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Fishing in Palk Bay: Contested Territory or Common Heritage?

by Dr. V. Suryanarayan & R. Swaminathan

Executive Summary

(February 11, Chennai, Sri Lnaka Guardian) The India-Sri Lanka Maritime Boundary Agreement of 1974 and 1976, concluded between the Governments of India and Sri Lanka in the spirit of good neighbourly relations, have adversely affected the livelihood of thousands of Tamil Nadu fishermen. The rich fishing grounds, especially lucrative on the Sri Lankan side of the maritime boundary line, have become a bone of contention between Tamil Nadu fishermen and the Sri Lankan Navy. Since the conclusion of the maritime boundary agreements, a number of fishermen have been killed in incidents of firing; some have been detained; others have been intimidated and harassed; their fishing boats destroyed and their catch dumped into the sea.

The Authors have adopted a new approach to the study of the complex issues relating to the problems of fishing in the Palk Bay region. They feel that the agreements have been state centric and ignored the ground realities of the livelihood of fishermen, who, throughout the world, are no respecters of maritime boundaries. The Authors also feel that if a long term and lasting solution is to be found, it is necessary to bring back the livelihood of fishermen into sharp focus. In the concluding part, the Authors have made certain suggestions, which they hope would receive the attention of the policy makers in Chennai, New Delhi and Colombo.

Introduction

To fishermen, maritime boundaries are man made creations. Throughout centuries, they have been fishing in all areas, where they are plenty of fish. It is a universal phenomenon. The Sri Lankan fishermen enter Indian and Maldivian waters. Indian fishermen enter Pakistani waters and Bangladeshis enter Myanmar and the Japanese and Taiwanese trawlers roam around the whole of Asian waters. The restrictions imposed by the States on cross border movements of the fisher folk have led to strains in bilateral relations, loss of human lives and destruction of fishing crafts.

Root Cause is the Conflict of Interests

The root cause of the present tension in the Palk Bay is conflict of interests. On the one side are the Governments of India and Sri Lanka, who in furtherance of good neighbourly relations, concluded the maritime boundary agreements of 1974 and 1976. These placed the island of Kachcativu in Sri Lankan territory and also gave up the traditional fishing rights of the Indian fishermen in and around the island of Kachchativu. On the other side are the Indian and Sri Lankan fishermen, who will not easily give up the means of livelihood, which they have enjoyed for several centuries. It would be imprudent to attempt to create a Berlin Wall in the Palk Strait, for the simple reason that the links between the populations of the two regions cannot be easily severed. They are like Siamese twins, what affects one will affect the other.

Bridge, Not Barrier

The intimate ties between the fishermen and the sea have affected the history, economy and culture of the coastal communities of both Tamil Nadu and the northeastern parts of Sri Lanka. Mukkuvar, the common term used for the fisher folk in Tamil, stressed the geographical identity. The Palk Strait both unites and separates the Tamils of Sri Lanka and India. In so doing, it creates peculiar administrative, logistical and security problems for both countries.

Historically, Kachchativu and the surrounding seas further strengthened the bonds between the peoples of the two countries. There was closeness and camaraderie at every level. Their fishing practices differed on they were catching, different types of fish. Hence there was no conflict of interests for consequent clashes. The St. Anthony’s festival, held at the end of March every year, was not only a gala affair, it was also an occasion for informal trade, based on barter. The island was transformed into a busy market, with Indians peddling lungis and coffee powder and the Sri Lankans selling coconut oil and arrack. Even after independence, the links between the two countries continued unabated.

Fishermen Become Criminals in the Eyes of the Law

South Asian fishermen, as most artisanal fishermen around the world, are a migratory species. Crossing the sea borders is their way of life. The conflict of interests arose when maritime boundaries were demarcated, without taking ground realities into consideration. The maritime boundaries were demarcated based on the concept of sovereignty of states and, what is more, the necessity to uphold domestic jurisdiction in their respective areas.

