| by A. Hettiarachchi
( February 02, Colombo, Sri Lanka Guardian) Tamil Nadu politicians have recommenced agitating the Government of India to revisit the Kachchativu issue with a view to either leasing the Kachchativu Island in perpetuity from the Government of Sri Lanka or revising the international maritime boundary line (IMBL) between Sri Lanka and India so that Kachchativu will fall on the Indian side of IMBL. This they do from time to time whenever the Sri Lanka Navy (SLN) arrests a group of Tamil Nadu fishers fishing in Sri Lankan waters and bring them to the shores for legal action. Although Tamil Nadu politicians try to link the issue of Indian fishers fishing the Sri Lankan waters with, as they claim, ceding of Kachchativu to Sri Lanka, most of the time, the poaching Indian fishers are caught not in waters close to Kachchativu, but in the territorial waters of Sri Lanka far away from Kachchativu. The closest incident is the arrest of 43 Indian fishers together with six fishing vessels by SLN in the Sri Lankan territorial sea off Pulmoddai on 11th January.
Meanwhile it was reported in the press that six Sri Lankan fishermen who were caught in the by the Indian Coast Guard (ICG) near Andaman Islands were kept in jail for nearly two years before they were released after subjecting to lengthy court procedures. However, the number of Sri Lankan fishing vessels caught in Indian waters is few and far between compared to the number Indian fishing vessels poaching in Sri Lankan waters. Indian fishing vessels come to Sri Lanka waters in thousands and on a daily basis. The Hindu dated 17 November 2011 reported that 17,102 Indian fishing boats were poaching in the Sri Lankan waters between June and October (2011) and further 1482 boats were involved in cross-border fishing between October 28 and November 4 even after stepping up of surveillance in the Palk Bay area by the Indian Coast Guard as per an interim directive issued by the Madras High Court Bench that considered a public interest litigation petition. Sri Lankan fishing vessels that cross into Indian waters fish using long-line, a non-resource destructive passive fishing gear. The method used by the Indian fishers in fishing in Sri Lankan waters is mechanized trawling, a highly destructive fishing method, which is not allowed in Sri Lanka, and many other countries including even India. The value of fish and shrimp poached by Indian fishermen in Sri Lankan waters annually would work out easily to over Rs. 5 billion. Fishery management plans being implemented by Sri Lankan fisheries authorities in the waters off Mannar, Kilinochchi, Jaffna, Mullativu and even Trincomalee districts have become meaningless in the context of this massive encroachment of fish resources by Indian fishers using destructive fishing gear.
Tamil Nadu politicians advocate the view that India has the right to allow Indian fishers to fish not only in the sea area surrounding the Kachchativu Island, but also on the Sri Lankan side of the Palk Bay as the 1974 Agreement on the boundary in historic waters between the two countries (Agreement dated 26/28 June 1974)provides for Indian fishers (and also pilgrims) to visit the Kachchativu Island without travel documents and vessels of both India and Sri Lanka to enjoy in each other’s waters the rights they have traditionally enjoyed in the Palk Bay, interpreting that “rights traditionally enjoyed in the Palk Bay” includes right to fishing. They also claim that with the conclusion of the Agreement, India ceded the Kachchativu Island to Sri Lanka. However, the correct position is different. The 1974 Agreement does not refer to any ceding of Kachchativu; it says that in a manner which is fair and equitable to both sides, taking into account the historical and other evidence and related legal aspects, the two governments have agreed that the boundary between Sri Lanka and India in the waters from Palk Strait to Adams Bridge lies along a series of points defined by latitude and longitude as given in it. According to the agreed boundary, Kachchativu, which is situated 14 miles south-west of Delft, an island off the northern coast of Sri Lanka, and 15 miles north-east of Pamban, off the southern coast of India, is on the Sri Lankan side of the historic waters in the Palk Bay. The Agreement recognizes the sovereignty, jurisdiction and control of each country over the waters, the islands and the continental shelf falling on the respective side. It is true that there are provisions in the Agreement for Indian fishermen and pilgrims to visit Kachchativu without travel documents, and vessels of both countries to enjoy traditional rights in each other’s waters. However, it is clear from the fact that the Agreement neither explicitly nor implicitly refers to fishing, such traditional rights refer only to navigation.
On the other hand, in the 1976 Agreement which settled the maritime boundary in the Gulf of Mannar and Bay of Bengal (Agreement dated 23 March 1976), among other things, it is explicitly mentioned that with the establishment of the exclusive economic zones by the two countries, the fishing vessels and fishermen of one country shall not engage in fishing in the historic waters, the territorial sea and the exclusive economic zone of the other country without its express permission. India enacted the Indian Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, No. 80 in 1976 and declared the Indian territorial sea, exclusive economic zone, historic waters and other maritime zones. Similarly Sri Lanka enacted the Maritime Zones Law, No. 22 in 1976 and declared the respective Sri Lankan Maritime Zones. Thereafter the rights enjoyed by fishers of the two countries to engage in fishing in areas that fell under the jurisdiction of the other country ceased. This affected the Sri Lankan fishers more than the Indian fishers since the Sri Lankan fishers lost access to Wadge Bank, which was a rich fishing ground where Sri Lankan fishers had been fishing for centuries. To compensate for this loss, provisions were incorporated into the 1976 Agreement for India to issue licenses up to six Sri Lankan fishing vessels to fish in the Wadge Bank for a period of three years upon the payment of a prescribed fee subject to the condition that the total fish-catch in any one year not to exceed 2000 tons, and after cessation of such fishing by Sri Lankan fishing vessels in the Wadge Bank, for India to provide annually to Sri Lanka 2000 tons of fish at a mutually agreed price for a period of five years. India has also agreed to provide technical assistance to Sri Lanka for development of fisheries upon diversion of Sri Lankan fishing vessels from the Wadge Bank.
