Sethusamudram project: Why is Sri Lanka silent about its legal response?

The Tamil Nadu State Assembly unanimously adopted a resolution on January 12, urging the central government to implement the Sethusamudram Shipping Canal Project (SSCP) immediately. The project aims to dredge a ship canal connecting the Gulf of Mannar and the Palk Strait to facilitate ship movement between the East and West coasts of India by the shortest route.

Will the project succeed?

This idea has an enigmatic past. The project involves dredging a 45 nautical-mile (51.7 miles or 83.2 km) long deep-water channel connecting the shallow Palk Strait with the Gulf of Mannar – an idea conceived in 1860 by Alfred Dundas Taylor. Even at present, it is doubtful that India or its research partners have the scientific capability to dredge such an artificial canal in what may seem like the open seas with the heavy movement of shifting sands around the Adam’s Bridge.

This may be the first time such a deep canal is ever attempted in the region with the canal hydrodynamics (more towards open seas with strong shifting sand bases) which has a high possibility of failure, resulting in a catastrophic environmental impact. As can be seen from the annotated picture, India mooted this idea many times but had given up the project for many reasons.

The economic viability of the SSCP is questionable as the proposed canal may not be suitable for the modern generation mega-ship transit. To make matters worse, the SSCP may have unbearable maintenance costs due to dredging and shifting sand banks. Would the maintenance costs of the SSCP be lower or higher since the SSCP is on the open seas? Will SSCP earn enough profits to operate the canal in the future since the depth restriction of the SSCP would prevent mega-ships from transiting? But Sri Lanka should not sleep over the fact that it may get abandoned, but be alert to developments over this matter.

What should the Colombo Port evolve to meet the saturating market? Lankan ports should make their operations more efficient with private-public partnerships, the introduction of blockchain technology, decentralised administration, and re-introducing good governance – e.g., having a port regulator like a port commissioner, etc.

Sri Lanka’s legal response

When the SSCP was first proposed, it was shelved without implementation, possibly causing embarrassment to the Indian central government. But international law has changed from that era to a great extent. It is now obligatory for an affected nation, in the instant case, Sri Lanka, whose sovereign rights would be infringed, not only to be consulted by India but also to conduct a joint EIA with Sri Lanka.

How did international law develop to this level?

One of the many sources of International Law, as per Article 38 of the International Court of Justice (ICJ) Statute, is the ‘General Principles of International Law’. The ICJ relies on this source of law in the absence of treaty law if an applicable principle is found in a related situation

The last time when SSCP was propelled into action, international law was not so clear, at least going by ICJ judgements or related UN Sea Tribunal set up under the Law of the Sea Convention (UNCLOS).

Nevertheless, Article 283 of UNCLOS mandated that an affected nation may seek an exchange of views, meaning that, if such a project affected its marine environment, possibly under Part 12 of the treaty. Article 283 says, “When a dispute arises between state parties concerning the interpretation and application of the convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiations or other peaceful means”. And such a dispute may occur if India breaches, is likely to have breached Article 194 of the UNCLOS.

Art. 194(2) recognises that:

“States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.”

Another factor for this imminent breach is the international law’s development of the precautionary principle. The principle of precaution necessitates decision-makers to contemplate environmental damage risks and take measures to minimise such risks. It enforces both obligations of “means” and of “results”. Both the ‘prevention’ principle and the ‘precautionary’ principle are interconnected with the resultant obligation to conduct an environmental impact assessment, which in this case, is a joint EIA by Sri Lanka and India.

It is unknown whether the Sri Lankan Foreign Ministry invoked Article 283 expressly for the earlier proposed SSCP. At least, now Sri Lanka should request India to exchange data on the proposed SSCP since there is a strong possibility that the proposed SSCP may affect marine-sensitive areas of our sovereign side of the waters.

In all probability, the Sri Lankan government may have taken this step. Such an expression of views is a precondition for filing legal action under the Law of the Sea Convention as per Article 283 read with Part XV of the UNCLOS. The Minister concerned should raise these issues or begin consultations on the matter if the Sri Lankan government has as yet not taken these steps.

Legal basis for a joint EIA

At the international level, in the Pulp Mills Case in 2008, the ICJ enunciated the necessity for a joint EIA, and such a doctrine has gained much acceptance among States. So that it may now be considered an obligation under general international law ‘where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource.’

Another timely development occurred recently. The ICJ once again examined the content of State obligations on EIA in Costa Rica v. Nicaragua and Nicaragua v. Costa Rica cases jointly decided in December 2015. In these cases, the disagreement arose that non-compliance with the obligation to produce an EIA had caused a breach of international environmental law (Costa Rica v. Nicaragua) and of general international law.

The issue was the dredging of the San Juan River and the construction of a road along the river and the two sites listed under the 1971 Ramsar Treaty were furthermore situated in the area affected by the activities. In its judgment, the ICJ upheld the scope of the obligation to carry out an EIA, highlighting its connection with the obligations of due diligence, the need to notify and consult the parties, and the importance of scientific evidence sharing in the dispute settlement process.

This indicates that the times have now changed – unlike on the last occasion which was way back in 2005. International Law has shown that the advancements in this area now have stronger teeth to bite. It is now the responsibility of the Sri Lankan government to take necessary steps without much delay.

Tamil Nadu’s response

Strictly speaking, though the TN government is within the Republic of India, such a provincial government too can move for a joint EIA study with its experts. The Indian public interest litigation is so developed that an interest group can initiate action in the state High Court calling for a joint EIA study between state organs. Whether such legal action is initiated like the last time when the SSCP was initiated is not yet evidenced.

But on the other hand, a Sri Lankan who is public spirited can go before the courts of Sri Lanka and ask for orders mandating the Lankan Foreign Ministry to act on the above lines of seeking a joint EIA with India. A much-needed impetus is already there when one examines the alleged mishandling of the X-Press Pearl incident where parties have gone to a public law forum to seek an independent inquiry against the officials involved in the incident.

Final remarks: A Joint EIA by Lanka the only solution

The current international law has developed to such a level that it becomes obligatory for the two nations to conduct a joint EIA before India proceeds to implement the proposed project.

To initiate action on this important matter, the Sri Lankan Foreign Ministry should write to India’s Ministry of External Affairs seeking an expression of views under Article 283 of the UNCLOS for a joint EIA to gauge the environmental harm that will be or may be caused to Sri Lanka, in the event India proposes to go ahead with this project.

But what is important is that delay will cause irreversible damage to the whole marine ecology of the area, whether the said project is successful or not.

(The writer is an Attorney, Chartered Shipbroker (UK), Marine Surveyor (UK), and UN-ITLOS Nippon Fellow 2012/2013. He holds M.Sc. Logistics (BCU-UK), LL.M (International Maritime Law) (IMO-IMLI), LL.M (International Trade Law) (Wales), and LL. B (O.U.S.L). For comments on this Article write to nuwanpeiris. attorney@gmail.com.)