There is no doubt an order issued by the Supreme Court of India is not binding on Sri Lanka, as Mr. Raju has said, but it must not be forgotten that the court’s jurisdiction extends up to the contiguous zone (up to 24 nautical miles) of India
In his article in The Hindu, “Chasing a boat we missed long ago” (Op-Ed, May 27, 2013), Deepak Raju has criticised the futility of the pending litigation on Katchatheevu island and has described claims to retrieve the island as weak in international law.
There is no doubt an order issued by the Supreme Court of India is not binding on Sri Lanka, as Mr. Raju has said, but it must not be forgotten that the court’s jurisdiction extends up to the contiguous zone (up to 24 nautical miles) of India. Section 5 of the Maritime Zones Act specifically provides Indian courts with powers in the contiguous zone in matters where the “security of India” is involved. Therefore, matters pertaining to Katchatheevu — which is 18 nautical miles off the Indian coast, fishing in the waters around it and the safety of fishermen could be argued to be well within the ambit of Indian courts. Also, the petition filed recently by M. Karunanidhi (former Chief Minister of Tamil Nadu) specifically lists as respondents the Union of India, through its Cabinet Secretary and Foreign Secretary, all of whom are accountable to the courts of the country.
As Mr. Raju has pointed out, the Government of India has to amend the First Schedule of the Constitution to confirm the cession of territory, in accordance with the judgment in the landmark Berubari Union case. But, the government’s failure to table the 1974 and 1976 agreements in Parliament has raised questions about its intention. Also, Mr. Raju points out that the treaties state that they are subject to ratification. According to Article 14(1)(b) of the Vienna Convention, ratification of a treaty is necessary when negotiating states have agreed that ratification is required. But there is no indication that the India-Sri Lanka agreements have been ratified by the President of India, once again leaving us to wonder whether there is a bona fide intention by the government in giving any legal effect to the agreements.
Interestingly, he raises the question of whether the island was comprised in the Province of Madras as central to the claims on Katchatheevu. Historical evidence abounds that Katchatheevu was the zamindari of the Raja of Ramnad, and subsequently became a part of the State of Tamil Nadu. The Memoirs of the Governor of Ceylon from 1757 to 1762 clearly establishes the control of the Raja of Ramnad over the island. In 1921, a meeting of British officials in Colombo to discuss maritime boundary issues has referred to India’s territorial claim on Katchatheevu. After independence, the island was listed as a part of Ramanathapuram district in the 1972 Gazetteers: Ramanathapuram by the Government of Tamil Nadu.
Apart from this, Mr. Raju has committed two serious omissions in his analysis. First, he has failed to explain the contents of the agreements, which is important to understanding their constitutional maintainability. The 1974 agreement between the Prime Ministers of India and Sri Lanka allows the “vessels of India and Sri Lanka to enjoy in each others waters such rights as they have traditionally enjoyed” but that “each country shall have sovereignty and jurisdiction and control over the waters.” The words of the agreement sow the seeds of legal confusion. Simply put, as per this agreement, our fishermen can legally fish in Sri Lankan waters but they can be arrested for the same under Sri Lankan laws.
On the 1976 agreement
Second, he has neglected to cover the historical events leading up to the 1976 agreement. In June 1975, Emergency was imposed all over India. Consequently, the Tamil Nadu Government was dismissed in January 1976. While there was no parliamentary or legislative functioning or civil society activism possible, the Exchange of Letters on March 23, 1976 between the Foreign Secretaries of India and Sri Lanka constituted the 1976 agreement. It was agreed that “fishing vessels and fishermen of India shall not engage in fishing in the Exclusive Economic Zone of Sri Lanka,” but it made no mention of the traditional fishing rights guaranteed in the previous agreement.
The contradictory and conflicting positions espoused by the two agreements, created in the background of political upheaval and uncertainty, have caused immense hardship to Tamil Nadu’s fishermen. According to reports, an estimated 500 fishermen have been killed in India-Sri Lanka waters over the past 30 years. It is not disputed that India must be bound by her international commitments, but the violations of international maritime and humanitarian laws by Sri Lanka and its navy have left India with no other choice but to review the agreements of 1974 and 1976. If the Government chooses to do so, it would be well within the purview of the Supreme Court to adjudicate the way forward.
(Manuraj Shunmugasundaram is studying law at the University of Delhi and is a parliamentary research aide to the DMK.)