Kachcha- theevu , is
an islet (small island) of one mile in length and three- fourth of a
mile in breadth and a total area of about half a square mile. It lies 10 miles
North East of Rameswaram [India] and 9
miles South West of Delft island [Sri Lanka]. It was an uninhabited islet, used by British army for bombing practices. A
catholic church, (Saint Antony’s
church) in the islet is visited
by devotees, mostly fishermen from Tamil
Nadu , for the weeklong festival every
year. The seas surrounding Kachcha –theevu are fertile fishing ground, rich in
prawns, chank shells ,pearls ,oysters,
and corals. From time immemorial the fishermen of Tamil Nadu and Ceylon were
fishing in the area around this islet and were using the islet for all
activities and purposes connected with fishing, like drying the fishing nets,
taking rest etc.
HISTORICAL
BACKGROUND:
02. Over the islet, Kachcha- theevu, the ruler, ‘Raja (King) of Ramnad ‘ had
exercised sovereignty and jurisdiction
continuously; that was also recognised by the then rulers of Ceylon, the Dutch
Company, as could be seen from the Treaty of 1660.The Raja of Ramnad had
granted leases of chank bed and the
adjacent areas in 1870-1873,1875,1880, 1889 . Also the documents, the Memoirs
of the Governor of Ceylon from 1757 to 1762, the treaty of 1766 by King of
Kandi , the letter of Lt .Governor of Ceylon in1845, clearly show that the
islet Kachcha theevu was under the
sovereignty of king of Ramnad,
which was a ‘vassal State’ of Brtish
India. After India became independent, the
islet was part of Ramanathapuram district in Tamil Nadu; its survey number was
1250; it is so recorded in the ‘Gazetteer- Ramanathapuram’ published in 1972 by TamilNadu Government.
CLASSIFIATION
OF OCEANS, SEAS
AND SEA BEDS:
03. There exists a well recognised principle, accepted by Nations, that Oceans, Seas and Sea beds are classified
as High-seas, Continental shelves, Territorial waters, Contiguous zones,
Exclusive Economic zones and Internal - waters. Each category has a definite and different connotation,
rights and
obligations.
Out of these, the concept of ‘Internal –waters ‘denotes almost the same or
similar characters of the ‘landed
territory’ of a Nation. That is the internal waters are treated as a landed
area of the Nation for all practical purposes, and has all the rights as it has
over the landed territory of that Nation.
‘HISTORIC
BAYS’ OR ‘HISTORIC WATERS’ :
04. There
is yet another category known as ‘historic
waters’ or ‘historic bays’ In the 19th century, when efforts
were made to determine the ‘ baseline’ of territorial sea in bays , the theory
of “ HISTORIC BAYS” emerged. The
definition of “historic bays given in the project submitted in 1933 to the Seventh International Conference of American States by the American Institute of International Law refers solely to the attitudes of the coastal State. It
provides that bays or estuaries called historic are those over which the
coastal states have traditionally exercised and maintained their sovereign
ownership. Also in the ‘Preparatory documents for the Geneva
Conventions on Law of the Sea 1958’, it has been recorded as follows:-
“In view of the intimate
relationship between bays and their surrounding land formation and in the light
of provisions of municipal laws and of
conventions governing the subject, proposals were made the object of which was to advance the starting
line of line of the territorial sea towards the opening of bays. The intention
was that , in bays, the territorial sea should not be measured from the
shore....... but should, rather, be reckoned
as from a line drawn further to seaward . On this point the agreement
was unanimous, though the exact location of the line from which the territorial
sea was to be reckoned continued to be the subject of controversy. According to
various proposals put forward , the territorial sea was to be measured from a
straight line drawn across the bay at a point at which its two coasts were a specified distance apart ( six miles ,ten miles, twelve
miles, etc.); the waters lying to
landward of that line would be part of
the internal waters of the coastal state”.
The International Law
experts had also opined that “ the legality of the claim is to be measured
, not by the size of the area affected,
but by the definiteness and duration of the assertion and acquiescence of
foreign Powers”. Therefore the “Historic bays or historic waters” have the
characteristics similar to INTERNAL WATERS. The regime of Law of Sea does not
extend or apply to the historic bays. That is, there is no such area like
‘territorial waters’ within the historic waters.
