1974 Indo-Lanka boundary deal suffers from legal infirmity

The recent arrest of 68 Indian fishermen by the Sri Lankan Coast Guard for transgressing their maritime boundaries at the Palk Strait and Adam’s Bridge area has once again triggered a renewed debate on the legality and the binding nature of the 1974 Boundary Agreement between India and Sri Lanka.

This forty-eight-year-old agreement had sought to resolve, once and for all, the contentious boundary issue between both the countries. However, that has not happened it seems. Immediately after the conclusion of this agreement there has been perceptible tension between the fishermen on either side of the Palk Strait. The exercise of ‘historic’ fishing rights beyond the national maritime boundaries and its interpretation have given rise to many unclear international legal issues.

Since 2010, on an average, annually, nearly two hundred Indian fishermen are arrested around Katchatheevu island area for fishing in Sri Lankan waters. Sometimes such arrests have resulted in fatalities as well. Since 2009, after the ending of the Sri Lankan internecine civil war, this number has been steadily rising. Each time, after such arrests the Chief Ministers of Tamil Nadu dash of letters to the Prime Minister and also to the Ministry of External Affairs (MEA) to review or to rescind the existing 1974 Boundary Agreement between India and Sri Lanka.

They have been arguing that on account of the narrow interpretation (or even not making any reference to it) of the term `historic’ and `traditional’ fishing rights of the Indian fishermen in the Palk Strait, has given rise to this recurring problem of arbitrary arrest by the Sri Lankan Coast Guard.

Also read: Why TN fishermen continue to fish in forbidden waters?

For this reason, the implementation of the 1974 Agreement has become a contentious issue. After the most recent incident that occurred last week, Tamil Nadu CM Stalin wrote a comprehensive letter outlining his government’s concerns over the plight of the fishermen and the consequent viability of this agreement. The arrest of the fishermen by the Sri Lankan authorities is followed by the impounding of their vessels under the Sri Lankan civil and criminal code.

This has resulted in an inevitable long legal process thereby affecting the livelihood of the Indian fishermen. Some view this as a tactic to deter the Indian fishermen from venturing into the Sri Lankan side of the Palk Strait.

Although the government of India, in particular, the MEA, has been elaborating upon the efforts being made by its Consulate to ameliorate the plight of the incarcerated fishermen in Jaffna and other places, tactically, it is silent on raising the concerns relating to the legal and contextual nature of the 1974 agreement.

On the contrary, it has been stoically defending the agreement as resolving the long-standing boundary dispute between both the friendly countries. To a RTI question on the larger issue of resolution of Katchatheevu Island or the Palk Bay issue raised on November 13, 2014, the MEA, (as publicised in its own website) had categorically stated: “The information sought above pertains to delineation of Indo-Sri Lanka Maritime Boundary Line (IMBL). Applicant is requested to note that Katchatheevu Island lies on the Sri Lankan side of the India-Sri Lanka International Maritime Boundary Line (IMBL) that was delineated by the 1974 Agreement”.

“(The Agreement on the boundary in historic waters between the two countries and related matters (with map) signed at Colombo on June 26, 1974 and at New Delhi on June 28, 1974). Under the Agreement, Indian fishermen are allowed access to Katchatheevu island for rest, for drying of nets and for the annual St Anthony’s festival. The Katchatheevu island issue is, however, currently sub-judice with two writ petitions [Nos. 561 (2008) and 430 (2013) filed in the Hon’ble Supreme Court of India. It may also be noted that the issue of Katchatheevu and IMBL pertain to the government of Sri Lanka, a friendly neighbouring country.”

The above contention of the Indian government on the contents and interpretation of the 1974 Agreement however is not in consonance with the views of the Tamil Nadu state government. This also raises the larger issue of implementation of an international agreement keeping in mind the federal structure of the Indian Constitution.

