Chasing a boat we missed long ago

The demand for the return of Katchatheevu island from Sri Lanka does not hold water under Indian or international law

Updated - May 27, 2013 01:43 am IST

Published - May 27, 2013 01:40 am IST

CAUGHT IN BETWEEN: Fishermen from India and Sri Lanka meet atKatchatheevu in this March, 2010 file photo. Photo: L. Balachandar

CAUGHT IN BETWEEN: Fishermen from India and Sri Lanka meet atKatchatheevu in this March, 2010 file photo. Photo: L. Balachandar

DMK chief M. Karunanidhi has reportedly approached the Supreme Court requesting that the Central government be directed to retake control of Katchatheevu island, which was purportedly ceded to Sri Lanka by India through treaties concluded between the two neighbours in 1974 and 1976. A previous petition filed by Chief Minister of Tamil Nadu J. Jayalalithaa on this matter is still pending with the Supreme Court. In this piece, I raise two key points: first, litigation before the Supreme Court on this matter is futile since any order issued by Supreme Court will not be binding on Sri Lanka; second, under international law (which governs territorial disputes between states), any claim that Tamil Nadu may persuade the Centre to make is likely to be a weak one.

Futile litigation

The petitioners have argued that ceding of Indian territory requires amendment of the Constitution by Parliament. This is correct as a matter of Indian law. The territory of India is defined in Article 1(2) of the Constitution read with Schedule 1 to the Constitution. Entry 7 in Schedule 1 defines the territorial extent of the State of Tamil Nadu. Thus, alienation of any part of the territory of Tamil Nadu, to be valid in Indian law, requires an amendment of the first Schedule to the Constitution. This position was clarified by the Supreme Court of India in In re: Berubari Union case (1960) 3 SCR 250. A treaty entered into by India purportedly ceding Indian territory to a foreign power is without effect in Indian law unless Parliament chooses to give effect to the same through an amendment to the Constitution.

The treaties of 1974 and 1976 establish a boundary line between India and Sri Lanka. Katchatheevu falls on the Sri Lankan side of this line. No legislation or amendment to the Constitution has been passed by Parliament of India to give effect to the treaties. In light of the above position, the treaties, so far as they concern Katchatheevu, are without effect in Indian law if Katchatheevu is included in the territory of India as defined in the First Schedule to the Constitution. Since Katchatheevu is not expressly mentioned in the First Schedule, the Supreme Court will have to enquire, based on the available facts, whether immediately before the commencement of the Constitution, the island was “ either comprised in the Province of Madras or [was] being administered as if [it] formed part of that Province ”, in which case it would be a part of the territory of Tamil Nadu as defined by Entry 7, Schedule I.

Even if the court were to find that Katchatheevu forms a part of the territory of Tamil Nadu and that it has been ceded to Sri Lanka illegally, this ruling will have no binding effect on Sri Lanka, which is in control of the island. As a sovereign state, Sri Lanka is immune from the jurisdiction of Indian courts. Hence, the Supreme Court can merely make a declaration on the historical illegality of the cession. Can the court then direct the Central government to retake possession of the island? While there may not be express constitutional limitations on the power of the court to direct the government to retake Katchatheevu (or any other territory considered in Indian law to be part of India), considering that the Government of India cannot retake territory possessed by another sovereign state without unilateral forceful action, the court should exercise restraint in this regard. Any such order will amount to the judiciary dictating foreign policy and should be avoided.

Treaties ‘ratified’

Having established that litigation before the Indian Supreme Court is incapable of bringing about the results desired by the Tamil Nadu politicians, I now turn to an examination of the question of title over Katchatheevu from an international law angle. If the Government of India chooses to entertain Tamil Nadu’s demand and raise the issue with Sri Lanka, the question of title to the island will need to be determined under international law between the two States.

As mentioned above, as per the treaties of 1974 and 1976, Katchatheevu would fall within the sovereign territory of Sri Lanka. Both the treaties state that they are subject to ratification. It may be argued that ‘ratification’ of a treaty ceding territory occurs, as a matter of Indian law, when Parliament amends the Constitution to give effect to the treaty. However, the only publicly available copies of the treaties (published by the U.S. Department of State) are accompanied by a note that ‘ratifications have been exchanged’ and that the treaties have entered into force. India’s conduct in the face of Sri Lanka’s possession of the island has also indicated this view. As soon as the Tamil Nadu Assembly passed the resolution demanding that Katchatheevu be returned to India, Sri Lankan government issued several statements asserting sovereignty over the island. The Government of India is yet to make any statements on the matter.

Under Article 27 of the Vienna Convention on the Law of Treaties, 1969, a state may not invoke domestic law to avoid treaty obligations. In Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) , the International Court of Justice clarified that non-compliance with a ratification requirement in domestic law does not invalidate a treaty. Thus, it will be difficult to argue that non-compliance with requirements under the Indian Constitution has rendered the two treaties invalid in international law.

Even assuming that the treaties are not in effect, Sri Lanka may assert its sovereignty based on acquiescence on India’s part. Prior to the conclusion of the two treaties, both Sri Lanka and India claimed sovereignty over the island. However, after 1974, India has not asserted its claims while Sri Lanka has continuously maintained control of the island. Such silence of one of the disputing parties in a territorial dispute has been construed as an abandonment of its claim in favour of the other party in several cases, most notably Temple of Preah Vihear (Cambodia v. Thailand) before the International Court of Justice.

Not realistic

In sum, regaining control over the Katchatheevu island does not appear to be a realistic possibility both from an Indian law point of view as well as an international law angle. While Tamil Nadu’s concerns relating to the alleged harassment of Indian fishermen by the Sri Lankan Navy, which forms the context of the State’s renewed claims over Katchatheevu, need to be addressed, more feasible alternative solutions should be explored for the same.

(The author is a student of International Law at the University of Cambridge.)

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