Exercising sovereign rights of a coastal state

By Neville Ladduwahetty

Coastal states, such as Sri Lanka, could claim up to 200 nm as its Exclusive Economic Zone, according to the General Principles of the Law of the Sea.    Consequently, Sri Lanka’s Exclusive Economic Zone (EEZ) is nearly eight times its land area. According to Article 56 (1) of the United Nation Convention on the Law of the Seas (UNCLOS):

“1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting conserving and managing the natural resources» whether living or non-living» of the waters superjacent to the sea-bed and of the sea-bed and its subsoil» and with regard to other activities for the economic exploitation and exploration of the zone such as the production of energy from the water currents and winds”.

In fact, recognition given to the provisions of the United Nations Convention on the Law of the Seas (UNCLOS) was underscored by India’s External Affairs Minister Dr. S. Jaishankar when, he, as the Vice Chair of the Indian Ocean Rim Association (IORA), at its 23rd Secession of the Council of Ministers, stated: “India’s priorities are clear.

It is our effort to develop an Indian Ocean community that is stable and prosperous, strong and resilient and which is able to cooperate within and to respond to happenings beyond the ocean.    It is thus important to maintain the Indian Ocean as a free, open and inclusive space based on the UN Convention on the Law of the Seas (UNCLOS) as the Constitution of Seas.

 “India’s commitment to the well-being and progress of nations of the Indian Ocean is based on our Neighbourhood First policy, the SAGAR outlook, our approach to the extended neighbourhood … A multilateral rules-based international order along with SINCERE RESPECT for SOVEREIGNTY and TERRITORIAL INTEGRITY (emphasis added) remains the Foundation for reviving the Indian Ocean as a strong community”.

MARINE SCIENTIFIC RESEARCH

Although UNCLOS recognises Sri Lanka as a “Coastal State” enjoying sovereign rights for the purpose of exploring, exploitation, conserving and managing the living and non-living natural resources, as well as jurisdiction over resource-related off-shore installations and structures, MARINE SCIENTIFIC RESEARCH (MSR) (emphasis added) and the protection and preservation of the marine environment”, the National Aquatic Resources Research and Development Agency (NARA) of Sri Lanka is not equipped to carry out marine scientific research in such a way as to make a meaningful contribution to Sri Lanka’s national interests.

For instance, NARA has the capability to stay only five days out at sea, whereas Shi Yan 6 has the capability to operate 80 days out at sea. Therefore, by necessity, NARA is compelled to collaborate with another country that is suitably equipped if the quality of its research is such that it furthers Sri Lanka’s interests; a policy it is reported to have resorted to in the past when Sri Lanka collaborated with countries such as the US and Norway.

Not to exercise the sovereign right to engage in “maritime scientific research” as per Article 56 (1) (ii) of UNCLOS because of spurious “concerns” of India and the US sets a precedent to deny other rights.     Furthermore, by limiting the research only to two days as reported, Sri Lanka has been denied the opportunity to gather information that could serve its national interests. This denial is a violation of a sovereign right of a sovereign State.

EXPLOITATION of RESOURCES in SRI LANKA’S EEC

The exploring, exploiting, conserving and managing living and non-living natural resources of a coastal state within its EEC is a sovereign right. Despite this, it is a well recorded and reported fact that thousands of trawlers from India enter Sri Lanka’s EEC and not only exploit its resources but also destroy marine resources by resorting to bottom trawling.

In a United Nations-Nippon Foundation of Japan Fellowship Programme of 2016, Aruna Maheepala claims: “There are over 5,000 mechanised trawlers in Tamil Nadu and nearly 2,500 of them enter Sri Lankan waters on Mondays, Wednesdays and Saturdays and often coming at 500 m of the shoreline (emphasis added) …. More than 50,000 marine fishers live in the northern fisheries districts (Jaffna, Kilinochchi, Mannar, Mulative), and they account for about one-fourth of the marine fishers of the country.

Before the commencement of the war (1982) around 40% of the fish production of the country came from Northern fishery districts (except Kilinochchi).  However, contribution of the fish production in the northern fishery district drastically dropped to 5% in the peak period of the war (2008) and gradually increased after 2009. Livelihoods of Sri Lankan fishers’ have been drastically affected as a result of the Indian poaching”.

