The late apprehension of 68 indian fishermen by the Sri Lankan Coast Guard for transgressing their nautical boundaries at the Palk Strait and Adam ’ s Bridge area has once again triggered a renewed debate on the legality and the bind nature of the 1974 Boundary Agreement between India and Sri Lanka .This forty-eight-year-old agreement had sought to resolve, once and for all, the contentious boundary return between both the countries. however, that has not happened it seems. immediately after the decision of this agreement there has been perceptible tension between the fishermen on either side of the Palk Strait. The exercise of ‘ historic ’ fishing rights beyond the national nautical boundaries and its rendition have given rise to many indecipherable international legal issues .
Since 2010, on an average, per annum, about two hundred indian fishermen are arrested around Katchatheevu island sphere for fish in Sri Lankan waters. sometimes such arrests have resulted in fatalities as well. Since 2009, after the ending of the Sri Lankan internecine civil war, this number has been steadily rising. Each time, after such arrests the Chief Ministers of Tamil Nadu dash of letters to the Prime Minister and besides to the Ministry of External Affairs ( MEA ) to review or to rescind the existing 1974 Boundary Agreement between India and Sri Lanka.
They have been arguing that on account of the constrict interpretation ( or even not making any reference to it ) of the term `historic ’ and `traditional ’ fish rights of the indian fishermen in the Palk Strait, has given rise to this recurring trouble of arbitrary apprehension by the Sri Lankan Coast Guard. ad
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For this cause, the execution of the 1974 Agreement has become a contentious emergence. After the most late incident that occurred last workweek, Tamil Nadu CM Stalin wrote a comprehensive letter outlining his government ’ sulfur concerns over the predicament of the fishermen and the attendant viability of this agreement. The arrest of the fishermen by the Sri Lankan authorities is followed by the impoundment of their vessels under the Sri Lankan civil and criminal code .
This has resulted in an inevitable retentive legal march thereby affecting the support of the indian fishermen. Some view this as a tactic to deter the indian fishermen from venturing into the Sri Lankan slope of the Palk Strait .
Although the politics of India, in particular, the MEA, has been elaborating upon the efforts being made by its Consulate to ameliorate the pledge of the imprison fishermen in Jaffna and other places, tactically, it is silent on raising the concerns relating to the legal and contextual nature of the 1974 agreement .
On the contrary, it has been stoically defending the agreement as resolving the long-standing boundary dispute between both the friendly countries. To a RTI question on the larger exit of resolution of Katchatheevu Island or the Palk Bay exit raised on November 13, 2014, the MEA, ( as publicised in its own web site ) had flatly stated : “ The information sought above pertains to depiction of Indo-Sri Lanka Maritime Boundary Line ( IMBL ). Applicant is requested to note that Katchatheevu Island lies on the Sri Lankan side of the India-Sri Lanka International Maritime Boundary Line ( IMBL ) that was delineated by the 1974 Agreement ” .
“ ( The agreement on the limit in historic waters between the two countries and relate matters ( with map ) signed at Colombo on June 26, 1974 and at New Delhi on June 28, 1974 ). Under the Agreement, indian fishermen are allowed access to Katchatheevu island for rest, for dry of nets and for the annual St Anthony ’ s festival. The Katchatheevu island issue is, however, presently sub-judice with two writ petitions [ Nos. 561 ( 2008 ) and 430 ( 2013 ) filed in the Hon ’ ble Supreme Court of India. It may besides be noted that the issue of Katchatheevu and IMBL pertain to the government of Sri Lanka, a friendly neighbor nation. ”
The above contention of the indian politics on the contents and interpretation of the 1974 Agreement however is not in consonance with the views of the Tamil Nadu state politics. This besides raises the larger issue of execution of an international agreement keeping in mind the federal structure of the indian Constitution .
article 246 of the indian Constitution in its Seventh Schedule provides that the central government has the sole prerogative to enter into and enforce ( under Article 253 ) any external agreement. however, in matters that affect the interests of submit governments it should normally seek their views as well. In this attentiveness, one should recall the solid resolving power passed by the Tamil Nadu legislative forum in 2013 opposing the transfer of sovereignty on the Katchatheevu island to Sri Lanka .
