By Austin Fernando –
The Union Government of India has said it again: “NO INDIAN FISHING IN KATCHATHEEVU” (Daily News- 4-7-2014). There is song and dance on this report sent by Delhi to Chennai High Court, because it appears to be paving way for a diplomatic victory for Sri Lanka. This was reiteration of what the Chief Secretary of Tamil Nadu Government declared in 2012, when The Hindu was orchestrating the Tamil Nadu Government’s contradictory aspirations.
I wrote in Sunday Times (19-2-2012) in support of the statement by the Tamil Nadu Chief Secretary. Here I reproduce it below for posterity and to state the political status on this issue. Nevertheless, I am mindful of the legality challenged by some on the grounds of process of settlement of Kachchthivu during Madam Sirimavo Bandaranaike’s rule.
TN’s claim for Kachchativu holds no water
Times of India (TOI) reported that the Chief Secretary of Tamil Nadu Government (TNG) had reiterated the state’s stand on the retrieval of Kachchativu from Sri Lanka, and restoring traditional fishing rights of Indian fishermen, arguing that if not retrieved Tamil Nadu fishermen will have to stop fishing and starve.
This had been a threat repeatedly made by the TNG, even with a unanimously passed State Assembly resolution. Sri Lankan counter-argument may be that its official transactions are with New Delhi, meaning Tamil Nadu traditional rights would have been considered by New Delhi before agreeing; and, the Sri Lankan fishermen too would be starved if territorial waters are given up.
TOI said a petition was filed in 2008 before the Supreme Court to reconsider the 1974 and 1976 Kachchathivu Agreements with Sri Lanka. The petition pleads to restore Kachchathivu to India and redraw the International Maritime Boundary Line (IMBL) to minimize incursions across the IMBL, permitting fishing in their (Indian) centuries-old “traditional fishing grounds.” Incidentally, this quote also endorses that the Tamilnadu demands are based on traditions as against bilateral agreements.
For posterity I may mention that ownership of Kachchathivu has been discussed from 1921 and cannot be resolved instantly and Dr. Urmila Phadnis in her study has concluded that “there was evidence to support Sri Lanka’s claim to the island dating back to 1544.” However, these are challengeable. The terrorist activities made the Government of Sri Lanka (GOSL) to declare vulnerable sea areas as security zones and prohibit fishing to preserve its national security.
TNG has contended that straying Indian fishermen were arrested or shot at or harassed by the Sri Lankan Navy (SLN) across the IMBL and in 167 incidents, 85 were killed and 180 sustained injuries. These allegations have been always denied by the SLN. Presently when other serious political issues are shuffled on the tables by the South Block, this fishy issue becomes even ‘fishier’!
Concurrently, The Chennai-based Hindu newspaper dropped a bombshell saying, “The Tamil Nadu government on Wednesday conceded that fishermen do stray into the Sri Lankan waters. But it justified their action stating that the poor fishermen had no other place to go and they had to eke out their livelihood.” High-handedly it blasted, “They could not be deprived of their traditional fishing grounds in the Palk Bay by imposing artificial restrictions such as IMBLs.” IMBLs are internationally accepted demarcations and TNG publicly accepting fishermen straying into Sri Lankan waters may certainly embarrass New Delhi.
Further, The Hindu said, “The legalities or sovereignty of nations do not bind the poor and innocent fishermen just like fish which have no trans-boundaries. Any decision or stipulation that harms the traditional fishing practices in the Palk Bay will deprive thousands of fishermen, and also the families that indirectly depend on fishing profession, of their right to livelihood and make them starve.”
This stance on legality and sovereignty has to be studied in-depth, rather than to jump to conclusions, because the related long history dates back even before the Nehru era. Do not be surprised if the GOSL counters by hypothesizing comparable potential situations, querying what the Indian stance would be if Chinese or Pakistanis do so on Indian seas. Certainly New Delhi will not quite rightly tolerate such behavior. For posterity I quote Minister Y.B. Chavan’s stand in the Lok Sabha (May 6th 1976) that India has exchanged letters not on “fishing rights” but “fishing practices of Sri Lanka”.
The TNG argued that mechanized fishing boats could fish only a short distance from the shore because proper fishing grounds are not available; that fishermen’s nets inevitably drift due to wave/current action and boats naturally tend to cross the IMBL. The complaint is that the fishermen are arrested, shot at and harassed by the SLN and other miscreants. If true, this is a sad state of affairs, but can anyone support illegal fishing in Sri Lankan waters, degrading Sri Lankan sovereignty? Rightly, if the SLN has acted against the UN Convention on the Laws of the Sea 1982, those should be dealt at the proper forum. Even the GOSL has to agree with such remedy.
The TNG argues that Agreements of 1974 and 1976 ceding away Kachchathivu and the adjoining seas were the root cause for the Tamil fishermen’s problems and the solution was to re-examine them, and, in the interim the Centre getting Kachchathivu and adjacent seas on ‘Lease in Perpetuity’ for fishing and associated activities.
