Sunday Times 2
Kachchativu, Law of the Sea and Lanka’s sovereignty
View(s):| “Maritime Boundaries in the Indian Ocean: Sri Lanka and the Law of the Sea” by Dr. Nirmala Chandrahasan. Review by Dr. Rohan Perera |
Introduction
The Third United Nations Conference on the Law of the Sea (UNCLOS III) was path-breaking. It marked a fundamental shift, from the ‘old order’ governing the oceans, propounded by such classical jurists as Grotius, Vattel and others, deeply wedded to the doctrine of ‘Mare Liberum’ (freedom of the oceans); a doctrine designed to advance the political and military interests of the colonial powers of the day, in this instance the Dutch, in their pursuit of overseas territories.
UNCLOS III premised on the principle then considered revolutionary, the ‘Principle of Common Heritage of Mankind’ signalled a new legal order of the oceans, which catered to the political and economic demands of an expanded international community, no longer confined to a group of European powers, but which included the newly independent States of Asia and Africa.
The far-reaching changes that were sought to be effected through the UNCLOS process is eloquently captured in the following statement of E.M. Borgese, a foremost authority on the Law of the Sea;
“The concept of Common Heritage suggested a new order for the oceans, based not on competition and conflict, but on cooperation, on the revolutionary principle that the oceans are the common heritage of mankind and the marine environment and its resources, therefore had to be managed for the common good of all.
In a poem entitled ‘An Ode to the Grotian Ocean’, F.Christy of the American Society of International Law captures with a fine sense of humour, the euphoria that prevailed within the G 77 (comprising the developing countries) during the UNCLOS and underlines the range of their expectations and aspirations;
“Good gracious dear Grotius, your law is atrocious, your Mare Liberum must end,
The Canon Shot Rule is a rule for a fool, in these days of the ICBM.
Van Bynkershoeks’s wishes, aren’t good for the fishes, when everyone has his own fleet,
Economists smirk at Mc Dougal and Burke, cause their freedom’s a right to deplete.
The maritime powers have long had their hours in using the ocean for free,
Now the 77 are in seventh heaven, repealing the Law of the Sea….”
UNCLOS III may not have fully achieved all the objectives it had set for itself, particularly the establishment of an effective institutional mechanism for the conservation, management and exploitation of mineral resources of the international sea-bed. Nevertheless, the significance and impact of its achievements lie in the ‘traditional domain’ in the settlement of long outstanding issues such as the breadth of the Territorial Sea, creating new criteria for determining the outer limits of the Continental Shelf as well as in the creation of new concepts such as the Exclusive Economic Zone (EEZ).
Dr. Nirmala Chandrahasan in her book ‘Maritime Boundaries in the Indian Ocaen; Sri Lanka and the Law of the Sea’ expounds the juridical basis of these key developments and weaves into this narrative, Sri Lanka’s contribution to the process as well as the impact of these developments on Sri Lanka’s maritime boundary imperatives as an Indian Ocean State.
Chapter I – Sri Lanka and the Law of the Sea: An Overview.
In providing a broad overview of the UNCLOS process in Chapter I, the author makes particular reference to the convergence of political and economic factors in formulating a new legal regime to govern the oceans. The author cites the developments relating to the new concept of the EEZ and the new criteria to determine the outer limits of the Continental Shelf as “illustrative of the inter-relationship between the legal rules and economic factors and how the notion of development also had its part to play in the evolution of the new regime of the Law of the Sea.”
While the EEZ concept and the regime of the Continental Shelf form separate chapters that follow, the general overview provides the necessary background to an in-depth examination of these regimes, by tracing their genesis in the UNCLOS process.
Chapter II – Territorial Sea and the Contiguous Zone
Chapter II dealing with the Territorial Sea and Contiguous Zone is marked by the author’s extensive treatment of the juristic basis of the Territorial Sea regime. From the Sri Lanka perspective, it contains an extremely useful compilation of legislative and executive measures taken by Sri Lanka to give effect to its rights and obligations devolving from assertion of sovereignty over this Zone. It also contains an equally useful analysis of the Maritime Boundary Agreements of 1974 and 1976 between Sri Lanka and India which settled the boundary between the two countries in the Palk Bay, Palk Strait and the Gulf of Mannar.
On the juristic basis of the Territorial Sea concept, the author refers to a passage in the landmark judgment of the International Court of Justice in the Anglo-Norwegian Fisheries Case, (1951) wherein it is stated, ” ….it is the land which confers upon the Coastal State, a right to the waters off its coast.” Relying on the ICJ judgment as well as opinions of scholars, the author concludes that “…this statement {of the ICJ} contains a juristic basis for the expropriation by the State of waters contiguous to its coastline, to which the term ‘Territorial Sea’ is given.”
