Sri Lanka’s contribution to the Indian Ocean | Daily News

Sri Lanka’s contribution to the Indian Ocean

Sri Lanka is strategically located as an important island in the heart of the Indian Ocean with a land area of nearly 65,610 sq. kms and having sea base of over four times its’ land mass. Since, history the country has been in the middle of international attention as a crucial destination between the East and West shipping routes that attracted three maritime superpowers trading in that route for economic benefits to the said motherlands. They not only conducted trading, but also introduced their legal systems by making this island a mixed law State, which is quite rare in the international legal spheres.

This has hugely benefitted the legal community of the country by being competent in both the common law and civil law systems. Although, the country is claiming to be a maritime hub in the present international economic order, it has been holding such unique feature for time immemorial. The historic ports of Mahatitthaon the Arabian Sea, Gokanna now known as Trincomalee, Jambukolapatuna and Urathurai of the Northern peninsula, Pallawawanka in the East, and Kalanbu now called Colombo are classic examples of where maritime activities thus existed. Later, the addition of Galle and few other ports made Sri Lanka secure a prominence in the shipping trade providing many options for directing respective journeys in and out of the sea in a strategically significant island nation. Despite the fact that Chinese attention has been drawn towards the country with many investments coming down the line especially under the Belt and Road Initiative, the country was used as a key location in ancient China’s Maritime Silk Route during its Sung Dynasty (1127-1278).

The present system of governance has given much priority for the development of Sri Lankan ports especially, the three key facilities, namely Colombo, Hambanthota, and Galle; to make them economic centres in the country’s move towards achieving prosperity. The importance of convening the Indian Ocean Conference hosted by the Prime Minister on October 11 and 12, 2018 falls at this very important juncture where the country is seeking to link with all the littoral States bordering the Indian Ocean.

Alliance with Members States of UNCLOS

While the sailing community take on to one of the busiest maritime routes in terms of container, oil, gasoline, and bulk trades along the Western to Southern and then to the Eastern regions and vice versa, the legal domain in protecting the sea areas of the country as well as other maritime interests involved with the ocean are well commendable. But however, as a nation, we are still unable to appreciate the developments taking place at international level within our legal system as a whole. That is to say, Sri Lanka has yet to legislate number of key important international instruments applying in the maritime sector within the norms of a dualistic legal domain, being a member of the Commonwealth. Nevertheless, the contribution of its law towards meeting most of the ends of globally operating standards is highly appreciable.

It is a well-known fact that the private maritime laws developed much prior to the entering into force of the so-called Constitution of the Oceans: the United Nations Convention on Law of the Sea, 1982. Even before the world’s ‘order on the seas’ was attempted to be drafted under the auspices of the 1st United Nations Conference on Law of the Sea (UNCLOS) in 1956, private maritime laws of some varying degrees of concern originated due to the importance of protecting the seas as well as to safeguard the maritime interests therein. But however, the immense contribution of an eminent Sri Lankan lawyer late Shirley Amarasinghe who took the leadership of the 3rd UNCLOS brought into limelight the present international codified law as the ‘umbrella convention’ in the world order of activities relating to sea and maritime affairs. Due to the unwanted delays that took place in adopting the UNCLOS’ official document, which is the Law of the Sea Convention in 1982 signed in Montego Bay, Sri Lanka went single handedly in legislating its own piece of legislation that determined the areas that come under the national sovereignty of land territory and other jurisdictional matters associated with its maritime waters.

The Marine Zones Law No. 22/1976 plays some significant role in the determination of the country’s claim to its territorial sea, contiguous zone, exclusive economic zone, and the continental shelf. The particular law has also become subject to the two Indo-Lanka Agreements on the Boundary in Historic Waters between the Two Countries and Related Matters (1974) and on the Maritime Boundary between the Two Countries in the Gulf of Mannar and the Bay of Bengal and Related Matters (1976).

These two Agreements have touched upon some key aspects of the law of the sea as long as ‘historic waters’ are concerned parallel to the arguments brought about in the South China Sea dispute, and the delimitation of sea areas dealt in respect of the varying national sea regimes prevailing under the UNCLOS. Having ratified the Law of the Sea Convention in 1994 alongside the coming into force of this much important international legal regime on the seas and oceans, Sri Lanka is presently playing a huge role as a strategic partner of the Indian Ocean Rim. It is noteworthy that Sri Lanka has claimed and acquired almost all the rights that it entails under the Convention including the recent success at the United Nations in respect of the extended claim on the continental shelf that would span to an area of forty times the size of its landmass.

