BEFORE INTERNATIONAL TRIBUNAL FOR LAW OF SEA IN 2009 DRAVIDA PERAVAI

THE REGISTRAR

INTERNATIONAL TRIBUNAL FOR THE LAW OF SEA

Am Internationalen Seegerichtshof 1

22609- HAMBURG

GERMANY

Before the Respected Judges of the Tribunal

Subject: Action against Srilanka for killings of hundreds of Indian Tamil fishermen and compensation sought for lives lost in genocide beyond borders, and the redrawing of the maritime borders to protect the fishing rights of Indians regarding...

The maritime belt of the coastal India was based on the canon shot principle till 1956.Jurist Bynkershoek laid the foundation for this rule, when he enunciated that the breadth of maritime belt extends to the distance where a canon can fire i.e. 3 miles of maritime belt. This principle based on canons that were in usage in eighteenth century existed till twentieth century. The Hague Conference of 1930 which tried to extend the maritime belt did not yield results and hence Conference on Law of Sea at Geneva attempted to revise the breadth of maritime belt. India which was following this 3 mile maritime belt for centuries till 1956 extended the maritime belt by 6 miles through Presidential Proclamation. In the year 1967 it was extended to 12 miles.

Subsequently Indian Representative at UN Dr.Pannikkar made a statement before the Sub-Committee of the Peaceful Uses of the Sea-bed and Ocean Floor beyond the limits of National jurisdiction on 17^th August 1971, wherein  [ Ref :UN Doc.A/C 1331] for extending the maritime belt in view of the discovery that Indian territorial waters contained huge quantities of thorium.

We Indian citizens, who rediscover the past, are baffled at the statement tabled in Indian Parliament on July 23 1974 by then Indian External Affairs Minister Mr.Swaran Singh [Lok sabha debates cols 186-201] for Re-Agreement between India and Srilanka on boundary in historic waters between the two countries and related matters. India must be aware what its own representative sought before UN Sub-committee on the need to extend its maritime belt in view of thorium find in Indian territorial waters.

When we had national interest to extend our maritime belt, only a nincompoop would opt for an agreement that will hand over Indian island of Katcha Theevu to Srilanka by way of this agreement.

We would like to remind that one Member of Indian Parliament, speaking on the floor of the house on 23^rd July 1974 raised a point or order. Mr.P.K.Deo, Member from Kalahandi of Indian State of Orissa said “Nowhere the Indian Constitution provide for cession of even an inch of Indian Territory. All the Revenue records of Madras Government, a state of India, corroborate that Katcha Theevu was part of former Ramnad zamindary and an integral part of this country. So under no circumstances the Government has got any power under the Indian Constitution to cede even an inch of our country. A few days back the Coco islands which is part of Andaman group of islands belonging to India was ceded to Burma. Now it is Katcha Theevu. It is utter contempt and disrespect shown to the House [Indian Parliament] by not taking the house into confidence and facing us with a fait accompli”

After fixing the maritime belt in 1967, India realized the need to protect every inch of our territorial waters in view of finds of precious metals within our waters, yet it conceded Katcha Theevu to Srilanka. But in 1976, Article 297 of Constitution of India was amended for fortieth time “ All lands, minerals, and other things of value underlying the ocean within the territorial waters or the continental shelf, the exclusive economic zones of India shall be such as may be specified from time to time, by or any law made by the Parliament.”

In 1976 again Indian Parliament passed The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976. The act fixed the limit of territorial waters as the line every point of which is at a distance of 12 nautical miles from the nearest point of appropriate baseline.”

In his book entitled: Conflict Over Fisheries In the Palk Bay Region (Lancer, New Delhi, 2005) Prof V Suryanarayan says that it is very important for India to find ways for fishermen from Tamil Nadu to fish in Palk Bay/Palk Strait (up to 5 nautical miles from the north Sri Lankan coast) and around Katcha Theevu, because this is a traditional right as well as an economic necessity. According to him, a grave injustice was done to Tamil Nadu fishermen in 1974, when New Delhi decided to give in to the Sri Lankan government's contention that Katcha Theevu was part of Sri Lanka, and agreed to draw the maritime boundary line in a such a way that the island was included in the Sri Lankan side.