As pertinently observed by the author, it is the economic factors which shaped the assertion sovereignty and jurisdiction by Coastal States over greater areas of the sea off their coasts. The author’s treatment of the evolution of the breadth or the maximum limits of the Territorial Sea, from the classic ‘Canon Shot’ Rule of 3 n.m. to the current 12 n.m. limit settled by the Law of the Sea Convention (LOS) (1982) brings into sharp focus the tension between the classical notion of ‘Mare Liberum’ designed to preserve the freedom of navigation and the increasing assertion of sovereignty and jurisdiction over resources by Coastal States.
It was possible for the UNCLOS III process to resolve this tension by resorting to the ‘package deal’ approach, in which all ocean related issues were negotiated in an integrated manner, facilitating compromises on a quid-pro-quo basis, rather than negotiating in water tight compartments, as was the case in the 1958 Geneva Process. The new concept of the ‘Right of Transit Passage through Straits’ (dealt with by the author in this chapter) and the concept of the EEZ which harmonised resource-oriented sovereign rights of the Coastal States with the freedom of navigation of major maritime powers (dealt with in Chapter III), were the quid-pro-quo for the acceptance of a 12 n.m limit at UNCLOS III.
The chapter also contains an extremely useful compendium of legislative measures adopted by Sri Lanka from the pre-independence era to the present, including the enactment of the Maritime Zones Law of Sri Lanka No 8 of 1977 and the Presidential Proclamation made thereunder, promulgating the different Maritime Zones of Sri Lanka. The author observes that the Sri Lankan policy “in common with India and other developing nations was one of extension of national jurisdiction and control of economic resources lying off-shore.”
Kachchativu continues to generate what are essentially political reactions in the South Indian State of Tamil Nadu.
Under the head ‘Boundary Agreements, the Author engages in an extremely incisive analysis and a timely discussion of the two Indo-Lanka Maritime Boundary Agreements — (a) the Agreement on the Maritime Boundary in the Historic Waters in the Palk Bay and Palk Strait, up to Adam’s Bridge (1974) and (b) the Agreement on the Maritime Boundary in the Gulf of Mannar and the Bay of Bengal (1976) together with the Exchange of Letters between the Secretaries of Ministries of Foreign Affairs of the two countries (1976). The discussion also involves an examination of the agreement between India, Sri Lanka and the Maldives concerning the determination of the Trijunction Point between these countries in the Gulf of Mannar to complete the picture on maritime boundary limitation in this part of the Indian Ocean.
While explaining in detail, the principles of delimitation that were utilised by the two parties in reaching agreement, including the Equidistance Principle and considerations of Historic Title, particularly in settling the issue of sovereignty over Kachchativu Island, the author also makes certain observations on some ‘lingering issues’, that seem to have persisted, at least in some quarters, notwithstanding the conclusive nature of these agreements.
Foremost among these is the so-called ‘Kachchativu Issue’ that continues to generate what are essentially political reactions in the South Indian State of Tamil Nadu. Commenting on this issue, the author makes the point that the delimitation of the boundary in the Palk Bay and the Palk Strait was based on agreement rather than on a strict application of the ‘Equidistance Principle’, since “the primary purpose of the delimitation was to settle the Kachchativu dispute… which the State Parties had agreed to hand over to Sri Lanka”. Thereafter it is stated that to achieve this objective, the boundary line was drawn “so as to pass just one mile west of the Island of Kachchativu, “in order that Kachchativu would fall within the Maritime Boundary of Sri Lanka”.
The author makes reference to the fact that Tamil Nadu had been disputing the ceding of this island to Sri Lanka and the boundary in this area had been subject to many political debates and litigation before the Indian Courts.
The historical record clearly reflects the fact that there was neither a ‘handing over’ nor ‘ceding’ of Kachchativu to Sri Lanka. Kachchativu, at best, was disputed territory and after protracted negotiations, Sri Lanka was able to establish its sovereignty over the island. Agreement was reached thereafter to recognise the historic rights of Sri Lanka in this area. Accordingly, the equidistance line was adjusted in the vicinity of the island, and the waters in the Palk Bay were designated ‘Historic Waters’.
This position is clearly reflected in a Joint Press Statement issued by the two governments on June 28, 1974, upon ratification of the Agreement.
“…. As a result of this joint examination, a boundary in the Palk Bay has been defined in conformity with the historical evidence, legal international principles and precedents. This boundary falls one mile off the coast of the uninhabited island of Kachchativu, while mutually satisfactory provision has been made regarding navigation, pilgrimage, fishing and mineral exploitation in the area…. The two Prime Ministers are of the opinion, that the Agreement represents a historic landmark in the friendly relations between the two countries and heralds an era of even closer and more fruitful cooperation for their mutual benefit.”