Basically, the country hasn’t had many disputes with its neighbours over the sea areas that fall under the sovereign or jurisdictional competence unlike number of States that usually ended up in the International Court of Justice, International Tribunal for Law of the Sea, or any other forum such as the Permanent Court of Arbitration that deals with sea related disputes.

However, the developed jurisprudence of these international courts of fame have immensely contributed to the country’s geographical location in the Indian Ocean such as the freedom of navigation inculcated through the Corfu Channel Case (1949) and the South China Sea dispute (2016), which I comprehensively dealt in a recent discussion at Lakshman Kadirgamar Institute with Prof. Atsuko Kanchara from Sophia University, Japan. In addition, the legal principles outlined in Malaysia v Singapore (2003) dispute relating to the marine environmental protection and the Mox Plant case (2001) between Ireland and United Kingwdwom are some that would have relevance to Sri Lanka’s concerns over the Sethu Samudram Canal project and India’s transportation of nuclear materials along the North-Western cowastal belt between the two countries.

Moving along the UNCLOS

Over the years, Sri Lanka has maintained a steady move along the main provisions of the UNCLOS by adopting several measures in line with it. It has stood on the fundamental attainments of certain organisational arrangements with member States of the region as well as on matters pertaining to marine resources and costal controls. These are some important measures that need to be achieved in a country’s efforts to manage coastal zones. In respect of regional cooperation and connected arrangements, Sri Lanka has become a key player in almost all regional organisations respecting the obligations highlighted by the UNCLOS in view of its Articles 118, 129, Section II of Part XII in matters dealing with Conservation and Management of the Living Resources of the High Seas, Cooperation in the Construction and Improvement of Means of Transport, Global and Regional Cooperation of Protection and Preservation of Marine Environment, and of Port State Control respectively, where it holds the membership in these regional organisations in particular such as the Indian Ocean Tuna Commission, Indian Ocean Memorandum of Understanding in Port State Control, and the like.

In addition to the organisational means that it actively participates, Sri Lanka has also contributed single-handedly in relation to matters of high importance that stems out of the UNCLOS such as the concepts of freedom of navigation, maintaining safety of navigation, provisioning the navigational support, rendering of assistance at times of distress for international shipping, prohibition of trans-boundary pollution, and ensuring maritime security against acts of piracy and of terrorism.

Within the public law domain, Sri Lanka has enacted some important pieces of legislations in several key areas of competence in line with the rights and duties granted for coastal States by UNCLOS. Those include the Marine Pollution Prevention (MPPA) Act No. 35/2008 which replaced the older version No. 59/1981 that has also established the Marine Environment Protection Authority (MEPA), National Aquatic Resources Research and Development Agency (NARA) which was set up through the NARA Act No. 54/1981, the Coast Conservation Act No. 57/1981, Flora and Fauna Protection Ordinance No. 2/1937 and subsequent amendments to it that deals with the protection of Cetaceans and other marine life under the Ministry of Wildlife, Petroleum Resources Act No. 26/2003 that attends to the matters relating to exploration of oil and gas in the Sri Lankan waters, Piracy Act No. 9/2001, Suppression of Unlawful Acts against the Safety of Maritime Navigation Act No. 42/2000 and the like.

(a) Marine Environment

Understanding the importance of protecting the marine environment and especially to execute the due obligation vested upon the country by the UNCLOS, Sri Lanka has set up a specialized agency under the Ministry of Environment commonly known as MEPA. Its governing legislation has made proviso in respect of matters that superfluously cover the entire maritime domain up to the Pollution Prevention Zone that extends to 200 nautical miles seawards as well as a 3 km radius inward. It has also laid the emphasis on conducting environmental impact assessments as well as the contingency plans that need to exist in a mechanism that protects the marine environment at large. In addition, it has also laid down penalty systems in wake of pollution threats by ships, pipeline and off-shore operations, anti-fouling, wrecks, ballast water sediments, land based emissions including air pollution as well as the civil liability and compensation mechanism that goes in line with the need of a proper imposition of liability against polluters under the UNCLOS. Presently, the MPPA is being reformed to include latest developments in marine pollution area such as bio-diversity issues, private maritime concerns, and pure private claims and limitation of liability regimes by a Committee of Experts, which I too have the privilege in sitting. Considering the fact that 2/3 of the world’s oil trade pass along the navigational routes of the country’s Southern coast, it is imperative for both the regulators and lawmakers to specifically concentrate on protecting the marine environment before any incident occurs, and to take prompt preventive measures in overcoming a catastrophe.