New Delhi had callously overlooked the fact that Katcha Theevu had been part of an Indian "Zamindari" and that Indian fishermen had, from time immemorial, fished in the waters around it, Suryanarayan says. The area around the island and beyond, nearer the Sri Lankan coast, is rich in prawns, and prawns are the main source of income for these fishermen since 1969. The annual fish production in the Palk Bay region is 85,000 tones today. Over a 100 fishermen have been killed, and catch and equipment worth millions of rupees, have been lost in the process. But the fishermen are undaunted. Although the Art 73 of the UN Law of the Sea prohibits shooting of straying fishermen, the Sri Lankan Navy had been quite trigger- happy. The Government of India could do little to stop it.

He argues that Art 5 of the 1974 maritime boundary agreement, read with statements of Indian ministers in parliament, gives Indian fishermen the right to fish around Katcha Theevu.

Given the deaths and the political fallout in Tamil Nadu, a State of India in 1991, the state Chief Minister, J Jayalalitha, called for the "retrieval" of Katcha Theevu from Sri Lanka. His suggestion is to take the island on "lease in perpetuity." In this case, sovereignty over the island will rest with Sri Lanka, but India will get the right to use the island and the waters around it. Suryanarayan recalls that in 1974, India gave Bangladesh Tin Bigha on such a lease, to settle the vexed question of access to enclaves in each other's territories. Why this cannot be replicated in the Indo-Sri Lankan case, he wonders. Chief Minister Jayalalithaa took the cue, and in 1994, asked the Central government to get the island on perpetual lease. She reiterated this demand in 2004 in a letter to the Indian Prime Minister.

 A country of India's size and resources should not only assess the dangers emanating from a changing strategic environment but, it should also zealously safeguard autonomy in decision making. The recently published Indian Maritime Doctrine highlights not only the importance of the control of the seas but also the necessity to deny its use to the adversary

Licensed Indian fishing in Palk Bay region

Suryanarayan strongly urges that India gets Sri Lanka to give in to its demand for licensed Indian fishing in Sri Lankan waters in the Palk Bay/Palk Strait area. He notices that in 2003, Sri Lanka had agreed to consider such a proposal mooted by India at the Prime Ministerial level. This is a "window of opportunity which India should exploit", he says.

To buttress its case, India can point out that in the 1976 maritime boundary agreement, it had unilaterally offered Sri Lanka, licensed fishing for three years in the Wadge Bank area, the experts says. Sri Lankan Tamil fishermen from Jaffna and Mannar are indeed opposed to poaching by Indian fishermen, but they have been practical enough to accommodate it with some conditions. A recent agreement allowed Indian fishermen to fish as close to 3 nautical miles from the North Western coast and 7 nautical miles from the Northern coast, provided the Indians did not use trawlers. Trawling, which sweeps the bottom of the sea, is what the Sri Lankan fishermen are really bothered about, not the traditional fishing methods.

The fishermen of the two sides seem to want to share the marine resources in the restricted Palk Bay area. Why can't the governments of India and Sri Lanka follow suit? Suryanarayan wonders. He is acutely aware that the Sri Lankan Establishment, represented by the Ministry of Foreign Affairs and Fisheries, is against licensed Indian fishing despite the 2003 offer. In 2003, Prime Minister Ranil Wickremesinghe was going out of the way to accommodate India and the offer was part of the mood of the time. But the mood had not percolated to officialdom and the rest of political system.

