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Challenges to Pohottuwa in Geneva – I

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By Austin Fernando

Due to pressure from the European Union, which has, in keeping with UNHRC resolution, in March 2021, decided to consider, the withdrawal of GSP+, action is pursued back home to adopt countermeasures. Justice Minister Ali Sabry has launched a website of the Office of National Unity and Reconciliation, and the Cabinet has approved policies and guidelines for the Office for Reparation, and the government opened an Office of Missing Persons (OMP) in Kilinochchi. Too little, too late!

However, the appointment of an Advisory Board, by President Gotabaya Rajapaksa to recommend and advise as regards what action should be taken in respect of the persons imprisoned or detained over terrorist activities, should be appreciated. Speculation is that some of the detainees may be released soon, as an initial response. The government seems to be softening its stand following the US Ambassador’s lunch with Minister Professor GL Peiris (PGLP) and MP MA Sumanthiran, which has loaded energy to sprint. MP Sumanthiran’s interest for the US to intervene, become the “third faction” (Daily News-.31-8-2021) also shows sprinting from the other end

Complaints that the government is using the Prevention of Terrorism Act to suppress people’s rights, and its alleged interference in judicial decisions will aggravate Sri Lanka’s problems in Geneva.

 

Commitments to UNHRC

The Government of Sri Lanka (GoSL) committed to Transitional Justice (TJ) by unilaterally placing UNHRC Resolution 11/1 and co-sponsoring Resolution 30/1. These commitments matched the ‘Four Pillars of TJ/ Reconciliation’ – seeking truth, justice, reparation, non-recurrence. Its implementation was:

Establishing the OMP, and the attempt to establish a Truth and Reconciliation Commission (TRC) through Cabinet Memorandum by PM Ranil Wickremesinghe (October 18, 2018), which failed with the ‘Constitutional Coup’ of October 26, 2018.

Study of Accountability Mechanism (AM) by a Working Group during the Yahapalana regime; no legislation was undertaken.

Yahapalana government establishing the Office for Reparation.

The expectation of non-recurrence through Constitution-making failed during the Yahapalanaya, and Pohottuwa looking forward to Romesh de Silva Committee.

The AM seems ‘dead’, though it is the most sought for, and alive among victims, their spokespersons, and internationals. Hence, AM will be addressed to understand its implications.

Accountability Mechanism

In terms of UNHRC Resolution 30/1, GOSL has acknowledged that accountability is essential to uphold the rule of law and build community confidence in the justice system. The GOSL proposed (30/1) to establish a judicial mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law. The credible judicial process included independent judicial and prosecutorial institutions and affirmed the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defense lawyers, authorised prosecutors, and investigators.

Yet, the AM has not been put in place by the nationalist Pohottuwa, and the undecided Yahapalanaya governments for political reasons. The victims, politicians, and the Diaspora demanded the AM on humanitarian and political grounds.

The unacceptability of the AM is based on several concerns:

(i) After the war victory, the soldiers deservedly became ‘war heroes. The terrorists who egregiously violated human rights and humanitarian laws were not affected by TJ, due to death, migration, etc. Therefore, a justifiable argument was put forth against prosecuting only military officers. The UNHRC wanted action against every violator.

(ii) Many are those who claim that the AM proposal is an attempt by the Diaspora and LTTE supporters to launch a witch-hunt against the military. We overlooked that our international friends also support accountability, as recently expressed by Lanka-friendly Lord Naseby when inquired (Pathfinder Foundation Zoom Meeting) whether he precluded ‘war crimes investigations’ having quoted the White Flag incident.

(iii) Even a deadlock could happen if the soldiers do not respond to AM summons. Such a situation could bring the military and the judiciary on a collision course. An AM, that is put in place with the ground reality being factored in, will fail.

(iv) There are two schools of thought as regards TJ: the ‘legalists’ and ‘realists.’ The ‘legalists’ argue prioritising judicial accountability to promote sustainable peace. In contrast, ‘realists’ argue for the prioritisation of restorative justice, for example, TRCs or Reparation Offices. Some question the UNHRC’s preoccupation with the ‘legalist’s viewpoint’.

(v) Existing domestic legal provisions conflict with AM implementation.

(vi) Overall, it was politically unsound.