Article 246 of the Indian Constitution in its Seventh Schedule provides that the central government has the sole prerogative to enter into and implement (under Article 253) any international agreement. However, in matters that affect the interests of state governments it should normally seek their views as well. In this regard, one should recall the unanimous resolution passed by the Tamil Nadu legislative assembly in 2013 opposing the transfer of sovereignty on the Katchatheevu island to Sri Lanka.

Also read: Sri Lankan navy arrests 43 fishermen from Tamil Nadu

The Tamil Nadu government has also been pointing out that the 1974 agreement being a transfer of sovereignty issue of Katchatheevu Island has not been formally ratified by the Indian Parliament. This essentially raises the issue of adjustment and delimitation of maritime boundaries and accordingly needs the approval of the Indian Parliament as it has the sole prerogative to decide the territorial sovereignty and claims of the Indian state as per Part I (Articles 1 to 4) of the Indian Constitution. For this reason, two writ petitions on the issue of cession of maritime territory in relation to Katchatheevu Island, as noted above by the MEA, are pending before the Supreme Court.

The 1974 Agreement, despite its confirmed finality, continues to raise issues from both the domestic and international legal angles.

On the domestic angle about the legality of the transfer of territorial sovereignty by the executive (the Central government) the Indian Supreme Court’s decisions have gone through a trajectory of legal ambivalence in different contexts. The important question before the Supreme Court in several cases has been whether the territory could be ceded to another country through an executive decision or whether it should have been done through a constitutional amendment.

The adjustment of an undefined boundary through marking was regarded as something that could be effected through an executive act. The adjustment of the boundary or territory pursuant to an order of the arbitral tribunal was regarded as a ceding of the territory, necessitating a constitutional amendment. This resulted in the 9th amendment of the Indian Constitution.

The ceding of Indian sovereignty of Katchatheevu Island in a 1974 agreement by an executive action needs legal clarity. The available official records show that this tiny island was historically part of the Indian territory. Can it be ceded without proper Parliamentary intercession?

From the international legal angle, the 1974 Agreement between India and Sri Lanka was concluded at a time when the basic principles relating to maritime delimitation had yet not crystallised. The negotiations for the third United Nations Convention on the Law of the Sea (UNCLOS) had just been launched in 1973. There was no unanimity among countries on the extent of the limits of territorial sea on which states could have exercised their sovereign rights.

The idea of other territorial delimitations such as Exclusive Economic Zone (EEZ), Continental Shelf and other related maritime zones had not yet crystallised as well. Even the Indian legislation on the maritime zones i.e., the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, were passed in 1976.

It is not clear as to why India had to cede its sovereignty in 1974 of certain parts of the Palk Strait to Sri Lanka, including a 283 acre Katchatheevu Island without sufficiently preserving and articulating its historic and traditional rights. According to one view, such a transfer at that point of time was on account of a close alliance that existed between the prime ministers of both countries than anything else. Even now, in 2021 perhaps, similar sentiments prevail and accordingly India must find it difficult to overturn the agreement.

It is also true that almost ten years after the conclusion of the 1974 agreement, the third UNCLOS had ended in 1983 with more clarity and unanimity on the global scene over the exact delimitation terms for the maritime zones. Despite all this, a silver lining in the 1974 agreement is its repeated reference to `historic’ and `traditional’ rights in its Preamble.

More importantly, it is the scope of Article 6 of the 1974 agreement on which the Central government should seek a broader view and interpretation through a mutual negotiation with Sri Lanka. It, inter alia, states, “The vessels of Sri Lanka and India will enjoy in each other’s waters such rights as they have traditionally enjoyed therein”.

Further, international law, through its codified Vienna Convention on Law of Treaties (VCLT) in Article 31 through its general rules of interpretation clearly allows parties to renegotiate or to re-emphasise the provisions of a treaty through an appropriate addendum or annex. Perhaps, this is the way forward to end the decades of hardships of the fishermen. Along with this, a proper regional fisheries zone agreement as per UNCLOS requirements between both the countries should also be negotiated to optimally and sustainably utilise the available fisheries resources.

(Dr Venkatachala G Hegde teaches International Law at the School of International Studies, JNU, New Delhi)

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