In her Public Interest Litigation Writ Petition, under Article 32 of the Constitution, Ms. Jayalalitha has appealed to the Supreme Court of India for an appropriate writ order or directive for declaring as unconstitutional the two agreements signed between India and Sri Lanka in 1974 and in 1976, under which the island of Katcha Theevu was ceded to Sri Lanka and the traditional fishing rights of Indian fishermen were given up. She has appealed for a directive to the Union of India to take appropriate steps for retrieving the island or alternately to take steps to obtain or regain the right of access to Katcha Theevu and right to engage in fishing around the island. She has also appealed for a directive to the Union of India to protect the lives and livelihood of Indian fishermen who regularly fish around the island. 

While researching on the subject, we had to face severe limitations. All documents relating to the Zamindari rights of the Raja of Ramand have been taken away to New Delhi and are kept behind the stonewalls of secrecy. However, there are number of secondary sources to prove, without an iota of doubt, that the island was a part of the Zamindari of the Raja of Ramand. The East India Company and the British Government upheld these claims. And when Zamindari was abolished after independence, the revenue jurisdiction came to Madras province. 

New Delhi did not dispute the Zamindari rights of the Raja of Ramand, but it was not certain that the Zamindari rights conferred sovereignty.  No one claimed that Zamindar was sovereign, but what must be highlighted is the fact that the sovereign had delegated the powers of collecting the revenue to the Zamindar. Once the Zamindari was abolished, all rights reverted to the Government. New Delhi’s argument is tantamount to questioning Indian unity. It must be remembered that on the eve of independence, large parts of India were under Zamindari system. In the nine provinces of British India, the Zamindari system covered 57 per cent of the area, the Ryotwari system covered 37 per cent and the Mahalwari system 5 per cent. If New Delhi’s (and Colombo’s) argument is accepted, the very existence of India as a united country will be at stake. 

A few other relevant points must be highlighted. If any Indian territory is to be ceded to a foreign power, the Constitution needs to be amended. In order to avoid such a contingency, New Delhi adopted the stance that Katcha Theevu was a “disputed territory”.  Indira Gandhi sought legal opinion whether India had historical claims on the island, but the opinion was not unanimous. While Niren De, then Attorney General was of the view that “on balance, the sovereignty over Katcha Theevu was and is with Sri Lanka”, MC Setalvad, former Attorney General, upheld India’s claims. Adding insult to injury, the principles of equi-distance and median line, the fundamental principles of delimitation of maritime boundaries, was not adhered to in the case of Katcha Theevu.  According to SP Jagota, then Director of the Legal and Treaties Division, “the boundary line between India and Sri Lanka followed the median line except as adjusted in the Palk Bay in relation to the settlement on the question of the Island of Katcha Theevu”   

And a careful reading of Articles 5 and 6 of the 1974 Agreement, in conjunction with Indian External Affair Minister Swaran Singh’s clarification in Lok Sabha, clearly reveal that Indian fishermen continued to enjoy these rights in and around Katcha Theevu. But unfortunately these rights were bartered away by the 1976 Agreement, that too when India was under emergency clamped to freeze democracy.

It is surprising that no Government in  Indian State of Tamil Nadu have thought it fit to challenge the cession in the Supreme Court as the Government of West Bengal did at the time of the proposed transfer of Berubari to East Pakistan. Can they do so now after the lapse of 34 years?  It is possible that they may apprehend the law of limitation, but the time limit of 30 years, prescribed by Article 112 of the Limitation Act, 1963 does not apply to a suit in the Supreme Court in the exercise of its original jurisdiction. The matter can be argued whether Katcha Theevu had always been a disputed territory or it was a part of India or a no man’s island.

If the State Government in India is unable or unwilling to move the Supreme Court, it is open for a concerned citizen to seek judicial remedy through public interest litigation. The question will also arise whether the two international agreements, a matter relating to Public International Law, can be questioned in a Municipal Court. The answer is clear. No treaty can override the Constitution of India, which is the supreme law of the land.