Significantly, the then Indian External Affairs Minister Swaran Singh, making a statement on the floor of the Lok Sabha, stated;
“Extensive research of historical and other records was made by our experts on Kachchativu and every available piece of evidence collected from various record offices in India, such as in Tamil Nadu, Goa and Bombay, as well as abroad in British and Dutch archives. An intensive examination of evidence and exchange of views took place…. between senior officials of the two governments. The question of Kachchativu, for the reasons I have just explained, had necessarily to be dealt with as part of a larger question of the boundary in the Palk Bay, so as to eliminate the possibility of any further disputes on similar matters in these Historic Waters. On the basis of dispassionate examination of the historical records and other evidence, and keeping in mind our policy, and the principle of peaceful settlement of disputes, I feel confident that the Agreement demarcating the maritime boundary in the Palk Bay will be considered fair, just and equitable to both countries.”
What the Joint Statement and the Lok Sabha Statement of the Indian External Affairs Minister disclose (along with other valuable records of the negotiations, set out in detail in the Book entitled ‘Kachchativu; and the Maritime Boundary of Sri Lanka’ by W.T. Jayasinghe, former Secretary Ministry of Foreign Affairs and Leader of the Sri Lanka Delegation to the Indo-Lanka Maritime Boundary Talks) is that the question of Kachchativu was settled on the basis of exhaustive and ‘dispassionate examination’ of historical records, which conclusively established Sri Lanka’s sovereignty over the island and that there was no question of ‘handing over’ or ‘ceding’ of territory.
The author also engages in an incisive analysis of another contentious issue arising from the 1974 Maritime Boundary Agreement, which continues to this day, particularly among political parties and some academics in Tamil Nadu. The controversy concerns the interpretation of Article 6 of the Agreement, which states; “The Vessels of Sri Lanka and India shall enjoy in each other’s waters, such rights as they have traditionally enjoyed therein”.
This provision has been interpreted by some to include continued fishing rights for Indian fishermen around Kachchativu, in order to justify incursions by Indian Fishermen into Sri Lanka Waters. As the author pertinently points out, Article 6 of the 1974 Agreement must be read with and interpreted in the context of the Exchange of Letters between the Foreign Secretaries of India and Sri Lanka which accompanied the conclusion of the 1976 Maritime Boundary Agreement. The Letters stated unequivocally;
“With the establishment of the Exclusive Economic Zones by the two countries, India and Sri Lanka will exercise sovereign rights over the living and non-living resources in their respective Zones. The fishing vessels and fishermen of India shall not engage in fishing in the Historic Waters, the Territorial Sea and the Exclusive Economic Zone of Sri Lanka, nor shall the fishing vessels and fishermen of Sri Lanka, engage in fishing in the Historic Waters, the Territorial Sea and the Exclusive Economic Zone of India, without the express permission of Sri Lanka or India as the case may be.”
Additionally, the author also points to the fact that this question must also be examined in the context of the fact that the waters on the Sri Lanka side of the Palk Bay and Palk Strait have been declared internal waters over which there is no right of innocent passage for vessels of other States. The shallowness of the waters in the Palk Bay also made navigation extremely difficult and for Indian vessels to have access to certain ports on the Indian side in these waters, it was necessary for them to traverse the Internal Waters of Sri Lanka, which they had been doing prior to these waters being designated Historic Waters. Sri Lanka and India therefore had to reach some accommodation to meet this practical need and Article 6 reflects this accommodation.
The Author thus concludes that Article 6 grants rights of passage and nothing more. This interpretation is entirely consistent with the Principles of Treaty Interpretation set out in Article 31 of the Vienna Convention on the Law of Treaties, which requires that in the interpretation of Treaties, regard be had, inter alia, to the ordinary meaning to be given to the terms of the Treaty in their context and in the light of the objects and purpose of the Treaty.
The Lok Sabha Statement of the then Indian Minister of External Affairs of July 23, 1974 quoted above also sheds much light on this aspect and puts the matter beyond the pale of controversy.
“About traditional rights, if the Hon. Member goes through the Agreement ….he will get the answer, because it is mentioned there that although Sri Lanka’s claim over Kachchativu has been recognised, the traditional rights of Indian fishermen and pilgrims to visit the island will remain unaffected. Similarly the traditional navigation rights exercised by India and Sri Lanka in each other’s waters will remain unaffected”.