 

Validation of AMs

Public validation of AM was orchestrated by Prince Zaid Al Hussein, the former UNHRC’s High Commissioner at a press briefing in Colombo. He declared: “Virtually every week provides a new story of a failed investigation, a mob storming a courtroom or another example of a crime going unpunished. Sexual violence and harassment against women and girls are particularly poorly handled by the relevant State institutions — especially when the alleged perpetrators are members of the military or security services — and, as a result, it remains all too widespread.” This had made the UNHRC suggest international participation in AM, he said. The Tamil Diaspora’s and victims’/ spokespersons’ mindsets remain unchanged even today.

Another view was that alleged violators would be hauled before the International Criminal Court. At the briefing, Prince Hussein declared that it was not expected, and difficult, probably knowing our ability to muster a veto at the UN Security Council.

Answering a journalist, Prince Hussein affirmed that the UNHRC wished that any decision-making was the sovereign right of Sri Lankans. He cautioned that whatever the recommendations, we must finally make victims feel that justice had been delivered to them. This balancing act is one of the challenges before PGLP.

As for TJ, no order was given for establishing any institutions. Hence, first establishing the less controversial TRC, OMP, and Reparation Mechanism, allowing the public to understand the non-destructive nature of TJ was preferred. But, for political popularity, the victims’ spokespersons thought differently and demanded AM.

Prince Hussein wished the AM was established according to Sri Lankan laws. Most of the majority community members detested the establishment of AM. The victims called for an AM to severely punish the military personnel, and they ignored the LTTE’s crimes. Some legalists spoke of the potentiality of worst consequences such as universal jurisdiction if TJ is disrespected.

I quote an Attorney justifying an accountability process, as anticipated by the UNHRC. She argued:

(i) A credible accountability process against those most responsible for violations and abuses of human rights and humanitarian laws will safeguard the reputation of those, including within the military, who conducted lawfully.

(ii) An accountability process is essential for non-recurrence, as unredeemed violence is one of the greatest contributory factors for recurrence.

(iii) The only way to prevent recurrence is by combating the causes of conflict, which can be done only through a process that properly addresses past violations.

(iv) The GOSL needs to fulfill its constitutional obligation to investigate and prosecute past crimes. To renege on that will not only taint the credibility of the GOSL in the eyes of the international community, but it will also erode public confidence instilled in the government concerning its commitment to uphold human rights, including combating impunity.” (Sri Lanka’s Time to Try: Editors – Dr. Isabelle Lassee/ Zahabiya Husain [SLTT] Page 135: ‘Dealing with the past’: Prashanthi Mahindaratna)

Her arguments are difficult to counter and were repeated. I quote Attorney Achala Seneviratne: “By punishing real criminals we create an opportunity to prove that we do not favor criminals because they are war heroes. Hiding criminals make the whole military criminals.”

Additionally, Mahindaratna stated the existing legal means. Quote:

“In fact, in terms of the Commissions of Inquiry Act, the Attorney-General is permitted to institute criminal proceedings solely based on the findings of a commission of inquiry appointed under the said Act, and in terms of the Code of Criminal Procedure (CCP), a police officer is required to ‘forthwith’ communicate to the magistrate having jurisdiction, or to his superior, ‘any information which he may have or obtain respecting’ (a) the commission of or attempt to commit any offense; (b) a sudden or unnatural death or death by violence; and (c) recovery of a dead body where the cause of death is unknown. Thus, by law, the police are required to initiate an investigation into an alleged crime upon learning of its commission by whatever means. As such, the oft-repeated justification for inaction that a criminal investigation could be initiated only where there is a formal complaint filed by a complainant is without merit.” (Ibid: Page 122).

Though this validation is acceptable, literature speaks negatively about its operability. Quote:

“While some international observers believe the new government (2015) should be generously afforded the time and space to develop its own mechanisms, the reality is that Sri Lanka’s record of domestic accountability throughout its post-independence history has been characterized by a lack of political will, lack of capacity, political interference, and chronic failure. To expect victims to put their trust in familiar domestic mechanisms that have failed time and again is unfair and unwise.” (SLTT- Page 139: ‘A hybrid court: Ideas for Sri Lanka – Rhadeena de Alwis and Niran Anketell).