But this issue could not be settled by the Supreme Court of India. The Srilankan Government is on record in its Parliament that:

However, a decision given by a Court of law in a jurisdiction outside Sri Lanka would not be binding on Sri Lanka. Any such Court Order or judgment will not alter or have an impact on a bilateral treaty concluded between two sovereign States. 

Hence our petition to the International Tribunal of the Law of the Sea is mailed today as last resort. Since all avenues to settle the maritime boundary and fishing rights of Indian Tamil fishermen are exhausted bilaterally and through legal framework of India, we are seeking justice from International Tribunal of the Law of Seas.

Indian fishermen are getting killed by Srilankan navy over years without any provocation just because of their ethnicity. These Indian citizens are neither terrorists nor freedom fighters seeking a homeland for Tamils. For thousands of years they have been fishing in the Bay of Bengal and Indian ocean, and not even colonial powers venture to kill them. Srilanka which tries to escape its Tamil genocide hiding behind India, can neither justify its killings of Indian Tamils nor India can too long hide the skeletons it its cupboards. The time for humanity to ask India, why you tolerated the killings of your own citizens for decades had come. If stray violence erupts in Australia Indian Prime Minister acts fast. If it is Mumbai blasts his government gathers momentum, but when it comes to periodical killings of Indian citizens by Srilanka, India freezes into slumber, and this prejudice against Tamils should change, civilized democracies in UN must advice India. Having waited for India to protect the interests of Indian Tamil fishermen’s fishing rights, we had to knock global institutions to secure justice and compensation for Indian citizens from the trigger happy Srilankan Government.

The global efforts led to the Convention of the Law of the Sea which had been signed and ratified by India on 29^th June 1995 and by Srilanka on 19^th July 1994. After this milestone in international law, there arose a necessity to re-demarcate Indian territorial waters. Dravida Peravai, an Indian political party launched a campaign among the Members of Indian Parliament on the necessity to redraw the maritime belt and to retrieve Katcha Theevu bartered to Srilanka in 1974.

Srilanka had been killing Indian Tamil fishermen for decades in the Palk Straits. It cannot claim right over Indian Territorial waters, or in international waters of Palk Straits in Bay of Bengal. As per International Court of Justice Rep 1951 page 116: “The Anglo-Norwegian Fisheries case, Court observed that the states are not completely free in respect of delimitation of territorial waters with regards to other states .The delimitation of Sea areas has always been an international aspect, it cannot merely be dependent on the will of the coastal state as expected in its municipal laws. Although it is true that the act of delimitation is necessarily a unilateral act because only the coastal state is competent to undertake it, the validity of the delimitation with regards to other states depends upon international law.

The Palk Strait is a strait that lies between the Tamil Nadu state of India and the island nation of Sri Lanka. It connects the Bay of Bengal to the northeast with the Gulf of Mannar to the south. The strait is 40 to 85 miles (64-137 km) wide. The strait is named after Robert Palk, who was a Governor of Madras Presidency (1755-1763) during the British Raj period. Srilanka is not free to delimit its territorial waters and it is bound by international law, as per the judgment in The Anglo Norwegian case in the International Court of Justice.

The question of delimitation of Sea between states with opposite or adjacent states as prescribed in Article 15 of the Convention on the Law of Sea states: “where the coasts of two states are opposite or adjacent to each other, neither of the two states is entitled failing agreement between them to contrary, to extend its territorial sea beyond the meridian line every point of which is equidistant from the nearest point of the baselines from which the breadth of the territorial seas of each of the two states is to be measured. The above position does not apply, however, where it is necessary by reason or historic title or other special circumstances to delimit the territorial seas of the two states in a way which is at variance therewith.’

