Bodhisattwa Majumder & Ankit Malhotra
There is a battle going on between the southern tip of India and the northernmost tip of Sri Lanka (‘Palk Bay’). It is not a battle for land or people but for fish, which are the lifeblood for the fishermen in these coastal villages of Sri Lanka and India. In between these two coasts, there is treasure in the form of seafood, due to the rich fishing grounds, blessed by the absence of strong currents and latitudinal biodiversity.
Background facts related to the Palk Bay dispute.
Historically, the coastal fishermen from both sides had an unregulated term with no governing law regarding fishing commercially in the area of Palk Bay. However, during the mid-1970s, the area was demarcated by the signing of maritime boundary agreements of 1974 and 1976 between India and Sri Lanka. This demarcation of ‘Fisheries Line’ vis-à-vis the International Maritime Boundary Line (IMBL) made it illegal for fishermen from either side to cross over into each other’s waters to fish. This demarcation was the inception of what would eventually turn into a violent conflict.
In the 1960s, India was facing a financial crisis and in response, the government was looking for new ways to stimulate the economy and focused on seafood exports (‘Pink-Gold Rush’). The Indian government gave subsidies to fishermen to buy new boats so that they could harvest a huge number of prawns, which would feed demand all over the world. As a result, Indian fishermen from the town ‘Rameswaram’ adopted the process of ‘trawling’, a process of dropping nylon nets (as opposed to traditional nets) with attached weights to the bottom of the sea and dragging them along with powerful motorboats, unlike traditional wind propelled sailing boats, to capture popular seafood such as prawns. By the end of the 1970s, the Indian fishermen saw the need for new grounds to fish and began to encroach upon Sri Lankan waters despite the water-border agreement. While India was cashing in on seafood products from Sri Lankan waters, Sri Lanka was descending into its internal ethnic conflicts and the resulting civil war of the early 1980s.
The consequence of the Tamil-war in Sri Lanka.
By the early 1980s, armed rebels were taking over large swaths of land in the north of Sri Lanka, trying to create a new country for the oppressed Tamil people, the ethnic minority group that the residents of these fishing villages identify with. For precautionary purposes, the Sri Lankan Navy had established security zones which restricted fishing activities, resulting in a decline of fishing which left Sri Lankan waters open for Indian trawlers to fish freely. The civil war and the fishing ban in Sri Lanka continued throughout the 1990s and into the early 2000s, leaving leeway to the Indian fishermen to illegally fish in these waters. Once the war ended and the security zones in Palk Bay were lifted, it was the belief of the coastal population of Sri Lanka that they could fish freely again, which would help in boosting a slow economy dependent on seafood. The Sri Lankan Navy, which was occupied on waging a war, now directed itself towards Indian fishermen who were poaching in Sri Lankan waters. The war over the Palk Bay fishing waters had begun.
As Sri Lankan fishermen returned to their side of the bay, they faced the consequences posed by decade-long Indian trawling in the area. Due to their smaller boats, Sri Lankan fishermen could never compete with the high speeding motorboats, which was the major issue which initiated the conflict.
The approach of the Indian Government towards the issue.
The Sri Lankan Navy has adopted an inhuman approach, routinely arresting Indian fishermen and detaining them for years. It was reported that 1,348 Indian fishermen have been arrested by the Sri Lankan Navy. When the Navy detains the fishermen, they take their boats which remain impounded for prolonged periods across various navy bases of Sri Lanka. The Indian government has done little to resolve this conflict. They have occasionally stepped in to free a group of detained fishermen, but none of their actions has led to a concrete solution to the conflict. The Indian government has turned a blind eye towards the issue as these communities are already neglected and underserved by their faraway government. Stopping a practice that has bolstered their economy for years would create more disdain and frustration among the people. The Navy and the fishermen from both States continue to spar with each other in these waters, the most affected community in this situation continues to be these coastal fishermen from Sri Lanka.
A critical analysis from an international law perspective.