05. Applying
these tests of ‘definiteness‘ duration of assertion and acquiescence of foreign
nations, the bay area situated on the north of Adam’s Bridge known as ’ Palk-Bay’, was treated as a
‘Historic waters’ or ‘Historic- bay’. Some such ‘historic bays ‘ are ‘Hudson bay’ in Canada , bay of ‘Peter the
Great’ of USSR etc. Therefore the Palk –Bay had the status of historic waters
/bay, an extended landed area, of British Empire. Historic –bays are explicitly
exempted, under Article – 7, from the operation of the Geneva Conventions on Law
of sea 1958. Therefore an island or islet within the
Pak-Bay cannot have ‘territorial water’ around it. When India and Ceylon got independence, all
the rights and obligations over this
historic waters devolved on the two Nations.
VERDICT OF MADRAS HIGH COURT 1903-04:
06. The
research document, issued by the geographer, “U.S. Department of State – Bureau of Intelligence and Research”
dated December 12,1975, has recorded ( with a disclaimer) that “ The
historicity of Palk –bay was resolved by the decision of Madras High Court in
1903-1904 in Annakumaru Pillai Vs Muthupayal case. During that period both India and Ceylon were under
the British rule. The suit involved rights to chank - beds and pearl - grounds
in Palk Bay and adjacent gulf of Mannar. According to the decision, Palk Bay
was “land locked by His Majesty’s dominions for eight-nineths of its
circumferences ... and effectively occupied for centuries by the inhabitants of
the adjacent districts of India and Ceylon respectively”. The Madras High court
also found that Palk Bay was not part of open sea and the British occupation
had received acquiescence of other nations. Therefore the Palk Bay was only “historic
waters” under the British sovereignty and that was succeeded by both India and
Ceylon.
THE DISPUTE AND THE AGREEMENT:
07.01: There
are many islands and islets within the Pak Bay. One such islet is Kachcha-Theevu.
There was overwhelming documentary evidence that Kachcha –Theevu was under the
sovereignty of the Raja of Ramnad, and
therefore of India. Ceylon also claimed right over the islet. Thus
there was a dispute over the islet, between the two Nations. In the year 1974,
an agreement was signed, on 26 and 28 June, by ‘The Government of Republic of
India and the Government of Republic of Sri Lanka’, “ Desiring to determine the boundary line in the
historic waters between India and Sri Lanka and to settle the related matters
in a manner which is fair and equitable to both sides”. That agreement came into
force on July 8th 1974,
07.02: In the agreement, Article 1 reads that “The
boundary between Sri Lanka and India in the waters from ‘Palk-Strait to Adams Bridge’ shall be ...... defined by (the
following) latitude and longitude “.
Article 4 reads thus:- “ Each country
shall have sovereignty and exclusive jurisdiction and control over the waters,
the islands, the continental shelf and subsoil thereof, falling on its side of
the aforesaid boundary”.
Article 5 reads “Subject to the
foregoing, Indian fishermen and pilgrims will enjoy access to visit Kachcha - thivu
as hitherto, and will not be required by Sri Lanka to obtain travel documents
or visa for these purposes”.
Article 6 reads thus “The
vessels of Sri Lanka and India will enjoy in each other’s waters such rights as
they have traditionally enjoyed therein”.
TRADITIONAL FISHING RIGHTS CONTINUE :
08.
Thus in the agreement, it is clearly mentioned that the rights ‘traditionally enjoyed’ by the vessels of
both countries, continue notwithstanding the newly agreed boundary line. The
word vessel includes ‘fishing vessels’ and the words ‘such rights’ include
‘fishing rights’. Therefore, the traditional
rights of fishing enjoyed by the fishermen of both India (Tamil Nadu)
and Sri Lanka have not been altered, or modified or restricted in any manner, by the agreement; that is the traditional rights of fishing
by both the countries continues, in-spite of and even after, the
agreement.
09.
