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Mainstream, Vol. XLIX, No 13, March 19, 2011

Fishermen Issue between India and Sri Lanka

Saturday 19 March 2011, by Gurnam Chand

Abstract

In the post LTTE-era the fishing rights of Indian and Sri Lankan fishermen have become a major issue between India and Sri Lanka. Despite the existence of various agreements and elaborate understanding, the fishermen issue has trigged unexpected worry in the excellent relations between the two countries. The main problem in the fishing rights in the Palk Bay is that of the conflict between the laws of the sea and traditional fishing rights. The Tamil Nadu fishermen even today invoke the historical rights and routinely stray into the IMBL for prawn fishing. Sometimes, the killing and detention of the Tamil Nadu fishermen, allegedly by the Sri Lankan Navy, becomes an emotive human rights issue (right to Life and Livelihood) in the domestic politics of Tamil Nadu. Despite various outcries the humanitarian aspect of the problem was overlooked by both the countries. Still, differences persist on the fishing rights of Indians and it has been decided by both the countries to address the issue amicably.

Despite the existence of two bilateral agreements of June 1974, and March 1976, the Joint Working Group and elaborate understanding, the fishermen issue has caused unexpected concern in the all-time high diplomatic relations between India and Sri Lanka. Indian fishermen being allegedly attacked and killed by the Sri Lankan Navy (SLN) and subsequent protest by the Tamil Nadu fishermen community would have to be given priority as the State Assembly elections are approaching in the politically sensitive State. There is immense pressure from Tamil Nadu Government on the Indian Government to act decisively. Reflecting the political sensitivities in Tamil Nadu, the Indian Government has reacted strongly to the January 2011 incidents in which two Indian fishermen were killed in the span of ten days.

The fishermen issue has deeply affected the history, economy and culture of the coastal regions of both Tamil Nadu and northeast Sri Lanka. Since the fishermen of both the countries are living below the poverty line, so they go in search of fish wherever those are available. In their pursuit, they hardly respect the maritime boundaries. Despite the historical linkages between the fishermen of both Tamil Nadu and northeastern Sri Lanka, they still see their comrades as martyrs and those on the other side of the international boundary line as aggressors.

The Sri Lankan fishermen poaching in other countries, waters are more widespread than Indian fishermen doing the same. But the Tamil Nadu fishermen even today invoke the historical rights and routinely stray into the International Maritime Boundary Line (IMBL) for fishing. This has led to apprehension by the Sri Lankan Navy and in some cases even to shooting. Another factor that makes the Indian fishermen cross to Sri Lankan waters is availability of good quality fish and brown prawns beyond the IMBL. N.J. Pose, an Indian fisherman, said: “We take huge risks and cross and the border only for prawn.” On the other hand, the Sri Lankan fishermen also cross over to Indian waters near the Lakshadweep islands for Tuna fish.1 The other reasons are the lack of Global Positioning System (GPS) in mechanised boats and a chain of Automatic Identification System (AIS) stations along the Tamil Nadu coast.2

The main problem in the fishing rights in the Palk Bay is that of the conflict between the laws of the sea and traditional fishing rights. Historically the Indian fishermen and Sri Lankan fishermen have been fishing in the Palk Bay with occasional fights between the two groups; however with the ceding of Kachchativu to Sri Lanka in 1974, fishing has become an issue of contention between India and Sri Lanka. Until the civil war, which broke out in Sri Lanka in 1983, the Indian fishermen did not find it difficult to operate near Kachchativu for fishing. In due course of time, however, the Sri Lanka Navy has become unfriendly to the Indian fishermen owing to their inability to distinguish between genuine fishing vessels and boats used for smuggling goods for the Sri Lankan Tamil militants. Consequently, indiscriminate firing and killing of Indian fishermen became common. Entering into others’ waters and carrying out fishing activity is illegal. However, under Article 146 of the UN Law of Sea, “Measures will be taken to ensure effective protection of human life.”3 Despite outcries, the humanitarian aspect of the problem was overlooked by both the countries. In the post-war period, relaxations of fishing restrictions along the Sri Lanka coast have led the Sri Lankan fishermen to venture into the sea. Indian fishermen, who enjoyed a monopoly of resource rich waters, have now got competitors in the form of their Sri Lankan counterparts.4 During the ethnic conflict, the straining of Indian fishermen was overlooked. In the post-conflict period, the Sri Lankan Navy is patrolling the island’s maritime borders. In the post-LTTE era the fishing rights of the Indian fishermen and Sri Lankan fishermen have become a major issue. Both nations would need to sort out this issue at the earliest possible time. A solution to this issue is only possible if there is a proper agreement on fishing around the Kachchativu island.