The Special Rapporteur on the Independence of Judges and Lawyers (June 2017) also noted serious drawbacks in our judicial mechanism. It highlighted: “… the inadequacy of the constitutional jurisdiction of the Supreme Court; lack of independence of the judiciary; lack of clear and transparent process for the appointment of judges, AG, and State Counsels; and the language barrier in making justice accessible to the Tamil community.” (SLTT – page 108: ‘Extraterritorial Prosecutions and Transitional Justice: Seeking Criminal Justice in and outside Sri Lanka’- Kalika Metha, Raquel Saavedra, Andreas Schuller)

Mahindaratna also quoted previous instances where justice had not been served, for example, Black July, JVP insurgency, the killing of journalists like Richard Zoysa, Lasantha Wickramatunga, lethargy on bringing to book Bond Scam perpetrators, the ethnic cleansing of the Muslims, no-action against Kumaran Pathmanathan, Kattankudy mosque attack and killing of 600 policemen in Kalmunai. (SLTT: Pages 123-125t). The foregoing proves that legalists are not partisan to any political or ethnic, or religious group when discussing accountability. As such, any government that does not accept the legalists’ standpoint is likely to play into the hands of the UNHRC.

Recent events

It appeared that de Alwis and Anketell agree with Mahindaratna’s thinking. The issue is that with such legal provisions being in place because investigations, prosecutions, and punishments do not follow. Instead, some recent events exhibited legal laxity.

The pre-Geneva pressure is still on from those such as the parents of the eleven youth, allegedly abducted and made to disappear allegedly by the Navy Intelligence. The parents have filed a complaint against the Attorney General (AG) for action taken to temporarily not proceed with the case against a former Navy Commander. (Morning Leader – August 13, 2021). However, the latter has reportedly obtained an interim order. This is the parents’ initial step, certainly not expecting success.

The second step was taken concurrently, seen from the statement of the Regional Director of Amnesty International, Yamini Mishra (ibid.). The issue has left our shores, on way to Geneva! Mishra claimed: “Since Sri Lanka has the world’s second-highest number of enforced disappearances this case was an opportunity for the Sri Lankan authorities to deliver justice for crimes under international law, by ensuring that those reasonably suspected of criminal responsibility, including those implicated for aiding and abetting and acting under the principle of command responsibility, are brought to trial.” Mishra endorses Attorneys Mahindaratna and Seneviratne.

Without a trial, Amnesty has prejudged ‘reasonable suspicion on the crimes’ ‘aiding and abetting’ and ‘command responsibility.’ Not being a lawyer, I refrain from commenting on factual legal nuances but agree with Amnesty’s principle that Sri Lanka’s commitment to ‘deliver justice’ could be established by court inquiry. It will show judicial integrity and genuineness.

Incidentally, Resolution 46/1 of March 23, 2021, under item 6 stated: “accountability for crimes and human rights violations in ‘emblematic cases. This is an ‘emblematic’ case, like Trinco Five and ACF Killings. Certainly, Amnesty International is helping the UNHRC Geneva to argue that total immunity is granted by quoted action, and, therefore, the onus is on the UNHRC to rachet up the pressure. Over to PGLP!

Foreign judges, special prosecutors

The most sensitive issue is adjudication by non-citizens. Some have interpreted Resolution 30/1 wording, arguing that foreign judges don’t need to mandatorily adjudicate; others fear compulsory adjudication. Some have contended that there are no legal constraints for it. They are of the view that no reference is made to citizenship under the Constitution – Article 107 in the appointment of the Supreme or Appeal Court Judges. However, Constitution – Article 107(4) and Judicature Act – Section 6(2) require Supreme Court or Appeal Court judges and Primary Court judges respectively to take and subscribe to the prescribed oath or affirmation, at appointment. It is assumed foreigners would not do so.

Jurisprudential pronouncements of the Supreme Court infer that a ‘Sri Lankan judicial mechanism’ cannot be manned by a non-citizen. The quoted judgment is Edward Francis Silva vs. Shirani Bandaranayaka, where the Court remarked the appointment of a non-citizen judge lacks qualification.

Constitution – Articles 31 and 91 state that citizenship is required for the appointment of the Executive and Parliamentarians. Citizenship is not an issue for enjoying certain rights under Article 10, torture (Article 11), equality (Article 12), and freedom from arbitrary arrest or detention (Article 13). Freedom of speech, assembly, and association under Article 14 is guaranteed only to citizens. The Constitution stipulating citizenship for Executive and Legislature appointments, being silent on the judiciary, permits space to argue that foreigners could be appointed to the judiciary. Contrarily, one may argue if citizenship is a requirement for the Legislature, a judge adjudicating Legislature’s actions should be a citizen.