A] Srilanka had been unilaterally delimiting its territorial waters. The faux pas committed by India in handing over Indian island of Katcha Theevu had created more confusion. Further India has many islands belonging to its territory in the Gulf of Mannar. The Gulf of Mannar has a chain of 20 islands located between 8 º 48' N, 78 º 9' E and 9 º 14' N, 79 º 14' E on the southwest coast of India. All islands in the Gulf of Mannar have fringing reefs. In addition, there is a 8 km long reef in the Palk Bay adjacent to the Gulf of Mannar, as well as patching coral formation in the passage (Adam's Bridge) between India and Sri Lanka.The Gulf of Mannar is particularly important for Green turtle and sea cow population, both of which depend on the large sea grass beds particularly around Musal, Appa and Balayamunai islands. Olive Ridley turtle is also occasionally found in this area. The pro-chordate Balanoglossus is found in the northern reefs. Mangroves are found on all islands and are particularly extensive in the Mandapam group. Most of the islands have no freshwater and are therefore uninhabited. The most productive chank and pearl oyster beds in India are found near Tuticorin and Kilakarai. The Windowpane oyster Placuna placenta is also found in the same area. Large quantities of molluscan shells for the ornamental trade are collected in this area. Recently, native people of this area have begun developing tourism also.

The delimitation of Indian territorial waters or Srilankan territorial waters had not taken into account these islands that belong to India. Hence we urge the International Tribunal on Law of the Sea to go for rational delimitation of the territorial waters of both countries. In case Srilankan state refuses to abide by such delimitation, we urge India to take the issue before International Court of Justice. The International Court of Justice on 15^th March 2001 in the Case Concerning Maritime Delimitation and Territorial questions Quatar and Bahrain had cited Article 15 and also pointed out that it is virtually identical to Article 12 paragraph 1 of the 1958 Convention of the Territorial Sea. The Court said that the contiguous zone is to be regarded as having customary character. It often referred to the equal-distance/ special circumstances rule. India had forgotten to restrain Srilanka from its unprovoked killing of hundreds of Indian Tamil fishermen, in view of the ambiguity over territorial waters.

Katcha Theevu is 17 kilometers from Indian town of Rameswaram. It comes under the contiguous zone even if 12 nautical miles is accepted as territorial waters from the coast. But Katcha Theevu had been an Indian Territory for centuries. It was one among the 8 islands belonging to the Tamil Kingdom of Ramnad. As per the copper plate inscriptions unearthed as archaeological findings of 1531 it was in the possession of Sethupathy Kings who ruled Indian state of Ramnad. The Sea between India and Srilanka is even today known as Sethu Samudram, which means the Seas of Sethupathy kings. This toponomical evidence also proves it to be Indian Territory. The East India Company of the Britain had obtained this Katcha Theevu Island on lease in 1822 from the Sethupathy King. In 1880 one Abdul Kader of Kilakkarai, a village in Tamilnadu state of India had obtained on lease Katcha Theevu, Kuthukaal Tivu, and Mannali tivu from the District Collector of Ramnad, under Madras Presidency of India. In 1913 The Government of Madras Presidency had obtained lease of Katcha Theevu from the King Sethupathy of the Princely State of Ramnad, and had given fishing rights to fishermen of Madras Presidency.

In 1947 one Mr.Mohammed had taken lease of the island of Katcha Theevu which was registered in the Sub-Registrar’s office of Indian town of Rameswaram [Ref: Reg.No. 278/1948. After India attained independence the Indian State of Madras by way of Government Order No: 2093 dated 11.8.1949 declared that Katcha Theevu as barren land under Rameswaram revenue village Survey Number: 1250 in an area of 285 acres and 20 cents. Thus for centuries   Katcha Theevu was under the Princely state of Ramnad in British India, and under Government of Madras in Independent India.

Srilanka clandestinely sent it troops to that uninhabited island in 1955, for training their naval personnel. There was uproar in Indian Parliament. But Srilanka went on claiming rights over that Indian Territory. In 1974 India conceded that territory to Srilanka through an agreement which India claimed will protect the fishing rights of Indian Tamil fishermen and the right to worship the lone church that was built in 1939. Srilanka misinterpreted the agreement by saying the Indian Tamil fishermen have rights only to dry their nets in the island and Indian Tamil citizens have no right to fishing. Using this misinterpretation, Srilanka till date goes on killing spree of Indian Tamil fishermen.

