Reports that Sri Lanka’s Fisheries Minister Douglas Devananda has taken up the long-standing fishers’ issue involving neighbouring India with US Ambassador Martin K. Kelly in Colombo has consequences far beyond comprehension. Taken to the logical or illogical conclusion, it could mean that Sri Lanka, or at least Minister Devananda, is seeking to ‘internationalise’ what in every sense of the term is a bilateral matter.
Minister Devananda is a Tamil leader from the Tamil-majority Northern Province. President Gotabaya Rajapaksa defied precedence and named a Tamil to the post when he took office in late 2019. He continued with Devananda in the portfolio after the parliamentary polls the next year. Given that the bilateral fishers’ issue involves only the Tamil-speaking fishers from Tamil Nadu (TN) and the Union Territory (UT) of Puducherry in southern India, President Gota seemed to have concluded that ethnic and linguistic affinities could work in finding a lasting solution. Or, so it seems.
At the meeting with the US envoy, Devananda flagged concerns over continued ‘poaching’ by Indian fishers, which adversely affect the poor Tamil fishermen in Sri Lanka’s Northern and Eastern Provinces, who are still recovering from the loss of livelihood through decades of LTTE war and violence, also involving the ‘Sea Tigers’. While there is truth in the minister’s allegations, which India has not left unacknowledged, it is his new efforts to rope in international players that could upset the bilateral political equilibrium that has governed the conduct of governmental and non-governmental stakeholders in the two countries, thus far.
In a statement after the meeting, the Sri Lankan Fisheries Ministry. Amb Kelly had enquired if the issue had been raised the issue with Tamil Nadu Chief Minister (CM) M. K. Stalin. Devananda said he had taken it up with CM Stalin and Tamil Nadu Fisheries Minister, Anitha R.Radhakrishnan. Though they responded to his concerns, Tamil Nadu and the Indian government were reluctant to take any tangible measures to stop poaching, he reportedly claimed.
Herein lie a few, new diplomatic issues that are unprecedented in nature in the India-Sri Lanka context and should have been avoided. There is no knowing if Devananda’s initiative had the blessings of President Gota and/or Prime Minister Mahinda Rajapaksa. There is also no knowing as to who had initiated the meeting, considering that American missions in India have been closely following all bilateral issues between India and Sri Lanka with keen interest.
Thirdly, on all matters related to Sri Lanka, comprising especially the ethnic dispute in the island-nation, refugee-rehabilitation and/or return, and also the fishers’ issue, successive governments, polity and civil societies in Tamil Nadu have always taken up their concerns only with New Delhi, as mandated under the Indian Constitution. Where the state government had facilitated bilateral fishers’ talks, whether in Colombo or Chennai, it has always been approved and initiated by the Ministry of External Affairs (MEA).
The Indian constitutional scheme in the matter is near-similar to that in Sri Lanka, if anything, the Sri Lankan provinces do not enjoy as much powers as the Indian states and less-empowered UTs. All matters concerning bilateral fishing, poaching, and firing by Sri Lanka Navy (SLN) on Indian fishers, have been handled exclusively by the MEA through the Indian High Commission in Colombo or the Sri Lankan counterpart in New Delhi.
On specific instances of SLN detaining Tamil Nadu fishers and their boats, the state government and the Sri Lankan Deputy High Commission in Chennai, have exchanged information and updates. When bilateral fishers’ talks were held in Chennai in the past, the two have coordinated the nuts-and-bolts aspects, with the primary decision and direction taken by Colombo and New Delhi.
The ministerial initiative in Colombo needs to be understood also in the context of two late Tamil Nadu chief ministers, namely, Jayalalithaa (AIADMK) and M Karunanidhi (DMK), moving to the Supreme Court of India, challenging the 1974 ‘IMBL agreement’ between the two nations, which delineated the ‘international maritime boundary line’ between the two for the first time. Improvisations were added in the updated accord two years later, in 1976.