Article 151 (3) of the Draft Constitution – 2000 specifically stated that citizens and Attorneys at Law must be appointed to the Judiciary. However, the absence of this constraining qualification in the 1978 Constitution and twenty amendments thereto weakens the argument for disqualifying foreigner appointments to the judiciary.

The 20th Amendment empowers a Dual Citizen President with the power to appoint judges. A Dual Citizen can become a Premier or legislator. In that spirit, one could argue that Dual Citizens could be appointed as judges. Opening for PGLP.

De Alwis and Anketell have discussed international experiences in the appointment of judges in Special Courts. Certain foreign Special Courts have appointed a higher number of non-citizen judges (Sierra Leone, Lebanon) and some lesser number (Cambodia). It would have happened due to the non-availability of judges qualified in international law and practice, and the same argument is raised here too. Some disagree. In Bosnia and Herzegovina, the composition of judges was changed from original over time. At the commencement (2005), each panel comprised two international judges and one national judge and in 2008 it was reversed. This gives a lead if foreign judges are engaged. Since foreign experts have served in Udalagama and Paranagama Commissions, similar service to AMs is justifiable. (Part II of this article will appear tomorrow)



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Arms race accelerating to new heights in Asia

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The arms race is being accelerated to unprecedented heights in the Asian region through the introduction by some major powers of what is being described as the hypersonic missile. China was the latest nuclear-capable state to test fire this missile which could be equipped with nuclear warheads and is, therefore, invested with a mass destruction potential. However, India is making it clear that it would not be outdone by China in this competition for superior weapons technology by developing a hypersonic missile of its own.

A recent news report said, among other things, of the Chinese experiment that, “China recently tested a nuclear-capable hypersonic missile which circled the globe before missing its target, demonstrating an advanced space capability that caught US intelligence by surprise.” It is the missile’s advanced space capability that is among its most notable characteristics. In this respect it is a clear upgrade over the inter-continental ballistic missile that has a very much lower strike range.

As specialists have pointed out, the ICBM has a parabolic movement and hits its target at an ascertainable distance on the same geographical plane from the launch site but it does not possess the capability of travelling around the globe. The hypersonic missile, in contrast, has this globe-encircling capability and ought to be more worrying in respect of its destructive capability. However, it is the weapon that has come to be prized by the major powers. Besides the US, China and Russia, some other states that are said to be in the running for developing hypersonic weapons technology are; Australia, France, Germany and Japan, besides India. That is, almost the entirety of the world’s regions is caught up in the race for developing hypersonic missiles, with, of course, grave implications for the security of the human race.

Considering that China and India are in an unrelenting arms race and also taking cognizance of the possibility of other regional powers, such as Pakistan, not standing idly by as this competition continuously hots-up, it could be said that South Asia’s development prospects in particular stand the risk of being progressively blighted. Needless to say, South Asia’s poverty would be greatly aggravated when defense budgets of the region’s key states acquire greater precedence over their social welfare budgets. Besides, issues such as climate change would come to be overlooked by these states, resulting in the region’s development prospects being further undermined.

Ideally, SAARC needs to take a collective policy position over climate change issues that would be surfacing at the upcoming Climate Change Conference in Glasgow but with the region’s foremost powers hardly talking to each other and arms taking precedence over ‘Bread ‘, climate change questions are unlikely to acquire the importance due to them at Glasgow and other prime climate-linked international parleys. As a result, social welfare in South Asia would be steadily imperiled in the days ahead.

Focusing on the numerous dangers faced by the SAARC region as a result of climate change questions coming to be overlooked by the relevant governments, the ADB warned some time back: “…the collective economy of six countries – Bangladesh, Bhutan, India, the Maldives, Nepal and Sri Lanka – could shrink by up to 1.8 per cent every year by 2050 and 8.8 per cent by 2100, on average.”

However, it is not only the poor of South Asia who would be badly affected by the current global arms race. It would be correct to say that in degree to the proportion to which the arms race speeds-up worldwide, to the same extent would the poor everywhere be further impoverished and rendered vulnerable. This is on account of welfare budgets the world over suffering shrinkage in the wake of stepped-up arms spending. But the segment to suffer most acutely will be the poor of South Asia.

The continuing tensions between China and India on their disputed border areas would only aggravate the arms race between the Asian giants in the days to come. There are veritable eye-ball-to-eye-ball stand-offs between the armies of the two countries in the areas in contention. These tensions are currently focusing on the border India’s Arunachal Pradesh has with China. A few months back China-India tensions centred on the Ladakh region. Talks between the countries to sort out these disputes are ongoing but increasing insecurities would only stress the importance of armaments over development.