Historical Background

PROJECTION of similar interest by India and Sri Lanka as regards the Indian Ocean is further reflected in the definitive agreement reached between the two countries on the question of demarcation of their maritime boundaries. The necessity for demarcation of these boundaries had been emphasised by the extension, by both states, of their territorial waters and contiguous areas, and by the disputed possession of the island of Kachchativu in the Palk Strait.5

Maritime Agreement of 1974

AFTER protracted talks and negotiations an agreement was signed, demarcating their maritime boundary in the Palk Strait on June 26, 1974 and it became effective from July 9, 1974. Though Kachchathivu was not mentioned but it fell on the Sri Lanka side of the boundary agreed upon by the two countries.6 The agreement demarcated a boundary in the sea from a point about 18 nautical miles northwest of point Pedra in the Palk Strait to Adams Bridge, a distance of approximately 86 nautical miles.7

According to the Tamil Nadu Government, its fishermen were the most affected party under the Maritime Agreement of 1974. Article 5 of this Agreement safegaurds the rights of the Indian fishermen and pilgrims: “Subject to the foregoing, Indian fishermen and pilgrims will enjoy access to visit Kachchathivu as hitherto, and will not be required by Sri Lanka to obtain travel documents or visas for these purposes.” The article, however, was vague enough for the Sri Lankan Government to argue: “The agreement did not give any fishing rights, but only gave permission of drying fishing nets, to rest and allowed the pilgrims to visit Kachchathivu for religious purposes.” This play of words later on became a source of tension between the Tamil Nadu Government and Sri Lanka.

Maritime Agreement of 1976

ANOTHER Maritime Boundary Agreement of 1976 affecting the boundary in the Gulf of Mannar and Bay of Bengal was signed between India and Sri Lanka, which gave each party sovereign rights and exclusive jurisdiction over the continental shelf and exclusive economic zones, as well as over their resources, whether living or non-living, falling on its side of boundary.

An important aspect of this agreement was regarding the fishing rights. According to this agreement:

“The fishing vessels and fishermen of India shall not engage in fishing in the historic waters, the territorial sea and exclusive economic zone of Sri Lanka, nor shall the fishing vessels and fishermen of Sri Lanka engage in fishing in the historic waters, territorials sea and the exclusive economic zone of India, without the express permission of Sri Lanka or India as the case may be.”8

The Maritime Agreement of 1976 clearly bans poaching. It created domestic problems for India with the Tamil Nadu Government. The Indian fishermen from Tamil Nadu who traditionally fished in and around the Kachchativu island for a rich catch felt cheated.9 The area round 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. Fishermen used to go fishing wherever they wanted, and respected no maritime boundaries. Despite the maritime boundary, Sri Lanka’s naval surveillance and the LTTE’s resistance, Indian fishermen have been poaching in the waters around Kachchativu.

After 1980, in order to put brakes on the increasing activities of the LTTE, the Sri Lankan Navy intensified its surveillance in this area. According to them, they have to be strict because of security reasons and due to this the Indian fishermen have to be the sufferers. These types of incidents instigated Statewide reactions. Former Chief Minister J. Jayalalitha of Tamil Nadu demanded the retrieval of Kachchativu.10

Later on, the Indian fishermen started having clashes with not just the Sri Lankan Navy but also with the Sri Lankan fishermen. Although Article 73 of the United Nations 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 given the security concerns of Sri Lanka in the light of the LTTE-led insurgency in northern and eastern provinces of Sri Lanka from 1983 onwards.

The Tamil Nadu fishermen say that fishing is their livelihood and the Indian Government should either arrange some other provision for their living or solve this problem with the Sri Lankan Government. Various proposals have been made from time to time to obtain fishing licence for the fishermen of the area. A proposal for lease in perpetuity or reciprocal licensing has also been mooted. All this requires concerted action by the governments. India has taken up on a priority basis with the Government of Sri Lanka the question of the safety of the Indian fishermen straying across the International Maritime Boundary Line. Keeping in mind the humanitarian issue, the countries agreed to put in place practical arrangements to deal with bonafide Indian and Sri Lankan fishermen crossing the International Maritime Boundary Line (IMBL). As part of these practical arrangements, it was decided that there will be no firing on Indian fishing vessels and Indian fishing vessels will not enter into sensitive areas designated by the Government of Sri Lanka along its coastline.