There is a question of why Sri Lanka and India, despite being party to the United Nations Convention of the Law of the Seas (UNCLOS), have not proceeded to international litigation to resolve several issues. It is established that the UNCLOS Tribunal has prima facie jurisdiction under Part XV of UNCLOS as both Sri Lanka and India are States Parties to UNCLOS, having ratified it, respectively, on 19 July 1994 and 29 June 1995.  Despite this there has been no inclination from either nation towards international litigation. The probable reason behind this is multidimensional and multifaceted to say the least. Sri Lanka, being a smaller state in terms of population and economy, is dependent on India for both for its imports and exports. Sri Lanka faces the risk of harming the economic relations with India which would have far greater impact than the isolated cases of the fishermen. Further there are close proximities in terms of language, religion, customs and literature between the tamil population of Sri Lanka and India. Any wrong standpoint would have major impact on the electoral decision making across both the nations and would be a grave error for political reasons. By promoting the trawler fleets by the state governments, there has also been a considerable lacking from India in terms of ensuring compliance to international laws related to preservation of marine resources. This would in turn deteriorate the case for India, if it went before an international forum such as UNCLOS. The rationale behind not choosing international litigation is a grey area which has no single answer to it, as there are political, economic and social consequences attached to it as mentioned above.
The signing of multiple bilateral agreements (June 28th, 1974 and March 23, 1976) to delimit the maritime boundary between Sri Lanka and India in accordance with the United Nations Convention was expected to provide a defined maritime zone to the coastal states and peacefully resolve the overlapping maritime jurisdictions. Usually, maritime boundaries are governed by the equidistance principle, which connotes that the maritime boundary of a nation should be a medial line which is equidistant from the coastal areas of the two neighboring nations. However, a departure from this was made in the 1974 Boundary Agreement, where a modified equidistant line approach was made and maritime spaces were allocated to one party at the expense of others. This was due to the inability to make out an equidistant position which caused further confusion and disputes instead of settling the territorial dispute. The lack of an equidistant position along with the leeway during the war made it difficult for the fishermen to navigate the boundary. Arguendo, even if we assume that there was sufficient knowledge of the law, but due to inaction at times and the great yield by the trawler fleets, fishermen were inclined to indulge into non-compliance.
India could also be held liable for the violation of Article 206 of the UNCLOS, due to its failure to properly and fully evaluate the potential effect of the SSCP project on Sri Lankan marine ecosystem. Under Part XII (Article 194 and 204) of the of the UNCLOS, India had the obligation to adopt a precautionary approach towards preserving the environment, which is a fundamental principle in the prevention of pollution of the marine environment. The International Tribunal for the law of the seas (ITLOS) has held in the South China Sea case, that approaches which cause substantial pollution or significant change to the marine environment are grounds for reporting under Article 206. Similar to the ‘dynamite-propeller’ system used by Chinese fisherman in the South China sea case where schools of fishes were stunned by the explosives, Indian fishermen’s use of trawlers fleet is an also harmful change to the marine environment as it harms the seafloor and thereby the entire ecosystem.
Under Article 123 and 197 of the UNCLOS, there was a duty upon both of the states to cooperate, provide prior notification, and proceed only after consultation. India has breached its obligation under the general international law of UNCLOS by failure to engage with Sri Lanka and respond to Sri Lanka’s approach for consultation and exchange of information. There has been a lackadaisical approach from the governments of both India and Sri Lanka, which took decades to form a Joint Work Group on Fisheries (herein, ‘JWG’).
Both India and Sri Lanka have always shown support to the established framework of laws under UN Conventions regarding maritime disputes, and they are likely to adhere to a decision taken by an international forum such as International Tribunal for the Law of the Sea. In this context, international litigation seems an effective and viable option to draw international attention to the issue and force the countries to take stringent measures. Given the consequences on the marine environment and damaging fishing practices, a ruling which establishes the rights of the nations is a dire need for the welfare of both the nations and the environment.
Bodhisattwa Majumder is a penultimate year student at Maharashtra Law University Mumbai. Ankit Malhotra is a student of Law at the Jindal Global Law School at O.P Jindal Global University. The authors share an inclination towards the Law of the seas and will be happy to have any discussion related to the paper via mail at email@example.com o
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