An analysis of the maritime laws enacted by South Asian countries since independence reveals that their main focus is the protection and promotion of national interests as perceived by the ruling elite. They gave wide powers to the State to limit and control the crossing of maritime boundaries by the fisher folk.

Judicial and Legal Precedents Relevant to Fishing Rights

The maritime laws, are weighted in favour of the state system. However, there are a few instances which take into consideration the interests of the fisher folk. Crossing the international maritime boundary and fishing in the waters of another country are considered as civilian economic offences. Article 145 of the UN Law of the Sea stipulates, “Measures will be taken to ensure effective protection of human life”. Article 75 mentions that a coastal state can take measures “including boarding, inspection, arrest and judicial proceedings to ensure compliance with the laws and regulations”. Shooting and killing of fishermen, who cross the international maritime boundaries, violates the UN Law of the Sea and is against all canons of natural justice and militates against friendly neighbourly relations.

Right of Innocent Passage

The right of innocent passage had been another controversial issue in the realm of international law. Under customary international law, all foreign ships enjoyed the right of innocent passage through territorial sea, so long as it was not prejudicial to the peace and security of coastal states. The politics of innocent passage became a matter of controversy between the third world countries and the developed world. Finally a compromise was arrived at and, as mentioned earlier, Article 73 of the UN Law of the Sea gave the coastal state the right to take such measures including boarding, inspection, arrest and judicial proceedings to ensure compliance with the laws.

Do international precedents hold any lessons in the specific case of India-Sri Lanka relations, especially in the context of laying of sea mines by the Sri Lankan Government in the fishing grounds frequented by Indian fishermen? The Joint Statement issued on October 26, 2008, mentioned that the Indian fishing vessels “will not venture into identified sensitive areas”, in other words, the high security zones.

The relevant point is, do Indian fishermen, by entering the Sri Lankan waters pose a threat to the security of the Sri Lankan State? It is quite well known that a few Indian fishermen do provide the much needed medicines, diesel oil, motor spare parts etc to the Sri Lankan Tamil militants and, in that process, earn a huge profit. However, according to perceptive observers of the Sri Lankan scene, the Tigers do no trust the Indian fishermen when it comes to the transfer of weapons and explosives. The LTTE makes its own arrangements for the acquisition and transfer of these materials in their own boats.

Traditional Rights of Fishermen

Traditional fishing rights enjoyed by the Indian fishermen in the Palk Bay, especially in and around Kachchativu, have become a subject matter of controversy between Tamil Nadu and New Delhi. When it became clear that New Delhi had decided to cede the island of Kachchativu to Sri Lanka, M. Karunanidhi, then Chief Minister of Tamil Nadu, met Swaran Singh, then Foreign Minister and tried to persuade New Delhi to at least ensure that the Indian fishermen continued to enjoy their traditional fishing rights. An analysis of Articles 5 and 6 of the 1974 Agreement, taken together with Swaran Singh’s clarification in the Parliament, indicate that the Government of India had intended the Agreement to safeguard the rights of Indian fishermen to fish in and around Kachchativu and the rights of the pilgrims to visit the St Anthony’s Church without obtaining visa from the Sri Lankan government. Unfortunately these rights were given up in the drafting of the 1976 Agreement.

Since the successive governments in Tamil Nadu, DMK and the AIADMK, have been emphatically maintaining that the 1974 Agreement provided for the continuation of the traditional fishing rights. It is in this crucial matter, that Tamil Nadu has been able to make impressive progress in the ongoing negotiations between India and Sri Lanka. Hitherto Colombo had been asserting that Indian fishermen do not have any fishing rights on the Sri Lankan side of the maritime boundary. As a result of sustained pressure from Tamil Nadu, Prime Minister Man Mohan Singh discussed the problems relating to fishing in Sri Lankan waters with the Sri Lankan President during the recent SAARC summit. A reading of the press statement issued on October 26, 2008 indicates that for the first time Colombo has conceded that it has no objection to Indian fishermen continue to fish in Sri Lankan waters, except in designated sensitive areas.

