“INDIAN GOVT. SHOULD ALSO TAKE ACTION TO PREVENT ILLEGAL FISHING”
They can only fish if they have a licence. Going for International Arbitration is regarded more as a confrontational action in Asia. The 1974 treaty at first sight seems to indicate that there are no traditional fishing rights left. If India doesn’t take
Prof. Alfred H.A. Soons is an Emeritus Professor of Public International Law at the Utrecht University. He is an expert in the Law of the Sea. Currently he is a member of the Advisory Body of Experts on the Law of the Sea of the Intergovernmental Oceanographic Commission (IOC/ABELOS) of the UNESCO. He also serves as Chairman of the Scientific Advisory Council of the Netherlands Defence Academy and is an Adjunct Professor of International
Law at the University of Curaçao. Soons has been involved in international litigation at the International Court of Justice and arbitral tribunals. He has served as chairman of two ICC arbitral tribunals, and was a member of the Arbitral Tribunals in the Iron Rhine Railroad (Belgium/netherlands) and the South China Sea disputes (Philippines v. China).
In his recent visit to Sri Lanka- at the request of the Moragoda International Law Trust- to deliver a series of lectures on the ‘Law of the Sea’, he sat with the Daily Mirror to share his expertise on illegal fishing by Indian fishermen, traditional fishing rights, piracy, sea level rising and other concerns. Excerpts of the interview:
Q In this day and age what are some of the intricate issues that have arisen in the area of the Law of the Sea?
Fishing, in particular, ‘high seas fishing’ is a major issue because there is a really serious problem of overfishing resulting from illegal and unlawful fishing. The fish stocks in many parts of the world are seriously threatened. Another issue that is being addressed, but rather inadequately, is related to genetic resources. The Law of the Sea Convention doesn’t cover this area. This pertains to the making use of certain resources in the deep sea bed, an area where pharmaceutical companies are interested in with regard to the production of medicine. This doesn’t include mineral resources. However, negotiations are taking place regarding the making of laws to cover this area.
There is also the problem of human trafficking; illegal migrants at sea. At the moment it’s an urgent problem in the Mediterranean Sea with people trying to get to Europe from North Africa. There is the problem of piracy in the Indian Ocean. This problem has grown on the West coast of Africa, and is sometimes visible in the South China Sea and the surrounding areas. There are also strategic issues in the background. For instance what the US is concerned about is some countries trying to ensure the freedom of navigation in this part of the sea. This type of navigation might be threatened by the actions of certain coastal States.
A good example is the confrontation you see between the US and China in the South China Sea. There is a series of bigger issues relating to the Ocean including the law of the sea. In my workshop here we are addressing all these issues, hopefully from a Sri Lankan perspective.
There is, for instance, the claim made by Sri Lanka for an extended continental shelf- a huge area of sea bed to the east and South of Sri Lanka where perhaps, in the future mineral resources may be found. We don’t know yet. But Sri Lanka has made its submission. In two or three years’ time that will be taken up by the Commission. That is a development that is potentially relevant for Sri Lanka- the extension of the area where it has jurisdiction or control over resources.
Q Despite agreements in 1974 and 1976- which clearly demarcate the International Maritime Boundary Linetamil Nadu fishermen continue to poach in Sri Lankan territorial waters. Can they still enter our waters and fish?
No. They can only fish if they have a licence. There are no explicit provisions in the treaty to allow fishing. At least not in what I’ve seen. I know it’s a complex issue because if someone from Tamil Nadu was here, he/she would explain why a person thinks he/she has traditional fishing rights. But I don’t know what the basis of that assertion is. If you look at the text- where there is agreement- the areas as far as I know, were used for fishing by artisanal fishermen from both countries. They exploited- more or less jointlythe fishery resources of Palk Bay and the Gulf of Mannar, for centuries or even longer. But this was artisanal fishery-the small scale fishery. When fishing Vessles used for commercial fishing entered the area, I think mostly from the Indian side, the situation changed.
Q How do you think the two governments should address this issue?
In the background you have the political relationships between the two countries. Then there is the complexity within India where the states have a stronghold-tamil Nadu in this case. There are all kinds of political and diplomatic complexities here related to the relationship between the two countries.