(b) Maritime Security

The country affords assistance to foreign vessels by way of institutional support that is made through Sri Lanka Navy and the Sri Lanka Coast Guards while the legal domain been sufficiently and aptly legislated with a couple of important laws such as the previously mentioned Piracy Act and the Suppression of Unlawful Acts against the Safety of Maritime Navigation Act came into being in pursuance of the Convention on Suppression of Unlawful Act against the Safety of Maritime Navigation in private maritime law domain. These local legislations filled the gap that existed in relation to security concerns which came up especially aftermath the September 11 incident in the US as well as the threats inflicted by the 33 year long terrorism that existed in the country. Using the ‘Right to Hot Pursuit’ that prevails in the UNCLOS gave way for Sri Lanka Navy to successfully attack and protect the country’s interests against terrorist ships prior to the ending of the war as well as protecting the navigating community of the Indian Ocean. In addition, Sri Lanka is well known for the providing of maritime security services in the region through public-private partnership under the supervision of its Ministry of Defence.

Private maritime interests

Likewise the international law on private maritime interests originated much prior to the UNLCOS, Sri Lanka’s membership at the International Maritime Organization goes back to the year 1972 when it commenced its journey of acceding to IMO conventions. As a leading white listed country, the international regulator of maritime activities has been aptly supported by the local counterpart, the Director General of Merchant Shipping. Understanding the importance of the role of the regulator at domestic level, the Merchant Shipping Act that provides the necessary legal back-up to this said office was implemented through Act No. 52/1971. As the local regulator, he has been granted the mandate to regulate all private maritime matters including that of flag-state control and regularizing agency related services.

In maintaining safety of navigation for foreign vessels within the local maritime zones as well as maintaining same in respect of the ships that fly the flag of Sri Lanka in international waters and in the waters of other sovereign nations, Sri Lanka has entered into the most important international conventions of the IMO as a responsible State in the Indian Ocean. These include, LOADLINES Convention 1966, TONNAGE Convention 1969, INTERVENTION Convention 1969, COLREG Convention 1972, SOLAS Convention 1972, STP Agreement 1973, Space Protocol 1973, IMSO Convention 1976, INMARSAT OA 1976, STCW Convention 1978, MARPOL Convention 1973/78 including its Annexures I, II, III, IV, and V, SUA Convention 1988, CLC Protocol 1992, FUND Protocol 1992, BUNKER Convention 2001, and BALLAST WATER Convention 2004.

In view of proposed measures that have been put forward by panel of experts including me in the maritime sector, and especially at IMO’s post-audit implementation process, several new legal instruments such as the LLMC Convention 1996, HNS Protocol 2000, and ANTI FOULING Convention, LONDON DUMPING Convention, and few other have been put into the pipeline for accession.

It is noteworthy to mention somewhat slow progress in bringing these ratified conventions into the domestic legal structure within the dualistic approach of the State being a nation of the Commonwealth. This has to certain extent created some negative impact on the country’s move towards becoming a fully-fledged maritime hub at present context globally. However, many steps are been taken presently to combat this situation and provide the application of local legislations in line with international instruments. Though it may take some time until these new legislations come into being, the significant maritime feature of the country has not fallen into much of a debate nor has this led the country to arrive at unreasonable compromise in safeguarding its interests towards the Indian Ocean.

Another important contribution of Sri Lanka towards private maritime interests is the proper observance of navigational routing for maritime transport. This is an important element as long as the right of innocent passage, right of navigation, and freedom of navigation are concerned at national level. The present system of routing will be further strengthened with the commencement of the Port of Hambanthota within a commercial environment. Sri Lanka has not viewed the protection of marine resources especially with regard to living marine species that exists in a concentrated area beneath the sea where they come into conflict with navigation of ships.