As this is being written, US President Joe Biden is heading for talks with the G20 grouping, which comprises the world’s most powerful countries. Biden would subsequently head for the climate change parley in Glasgow. Hopefully, the big powers would focus strongly on the current accelerating arms race and its consequences for the world. Put simply, they would need to discuss the ways and means of containing the arms race before it grows out of control. They would also need to understand, very crucially, that the major powers cannot credibly speak in terms of nuclear arms control and disarmament before they opt to systematically do away with the lethal, mass destruction arms which they already possess.

India and Pakistan possess a nuclear capability but they are not signatories to the Nuclear Non-Proliferation Treaty (NPT). From the viewpoint of these regional powers, this refusal to formally endorse the NPT is understandable because although some of the foremost powers of the Western hemisphere have signed the NPT, they are yet to say a clear “Yes” to nuclear disarmament. As long as the foremost global powers, such as the US, China and Russia, hold on to their nuclear weapons they cannot expect the prime powers of the South, such as India and Pakistan, to desist from developing a nuclear weapons capability.

Accordingly, the foremost powers could no longer gloss over arm control issues and pursue the relevant talks mechanically without connecting them to questions, such as, development, climate change and increasing worldwide insecurity. There is a logical link between insecurity, arms spending, underdevelopment and climate questions. The securing of sophisticated nuclear weapons is seen as a means to their security by powerful states, but they only create insecurities in their neighbours and the wider international community, who are in turn prompted to arm themselves with the same weapons. Thus is the arms race accelerated at the cost of human development and the environment. Slowing down the arms race is, therefore, imperative.

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Ending the Dispossession of Northern Fishers by Indian Trawlers

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Prof. Oscar Amarasinghe and Dr. Ahilan Kadirgamar

(Chancellor of the Ocean University and Senior Lecturer, Jaffna University, they are also, President and Executive Committee member respectively, of the Sri Lanka Forum for Small Scale Fisheries – SLFSSF)

From the beginning of the early 1980s, trawlers, from Tamil Nadu, have been crossing the International Maritime Boundary Line (IMBL) and illegally fishing in the Palk Bay waters of northern Sri Lanka, damaging the ecosystem by bottom trawling, smuggling fisheries resources, belonging to the northern Sri Lankan fishers, damaging their fishing equipment, and undermining their livelihoods. Diverse types of interventions, by the two governments, dialogues between the fishers of the two countries, involvement of civil society actors, and others, have done little to prevent human suffering, economic losses and the volatile political situation disturbing the relations between two friendly countries that have emerged from this 40-year long story of resource piracy. The northern Sri Lankan fishers, who suffered 30 years of civil war have had enough and there is an urgent need to end this crisis.

Extracting and devastating resources

Both Sri Lankan and Indian fishers used to share the Palk Bay waters (historic waters) in the past, which they did in harmony. However, post-war developments saw radical changes in the structure and organisation in fisheries, the expansion of the market and the establishment of borders separating the Palk Bay region, all of which had tremendous influence on fisheries, especially on the type of technology employed (craft-gear combinations), target species, fishing pressure and area of operation. In this process of change, a tremendous increase in Indian trawlers was observed, which finally resulted in a serious decline of fisheries resources on the Indian side of the Palk Bay and crossing of the IMBL by the Indian trawl fleet to fish in Sri Lankan waters.

In northern Sri Lanka, over 37,000 fishers operate more than 11,650 boats, the majority of which are 18 feet FRP boats propelled by outboard engines of 8 to 25hp. Including post-harvest sector employment and dependents, about 200,000 people in the Northern Province are dependent on the sector. They don’t stand a chance against the 2500 odd 30-60 feet trawlers from Tamil Nadu propelled by 70-190hp outboard engines. Indian trawl boats are crossing the International Maritime Boundary Line (which was established in 1974 and 1976) to fish on the Sri Lankan side of the Palk Bay. These boats are poaching in Sri Lankan waters in large numbers as well as extracting and devastating the resources belonging to Sri Lankan fishers. Although the process of poaching commenced in a situation where Sri Lankan fishers in the North had limited fishing opportunities due to the civil war. Today the issue has become one of the most important economic and political issues in the country, because with the end of the war in 2009, the Sri Lankan fishers in the North has commenced fishing.

