Kachchativu and its maritime boundary ignore international law
By Neville Ladduwahetty
Issues relating to Kachchativu and its Maritime Boundaries come alive with the approach of elections in Tamil Nadu. Consequently, the practice of competing political parties in Tamil Nadu has been to pressure the Union Government of India and even legally through the Supreme Court of India to claim sovereign rights to Kachchativu and with it, shift the Maritime Boundary in a manner that would disproportionately favour the interests of Indian fishermen in the hope of capturing their votes. Now Prime Minister Narendra Modi has also joined the fray. Against this background, it is appropriate to revisit the issue of Kachchathivu, not from the perspective of historical claims of India or Sri Lanka as is the practice, but from the stand point of recognized International Law “Doctrine of UTI POSSIDETIS”.
For instance, it is reported that starting with the former Chief Minister of Tamil Nadu, Karunanidhi, the political leadership of Tamil Nadu is disappointed by the statement issued by the Central Government of India to India’s Supreme Court that “…no Indian territory, including Kachchativu, was ceded to Sri Lanka, and the question of retrieval does did not arise” (The Island, September 2, 2013). The hope of Tamil Nadu is that the Supreme Court would do justice by them and retrieve Kachchativu because of their flawed notion that it was ceded to Sri Lanka by India under the 1974 Agreement out of goodwill in the interest of furthering bilateral relations.
The issue of Kachchativu was dealt with comprehensively by the late Mr. W. T. Jayasinghe, starting with the history during colonial times and culminating with the 1974 Agreement between India and Sri Lanka (KACHCHATHIVU: AND THE MARITIME BOUNDARY OF SRI LANKA, 2003). In the Preface to his publication he states categorically, “Kachchathivu was at no time the property of India, as Sri Lanka had been exercising sovereignty over that island from early times”. The fact that Kachchativu was part of Sri Lanka’s territory was also accepted by both delegations representing Colonial India and Colonial Ceylon during the Conference of 1921.
Apart from the fact that Kachchativu “at no time was the property of India” and the fact that Britain accepted that the island was part of Sri Lanka’s territory during their colonial administration, it is a matter of serious concern and disappointment, why independent Sri Lanka did not take full advantage to exploit provisions of Internationally accepted Doctrine of Uti Possidetis that recognizes the legality of colonial boundaries during negotiations with decolonized India. Had Independent Sri Lanka taken such an initiative, Sri Lanka would have been entitled to retain the limit of three miles West of Kachchativu instead of ceding the boundary to one mile West as reportedly agreed upon later.
The material presented below repeats material from an Article titled “KACHCHATIVU in the CONTEXT of INTERNATIONAL LAW”, (September 4, 2013).
THE CONFERENCE OF 1921
In order to avoid over-exploitation of maritime resources and the possibility of competition between the fishermen of India and Sri Lanka in the same waters for their catch, the colonial Governments of Madras and Colombo agreed to delimit the waters in the Gulf of Mannar and the Palk Bay. The two parties met in Colombo on October 24, 1921. The Indian team was led by Mr. C.W.E.Cotton and the team representing the government of Ceylon was headed by Hon. B.Horsburg.
Both parties accepted the “principle of equidistant and the median line could be the guiding factor”. However, since at Kachchathivu the principle of equidistant “would considerably narrow the area of operations for the Indian fishermen”, the Ceylon delegation proposed a line that was three miles west of the island “so that there would be an equitable apportionment in the fisheries domain for both Sri Lanka and India”. The proposal by the Ceylon delegation was based on the fact that “Sri Lanka’s sovereignty over Kachchathivu was never in question, was beyond any doubt and was not a matter for negotiation. He (Hon. B. Horsburg) quoted from the correspondence that the Survey Department and the Department of Public Works in Colombo had exchanged with the counterparts in India, in which the sovereignty of Sri Lanka over Kachchativu had been taken for granted by the Indian authorities… After discussion the delimitation line was fixed three miles west of Kachchativu”(Jayasinghe, p. 14,15).
Agreement between the two parties is reflected in the letter from the head of the Indian delegation Mr. C.W.E.Cotton in which he states: ” …we unanimously decided that the delimitation of the new jurisdiction for fishing purposes could be decided independently of the question of territoriality. The delimitation line was accordingly fixed, with our concurrence, three miles west of Kachchativu and the Ceylon representatives thereupon agreed to a more orderly alignment south of the island than they had originally proposed…” (Ibid, p. 130).
What is relevant from all of the above is that regardless of the basis for establishing a boundary under colonial rule, such boundaries morph into territorial boundaries of independent states under the International Law “Doctrine of Uti Possidetis”.
DOCTRINE of UTI POSSIDETIS
According to Black’s Law Dictionary the legal Doctrine of “Uti possidetis juris” is defined as: “The doctrine that old administrative boundaries will become international boundaries when a political subdivision achieves independence (Hansal & Allison, “The Colonial Legacy and Border Stability”, p. 2; quoting Garner 1999).
The principle behind this doctrine dates to Roman times. The principle first emerged in the modern sense with the decolonization of Latin America when each former Spanish colony agreed to accept territories that were “presumed to be possessed by its colonial predecessors” (Ibid). The same Doctrine was accepted by former colonies in the African continent. The International Court of Justice (ICJ) has “argued for its relevance across the world” (Ibid).