 Hence we Indian Tamils are urging our Government and the International Tribunal on the Law of the Sea to redefine our territorial waters to protect the lives of Indian Tamil citizens of India. Srilanka in its madness to ethnic cleanse Tamils of its soil indulges in cross border terrorism to annihilate Indian Tamil fishermen.

We urge the International Tribunal on the Law of Seas to order for:

A] scrapping the Indo—Srilankan agreement on Katcha Theevu signed in 1974.

B] re-demarcating the territorial waters of India, not only taking into account the landmass of the Southern mainland of India  facing Bay of Bengal but also the baselines of the 20 islands of India in the Palk Strait, more particularly in the Gulf of Mannar.

C] defining the equal-distance not from mainland but various points from these 20 islands.

D] ensuring the traditional and historical fishing rights of Indian Tamil fishermen in India’s territorial waters, contiguous areas, and right to enjoy the freedom of seas in international waters.

E] directing the International Criminal Court of Justice to probe the thousand killings of Indian fisherman by Srilankan navy, and to punish the naval authorities and the Srilankan President Mahinda Rajapakshe for the genocide of Indians who were not demanding independent nation, but were in India for centuries enjoying the freedom of seas and pursuing fishing profession in peace.

F] directing the Srilankan Government to pay damages and compensation to all lives killed by Srilankan navy since 1974 to 2009.

Geographic Location of Tamil Nadu:

          Tamil Nadu the Southern most state in India has a geographical extent of 1, 30,058km². It is flanked by Andhra Pradesh and Karnataka in the north and North West, the Indian Ocean in the south, Kerala in the west and Bay of Bengal in the east. It is located between 8° 00'-13° 30'N latitude and 76° 15'-80° 18'E Longitudes. Physiographic ally the state can be divided into two broad divisions as the eastern coastal plains and the hills of north and east, which is endowed with a varied coastal habitats like mangroves, corals, seaweeds, sea grass beds, salt marshes, mudflats, sand dunes etc. Tamil Nadu coast is the longest coastline (1076km) in the East Coast of India. Ports, fishing harbors and a variety of coastal industries like nuclear and thermal power plants, refineries, fertilizers and marine chemicals are situated on the coast of Tamil Nadu. Chennai, the capital of Tamil Nadu, is an important coastal city of India having major ports and many industries.

          The state has a number of rivers, estuaries and lagoons. The rivers flow west to east towards the Bay of Bengal. Some of the important rivers are Kaveri, Vaigai, Tampraparni, Periyar, and Pennar. The River Kaveri is the major estuary in Tamil Nadu and the minor estuaries include Vellar, Pazhayar, and Adyar etc. The lagoons are Pulicat Lake (South) and Muthupettai. The state has a maximum temperature of 43° C and a minimum temperature of 18° C. The monsoon season is usually during October to December. Tamil Nadu is well developed in communications, a wide network of national and state highways as well as railway lines serve the state.

                                                                                        

The area of 560 sq.km encompassing 21 uninhabited islands, surrounding coral reef areas and shallow water habitat is found to be the nursery ground for many of the organisms living in Gulf of Mannar and hence declared as Marine National Park in 1986. The 21 islands along the coast between Rameshwaram and Tuticorin as four groups:

1 .Mandapam Group (7 islands): Musal, Manoli, Manoliputti, Poomarichan, Pullivasal, Krusadai and Shingle.

2. Keezhakkarai Group (7 islands): Yaanaipar, Vallimunai, Poovarasanputti, Appa,Thalaiyari, Vaalai and Mulli.

3. Vembar Group (3 islands): Upputhanni, Pulivinichalli and Nallathanni.

4. Thoothukudi Group (4 islands): Vaan, Koswari, Kariyachalli and Velanguchalli.