Judging from the map of Sri Lanka’s EEC and its proximity to India’s coastline, to claim that Indian trawlers “drift” into Sri Lankan waters is unacceptable. On the contrary, the India trawlers “drift” into Sri Lankan waters because they have exhausted the resources within India’s EEC.

In the context of the ground situation cited above, for Dr. Jaishankar’s claim that ‘India is committed to the well being and progress of nations of the Indian Ocean is based on our Neighbourhood First’ is far from the truth. Instead, it sounds more like India First in the neighbourhood.  To expect India to address this issue despite Dr. Jaishankar’s commitment to “a multilateral rules-based international order along with sincere respect for sovereignty and territorial integrity” is only a pipe dream because it is alleged that the majority of Indian fishing boats entering Sri Lanka waters are connected to Indian politicians who are Members of the Legislative Assembly of Tamil Nadu.

Furthermore, since Sri Lanka’s legal provisions are limited only to violations relating to the illegal plunder of its resources by individuals and their fishing crafts, no action can be taken against those who sponsor and finance such acts. Therefore, there is an urgent need to review existing legal provisions and revise and update them in order to meet current challenges.

PRROPOSAL to SET UP an ANTI-NARCOTIC COMMAND

The need to establish an Anti-Narcotic Command was reportedly realised after detecting the 200 kg of heroin valued at Rs. 4.5 billion, which was intercepted in the high seas. While this is a long overdue measure, it must be accepted that this “interception” is one of many that went undetected; this is inevitable when about 2500 mechanised trawlers brazenly enter Sri Lankan waters three times a week with absolutely no regard to Sri Lanka’s sovereign rights.

In such a context, Dr. Jaishankar’s sincerity and respect for Sri Lanka’s sovereignty will have no significance unless and until India is held accountable for deliberately overlooking the vandalism caused not only to Sri Lanka’s marine resources but also to security related issues such as crimes relating to drugs, human trafficking, arms smuggling and money laundering.

Even if India and Sri Lanka work out an arrangement to compensate Sri Lanka materially for the lost revenue to the Sri Lankan fishing community and for the damage done to its marine resources, the very fact that Indian fishing craft continue to enter Sri Lanka’s EEC means that the threats to security from drugs and other crimes would continue unabated despite the establishment of an Anti-Narcotic Command because no Command, however effective, would be able to identify which of the 2,500 Indian trawlers that come three times a week become the means by which to support other crimes that are a threat to Sri Lanka’s security. The collective cost to the Sri Lankan State and its citizens pales in significance compared to the loans and lines of credit given by India.

The irony is that Sri Lanka is prepared to address security concerns of India but India is totally impervious to those of Sri Lanka, not to mention the loss of livelihood to its citizens and to deny their opportunity to develop its fishing sector.

DRAFT OF FISHERIES AND ACQUATIC ACT

A draft of an Act to repeal and replace the existing Act of 1996 is presented below:

“AN ACT TO REPEAL AND REPLACE THE FISHERIES AND AQUATIC RESOURCES ACT No. 2 of 1996. AN ACT TO PROVIDE FOR THE REGULATION, LONG TERM CONSERVATION AND SUSTAINABLE USE OF MARINE FISHERIES AND AQUATIC RESOURCES, AND MARINE ECOSYSTEMS FOR THE BENEFIT OF THE PEOPLE OF SRI LANKA; TO GIVE EFFECT TO SRI LANKAS’ OBLIGATIONS UNDER REGIONAL AND INTERNATIONAL AGREEMENTS; AND TO REPEAL AND REPLACE THE FISHERIES AND AQUATIC RESOURCES ACT, No. 2 of 1996 AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH WITH OR INCIDENTAL THERETO”.

“PART VII – SCIENTIFIC RESEARCH AND DATA COLLECTION”

“Section 92 – Scientific research by fishing vessels Section 93 – Scientific research by a foreign research organization or another State Section 94 – Fisheries Data Collection Programs Section 95 – Collection, transmission and validation of data”.