Joint Working Group

AN institutional mechanism in the form of a Joint Working Group (JWG) has been constituted between India and Sri Lanka to deal with the issues related to fisheries.

The JWG last met in Colombo in January 2006 where it was agreed to:
(i) Examine the possibility of not arresting straying fishermen within five nautical miles of the IMBL on either side,

(ii) Consider releasing the small fishing boats along with the fishermen on humanitarian grounds; and

(iii) Enhance coordination between the two Navies to curb illegal activities.
However, whether this agreement is being followed in letter and spirit is a big question. As of now, there are no straying (bonafide) Indian fishermen in custody in Sri Lanka. The Indo-Sri Lankan International Maritime Boundary Line and the issue of fishing rights had been settled through bilateral agreements in 1976. The Indian fishermen, however, cross the maritime boundary in search of better ‘catch’ of high-valued prawns. Sometimes the treatment and detention of fishermen becomes an emotive human rights issue in the domestic politics of Tamil Nadu.11

On October 26, 2008 the two sides reached an elaborate understanding to put in place “practical arrangements to deal with bona fide Indian and Sri Lankan fishermen crossing the International Maritime Boundary Line”. For the first time, both sides acknowledged and accepted that fishermen crossed the international boundary, and had to be dealt with in non-lethal ways. The steps included designation by Sri Lankan of sensitive areas along its coastline that Indian fishing vessels could not venture into even if they crossed the IMBL. The governments also agreed that there would be no firing on trespassing vessels, which would have a valid registration or permit; the fishermen were to carry government-issued identity cards. These measures led to a remarkable drop in the number or arrests of Indian fishermen by the Sri Lankan authorities, from nearly 1500 in 2008 to just 34 in 2010.12 According to official data, more than 400 Tamil Nadu fishermen have been killed after 1983, including as many as 118 between1991 to 2008.13 There were no incidents of killing in 2009 and 2010.

However, in the January 2011 incident two fishermen were killed allegedly by the Sri Lankan Navy in a span of 10 days following which India lodged a strong protest with the island nation and sought strong action to end such incidents.14 Jayalalitha of the AIADMK of Tamil Nadu said: “The retrieval of Kachchathivu was the only solution to end the suffering of the Tamil Nadu fishermen.”

Significantly, President Mahinda Rajapaksa has hinted at a rethink on the two-year-old understanding, remarking to the press that the end of the war against the LTTE and the peaceful situation in northern Sri Lankan necessitated a revision in the existing arrangements. Clearly, there is an apprehension in Sri Lanka that Indian fishermen are now taking advantage of these arrangements to cross the IMBL regularly and in greater numbers, threatening the livelihood of fishermen on the other side.15 While these concerns are real, it is extraordinarily difficult to physically prevent fishermen from crossing the international maritime boundary. External Affairs Minister S.M. Krishna, in response to a Call Attention Motion in the Rajya Sabha, said:

“The Government of India provides protective cover to fishermen as long as they do not stray into the Sri Lankan water. We are bound by a bilateral treaty and we to act according to rules.” 16

Tamil Nadu Chief Minister M. Karunanidhi of the DMK expressed reservations over the draft Marine Fisheries (Regulation and Management) Act, 2009, by the Indian Government, saying that the conditions stipulated for fishing beyond 12 nautical were “too severe and impracticable”. Referring to the clause that makes a special permit mandatory for fishing to go beyond 12 nautical miles would pave the way for duplication of the licence system and create confusion. In the absence of clear-cut geographical zoning, it would not be possible to prevent the fishermen from crossing 22 nautical miles.17 Jayalalitha of the AIADMK in a statement alleged that the Bill had been drafted for the benefit of multinational fishing companies and the AIADMK would oppose the Bill in Parliament at the introduction stage itself. Jayalalitha asked the DMK to withdraw support to the Centre, if it really had concern for the fishermen.18

On March 2, 2009 the Sri Lankan Government declared a ‘Fishing Ban’ on Indian fishing boats operating around the northern and eastern coasts, authorising the Navy to fire on any of them seen in these waters without express permission.19 However, Sri Lankan President Mahinda Rajapaksa, during his visit to India from June 7, to June 11, 2010, and Prime Minister Manmohan Singh agreed to explore ways to strengthen the safety and security of fishermen and in this context directed their officials to revive the meetings of the bilateral Joint Working Group on fishing. It was also decided to enhance and promote contacts between the fishermen’s associations on both sides.20