“This principle was stated most directly in the ICJ’s 1986 decision in the Frontier Dispute/Burkina Faso Republic of Mali case. The ICJ had been asked to settle the location of a disputed segment of the border between Mali and Burkina Faso, both of which had been part of French West Africa before independence. In their judgment over the merits of this Frontier Dispute case the ICJ emphasized the legal principle of uti possidetis juris”:
“The ICJ judgment in the Mali-Burkina Faso Dispute case also argued that the principle of uti possidetis should apply in any decolonization situation regardless of the legal or political status of the entities on each side of the border”:
“The territorial boundaries which have to be respected may also derive from international frontiers which previously divided a colony of one State from a colony of another, or indeed a colonial territory from the territory of another independent State…There is no doubt that the obligation to respect pre-existing international frontiers in the event of State succession derives from a general rule of international law, whether or not the rule is expressed in the formula of uti possidetis” (ICJ 1986, Ibid).
CONCLUSION
There is a considerable body of historical evidence relating to Kachchativu written by commentators and scholars in India and Sri Lanka. This body of evidence has been relied upon by interested parties in India and Sri Lanka to justify their respective claims depending on whose interests are being advanced. Consequently, the evidence presented by each is selective and serves only to advance the perspectives each decides to promote. However, among this body of historical evidence this writer has not come across a single document that justifies its claims on the Internationally recognized “Doctrine of UTI POSSIDETIS”, which in essence is the international acceptance and recognition given to Colonial Boundaries as International Boundaries of decolonized Independent Sovereign Nation States.
In this background it is indeed inexplicable and disappointing why a decolonized Sri Lanka did not exploit provisions of International Law as provided in the Doctrine of UTI POSSIDENTIS to establish its sovereign rights to Kachchativu and its Maritime Boundaries, despite its clear advantage arising from the acceptance and recognition given to its provisions by the International Court of Justice, when it stated: “The ICJ judgment in the Mali-Burkina Faso Dispute case also argued that the principle of uti possidetis should apply in any decolonization situation regardless of the legal or political status of the entities on each side of the border”, instead of relying on selective archival historical evidence that could be challenged.
Had Sri Lanka adopted such an approach, the issue of the sovereignty of Kachchativu as being an integral part of Sri Lanka’s territory would have been indisputable and the fact that the Maritime Boundary was three Miles West of Kachchativu would ipso facto have followed. Furthermore, no grounds would have existed to foster the flawed notion that the Government of India had ceded Kachchativu to Sri Lanka.
The same stubborn reluctance to exploit provisions of Customary International Law prevails in the manner Sri Lanka has been addressing accountability issues relating to Sri Lanka’s Armed Conflict. Despite the fact that the Report of the Office of the High Commissioner for Human Rights on Sri Lanka (OISL) contains several provisions that are favourable to address accountability, no Government has exploited any of them to Sri Lanka’s advantage.
For instance, commenting on the applicability of International humanitarian law, Paragraph 182 of the OISL Report states: “Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, with all parties to the conflict being bound to respect the guarantees to the treatment of civilians…contained therein. Common Article 3 binds all parties to the conflict AND Paragraph 183 state: “the Government and armed groups that are parties to the conflict are bound alike by relevant rules of customary international law applicable in non-international armed conflict”.
If according to the opinion of the OISL, “the Government and armed groups that are parties to the conflict are bound alike to relevant rules of customary international law”, it must follow that issues of accountability should be responsibility of the Government and the LTTE and those who accepted the LTTE as their leaders. Furthermore, if “all parties to the conflict are bound to respect the guarantees to the treatment of civilians”, the LTTE and those who accepted them as their leaders should be held accountable for taking civilians hostage and compromising their safety by putting them in harm’s way. Since no Government has officially brought this fact to the attention of the UN Human Rights Commission, Sri Lankan Governments have inherited the sole responsibility of addressing issues relating to accountability by default.
The two examples cited above, one relating to Kachchativu and its Maritime Boundaries and the other relating to accountability, are two instances where successive Governments have ignored International Law provisions to the disadvantage of Sri Lanka’s interests. The plea to this Government is that it critically and objectively evaluates the opinions presented above for the sake of restoring the dignity of the Sri Lankan Nation.
Former Chief Minister Karunnidhi is reported to be disappointed by the submission of the Central Government of India to the Supreme Court that no Indian territory including Kachchativu was ceded to Sri Lanka and therefore, the question of retrieval does not arise. The political establishment in Tamil Nadu is hoping that the Supreme Court of India would determine otherwise. The Supreme Court of India cannot be unaware of the International Law Doctrine of “uti possidetis”, not to mention the force of the agreement signed in 1974 by the respective Heads of State of India and Sri Lanka. Despite all of the above, if the determination by the Supreme Court is prejudicial to Sri Lanka’s interests, Sri Lanka would have no option but to appeal to the International Court of Justice. Sri Lanka should stand firm on this issue because of the shift of the International Maritime Boundary with its attendant loss of territory would result in many consequential disadvantages to Sri Lanka.
Attempts by the Tamil Nadu political establishment to retrieve Kachchativu through the Central Government of India and/or the Supreme Court must mean that they are either not aware of the Doctrine of uti possidetis (a fact that is difficult to accept), or while being aware and recognizing that it is a lost cause, is pursuing it in order to demonstrate that they have tried their best to protect local electoral interests despite the odds stacked against them. Whatever the case may be Sri Lanka is on solid ground as far as Kachchativu is concerned.