From the ancient times till late 1960s fishing in the Palk Bay and the associated area was confined to finfish and chank. Fishing was done using traditional craft. Subsequently both Sri Lankan fishers and Indian fishers recognized that there is high potential for much more lucrative shrimp fisheries in the area and both groups focused more on shrimp fishing. Shrimp was fished by bottom trawling, and gradually the number of trawlers operating in the area increased. Fishing effort exerted on the Indian side was much more than that on the Sri Lankan side and as a result the stocks on that side started depleting. This made Indian fishers to cross the border and fish on the Sri Lankan side in violation of the 1974 and 1976 maritime boundary agreements between the two countries and Sri Lankan fisheries laws. Such violations steadily increased over the years. Meanwhile the ethnic conflict erupted in Sri Lanka and the Government had to impose certain restrictions on fishing by the Sri Lankan fishers in the North and East as security measures. These included banning of fishing beyond 500 meters or 750 meters from the shore depending on the location, limiting of fishing hours from 0400 h to 1630 h, and banning of the use of outboard motors exceeding 10 horsepower. During this period the Indian fishers had no or only very little competition from the Sri Lankan fishers and therefore they started poaching up to very close to the shores of Sri Lanka.
Now the civil war is over, fishing restrictions imposed by the Government for security reasons removed or eased, and the Government and the donor community have commenced supporting the fishers in the North who have been suffering without access to their traditional livelihoods to settle themselves in their original places, and resume fishing activities. However, the fishers in the North are confronted with the problem of mass scale poaching of the fish resources by the Indian fishers using about 2000 mechanized trawlers almost on a daily basis. This has resulted even in violent disputes between the two groups. When the Sri Lankan fishers have stopped bottom trawling to prevent over-exploitation of the resources, poaching of the resources with mass-scale bottom trawling by Indian fishers cannot be justified by any means.
Although SLN is taking meaningful steps to control this problem, it is very unfortunate that the Government has to give into the pressure by the Indian Government. Whenever SLN arrests poachers with the vessels, they get released together with their vessels after fast-track procedures. For instance, the 43 fishermen and six trawlers that were taken into custody by SLN on 11 January have already been released due to pressure by the Indian authorities. On the other hand whenever the Indian Coast Guard arrests a Sri Lankan fishing vessel in Indian waters, the fishers onboard have to spend months or sometimes even two years in Indian jails under very harsh conditions before they are released after subjecting to lengthy legal procedures. In November 2011 it was reported that the Prime Minister of India Manmohan Singh has said that he had conveyed to Sri Lanka President Mahinda Rajapaksa that the use of force in dealing with fishermen is unacceptable and pushed for a joint working group to resolve the issue. This Working Group was formed and had its meeting two weeks back, but the problem remains.
Former President of India, A P J Abdul Kalam, who also happens to be from Tamil Nadu, has reportedly suggested recently that Sri Lankan fishers should only fish three days a week in the Palk Bay, take one day off and leave the balance three days for Indian fishers to fish and during the their respective three days period both parties be allowed to cross the border line. Several questions arise from this suggestion. Why should Sri Lankan fishers refrain from fishing for three days in their legitimate fishing grounds in favour of Indian fishers? Who will provide their living during these three day periods? What is the benefit the Sri Lankan fishers get from crossing the border line in the Palk Bay and going to the Indian side for fishing when it is clear that no fish stocks remain there? It appears that this suggestion has been made without any respect to the sovereignty of Sri Lanka over her maritime zones.
However, the policy of India in regard to Indian fishers poaching resources in Pakistan waters is quite different. India is very careful that no Indian fishers poach fish in Pakistan waters since Pakistan does not give into Indian pressure in dealing with Indian fishers caught in poaching their resources. In fact India has imposed a no fishing zone of the width of five nautical-miles along the Indo-Pakistan maritime boundary, and monitors it strictly in order to ensure that Indian fishers do not enter the Pakistan waters. However, India is not even contemplating of such a move in respect of the Indo-Sri Lanka maritime boundary. Even the suggestion made by the Indian Coast Guard to the Madrass High Court Bench for a similar no fishing zone along the Sri Lanka – India maritime boundary had to be withdrawn due to the pressure by the Tamil Nadu politicians.
The LLRC Report also refers to the issue of poaching of fish in Sri Lankan waters by Indian fishers. Representations have been made to LLRC that in Kandamadu in KKS, an area with the highest concentration of fish according to the same representations, the Army is not allowing local fishermen to fish for reasons of security. However, Indian fishermen are allowed to fish without any hindrance. In the areas where the local fishermen are allowed to fish they have to fish in competition with Indian fishermen. Fishing in Northern seas off Sri Lanka is one area where an urgent dialogue is required according to representations made to LLRC. The Report says that the view was expressed that unless the issue was amicably resolved, relations between the two countries could be affected to the extent that the future of Kachchativu could be jeopardized, as evidenced by the occasional remarks made by Tamil Nadu politicians, and this could result in a revision of the Maritime Boundary with a corresponding loss of Sri Lanka’s territorial waters.
(Information regarding the Agreements of 1974 and 1976 between Sri Lanka – India on the maritime boundary between the two countries was obtained from Jayasinghe, W.T. (2003). Kachchativu: And the Maritime Boundary of Sri Lanka. Stamford Lake (Pvt) Ltd, Pannipitiya: pp 132-156.)
( The writer can be reached at email@example.com )