Following the killing of two Indian fishermen, the Foreign Secretary of India, Nirupama Rao, along with senior officials of the Ministry of External Affairs visited Sri Lanka on January 30-31, 2011. During the visit she called on President Mahinda Rajapaksa and Minister for External Affair, G.L. Peiris. Rao expressed deep concern over the killing of two Indian fishermen allegedly by the Sri Lankan Navy and said it expected the island nation to put in place “effective measures” to avoid recurrence of such incidents. In a joint statement issued at the end of the visit both India and Sri Lanka agreed that use of force cannot be justified under any circumstances and both countries desired to find an amicable solution to the issue.21 Nirupama Rao’s visit to Sri Lanka has contributed to easing of tensions in bilateral relations between the two countries. Following heavy diplomatic pressure from India, Sri Lanka released 136 Indian fishermen on February 18, 2011.

To conclude, in order to resolve the fishermen issue between India and Sri Lanka, maritime agreements were signed in 1974 and 1976 and a boundary line was demarcated. In the post-LTTE era, fishing communities in Tamil Nadu need to be sensitised to the imperative of respecting the sanctity of the IMBL but the penalty for trespass cannot be death. Despite outcries, the humanitarian aspect of the issue was overlooked by both the countries. As India and Sri Lanka have excellent political and economic relations, it has been decided by both the countries to address the fishermen issue amicably. Joint measures to solve this problem, such as joint naval patrolling, controlling of smuggling and piratical activities, developing fish farming extensively in the Indian waters and strengthening of communication network, have been suggested.

REFERENCES

1. A. Subramayam Raju (2008), “Maritime Issue between India and Sri Lanka”, in A. Subramayam Raju, India-Sri Lanka Partnership in the 21st Century, Kalpaz Publications, New Delhi, pp. 157-161.

2. Mahalingam Ponnusswamy (2011), “Lure to Catch leads Tamil Nadu Fishermen to Cross Line”, The Times of India, January 27.

3. A. Subramayam Raju, op. cit., p. 159.

4. N. Manoharan, “Fishing in Troubled Waters: Indian Fishermen and India Sri Lanka Relations,” http://www. eurasiareview.com, accessed on February 20, 2011.

5. S.U. Kodikara (1982), Foreign Policy of Sri Lanka: A Third World Perspective, Chanakya Publications, New Delhi, p. 30.

6. P. Sahadevan (2004), “India-Sri Lanka: A Changing Relationship”, Dialogue, New Delhi, Vol. 5, No. 3, January-March, p. 154.

7. Ravikant Dubey (1995), Indo-Sri Lanka Relations: With Special Reference to the Tamil Problem, Deep and Deep Publications, New Delhi, p. 101.

8. Ibid.

9. Avtar Singh Bhasin, India in Sri Lanka between Lion and the Tigers, Manas Publications, New Delhi, p. 18.

10. V. Suryanarayan and P. B. Venkatasubramanian, “Sri Lanka-Focus on Kachchativu”, http://www.southasian analysis.org1%5cpapers29%5cpaper2837html., accessed on September 28, 2009.

11. Ministry of External Affairs (BSM Division: India) “Brief on India Sri Lanka Relations”, http://meaindia.nic.in/foreign relations/Sri lanka.pdf., accessed on November 11, 2009.

12. The Hindu, “Fishermen Again,” http://www.thehindu.com, accessed on January 28, 2011.

13. Mahalingam Ponnusswamy (2011), “Lure to Catch leads Tamil Nadu Fishermen to Cross Line,” The Times of India, January 27.

14. The Times of India (2011), January 28.

15. Ibid.

16. Vibha Sharma (2010), “Fishermen told not to Stray into Sri Lanka Waters,” The Tribune, August 12.

17. N. Ravi Kumar (2009), “DMK opposes Bill on marine Fisheries,” The Tribune, Chandigarh, November 24.
18. Ibid.

19. Edgar O’ Balance (1989), The Cyanide War: Tamil Insurrection in Sri Lanka 1973-88, Brassy’s (UK), p. 59.

20. The Hindu (2010), June10, http://thehindu.com, accessed on September 25, 2010

21. The Tribune (2011), March 1.

The author is an Associate Professor and the Head of the Department of Political Science, M.R. Government College, Fazilka.

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