Foreign Minister: KOTTE: Foreign Minister Rohitha Bogollagama yesterday told Parliament that Kachchativu had always been the territory of the Sri Lankan State and that is borne out by historical evidence and records of exercise of jurisdiction which has been cemented by the agreements of 1974 and 1976 signed between the Sri Lankan and Indian Governments.
The Minister was responding to a statement by JVP MP Anura Kumara Dissanayake in Parliament on September 09. Kachchativu is a barren island that lies about 15 miles North-East of Rameshwaran and approximately 14 miles South-West of the Delft Islands. There are no permanent inhabitants or any permanent structures on the island other than a Roman Catholic Church, administered by the Bishop of Jaffna as part of his Diocese. What makes the island attractive is the richness of the surrounding seabed around Kachchativu with prawns,
chank shells, pearl oysters and corals. The Government of Sri Lanka (GOSL) had always maintained a consistent policy founded on historical facts on the issue of the ownership of Kachchativu. Sri Lanka consistently and regularly exercised of jurisdiction and control over Kachchativu.
In this context, Sri Lanka’s claim to Kachchativu was listed in 1924 in a correspondence stating that Survey Officers of the Government of India (GOI) treated the island as a part of then Ceylon as far back as 1876. Moreover, Kachchativu Island has been under the Jurisdiction of Sri Lanka since the time of Portuguese and later the British rulers of Sri Lanka (then Ceylon).
The issue of Kachchativu first arose in 1921, at the Conference to demarcate fisheries line between India and Sri Lanka and was followed by a series of bilateral discussions, relating to maritime boundary demarcation and related matters. However, the two parties were able to reach an Agreement for the first time in 1974.
Article 4 of the Agreement stipulates that each State shall have sovereignty and exclusive jurisdiction and control over the waters, the Islands, the Continental Shelf and the sub soil on its side of the Maritime boundary in the Palk Strait and Palk Bay and Kachchativu Island was determined as falling within Sri Lankan waters.
Article 5 of the 1974 Agreement provides that “Subject to the foregoing. Indian fishermen and pilgrims will enjoy access to visit Kachchativu as hitherto, and will not be required by Sri Lanka to obtain travel documents or visas for these purposes.”
Article 6 of the Agreement states that, “The vessels of India and Sri Lanka will enjoy in each other’s waters such rights as they have traditionally enjoyed therein.”
By this Article, only navigational rights of the vessels of both Sri Lanka and India over each others waters have been preserved.
The preparatory notes leading to the finalisation of the rights of the two Parties, clearly manifests that the rights of pilgrims under Article 5 were restricted to attend the annual feast of the church and the rights of access of fishermen was restricted to dry their nets and catch. Therefore the provisions in Article 5 and 6 taken together do not confer any fishing rights on the Indian fishermen or vessels to engage in fishing in Sri Lankan waters. As follow up to this process, an Agreement between Sri Lanka and India on the Maritime Boundary between the two countries in the Gulf of Mannar and the Bay of bengal and related matters was signed in 1976.
This Agreement further clarifies the position established by the 1974 Agreement between Sri Lanka and India.
Article 5 of 1976 Agreement stipulates that:
1. Each Party shall have sovereignty over the historic waters and the territorial sea, as well as the islands falling on its side of the aforesaid boundary.
2. Each Party shall have sovereign rights and exclusive jurisdiction over the Continental Shelf and the Exclusive Economic Zone (EEZ) as well as over their resources, whether living or non-living, falling on its side of the aforesaid boundary.
3. Each Party shall respect rights of navigation through its territorial sea and exclusive economic zone in accordance with its laws and regulations and the rules of international law.”
The 1974 and 1976 Agreements taken together with the Exchange of Letters, that was signed between Kewal Singh, the then Foreign Secretary to the Government of India, and W. T. Jayasinghe, the Secretary to the Ministry of Defence and Foreign Affairs of Sri Lanka, has put the question of fishing rights beyond doubt. Paragraph 1 of the Exchange of Letters very clearly rules out any fishing rights for the fishermen of the two States in the waters of the other State which reads as follows:
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“Fishing vessels and fishermen of India shall not engage in fishing in the historic waters, the territorial sea and the EEZ of Sri Lanka nor shall the fishing vessels and fishermen of Sri Lanka engage in fishing in the historic waters, the territorial sea and the EEZ of India, without the express permission of Sri Lanka or India, as the case may be.”
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Therefore you would observe that with the signing of the 1976 Agreement and the Exchange of Letters, the maritime boundary between Sri Lanka and India stands settled, and the Letters of Exchange clearly prohibits fishing vessels and fishermen of one country fishing on the others’ waters.
Subsequent to the conclusion of the Agreements, the question of fishermen inadvertently straying into each others’ waters has been discussed at several bilateral meetings between the officials of the two States.
On several occasions, the Sri Lankan Navy has been accused of involving in alleged attacks on Indian vessels near Kachchativu Island. Sri Lanka Navy has categorically denied any involvement in such activities and as they do not venture out of Sri Lankan territorial waters.
In fact contrary to the allegations, the Sri Lanka Navy has on a number of occasions assisted and continues to assist the Indian fishermen in distress.
Meanwhile several personalities in Tamil Nadu State have recently raised the issue of Kachchativu, making proposals based on their own perceptions without any apparent valid legal basis, pertaining to the rights of Indian fishermen.
In fact there has been a case filed by the former Chief Minister of Tamil Nadu Ms. Jayalalitha at the Indian Supreme Court.
However, a decision given by a Court of law in a jurisdiction outside Sri Lanka would not be binding on Sri Lanka. Any such Court Order or judgment will not alter or have an impact on a bilateral treaty concluded between two sovereign States.
Uditha Kumarasinghe, Irangika Range and Sandasen Marasinghe
-Dailynews.lk-