Why Indian fishermen are often caught fishing in Sri Lanka’s troubled waters

Many Indian fishermen are often captured by Sri Lanka for crossing maritime boundary between two nations and particularly crossing into Kachchatheevu island; it is becoming a flashpoint in bilateral relations, which is otherwise quite friendly. India and Sri Lanka resolved their maritime boundary demarcation by 1976, yet there remains issue of fishermen being detained by the two sides. The local politics in both countries intensifies the situation. Till the mid-2000s from 1983, 132 Indian fishermen reportedly died in Sri Lankan firings, several fishermen could not be traced and are declared missing, nearly 90 fishermen have been detained and over 300 vessels have been detained. Claim over Kachchatheevu Island: Brief history Kachchatheevu is an island located in the Palk Strait about 10.5 miles from the Sri Lankan coast and nearly 12 miles from India’s nearest coast; it is nearly 3.75 square miles in area. Dispute over ownership of the island has remained since the colonial period. It was claimed that the island was a part of Raja of Ramnad’s (Ramanathapuram of Tamil Nadu) zamindari. During 1880 and 1885, the island was given to Sri Lanka for the purposes of root collection which would serve in the process of dyeing. Later in 1913, the island remained in the possession of Sri Lanka for sankha shells’ full exploitation and use. Notably, the zamindari system lapsed and since all the zamindari land now vested in either government of India or government of Tamil Nadu, legally speaking the land was to pass to India or Tamil Nadu via lapse of zamindari. No effort was taken on the government of India’s part to settle the issue of legal ownership of land. Consequently, Sri Lanka retained the possession of Kachchatheevu island, though it must be pointed out that the government of Tamil Nadu continued to maintain its legal ownership of the island. Later in 1976, the island was ceded to Sri Lanka to maintain friendly relations. Understanding the issue from fishermen’s viewpoint At this stage, it is essential to understand what influences the thought process of fishermen to fish beyond maritime boundaries. Notably, northern parts of Sri Lanka and southern parts of Tamil Nadu lies at the same LBG (‘Latitudinal Biodiversity Gradient’). LBG provides for the existence of marine life and how marine life traverses in the area. Further, there is absence of any strong current in the region and consequently the marine life found in the region is also similar. Hence, fishermen on both side of boundary are after the same marine life. If marine life on either side depletes, the marine life on other side of maritime boundary becomes the source of very same marine life. This is quite the reality because Indian fishermen by use of trawlers have nearly depleted marine resources on Indian side of maritime boundary. On the other hand, Kachchatheevu island which now forms part of Sri Lanka is fish-rich. This is because Sri Lanka has imposed ban on trawling in the region and also because the population of Sri Lankan fishermen is not as high. Further, not all crossing of maritime boundary is intentional. There have been many instances of inadvertent straying into maritime boundary as these are imaginary lines demarcated by nations and often not clearly discernible in waters. This inadvertent straying may be caused by failure of boat’s engine or sudden disturbance caused by weather conditions in the region. International law on the Kachchatheevu issue Fishing practices of Indian fishermen where they use trawlers is harmful to marine environment and may potentially cause change to marine life in the region and possibly the ecosystem of the region as well. Therefore, India may be said to be under obligation under Article 206 of the UNCLOS 1982 to communicate reports of such change in marine environment. However, not having communicated such a report may lead to breach of such an obligation. Further, India is bound to take precautionary approach mandatory for environment preservation, as dictated by Articles 194 and 204 (‘Part XII’) of the UNCLOS 1982. Sri Lanka and India both came up with a Joint Working Group on Fisheries (JWG) in 2004. The JWG was assigned to deal with the issue of fishermen crossing the maritime boundary between India and Sri Lanka. Despite such an agreement in fourth JWG (2012), excesses by Sri Lankan Navy have not stopped. There have been multiple reports of incidents whereby Sri Lankan Navy used force on fishermen who crossed the maritime boundary. Further, many arrests have deemed to be unwarranted as these fishermen could not have been mistaken for smugglers given that they had proper documents for identification issued by Tamil Nadu government. It has been reported that many a times fishermen from Indian side provide a detailed list of fishermen to Indian authorities before entering the maritime zone and at times they have been given a token for the trawler for buying diesel essential for operation of trawlers. Therefore, actions undertaken by Sri Lankan Navy is in breach of agreements reached at Fourth JWG. Indian fishermen have considered it their traditional right to celebrate St Anthony’s festival at the Catholic Church and to dry their nets in Kachchatheevu island. This is also guaranteed in the agreement, which is the core instrument for settlement of maritime boundary between India and Sri Lanka. Therefore, a duty is cast upon Sri Lankan authorities to ascertain before detaining or shooting Indian fishermen whether the fishermen are there for exercise of their traditional rights as per the agreement, i.e. to dry nets or celebrate the festival of St Anthony’s. Unless this exercise is carried out, any action by Sri Lankan authorities would be vitiated by illegality and non-compliance of the agreement which gives them the right to have the Kachchatheevu island as their territory. Way forward: Taking fishermen’s view into account It is clear that both Indian and Sri Lankan side are at fault. Given the close cultural, religious ties of Sri Lanka with India, any litigation may potentially impact political situation in Sri Lanka and India and also the economic ties as Sri Lanka is dependent on India to a great extent. At the same time, it is surprising to note that fishermen who are at the heart of this issue are not consulted. Their absence in the international law regime is quite surprising and hence fishermen are marginalised without their voices actually being heard. It is imperative that fishermen be heard in JWG (or any other machinery) to reach an agreement which is then highly likely to be complied by all, including fishermen. The author is a student at NLSIU Bangalore and International Editor, Cambridge Law Review Read all the Latest News , Trending News , Cricket News , Bollywood News , India News and Entertainment News here. Follow us on Facebook, Twitter and Instagram.