“PART XI – MEDIATION, ADMINISTRATIVE AND JUDICIAL PROCEEDINGS”

“Section 147; Cost Incurred by the State

The owner or charterer of a foreign fishing vessel, upon conviction, shall bear any cost or expenditure incurred by the State, as determined by Court where an application is made on that behalf by the State in all or any of the following instances: a) the seizure of the foreign vessel for an offence under this Act, including any relevant costs of pursuit of a vessel; b) the prosecution for an offence in accordance with this Act; and c) the repatriation of the master or crew of any vessel seized under this Act. 2. The amount of any cost and/or expenditure awarded by Court under subsection (1) may be recovered as a fine and shall be imposed in addition to any other fine or penalty that has already been determined by Court. 3. Nothing in subsection (1) shall be deemed to permit the recovery of any cost and/or expenditure that has already been recovered pursuant to any other Order made under this Act. 4. If it intends to apply for pursuit costs in accordance with subsection (1) (a), the State shall, fourteen (14) days prior to a trial of the offence, serve the accused with written details of such costs”.

While Part VII addresses issues relating to scientific research and data collection by foreign organization or a State, Part XI that deals with costs incurred by Sri Lanka is totally inadequate because it is based on individual penal responsibility of violators, when the violations to Sri Lanka’s sovereignty and resources are committed collectively by 2500 plus trawlers that invade Sri Lanka’s EEC.    Therefore, this aspect requires serious revisions to the Draft Act.    Another serious omission in the draft is the non-inclusion of any relevant provisions of UNCLOS and the need to specifically refer to UNCLOS in the preamble to the draft Act instead of the vague reference to “OBLIGATIONS UNDER REGIONAL AND INTERNATIONAL AGREEMENTS”.

HARD REALITIES   

Prior to exploring strategies to deal with the challenges cited above, Sri Lanka has to recognise certain hard and irrefutable realities.

The first hard reality is that threats to Sri Lanka’s security, the economic wellbeing of its citizens, in particular those in the North and East of Sri Lanka and the plunder and damage of its natural resources are committed by Indian citizens against the interests of Sri Lanka and its citizens. Therefore, all issues relating to the illegal entry of fishing trawlers from the territory of India should be addressed at the bilateral level, between the governments of India and Sri Lanka and not with the state of Tamil Nadu; a serious mistake that has failed Sri Lanka for decades.

The second hard reality is that threats in whatever form come from the unlawful encroachment of thousands of fishing trawlers into Sri Lanka’s EEC in total violation of its sovereignty; a fact recognized as a right by all Coastal States.

The third hard reality is that no Acts of Parliament or security related arrangements such as Anti-Narcotic Commands, however effective, would be able to make a dent in the aggression because of the scale of the ongoing operations; a fact evident from the report that Sri Lanka’s Navy has arrested nearly 180 fishers and taken 27 trawlers into the custody this year. (The island, October 30, 2023).

The fourth hard reality is that if the livelihoods of those in the North and East of Sri Lanka associated with the fishing sector are to be restored and Sri Lanka wishes to develop its fishing sector as part of its economic development, the illegal entry of thousands of mechanised trawlers from India has to stop. If nothing is done it amounts to an international crime of annexing part of Sri Lanka’s EEC by India.

CONCLUSION

The facts presented above show the gross violations committed by the Indian state of Tamil Nadu. The Central Government of India is fully aware of these violations but does nothing for reasons of internal political compulsions, although this kind of aggression amounts to a complete disregard of the sovereign rights of a Coastal State embodied in the provisions of the UN Convention on the Law of the Seas. India has made a mockery of the much-touted policy of Neighbourhood First.

Therefore, if India is not to lose its credibility and make disingenuous statements about its “sincere respect for sovereignty and its commitment to the well-being and progress of nations”, it should finance the development of the fishing sector of Tamil Nadu to engage in deep sea fishing as an alternative to violating the sovereign rights of its neighbour’s EEC.

In the meantime, Sri Lanka should call for Expressions of Interest to invest in a Joint Venture in order to develop its fishing sector in the North and East of Sri Lanka which was 40% of the total production (Maheepala cited above) as a significant component towards Sri Lanka’s food security.  Until then, the potential loss in revenue incurred by Sri Lanka due to the violations committed by a state of India should be factored in the settlement of financial commitments to India.