Good neighbourly relations between India and Sri Lanka are essential, but the fishermen of Tamil Nadu should not be expected to pay for them with their traditional livelihood. The associations representing the fishermen and the Tamil political parties which are vociferous in their verbal support of the fishermen, should be able to take legal measures to strengthen the hands of the Government of India and to apply pressure on it to be pro-active in this issue. It should be possible, subject to competent legal advice, to move the Madras High Court and/or the Supreme Court to exercise their writ jurisdiction to certify that the maritime boundary agreements could not deprive the fishermen of Tamil Nadu of their traditional fishing rights around Kachchativu and to direct the Government of India to have these rights restored by negotiations with Sri Lanka or by approaching the International Court of Justice, if necessary.

Immediate Solution – Licensing of Indian Fishermen

The suggestion that a solution to the problem could be found by an agreement between the two countries so that licensed Indian fishermen could be permitted to fish in Sri Lankan waters in specified areas was first made by Prof. Suryanarayan in his book, Kachchativu and the Problems of Indian Fishermen in the Palk Bay Region (TR Publishers, Chennai, 1994). He followed it up in a number of seminar papers and articles. The idea was further developed in his subsequent book, Conflict over Fisheries in the Palk Bay Region (Lancer Publishers, New Delhi, 2004). It is a matter of gratification that the AIADMK and the DMK – led governments in Tamil Nadu have, on a number of occasions, suggested to New Delhi that the Government of India, among other things should take up the question of licensing of Indian fishermen with the Sri Lankan Government.

After lot of hiccups in the negotiations between the two governments, Sri Lanka finally agreed to consider the proposal for licensing of Indian fishermen in July 2003. The press communiqué issued at the end of India-Sri Lanka Foreign Secretary Level Consultations held on 25 July 2003, mentions vide paragraph 11:

The Indian side broached the possibility of licensed fishing for Indian fishermen in Sri Lanka waters, with a view to preventing unlawful activities. Sri Lanka called for detailed proposals in this respect for its considered examination 24.

Though the window of opportunity for making proposals for licensed fishing was provided to New Delhi and Tamil Nadu in July 2003, it is unfortunate that the Government of India did not follow up the matter, still more unfortunate, the Government of Tamil Nadu did not pursue it vigorously enough with New Delhi. Our conversations with the concerned Sri Lankan officials give us the feeling that Colombo, for the first time, is very serious in finding a solution based on licensing of Indian fishermen in Sri Lankan waters. This matter, therefore, should receive the urgent and earnest attention of the Government of Tamil Nadu and of India.

Fishing is one of the major vocations in littoral Tamil areas and, before 1983, nearly 38 percent of the fish production of Sri Lanka used to be contributed by the northern districts. It is inhuman to continue uncontrolled poaching in Sri Lankan waters by fishermen from Tamil Nadu. The Government of Tamil Nadu, especially the Department of Fisheries, should impress upon Indian fishermen not to fish in the high security zones and near the Sri Lankan shores.

According to the arrangement arrived at between the Government of India and Government of Sri Lanka, as given in the press statement referred to earlier, the Indian fishermen will not “venture into these identified sensitive areas along the Sri Lankan coast line” and those fishing vessels who enter the Sri Lankan waters “would carry valid registration/ permit and the fishermen would have on person valid identity cards issued by the Government of Tamil Nadu”. The success of this arrangement will depend not only on the fulfillment of the commitment of the Sri Lankan government not to resort to firing on such fishermen, but equally important, in the strict adherence by Indian fishermen on the solemn assurance given by the Government of India that the Indian fishermen will not enter the high security zones.