The research paper of U.S. Department of State, cited above, also summarised
the result of the agreement in the following words:-
“The
delimitation reflects a selective, i.e. modified, application of the principle of equidistance. As noted, the maritime boundary divides the
historic waters and the seabed of Palk Bay. Traditional fishing rights of both parties, however, are preserved. The
boundary agreement further serves to settle peacefully the Kachchithivu island
dispute and to delimit the India Sri Lanka
boundary in the Adams Bridge
region”.
From the foregoing paragraphs, it is
absolutely clear that the traditional
fishing rights of Indian (Tamil Nadu) and Sri Lankan fishermen have been
safeguarded fully in the above agreement. Though the agreement fixes a new
boundary line between India and Sri Lanka; but there is absolutely no change in
the traditional fishing rights of the fishermen of both the countries. Their fishing rights do not end on the boundary
line; it extends to the whole of the Pak Bay, the entire water area of the ‘historic
waters’. Thus there is no restriction on the traditional fishing rights for the
fishermen of India (Tamil Nadu) and Sri Lanka over the entire Pak bay. The
traditional fishing right does not end at the newly agreed boundary line.
AGREEMENT BINDING:
10. The
reason for signing the 1974 agreement by India and Sri Lanka was the ‘desire to
determine the boundary line and to settle the related matters.’ The settlement
of the ‘traditional right of fishing’ by the fishermen of India and Sri Lanka,
over the Palk Bay was a ‘related matter’ in the agreement. The agreement not only
re-define the boundary line between the two nations, but also reiterates and reaffirm
the traditional right of fishing of the fishermen of both the countries over
the historic waters. Fixing of boundary line
between India and Sri Lanka as well as ensuring and reaffirming the
traditional fishing rights of the fishermen of the two Nations, over the historic waters of Pak Bay, are vital terms of the agreement. Neither India
nor Sri Lanka can object or prevent the fishermen of the two countries
exercising that right, since admittedly the fishermen, of India and Sri Lanka,
were traditionally fishing in those waters. Therefore both India and Sri Lanka are
bound to respect the terms of the agreement, and not to hinder the exercise of such
fishing rights.
BREACH OF AGREEMENT BY SRI LANKA:
11. But
on the contrary, almost every day, the media reports that the Sri Lankan army, prevented the fishermen of
India (Tamil Nadu) from fishing , confiscated their catches, arrested and imprisoned
the fishing vessels and the fishermen of Tamil Nadu. It has also been reported that
so far about 500 or more Indian (Tamil Nadu) fishermen have been shot and
killed by the Sri Lankan army while they were fishing in the Palk Bay, in the common
historic waters. It has also been reported that a number of boats and fishing
vessels of Indian (Tamil Nadu) fishermen and their fishing nets had been
destroyed by the Sri Lankan army. There cannot be any doubt, for any one, that
all such acts of Sri Lankan authorities are illegal and in breach of the terms
of the agreement. Yet, it appears that, Govt. of India has, so far, not even
registered any complaint or raised any protest against such illegal acts of Sri
Lankan army, or has taken any effective steps to prevent such violations in future.
The reason for such inaction of authorities in India is difficult to perceive. Probably
the persons entrusted with such duties, are not aware of the rights of Indian
(Tamil Nadu) fishermen under the agreement or not aware of their duty and
responsibility to take appropriate action, when the rights of Indian fishermen are
violated.
CONSEQUENCES OF BREACH OF AGREEMENT:
12.01: It is
well settled principle under the International law [ also under the domestic laws of civilised countries] that any
failure to fulfil or committing
breach of, the terms of the agreement would create a right on the aggrieved party for taking steps to
compel compliance. Even the entire agreement can be repudiated by the aggrieved
party. As per Article 60, of the Vienna Convention on Law of Treaties 1969, it
is also permissible to terminate the treaty where one of the contracting
parties has committed breach of treaty obligations. The Convention provides for
“Termination or suspension of the operation of a treaty as a consequence of its
breach”, in the following words:-
“1. A material breach of a bilateral
treaty by one of the parties entitles the other to invoke the breach as a
ground for terminating the treaty or suspending its operation in whole or in part”.