The two nations promptly notified their agreements under the UN Convention on the Law of the Seas (UNCLOS-I). The agreement cited the UNCLOS provision that exempted the use of median line to determine the IMBL, and accepted deviations agreed to by the stakeholder-nations. This alone ensured that Katchchativu islet, closer to the Indian coast, fell on the Sri Lankan side of the IMBL. Tamil Nadu fishers and polity, from time to time, have been protesting against such an arrangement, also because the SLN patrol boats are coming closer to the Indian mainland than otherwise possible, to target TN fishers entering, what New Delhi acknowledges, as Sri Lankan waters.
Technically, the two petitions filed by Jayalalithaa and Karunanidhi in their personal capacity may have been rendered infructuous after the death of the two petitioners in the past years. But nothing stops either the DMK state government or the party, now under CM Stalin, or the Opposition AIADMK as an organisation, to file fresh petitions, on similar lines—not that either of them is contemplating anything of the kind. Such a course could render permanency to those petitions without reference to the longevity of the individuals involved.
In political terms, Jayalalithaa, at least on two occasions as Chief Minister, had openly asked New Delhi to take back Katchchativu. Ahead of the 2019 parliamentary polls in India, ruling BJP’s Union Transport Minister, veteran Army Chief, Gen V K Singh, declared in Tamil Nadu that New Delhi was making ‘sincere efforts’ to take back the islet. While there was some discomfort in New Delhi over Jayalalithaa’s statements as Chief Minister, Tamil Nadu dismissed Gen Singh’s declaration as a poll promise that was not possibly meant to be kept.
If anything, all through, successive governments in New Delhi have consistently swore by the UNCLOS notification and unhesitatingly declared that there was no question of reviewing the twin accords from the seventies. In 2014, after the incumbent government of Prime Minister Narendra Modi came to power, then Attorney-General, Mukul Rohatgi, in a Supreme Court hearing, pointed to the impossibility of ‘retrieving’ Katchchativu without war.
There is an even more serious bilateral concern that the Sri Lankan Fisheries Ministry should have been aware of. Though not many have noticed it and none has acknowledged it, the 1974-76 accords ended up making the Palk Strait connecting India and Sri Lanka a ‘two-nation pond’, under the relevant UNCLOS rules to the exclusion of all third nations.
Simply put, the bilateral arrangement bans international fishing and shipping. New Delhi has acknowledged IMBL violations by Indian fishers and has been working with the Tamil Nadu government on ways to rectify the same, and at the same time ensure that Tamil Nadu fishers’ livelihood too is unaffected.
In this background, Sri Lanka now ‘internationalising’ specific concerns flowing from the IMBL accords, if intentional or otherwise, can lead to reciprocal reopening of the Katchchativu issue, though not by the Indian Centre, and also interfere with the exclusivity that the two nations have enjoyed over the Palk Strait. The Jayalalithaa-Karunanidhi petitions centred on procedural issues under the Indian Constitution, arguing that Parliament should have ratified the agreements, not stopping with Executive approval on the Indian side.
Two decades back, the erstwhile Vajpayee government in New Delhi launched the Ram Sethu project to help cut time and cost for Indian domestic shipping on the East-West-East corridor, circumnavigating Sri Lanka, especially what is now China-centric Hambantota. The US, in particular, claimed that if the new project opened up the Palk Strait and adjoining Gulf of Mannar to commercial shipping, they would claim ‘freedom of navigation’ under the UNCLOS, which they are asserting in the case of South China and East China Seas, in particular.
With the Supreme Court of India seized of the matter, over the alignment of the Ram Sethu, if only to respect the religious sentiments of majority Hindu community in the country, work on the project has remained suspended for over a decade and more. In this context, too, for the Sri Lankan Fisheries Minister to be seen knocking at the doors of third-nation missions in Colombo, could jeopardise bilateral ties between fishers and governments, and also open up new vistas of avoidable legal tangles, both in India and also in international fora. For long, a section of the civil society and polity in Tamil Nadu has been talking, on-again-off-again, about the wisdom and desirability of taking the fishers’ issue to the International Court of Justice (ICJ) and such other for a, citing loss of life and livelihood of the state’s fishers.