The solution suggested is for the two countries to come to an agreement so that licensed Indian fishermen could be permitted to fish in specified areas in Sri Lankan waters. The number of licenses to be issued, the type of fishing crafts to be operated, the quantum of catch to be fished, the number of days that fishing can be undertaken and the license fee to be paid to Sri Lanka should be worked out by mutual consultations. Due care must be taken to prevent over exploitation and destruction of marine ecology. These proposals do call for changes in the fisheries policies of the two governments. Details should be worked out by mutual consultations with the affected groups in both countries. If the situation has to move from confrontation to co-operation, it has to be based on equitable sharing of marine resources and participatory arrangements.

What could be the quid pro quo? Any negotiation on crucial issues impinging on national interests can succeed only if there is recognition of convergence of interests among the negotiating parties. Equally important, the two sides must be imbued with a spirit of give and take. What gestures should be made and at what stage falls within the realm of statesmanship and diplomacy, a matter better left to the Government of Tamil Nadu and the Government of India.

Dialogue Among Fishermen

A Silver lining in an otherwise bleak horizon are the attempts made by non-governmental organizations like the Tiruvananthapuram – based Alliance for the Release of Innocent Fishermen (ARIF) for initiating dialogue among the affected fishermen on both sides. A team led by Dr. Vivekanandan visited Sri Lanka in May 2004 and held discussions with concerned organizations to pave the way for an amicable solution to the travels of the Tamil Nadu and Sri Lankan fishermen. For the first time, the two sides freely discussed the harmful effects of sea bed trawling on marine ecology.

The main reason for the ineffectiveness of the 1974 and 1976 boundary agreements is that these did not take into consideration the ground realities; what is more, without the co-operation of the fishermen, the agreements were ineffective from the beginning. A movement from below, with practical inputs from the fishermen themselves, will got a long way in arriving at an amicable solution.

Palk Bay – Our Common Heritage

If South Asia has to keep pace with other developing regions of the world, we must take the initiative to give momentum to bilateral and regional co-operation. It is unfortunate, but true, that at the present moment regional co-operation occupies a very low priority in our interaction with the regional environment. India should immediately follow up on Prime Minister Man Mohan Singh’s pronouncement about “asymmetric reciprocity” in relation to its smaller neighbours. If we are to attain these laudable objectives, it is essential that regional co-operation should find an important place in decision making. In other words, when the development plans of each state and India, as a whole, are drawn up, serious consideration should be given as to how regional inputs could be harnessed and developed.

In the long run, India must project a vision that the seas constitute the common heritage of the littoral countries and harnessing of marine resources can only lead to a win-sin situation. In a recent study completed (but unpublished) by R. Swaminathan, apart from the Governments of India and Sri Lanka, there are other important stake holders in the issue of fishing in Indo-Sri Lankan waters of the Palk Bay. There are state governments in India and provincial governments in northern and eastern Sri Lanka, as well as the littoral fishing communities on both sides of these waters. A suggestion has been made for the establishment of a Joint Palk Bay Authority to co-ordinate and implement the policies of the two governments.

Prof. MS Swaminathan has embarked upon an ambitious programme of “blue revolution”, which means “fish for all and fish for ever”. Instead of restricting these programmes to Tamil Nadu alone, that canvas should be widened to include both sides of the Gulf of Mannar and the Palk Bay. According to specialists, there is considerable scope for joint ventures and bilateral cooperation in the filed of introduction of multi-day boats for deep sea fishing in the Indian Ocean region. The focus of cooperative development and sharing of know how should be the enrichment of marine resources and bringing about qualitative improvement in the lives of the fishermen.

(This is an abridged version of the Occasional Paper-1 “Contested Territory or Common Heritage?” presented by Dr. V. Suryanarayan and Mr. R. Swaminathan on 30 Jan 2009 at the National Seminar on Peace, Conflict and Development in South Asia organized by the Asian Centre for Peace and Development, Coimbatore in association with the Center for Asia Studies, Chennai)
-Sri Lanka Guardian

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