The Palk Bay Pirates

Trawlers come at night, three days a week, smuggle colossal amounts of fisheries resources, and damage Sri Lankan fishers’ nets, causing enormous financial losses. To avoid the trawlers, Sri Lankan fishers often stay at home instead of going out to sea, thus loosing valuable fishing time. They are forced to adopt less-profitable, near shore operations and/or resort to destructive fishing practices (trawling, wing nets, purse seining, dynamiting, etc.). The social institutions of the fishing communities, particularly fisheries co-operatives present in every village, have been weakened due to the long decline of fishing incomes, where a fraction of such incomes are normally contributed to run the co-operatives. Thus, participatory management and coastal support for fishing communities have been undermined. The long disruption of fisheries after the war has made it difficult for fishing communities to plan for the next season, and many are slowly moving out of the fishing sector to other forms of day wage labour.

In the early years, arrests of Indian trawlers for poaching were made for security reasons, because the Sri Lanka Navy, which was fighting a war, was less interested in fisheries issues. But since the cessation of the war, the Navy arrested the intruders for illegal entry into Sri Lankan territory. The arrests were made under the Foreign Fishing Boat Regulations Act No. 59 of 1979, Immigration Act of Sri Lanka and the Prevention of Terrorism Act. The impact of the arrests in preventing Indian trawl intrusion was neutralised by the arrests of Sri Lankan multiday fishers for poaching in Indian Territory, and detained in Indian prisons. Often, through the intervention of the embassies of the two countries, the Indian trawler fishers arrested and detained in Sri Lankan prisons were released in exchange for Sri Lankan fishers detained in India.

Early Interventions

In trying to deal with this escalating crisis, the two governments drew up an MOU in 2005, which made provision for the establishment of a Joint Working Group (JWG), which among other things, would deal with issues of poaching and arrests. Although several rounds of discussions were held since 2008, no significant developments were reported, other than agreeing that fishers in both countries should be able to pursue fishing activity in a safe, secure and sustainable manner. However, some progress was achieved in the front of fisher-fisher dialogues. Several such dialogues have taken place in the past, initially organised by ARIF (Alliance for the Release of Innocent Fishermen) and later with the active involvement of the two governments. The most important of such dialogues took place in August 2010, where the Indians agreed to stop mechanised trawl fishing in Sri Lankan waters within a period of one year, during which time, only 70 days of trawling were to be allowed. Unfortunately, the governments failed to back up these decisions, and the promises were not kept. Further dialogues took place under state patronage in March 2011 and January 2014, which did not produce any fruitful results.

Post-2015 developments

In April 2015, President Maithripala Sirisena convened a meeting with the various arms of the state and the northern fisher leaders on the request of the Tamil National Alliance (TNA). This high level meeting and continued engagement gave the fisher folk the confidence that their plight was a matter of serious concern to the Government, and initiated bipartisan engagement on the issue, leading to significant progress. The Parliamentary debate in October 2015 on the ecological and socio-economic damage by Indian trawlers, growing awareness through media coverage and the greater involvement of actors in Colombo, raised the fisheries conflict to the level of a national issue, rather than a problem confined to the North. Fisher leaders also took their issue to court and actively sought legal recourse towards prolonged confiscation of trawlers, and a ban of trawling in Sri Lanka. An Amendment to the Fisheries and Aquatic Resources Act banning bottom trawling in Sri Lanka was passed by Parliament in July 2017.

On another front, the Indian Government, in 2015, made unambiguous statements that Tamil Nadu trawlers should stop cross-border fishing. Furthermore, the increased media attention on the devastation caused to Northern Fishers exposed Tamil Nadu’s hypocrisy. The Tamil Nadu Government called for INR 1,520 crore (USD 225 million) package to convert the trawler fleet to deep sea vessels under the ‘Blue Revolution Scheme’., of which INR 450 crore (USD 66 million) was approved by the Government in Delhi, and the rest was to come from bank loans. By September 2019, close to 590 trawlers have applied for this facility. Although concerns were raised about whether such a conversion to deep sea fishing and buy back is realistic and sustainable, the engagement from Tamil Nadu pointed to an acknowledgement of the unsustainability of trawling and poaching.

An important development was the setting up of a Joint Working Group in November 2016 during ministerial talks held between India and Sri Lanka (revitalising what was formed in 2005), which would meet every three months and a meeting between the Ministers for Fisheries every six months.

