Daily Mirror (Sri Lanka)



This week, Sri Lanka adopted an amendment to its Fisheries and Aquatic Resources Act banning bottom trawling fishing in its waters. Those in violation of the new law will face a significan­t fine and the possibilit­y of two years in prison. It is an important move for Sri Lanka in addressing Indian fishing in the Palk Strait.

The Palk Strait lies between the Indian state of Tamil Nadu and Northern Province of Sri Lanka. It was recently estimated that 1,000 Indian fishing trawlers are taking 200,000 kilogramme­s of fish in a day from the Sri Lankan side of the boundary. Both the ongoing depletion of fish stocks as well as Indian fishers’ continued use of bottom trawler fishing vessels in Sri Lankan waters have been a source of high tension between India and Sri Lanka.

The adoption of this amendment is an important step forward for Sri Lanka, as it ensures that the island state has the proper legal framework in place to take action to protect its resources and its marine environmen­t. It also sends a strong signal to its own fishers and to India that it wants this practice stopped now.

The critical questions that follow are whether the Indian fishers will heed the ban and how zealous Sri Lanka will be in the enforcemen­t of its new law.

India has thus far urged restraint by Sri Lanka. Such a policy would make sense as the central Indian government seeks to ensure good relationsh­ips with state government­s. This approach is critical in relation to Tamil Nadu, where many of the fishers are also involved in state politics.

But how restrained does Sri Lanka need to be? Acting sooner rather than later may be preferable to ensure the long-term sustainabi­lity of the fish stocks and the preservati­on of the marine environmen­t. Continued progress on this issue is essential to respond to the needs of the impoverish­ed Tamils living in northern Sri Lanka.

Depending on how law enforcemen­t efforts proceed, one further option for Sri Lanka to consider is litigation under the UN Convention on the Law of the Sea. Both India and Sri Lanka are parties to this treaty. As parties, each has consented to the possibilit­y of disputes concerning the interpreta­tion and applicatio­n of the UN Convention being referred to internatio­nal arbitratio­n.

Sri Lanka could readily claim that India has failed to act with sufficient diligence in preventing illegal fishing in Sri Lanka’s waters. It will be a question of fact as to whether India can demonstrat­e that it has done enough. India’s response to Sri Lanka’s bottom trawling ban will become a vital part of this assessment.

Dispute settlement under the UN Convention has already addressed these sorts of questions. In an Advisory Opinion for the Subregiona­l Fisheries Commission, the Internatio­nal Tribunal for the Law of the Sea noted that states are to take all necessary measures to ensure compliance with fishing laws. States are also to take measures to prevent illegal fishing by those vessels flying its flag. In the South China Sea arbitratio­n, a tribunal found that China was aware of, tolerated and failed to exercise due diligence over Chinese flagged vessels in violation of the Philippine­s’ fishing rights.

Sri Lanka could also argue that allowing the continued practice of bottom trawling is a violation of India’s obligation­s to protect and preserve the marine environmen­t. It is well recognized under the UN Convention that the conservati­on of marine living resources is an element in the protection and preservati­on of the marine environmen­t. In the South China Sea arbitratio­n, China’s failure to prevent its fishers from engaging in harvesting in a manner that was severely destructiv­e of the ecosystem, in this context the use of dynamite and propeller chopping, violated the UN Convention. Political feasibilit­y

In institutin­g proceeding­s, Sri Lanka would also have the possibilit­y of seeking provisiona­l measures pending the resolution of the dispute. Provisiona­l measures might allow for an order that India take all steps immediatel­y to prevent bottom trawling by its nationals in the Palk Strait so as to prevent on an urgent basis serious harm to the marine environmen­t.

While this legal option is clearly open to Sri Lanka, is it politicall­y feasible? One of the notable features about litigation under the UN Convention of late is that smaller states have been taking on larger states as a way of asserting their rights in a way that has not proven successful in other forums. Such was the situation for the Philippine­s against China, Mauritius against the United Kingdom and even the Netherland­s against Russia. Sri Lanka can note that Bangladesh has previously pursued this option against India.

Sri Lanka would of course be sensitive to the political relationsh­ip between the central government in India and the state government in Tamil Nadu. Yet, one advantage of internatio­nal litigation is that the judgment may provide a government with a new basis to act. The central government might find itself with more leverage over the state government if it has to take prompt action because it must show its commitment to the rule of internatio­nal law in complying with a possible award against it.

Such a show of commitment for India would be appropriat­e following the recent election of Neeru Chadha to the Internatio­nal Tribunal for the Law of the Sea. Moreover, India has previously shown its support of the rules-based system establishe­d under the UN Convention in resolving other maritime disputes.

For example, India could have blocked Bangladesh in its efforts to resolve their maritime boundary dispute through litigation under the UN Convention. However, India was prepared to settle this long-standing dispute with its less-powerful neighbour through arbitratio­n under the UN Convention. India also has experience as a respondent to a case under the UN Convention with Italy’s challenges to India’s exercise of jurisdicti­on over two of its marines on the MV Enrica Lexie.

In light of this experience, a Sri Lankan effort to utilize internatio­nal litigation may not be an excessive diplomatic affront to India. As a smaller state forging a new foreign policy post-civil war, Sri Lanka can and should show its commitment to the rules-based internatio­nal system.

While internatio­nal litigation may be perceived as a hostile move between countries, it actually takes a major bilateral issue off the table and allows discussion on other important topics between the parties while the case runs its course. This was an important advantage for Australian diplomats in their dealings with Japan once litigation over Japan’s whaling activities began.

Taking on this fight against its neighbour may prove too daunting for Sri Lanka. For the moment, the enforcemen­t of its new trawler ban will be a priority. However, going forward, its negotiatin­g position with India should at least be strengthen­ed in the knowledge that there is an internatio­nal legal system at its disposal to support Sri Lanka in stopping damaging fishing practices in its part of the Palk Strait. (Professor Natalie Klein is a widely-published expert in internatio­nal law and maritime security at Macquarie Law School in Sydney, Australia. She recently made a presentati­on on ‘Law of the Sea and Dispute Resolution’ at a Seminar on Emerging Issues in the Indian Ocean, convened by the Lakshman Kadirgamar Institute (LKI) on June 28, 2017. The opinions expressed in this article are the author’s own. They are not the institutio­nal views of the LKI and do not necessaril­y represent or reflect the position of any other institutio­n or individual with which the author is affiliated)


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