The Indian External Affairs Minister’s statement thus recognises the clear demarcation in the scope of Articles 5 and 6 of the Agreement, the former preserving the limited right of ‘access’ to Kachchativu enjoyed by fishermen and pilgrims of India, whilst the latter preserves the traditional rights of navigation of ‘vessels of India and Sri Lanka’ in these waters.
Chapter III – Exclusive Economic Zone (EEZ) and the Contiguous Zone
Chapter III contains an extensive and lucid analysis of one of the most innovative concepts to emerge through the UNCLOS III process — the EEZ. In the words of the author the emergence of the concept marked a ‘shift of legal thinking’ and reflects in jurisdictional terms, ‘the emergence of a new political order’. As the author further elaborates, the concept reflects a shift from the classical law governing the oceans based on ‘a law of movement’, designed to preserve the rights of free navigation of the major maritime powers as articulated in the Grotian concept of Mare Liberum, to ‘a law of appropriation’ designed to meet the economic demands of a new political order comprising the newly independent States of Asia and Africa, to be achieved through a greater assertion of sovereignty and sovereign rights over larger areas of the oceans adjacent to their coasts.
Turning to the historical antecedents of the concept, the author refers in detail to the Kenyan Proposal launched at the 1972 Sessions of the Asian-African Legal Consultative Committee (AALCC) in Lagos, Nigeria. It is also a fact, however, that the Kenyan Proposal was first discussed, at least informally, in the preceding year, at the AALCC Annual Session in Colombo. Such broad-based formal and informal discussions at a regional level helped to build up solid Asian and African support behind the Kenyan EEZ Proposal, by the time it was formally presented at UNCLOS III.
The author outlines the role played by Kenya and the leader of its delegation, Dr. Frank Njenga, an acknowledged expert on the Law of the Sea, in explaining the fundamental considerations underpinning this innovative concept at UNCLOS. The EEZ proposal presented by Kenya introduced a concept that was designed to safeguard the growing economic imperatives of Coastal States, developing States in particular, and at the same time without undermining the freedom of navigation in the High Seas, of particular concern to the major maritime powers.
These contending considerations are underlined in Part V of the LOS Convention (Articles 56 and 58 in particular) where the sui generis character of this zone is clearly reflected — a zone neither Territorial Sea nor High Seas but encompassing elements drawn from both regimes.
The chapter also contains an extensive discussion of a cluster of Articles in the Convention designed to ensure a careful balancing of sovereign rights with the accompanying obligation to conserve and manage the living and non-living resources of the EEZ. The discussion covers Articles 62-70 of the Convention covering a range of issues such as utilisation of the living resources of the EEZ, conservation of Highly Migratory Species, as well as the rights of Land Locked and Geographically Disadvantaged States in securing access to the resources of the EEZ.
From the perspective of Indo-Sri Lanka Maritime Boundary delimitation, the author presents an in-depth analysis of the Maritime Boundary Agreement of 1976 in relation to the then newly emerging concept of the EEZ. In this context, the author makes the extremely pertinent observation that both countries incorporated the EEZ concept in the 1976 Boundary Agreement and introduced their respective domestic executive and legislative measures to give effect to rights and jurisdiction in this Zone six long years before the concept found its way into the LOS Convention in 1982.
There two vital factors which emerge from this important development adverted to by the author.
(i) The growing State practice in the adoption of domestic measures to implement the EEZ Concept, while it was still being discussed within the UNCLOS, which contributed to the crystallization of an emerging norm into a Customary Law Principle, before its incorporation as a Treaty Principle. It is this important development that the ICJ underlined in the Libya-Malta Continental Shelf Case by stating that “the institution of the EEZ ….is shown by the practice of States to have become part of Customary International Law”. The short span of time within which the EEZ Concept emerged through the UNCLOS III process prompted Judge Oda to observe that the emergence of the EEZ represented an “accelerated form” of modern customary law-making through the multilateral Treaty-making process. It was to this process that Sri Lanka and India, among other supporters of the EEZ Concept made vital contributions.
(ii) From the perspective of Indo-Sri Lanka co-operation in Law of the Sea issues, the Author’s treatment of the concept brings to surface the close co-ordination that prevailed between two neighbouring States in the Indian Ocean, in anticipating a key development at UNCLOS, and incorporating that concept in their Boundary Agreement and thereafter in introducing their respective domestic measures of implementation, in a co-ordinated manner..
This is an important aspect that both countries need to bear in mind as they engage in the remaining task of Continental Shelf de-limitation in the Bay of Bengal.
(The second part which deals with the continental shelf and the Law of the Sea will appear next week.)
(Dr. Rohan Perera is former Legal Adviser, Ministry of Foreign Affairs, Member International Law Commission (2007-2011), Visiting Lecturer in International Law, Department of Law, University of Peradeniya)