The Terms of Reference for the Joint Working Group (JWG) included: i. expediting the transition towards ending the practice of bottom trawling at the earliest, ii. working out the modalities for the Standard Operating Procedures (SOPs) for handing over of apprehended fishermen, and iii. ascertaining possibilities for cooperation on patrolling. Both Governments agreed on setting up a hotline between the two Coast Guards. Agreement was also reached on the request by the Fishermen Associations that there should be no violence and no loss of life in the handling of fishermen by the Navies and Coast Guards of the two countries. They agreed to encourage the Fishermen Associations of the two countries to meet every six months to take further their dialogue. Yet, many of the decisions taken at the bilateral Ministerial talks were not followed through towards a permanent solution.

As a result of campaigns of small scale fishers from the North, the work of researchers and activists and engagement with the governments of the two countries, and more importantly, the enforcement of the Foreign Fishing Boat Regulations (amendment) Act, a significant reduction in the incidence of Indian trawlers illegally fishing in Sri Lankan waters was noticed by 2018. Yet, the Northern fishers did not even have a breathing space for a new beginning, because the country was hit by the Covid Pandemic in early 2020. Very little action was paid against the poachers and there has been a resurgence of the incidence of Indian trawlers poaching in Sri Lankan waters, drastically affecting fishing livelihoods, which were already being threatened by the pandemic. The aggravated current situation, continues to dispossess the small scale fishers of the North; they were devastated by the war until 2009, crippled by the Indian trawlers in the decade after the war and impoverished by market disruptions with the Covid-19 pandemic since March 2020.

Moving forward

The decision to arrest and retain trawlers that are crossing over the International Maritime Boundary Line (IMBL) by the Sri Lanka Navy, particularly since 2013, places significant pressure on the Tamil Nadu establishment. Yet, the lower levels of arrests over the last two years (71 vessels were arrested in 2017 while only nine were arrested in 2020) is in part due to fears of the Covid-19 virus spreading through arrests. Evidently, expanding deterrence is of paramount importance in dealing with the present crises, which needs strict enforcement of the Foreign Fishing Boats Regulations (Amendment) Act, No. 01 of 2018 to arrest foreign vessels in Sri Lankan EEZ which has provisions for imposing heavy fines on trawl owners ranging from Rs. 4 – 15 million. The Trawl Ban Act. No. 11 of 2017 should also be implemented. Given that Indo-Sri Lankan relations are currently of great importance, where the priorities for both governments are in furthering trade, investment and defence ties between the two countries, deterrence is to be employed carefully. There is the need for a broader strategy that asserts pressure at different levels to ensure that Tamil Nadu addresses the issue of poaching by their trawlers; particularly given that fisheries is a devolved subject in India. Pushing for joint patrolling operations by the Indian and Sri Lankan Navy could be strategic. The Indian side needs to be convinced to install vessel monitoring devices on their trawlers to track their location. However, these efforts will prove futile unless the incidence of Sri Lankan multiday boats violating Indian maritime boundaries is brought under control.

Raising the issue both by the Sri Lankan Government towards the Indian Government and the TNA and Tamil political actors towards Tamil Nadu would be strategic, given the political realities. Strong emphasis should be made on the devastating impact of resource smuggling on the livelihoods of Northern fishing populations of Sri Lanka. Strategies to work with the newly elected Government in Tamil Nadu in relation to the fishing conflict will be necessary. Engagement by the Tamil fishing community and community leaders from the North will prove important for challenging a change of stance by Tamil Nadu Government and its leaders.

Thousands of nets worth millions of Rupees have been lost in the past decade, with no single fisherman ever being compensated and with no insurance being available. Fishers now deserve financial reparations for their lost assets and for lost fishing days. Financial reparations can also be asked from the Tamil Nadu fishers, the Tamil Nadu government or the Indian government. If such demands, however, are not met in the short term, the Sri Lankan government itself may need to find the required funds. A campaign for reparations for northern Sri Lankan fishers will help consolidate the demand for a permanent solution to the fishing conflict.

The larger aim of interventions in the Palk Bay should be to establish a sustainable, comprehensive, and socially just fisheries. Current data on the state of fish stocks in this region are highly deficient. Similarly, very little scientific knowledge on the damage caused to the environment by trawling is currently available. There is an urgent need for NARA to intensify research in the Palk Bay. This can provide the foundation for developing a rational and legitimate framework for fisheries governance. Such research will also continue to weigh on the need for a permanent solution that ends bottom trawling in the Palk Bay.

