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 17th 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 23rd 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 29th June 1995
and by Srilanka on 19th 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 15th 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.