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The Tamil Nadu government has besides been pointing out that the 1974 agreement being a transplant of sovereignty emergence of Katchatheevu Island has not been formally ratified by the indian Parliament. This basically raises the issue of allowance and boundary line of maritime boundaries and accordingly needs the approval of the indian Parliament as it has the sole prerogative to decide the territorial sovereignty and claims of the amerind country as per Part I ( Articles 1 to 4 ) of the indian Constitution. For this reason, two writ petitions on the issue of cession of nautical territory in sexual intercourse to Katchatheevu Island, as noted above by the MEA, are pending before the Supreme Court .
The 1974 Agreement, despite its confirm finality, continues to raise issues from both the domestic and external legal angles .
On the domestic angle about the legality of the transplant of territorial reign by the executive ( the Central government ) the amerind Supreme Court ’ s decisions have gone through a trajectory of legal ambivalence in different context. The crucial question before the Supreme Court in respective cases has been whether the district could be ceded to another nation through an executive decision or whether it should have been done through a constitutional amendment .
The adaptation of an undefined limit through mark was regarded as something that could be effected through an executive act. The allowance of the boundary or district pursuant to an order of the arbitral court was regarded as a surrender of the territory, necessitating a constitutional amendment. This resulted in the 9th amendment of the indian Constitution .
The cession of indian sovereignty of Katchatheevu Island in a 1974 agreement by an executive action needs legal clearness. The available official records show that this bantam island was historically part of the indian territory. Can it be ceded without proper Parliamentary intercession ?
From the international legal fish, the 1974 Agreement between India and Sri Lanka was concluded at a time when the basic principles relating to maritime boundary line had however not crystallised. The negotiations for the third base United Nations Convention on the Law of the Sea ( UNCLOS ) had just been launched in 1973. There was no unanimity among countries on the extent of the limits of territorial sea on which states could have exercised their autonomous rights .
The mind of other territorial delimitations such as single Economic Zone ( EEZ ), Continental Shelf and other related nautical zones had not so far crystallised vitamin a well. even the indian legislation on the nautical zones i, the Territorial Waters, Continental Shelf, Exclusive Economic Zone and early Maritime Zones Act, were passed in 1976 .
It is not clear as to why India had to cede its sovereignty in 1974 of certain parts of the Palk Strait to Sri Lanka, including a 283 acre Katchatheevu Island without sufficiently preserving and articulating its historic and traditional rights. According to one horizon, such a transfer at that point of prison term was on account of a close alliance that existed between the premier ministers of both countries than anything else. even now, in 2021 possibly, similar sentiments predominate and consequently India must find it difficult to overturn the agreement .
It is besides true that about ten years after the decision of the 1974 agreement, the third UNCLOS had ended in 1983 with more clarity and unanimity on the global fit over the accurate boundary line terms for the maritime zones. Despite all this, a silver lining in the 1974 agreement is its repeat reference book to `historic ’ and `traditional ’ rights in its Preamble .
More importantly, it is the oscilloscope of Article 6 of the 1974 agreement on which the Central government should seek a broader watch and interpretation through a common negotiation with Sri Lanka. It, bury alia, states, “ The vessels of Sri Lanka and India will enjoy in each early ’ sulfur waters such rights as they have traditionally enjoyed therein ”.
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further, external police, through its codify Vienna Convention on Law of Treaties ( VCLT ) in article 31 through its general rules of rendition clearly allows parties to renegotiate or to re-emphasise the provisions of a treaty through an appropriate addendum or annex. possibly, this is the way fore to end the decades of hardships of the fishermen. Along with this, a proper regional fisheries zone agreement as per UNCLOS requirements between both the countries should besides be negotiated to optimally and sustainably utilise the available fisheries resources .
( Dr Venkatachala G Hegde teaches International Law at the School of International Studies, JNU, New Delhi )
( The Federal seek to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the writer and do not inevitably reflect the views of The Federal )