You can send coastguards and the Navy there and arrest all Indian fishing vessels on the east side of the line. You arrest them. You fine them. Confiscate their ships. That is possibly the most effective way
You can view this strictly from a legal point. We could make an analysis based on the treaties in force and the practice of the past decades. And then say whether it’s lawful or unlawful for these Indian fishermen to continue fishing. If the conclusion would be, that it is unlawful, then the next question is how do you go about this? In theory you could say that we want an authoritative decision from a judge from an International Arbitrary Tribunal. In theory it’s possible. May be it is even possible without the agreement of the two States, so either Sri Lanka or India could unilaterally start this. This is how many European countries would ultimately handle the matter because in Europe the legal approach would not be considered necessarily as a confrontational way of solving problems. In Asia this is not the case. As far as I understand, in Asia it’s regarded more as confrontational action.
As far as I understand, in Asia it’s regarded more as confrontational action
India is a powerful country and Sri Lanka perhaps less. So there you could get all these factors about power relationships. What do you want to achieve? But that is a political process. If Sri Lanka is entitled to refuse these Indian fishermen, you (Sri Lanka) could arrest them. You can send coastguards and the Navy there and arrest all Indian fishing vessels on the east side of the line. You arrest them. You fine them. Confiscate their ships. That is possibly the most effective way because then you are preventing them from returning. This is what the Indonesians seem to do with illegal fishing. They bring the illegal fishing vessels. Take the crew off and sink the ships. The crew is then repatriated to where they came from. These are harsh measures. But in theory if you have an adequate coastguard you can take all kinds of measures. But the question is do you really think it’s good for the overall relationship with your neighbour?
Q You just mentioned that Sri Lanka could go for International Arbitration. In the South China Sea dispute the Permanent Court of Arbitration- in which you were a member of the Tribunal- found(among other things) that China had violated Philippine’s sovereignty rights in its Exclusive Economic ZONE(EEZ) by failing to prevent Chinese fishermen from fishing in the zone. Does this decision mean that China is bound to take action to prevent this kind of thing happening again? What are the implications of this decision?
This is somewhat different from the Sri LankaIndia scenario because here it is fishing in the historic waters, in the territorial sea. May be there is also illegal fishing in the Exclusive Economic Zone (EEZ), but that is a different matter. The Palk Bay and the Gulf of Mannar are internal waters of the territorial sea. In the South China Sea case, the tribunal came to the conclusion that China- as the flag State of Chinese fishing vessels- had unlawfully refrained from preventing its fishing vessels from continuing to fish. The simple fact that a fishing vessel under the Chinese flag would fish in the EEZ of another State isn’t necessarily an unlawful act by China or the flag State in general. Things can change when things go on and they are reported.
The Government of India should also take action to prevent illegal fishing. What the Tribunal said in its award in the South China Sea case on this particular issue was that China should have taken more action to prevent its nationals from fishing there. In fact it looks like China was protecting Chinese vessels against the Philippine Government’s law enforcement vessels. That isn’t allowed.
Q Last month when the Fisheries and Aquatic(amendment) Bill was tabled in Parliament, which reportedly had severe penalties including increased fines on vessels which trespassed on Lankan territorial waters, Tamil Nadu fishermen opposed the Bill vehemently. They urged the Indian authorities to discuss the matter with Sri Lanka, so that their livelihood isn’t destroyed. Is such a reaction justifiable?
It all depends on the legal determination of the situation- whether there is an entitlement of Indian fishermen to the fishery resources. Do they indeed still have traditional fishing rights allowing them to fish? If so under what conditions? It can’t be an unconditional right. Even if an Indian fisherman would have some entitlement to fish in the Sri Lankan part of the waters then surely they have to comply with Sri Lankan conservation measures. The Indians have only some authority even while possessing fishing rights when they are protesting against Sri Lanka’s new national legislation. Otherwise it doesn’t make any sense. They must have said that based on their view that they have historic rights.
Q Does International law provide any recognition to traditional fishing rights?
Yes, there are provisions in the Law of the Sea Convention Treaty. The answer in general is that there have been some decisions by arbitral tribunals where this was recognized. In certain conditions, traditional fishing rights can exist in areas under coastal States’ sovereignty, not in the exclusive economic zone, but in the territorial sea or archipelagic waters or historic waters.
Q Does this right exist between India and Sri Lanka?