While the fisher-to-fisher negotiations conducted in Chennai in 2010 were initially widely acknowledged as promising, the follow-up was poor. Similarly, the Ministerial level talks in November 2016 were significant and even led to considerable changes, however, again follow up was poor. There is a need to build on the tremendous gains of those talks, regardless of the change of Government.

At the current moment there should be a clear plan recognising the realities in Sri Lanka and India, including the political changes in Tamil Nadu and the Covid-19 pandemic to work through a process of consensus building, but with firm resolve to end bottom trawling. There should be no setback on issues agreed at the Ministerial level talks in November 2016, and calls for licensing cross border fishing should be rejected outright.

Concluding remarks

The measures suggested above will be important steps towards resolving the Palk Bay fisheries conflict. Such measures along with the recent national attention on fisheries can also lay the foundation to ensure sustainable governance and management of the natural resource base and the people who depend on it. The establishment of effective interactive platforms (e.g., strengthening fisher community organizations, co-management platforms) and clearly laid down rights and responsibilities of participating actors, along with consultation, collaboration and coordination of all concerned actors can lead to effective and sustainable policies. Indeed, sustaining small scale fisheries in addition to solving the Palk Bay fishing conflict will encompass dialogue among relevant actors, capacity development, law enforcement and empowerment of coastal communities.

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Sri Lanka at EXPO 2020

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….a huge disappointment 

Rajitha Seneviratne’s description of the country’s pavilion, at EXPO 2020, in Dubai, has been endorsed by quite a few Sri Lankans who had the opportunity of checking out the Pavilion, themselves.

Briefly, this is what Rajitha had to say (The Island of October 12th):

“When I saw the pavilions of India, Pakistan, Bangladesh and even Afghanistan (this country has no official exhibit but a private collector’s items), the SL pavilion is a huge disappointment, indeed. An EXPO is held to show the world where we are heading, more leaning on futuristic hope…not on showcasing only what we have/had….EXPO happens once in five years (Olympics is held every four years) and it’s a once in a decade opportunity. Where is the “WOW” factor in our pavilion? It is NOT about money but I got to know we have spent USD150 million – by any means quite a sum – and created a “pavilion” good enough to be a regular ‘stall’, at a local show, at the BMICH, in Colombo.”

And corroborating his statement are the following:

* Kumudu Abeyawardane:

I’m not someone who ever runs SL down. As messed up as we maybe, it is still the country that is home and I am one of those who chose not to leave, even when the opportunity existed.

“I was at EXPO 2020, in Dubai. I didn’t visit everything, but I visited almost all of Africa, and Asia, and, of course, Sri Lanka. What I saw was sad…as you entered there was a counter from the Ceylon Tea Board, with two very friendly girls who talked to everyone, who stopped to have a cup of tea, and did a brilliant explanation of Ceylon tea. Hats off to them! But, the experience ended there.

“The rest of the staff, except for one other lady, who was welcoming everyone, was sitting in corners, ignoring everyone….The SL brochure was only in Arabic. Someone forgot that this is an International exhibition.

“There were a few masks…a few photos that did nothing to bring out the magnificent beaches, or the heritage, or the wildlife we possess. Nothing about the development, or anything about the opportunities for investment!

SL was a sad contrast to even countries like Bhutan, or Congo, who were so eager to explain about their heritage.

“The US, and many other pavilions, were manned by student ambassadors – young and energetic, eager to talk, and happy to talk to people. Proud of where they come from.

“Let’s hope the authorities concerned will see this. EXPO 2020 is on till March 2022. We have five months to change things because we need both Tourism and Investments.”

* Akram Abbas:

“Totally agree with Rajitha Seneviratne’s article. We are living in Dubai and it was so disappointing to see the standard of our pavilion. The Afghanistan Pavilion is better than ours.”

* NM:

“I visited. Can’t explain how disappointed I am.”

In the meanwhile, it’s reported that the Saudi Arabia Pavilion, at EXPO 2020 Dubai, received 23,000 visitors in one day, bringing the total number of visits to over 200,000…at the time this article was written. Probably, it would have doubled by now!

The Saudi pavilion provides visitors with diversified content, based on four main pillars: nature, heritage, bio-community, and the economic opportunities that the country offers to the world.

And, what is our Pavilion, at EXPO 2020, offering the world!

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