Some recent concerns in relation to the whales off Mirissa have been tackled by the Ministry of Wildlife with the view of creating ‘marine protected areas’ that would not disturb the much important commercial shipping without complicating rerouting processes. At a time where the proposed Kra-Canal project in Thailand to take place at a much speedier pace allowing ships to use alternate sea routes in reaching the West within short period of time, Sri Lanka’s ports, especially Colombo and Hambanthota will be able to secure a bigger market share. This would in turn create much attention towards the country by its neighbouring States that already depend on their shipments that go through the transhipment process in Colombo. The Port of Galle in particular will attract more Cruise vessels thus connecting the other States around the country such as India, Maldives, Bangladesh, and Myanmar falling into some important destinations in transit to those leisure makers from various countries in the world.

Blue-Economic aspirations and economic integration

Sri Lanka’s strategic positioning in the Indian Ocean has clearly given it the value of being a transhipment hub in particular. Out of the 7.2 million containers handled throughout the year 2017 by the Port of Colombo and the expected rate of growth at 33% this year (2018), majority of these come as transhipment cargo from the regional States such as India, Bangladesh, and other while the Indian transshipments alone consists over 75% of that figure. This has helped Sri Lanka in acquiring a bigger market share within its blue economic aspirations laid towards the Vision 2025. Being one of the biggest foreign exchange earners, the shipping industry has thrived over the years to attract big players in container handling where all the world’s leading container carriers call at the Port of Colombo. Very soon, the Sri Lanka Ports Authority will commission the work towards operating the East terminal that would employ more mussel to the presently existing SLPA owned terminal Jeya and privately owned SAGT and CICT.

Regional economic integration has also been taken care of with Sri Lanka’s active participation in the Bay of Bengal Initiative for Multi Sectoral Technical and Economic Cooperation (BIMSTEC) and the Indian Ocean Rim Association (IORA). The expected economic boom in this Indian Ocean region should be viewed as an important milestone in these organisations to integrate each other’s economy for mutual dependency rather than of a mere self-dependency approach within the region.

However, the country’s laws should be styled to match these developments especially in attracting foreign direct investments with the opportunities been granted on the basis of ease of doing business. The extension of the land mass off Colombo known as the Colombo International Financial City formerly called the port City Project will definitely bring much more benefits not only to Sri Lanka but also to the Indian Ocean littoral States. It is no doubt that Sri Lanka is forging ahead in this area seeking to obtain consensus among its governing coalition which is an integral part of the development drive. The different sectoral developments are taking place, especially the process of implementing national policies in the areas of maritime and logistics, export strategies, and legal reform and transitional justice. These would not only promote and encourage trade in the Indian Ocean, but also enhance social integration which is considered to be a key element in a bloc like ours.

Being an island nation, Sri Lanka has much more to offer in the coming years especially towards the neighbouring States of the Indian Ocean. Providing the opportunity to freely navigate in this area of the sea would be the key to achieve these ends by all the littoral States bordering the Indian Ocean. Therefore, respecting each other’s commitments and the use of the Indian Ocean for their respective maritime aspirations within the economic corridor created by regional arrangements should be given priority alongside other international commitments that they have with others in different seas.

(Dr. Dan Malika Gunasekera, Attorney-at-Law is an expert in the fields of Law of the Sea and Maritime Law having specialised the subjects at University of Utrecht, The Netherlands attached to the Netherlands Institute of Law of the Sea (NILOS) and University of Hamburg, Germany respectively. He was a distinguished Scholar of the International Max Planck Research School for Maritime Affairs, Germany, and represented as a German Scholar Delegate to various international forums. He is a Senior Visiting Lecturer in Law at University of Colombo, Dalian Maritime University, China, and Xiamen University, China, and the Dean of Faculty of Management, Humanities & Social Sciences, CINEC Maritime Campus. He is also the former Executive Director of Ceylon Shipping Corporation, and presently the Moderator of the National Maritime & Logistics Policy, as well as Co-Chairman of the Advisory Committee on Logistics of Ministry of Development Strategies & International Trade. He is the Lead Consultant of DANMAR Law, Research & Consultancy Firm)


 

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