That’s my point. In theory they can exist. But the 1974 treaty, to me, at first sight seems to indicate that there are no traditional fishing rights left. There is no provision in that treaty about the continuance of traditional fishing rights. There is only a provision on navigational rights. Traditional navigation doesn’t encompass fishing. I don’t have the full records of the negotiations. If traditional fishing rights had been discussed in the negotiations explicitly and not taken care of in a provision, then I think they were extinguished in 1974. If they weren’t discussed, the matter could be different, in the sense that India could indeed say that this is the boundary, but it leaves unaffected the reciprocal traditional rights of local fishermen. These are highly complicated legal issues that you can only determine with a thorough study of the record of what happened in the past. I have read a little bit about it, but only from the Sri Lankan side. I haven’t looked at any material from the Indian side
Q Is the Government of India bound by the International Law to take action against poachers who are arrested in Sri Lankan waters and subsequently released?
Along the lines of the awarding of the South China Sea case, a flag State (India) is obliged to take action to prevent vessels from flying its flag during poaching. That doesn’t mean that India is responsible for each and every case of poaching. But if India doesn’t take reasonable measures that are expected from a country like India, to prevent this, India can be held responsible. The least a country could do, and that is of course the Indian government and not Tamil Nadu, is to take the decision that these vessels are unlawfully arrested because they were exercising traditional fishing rights. If that is the Indian position then you have a clear dispute between India and Sri Lanka on the existence of traditional fishing rights notwithstanding the 1974 agreement. But the least India could do if this isn’t the case is to take a few measures including telling its fishermen to stop, but also make a reasonable effort by the Indian coast guard to prevent these activities.
If that is the Indian position then you have a clear dispute between India and Sri Lanka on the existence of traditional fishing rights notwithstanding the 1974 agreement
Q A few months back a Tamil Nadu fisherman was shot dead allegedly by the Navy (The Navy has denied this claim). Is a State allowed to exercise violence to protect its resources within its territorial waters?
Unless in self-defence, if the Tamil Nadu fishermen were attacking the Sri Lankan coastguard or Navy, killing fishermen isn’t something one is supposed to do. It depends on the circumstances. What you can do is warn and arrest. You don’t shoot a burglar who isn’t threatening you, even if the burglar is in your house. If he surrenders you have to arrest him.
Q The Port City Project on reclaimed land has raised concern among environmentalists that it affects the marine eco system and coastal belts. When The Port City is built within territorial waters does that mean that the State can do whatever it wants within territorial waters?
The area in a territorial sea is under the full sovereignty of the State. So for this purpose it’s just like any activity on land. But the State has to respect its international obligations. You can’t allow activities which would harm nature and environment, in a way that is prohibited by nature conservation treaties the State is a party to. Any activities by the Government here should respect the State’s international obligations, just like respect for human rights.
Q In March this year Somalia pirates seized an oil tanker with eight Sri Lankan crew members on board. It’s reported that Nigeria experiences nearly one pirate attack a week. Why is it so difficult to control piracy in sea waters?
That’s more a policy question than a legal question. I say because it’s about the operation capabilities of States to counter piracy or even the policies of the State to prevent piracy at all,like in Somalia. It is said that in Somali, pirates were originally fishermen who started to become pirates because they couldn’t fish anymore due to the fish being taken by European trawlers.
If the Nigeria police effectively controlled the coastal areas, perhaps, piracy wouldn’t take place there. It’s a huge coast and it’s difficult to control. You need a lot of police and that costs money. Sometimes people who conduct these piratical acts do them because they are poor and it’s the only way available for them to raise money. This is organized crime. We don’t want people to become pirates at all. But if you have pirates, to have counter piracy operations you need a coastguard, Navy and Police.
Q In the face of rising sea levels resulting from global warming, what are the possible effects a countryan Island- like Sri Lanka could face?
Sri Lanka is an Island with high elevated territories. In some areas you have low-lying areas. You may have even some very low lying islands off the coast. If the sea level rise in this century becomes more than 1metre that could seriously affect the coast.
The coast will retreat landwards. You will lose some land, or islands. I don’t think that sea level rise as such is a major issue for a country like Sri Lanka. Sea level rise is a major issue for the Maldives. There is an existential problem for them. They will lose half their islands.
Their future is seriously threatened. By losing islands you not only lose lands. They will also lose maritime areas, the exclusive economic zone generated by those islands. If the coast vanishes your entitlement to the territorial sea or the exclusive economic zone vanishes under the current rules of the Law of the sea.