Therefore, in view of the breach of
the vital terms of the agreement, India has the right and option even to
terminate the treaty/agreement in its entirety, and assert its rights as it
existed prior to the date of agreement.
12.02: In so far as the shooting and killing of the
Indian (Tamil Nadu) fishermen for fishing in the Palk Bay, such acts amount to crimes
punishable under the Indian Penal Code. Courts in India get jurisdiction over
such crimes. I.P.C. provides in Section
4 as follows:-
“4. Extension of Code to extra
–territorial offences:— The provisions of this Code apply also to any offence
committed by –
(1)
………..
(2)
any person on any ship or aircraft registered in India wherever it may
be.
The prosecution of the Italian
marines for shooting and killing two Indian fishermen, on board a vessel
registered in India, in the Arabian Sea, is done only under this provision.
Similarly the persons responsible for shooting and killing Indian fishermen in
the Palk Bay, while they are exercising a right recognised by both India and
Sri Lanka, can be prosecuted before the Indian Courts. But no such action has
been taken
13. But,
on the other hand, strangely, some persons of authority, in India also, have
gone on record that the Indian fishermen have no right to cross the Sri Lankan
border, in the Palk Bay, for fishing, and therefore when they cross the border,
the Sri Lankan authorities can take action and prevent them from fishing; the
seizure of the catches and destruction of vessels and boats are natural
consequences of such violations of the border. Such observations are made, probably
not being aware of the terms of the agreement or not knowing the rights of
Indian fishermen that flow from the agreement. Neither India nor Sri Lanka can
arrest any fishermen while exercising their traditional right of fishing in the
historic waters of Palk Bay, north of Adams Bridge. India can take appropriate steps for
effective enforcement of the obligations under the said agreement signed on
June 1974, by Indira Gandhi and Sirimavo Bandaranaike, the Prime ministers of
India and Srilanka.
THREE AGREEMENTS:
13. In
all, three agreements have been signed between India and Sri Lanka, relating to
the waters in Palk-Strait and Pak- bay. The first was signed on 26th and 28th
June 1974, relating to the ‘historic waters’ of Palk Bay. It relates to the area
falling north of Adams Bridge. The second agreement was signed on 23rd
March 1976.That relates to area falling South of Adams Bridge up to a certain
limit. It also deals with ‘territorial waters’, as that area was not part of
the ‘historic waters ‘. The third agreement was signed on 22nd
November 1076. That relates to area falling South of the area covered under the
second agreement and refers to Maldiv islands as well. Apart from these three
agreements no other agreement seems to have been made. Hence there appears to
be no modification of the terms of the agreements.
RIGHTS AND OBLIGATIONS OF GOERNMENT
OF INDIA:
14. From
the contents of what has been stated above, Government of India has got the
right to enforce the terms of the 1974 agreement. It also has the obligation to
ensure that Indian citizens, Indian
(Tamil Nadu) fishermen, safely and
continuously exercise and enjoy their traditional right of fishing in
the ‘historic waters’ of Palk Bay, north of Adams Bridge, as per the terms of
the agreement. The Government of India also has the Constitutional duty to ensure,
safeguard and protect the lives and interests of Indian citizens, Tamil Nadu
fishermen. Government of India can take appropriate action to enforce the rights
and obligations that flow from the agreement. It can even repudiate and
terminate the entire agreement and take back Kachchathivu. It can, if needed,
move the International Court of Justice and enforce the obligations accepted by
Sri Lanka, by the agreement; since the agreement itself was signed only for the
settlement of disputes in a peaceful manner.
CONCLUSION
15. The
1974 agreement has safeguarded the rights of the fishermen of Indian (Tamil Nadu)
fishermen. In case any difficulty they can move the Govt. of India for
effective implementation of the terms of the said agreement. If necessary they can
move either the Hon’ble High Court of Madras or the Hon’ble Supreme Court of
India for the protection of their rights and for any other appropriate relief, guaranteed by
the Constitution of India.
E-mail
... justiceakrajan@yahoo.co.in
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