Originally Published 2013-12-10 10:54:17 Published on Dec 10, 2013
With festivals fast approaching, time may be running out on Tamil Nadu Chief Minister Jayalalithaa's self-set December deadline for her Government to host the third round of talks between fishers' representatives from the State and Sri Lanka.
Fishing issue:  'Externalising' the 'internal waters'?
" The Christmas-New Year season, followed by the Tamil harvest festival of 'Pongal', is fast approaching. Given that the stake-holders celebrate either or both festivals, time may be running out on Tamil Nadu Chief Minister Jayalalithaa's self-set December deadline for her Government to host the third round of talks between fishers' representatives from the State and Sri Lanka.

On the ground, the delays would have served a purpose if they were to lead to a fully understood and enforceable agreement on issues of life, limbs and livelihood. Rather, if they could mean that their fishers' agreement of 2010 gets enforced in the process, where the Governments concerned would have to get involved on the respective shores, for such enforcement to work on the ground - or, in the seas!

Prima facie, the fishers' talks and the 2010 agreement do not - and should not --cover larger issues such as post-Independence 'sovereignty', 'territorial waters' and consequent counter-claims to 'historic waters' and 'traditional fishing rights'. Those larger issues flow from the two governmental agreements of the Seventies, the identification and enforcement of the International Maritime Boundary Line (IMBL). They have to be left at that, to be addressed by the constitutionally-mandated governments, if and when fresh issues were to crop up.

In the matter of 'Kachchatheevu' island issue pending before the Supreme Court of India, for instance, the Centre has defended its declared position that the island was a part of Sri Lankan territory in the shared waters of the Palk Strait, and there was no 'ceding' of Indian territory for seeking Parliament's ratification under the Constitution. As may be recalled, the signing of the two agreements meant that the Wadge Bank, a larger stretch of Indian Ocean waters beyond the southern tip of India, fell within the Indian territory -- with the right and responsibility for the Indian Navy (relatively better-placed than their Sri Lankan counterparts then as now) to guard the nation's southern periphery, when the world is talking about the 'String of Pearls' and massive American naval presence in the immediate neighbourhood.

Historic coincidence

Granting the Tamil Nadu perspectives, official and political, on 'historic waters' and 'traditional rights', the unintended benefits and prospects for the Indian side -- both the Tamil Nadu fishers and the nation's security - from the two agreements need to be appreciated. If intended, it has to be applauded too. Unknown to many and hence unacknowledged by any, the two accords of 1974 and 1976 may have ensured, as an accidental historic coincidence, that the Palk Strait remains an 'internal waters' of either India or Sri Lanka, with no gaps anywhere in between, for extra-regional nations and interests to claim free passage.

Translated, but for the seventies' accords and the Government of India's continued acknowledgement of the same, narrow stretches between the two countries, going beyond what may still have been accepted as the 'internal waters' of the two countries, could have given inevitable access to the Taiwanese fishers, on the one hand, and the US Navy, on the other - only to be followed by more fish-poachers and national navies like that of China, for instance.

The Palk Strait is already a narrow stretch of water. The 'baseline' method approved under the UN Convention on the Law of the Seas (UNCLOS), read in the context of the seventies' accords, has meant that there are no waters that are not the 'internal waters' of either India or Sri Lanka in these parts. Claims to the contrary, as being mentioned in Tamil Nadu, could have put India in a fix, in particular. Yet, there would have been no fish for the TN fishers, as big-time poachers from elsewhere could have torpedoed their trawlers the same way the Sri Lankan Tamil fishers say their small boats and country craft are being damaged by the TN trawlers. Statements from Chennai would not have had any effect in and on the 'international waters', as that is what the Palk Strait might have become otherwise.

At present, the IMBL between India and Sri Lanka has been drawn on the lines of UNCLOS-cleared 'baseline method' for determining 'internal waters'. A narrower and more legalistic interpretation of the 'baseline method' could have led to a possible extension of the 'doctrine of estoppel applicable to the land, to the seas as well. In turn, this could have meant that even if that 'narrower stretch' of 'international waters' were to have been surrounded by the 'internal waters' of either India or Sri Lanka, or both, either or both of them would have been forced to give 'free passage' for international maritime/naval players to access the same.

Extra-regional players

Two recent developments would point to the possibilities - one, more recent than the other. Firstly, it is about the 'Sethusamudram Canal project', which is pending clearance from the Supreme Court. The very thought of it would not have been possible had it not been for the Palk Strait on the Indian side of the IMBL being accepted as 'internal waters' of India. Sri Lanka's reservations to the India-exclusive project too are thus limited to perceived environmental concerns and those for marine lives, and not on 'territorial' concerns, or access to 'international waters'.

Should Sri Lanka be expected to accept that Indian fishers had a 'traditional right' to the adjoining waters for Rameswaram fishers in particular to traverse those seas, then the reverse right too would have to be granted, even if for argument's sake. Together, and over time, such practices, whether based on new agreements of whatever kind, or otherwise, could have a potential to render the 'internal waters' ineffectual - hence, irrelevant. Fresh claims to 'historic waters' and 'traditional rights' could crop up after a time. This could open up new issues, and consequent concerns than already.

The second and more important point is the reported American interest in having the proposed Sethu project canal rendered 'international waters' for use by its ships. News reports to the effect had appeared around the time of the commencement of work on the Sethu project. It is unknown if the present silence on the part of the US and/or other international players is linked to the Supreme Court suspending the work on the project some years ago - and maybe revived later, in the absence of an assertive Indian position that the project is well within the country's 'internal waters'. It is another matter that NASA's aerial photographs are the only well publicised pictures of the Sethu project site.

'Innocent passage', 'innocent' fishers

It does not stop there, however. Possibly hoping for a comprehensive agreement on the fishing issue, Sri Lankan Government sources, through the local media, have recently flagged the 'right to innocent passage' for their fishers, who want to traverse the Indian waters, off Tamil Nadu, farther into the Arabian Sea. On the reverse, any serious attempt by the Government of India and the Tamil Nadu counterpart, to encourage and facilitate 'deep-sea fishing' by Indian fishers, could involve similar rights for them in the Sri Lankan waters - now, and later.

Ahead of the proposed fishers' talks, the Governments concerned, in Sri Lanka and Tamil Nadu, can set the tone by freeing all fishers in their custody. Sri Lanka, like Tamil Nadu, may have to put in place a mechanism for identifying 'innocent' fishers arrested by their navy and facilitate their early repatriation (along with their boats). The stridency on the part of the Sri Lankan authorities in recent times is matched (as if by coincidence) by delays on the Tamil Nadu side, even as other Indian States are yet to put in place an effective internal consultative mechanism for the identification and repatriation of 'innocent' Sri Lankan fishers, mostly southern Sinhalas, straying, intruding or poaching in Indian waters.

The Tamil Nadu authorities too may have something to learn from their Sri Lankan counterparts. The Government and Ministers in Sri Lanka are on record telling their fishers that crossing the IMBL and getting caught in Indian waters is an offence punishable in India, and that they would not interfere with the legal and judicial processes in India beyond a point.

Truth be told, the Sinhala political class is as much pressured back home by their constituency on the question of their fishers in Indian prisons - in Tamil Nadu and elsewhere. For both, thus, it continues to be a live issue as much as a livelihood issue. The Sri Lanka Navy too cannot do to Indian fishers what their authorities, starting with the political class, do not want done to their fishers captured in Indian waters!

(The writer is a Senior Fellow at Observer Research Foundation, Chennai Chapter)

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N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

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