackmore, Dr. Graham, Fisheries’ problem in the South China Sea, Global Underwater Explorers, https://www.gue.com/fisheries-problems-south-china-sea.
[15]PTI, ‘Joint Working Group on Fisheries a significant progress’ (India Today, November 6th 2016), https://www.indiatoday.in/pti-feed/story/joint-working-group-on-fisheries-a-significant-progress-lanka-719764-2016-11-06, accessed 11th June, 2020.
Centre for Maritime Law 