The Hindu said that such a move would serve the double purpose of upholding Sri Lanka’s sovereignty as well as permitting Tamil fishermen to carry on unhindered. This sovereignty context is arguable, though the unhindered fishing practices may help crisis resolution. The TNG has also suggested implementation of ‘Licensed fishing method’ through which licencees could be allowed to fish in Sri Lankan waters up to five nautical miles. Who should license? Again, it raises sovereignty issues. President Abdul Kalam lately proposed ‘weekly three-day fishing’ in turns. All these can be discussed but cannot be solved by use of official force by both countries or unilaterally.
Some years ago there was research carried out by Dr. V. Suryanarayan on this issue which I have quoted in “My Belly is White” (pages 394-400). It is relevant even now. He has accepted that Kachchathivu was ceded to Sri Lanka by the 1974 and 1976 Agreements and Article 5 has allowed Indian fishermen access to Kachchathivu without travel documents.
He states, “During the discussions which followed Swaran Singh’s statement, M. Kalyanasunderam (CPI) sought a clarification whether Indian fishermen’s rights “to go beyond Kachchathivu, fish and come back” were protected by the Agreement. Swaran Singh said “…the fishermen were generally free to fish even round about Kachchathivu and they also used Kachchathivu Island for drying nets.” He added, “Although Sri Lanka’s claim to sovereignty over Kachchathivu has been recognized, the traditional rights of Indian fishermen and pilgrims to visit the Island remain unaffected.”
However, Suryanarayan stated that the officials of the Sri Lankan Ministry of Foreign Affairs had given a different version. They have said Article 5 of the Agreement did not confer any fishing rights but the right to dry the fishing nets and pilgrims’ right to visit the St. Anthony’s Church. The fallacy is that drying of nets presupposed they were wet and could happen when used for fishing!
I quote Dr. Suryanarayan further.
“The March 23, 1976 Maritime Agreement, which delimited the boundaries in the Gulf of Mannar and the Bay of Bengal, added to the confusion. This Agreement was in the form of an Exchange of Letters between Kewal Singh, then Foreign Secretary to Government of India and WT Jayasinghe, then Secretary to the Sri Lankan Ministry of Defence and Foreign Affairs. Speaking in the Lok Sabha on March 23, 1976, YB Chavan, then Indian Minister of External Affairs said, “With the signing of the present Agreement the maritime boundary between India and Sri Lanka stands settled along its entire length….. Both countries have agreed that after the determination of the maritime boundary, fishing vessels and fishermen of one country shall not engage in fishing in the waters of the other.”
Suryanarayan, taking these two contradictory statements concluded that “The rights secured in 1974 were bartered away in the 1976 Agreement.” With heartburn he stated: “The cat was let out of the bag by Pranab Mukherjee in a letter written to S. Madhavan, Member of Parliament from Tamil Nadu on January 5, 1996. According to Pranab Mukherjee the maritime agreement provide for continuous exercise of traditional rights of our fishermen by way of access to Kachchativu for resting, drying of nets and attending the annual festival of St. Anthony’s. These rights do not include any fishing rights in Sri Lankan waters. In other words, the policy of accommodative bilateralism pursued by Delhi meant sacrificing the interests of Tamil Nadu fishermen in the name of good neighbourly relations.”
Under these circumstances it is established that straying into Sri Lankan waters does not seem to be legal or reasonable; Kachchathivu ownership is settled. However, it is necessary to further discuss the issues taking in to consideration “the policy of accommodative bilateralism” and emerged political requirements. If required, sacrifice by both countries “in the name of good neighbourly relations” may be accommodated to find solutions.
Daniel Alphonsus (Verite Reasearch) listed three considerations of Modi Government based on Upper Chamber power balance (though could be overcome with joint sitting of the two Chambers), future political aspirations of PM Modi to establish in the South and need to respect AIADMK as the third largest party in the Lok Sabha and the need for its views to be considered.
He added “Yet despite the enabling influence of these three factors, Modi’s large majority in the Lok Sabha reduces his reliance on Tamil Nadu compared to the previous Congress administration, which needed Tamil Nadu support. Therefore, Delhi will not be as constrained by Madras as it was in the past, permitting greater leeway to develop a more coherent and pragmatic strategy towards Lanka.” If this is to happen we may sit somewhat happily, but who assures and insures such in a background of other diplomatic contradictions that may emerge. (See Sunday Times 6-7-2014)
The current response from Delhi is the legal status presently accepted by Delhi based on previous stances taken, more than PM Modi’s attitude towards maintaining “good neighborly relations” with Sri Lanka. Now that Pranab Mukherjee is the President and a different politician PM Modi leading India, can one expect the “prescriptive right” of previous decisions to be honored irrespective of legal challenges?