The topic of Kachchativu ( K ) has come up again. Jaishankar, the External Affairs Minister of India, in a press conference, says that in 1974, whilst drawing the Marine Boundary Kachchativu was put on Sri Lanka’s side.
Also he says in less than 2 years there was another agreement between India and SL, in which the Indian fishermen were denied fishing in historical waters and territorial seas that was allowed in 1974.
As per him the island K was given away in 1974 and the fishing rights were given away in 1976 and both these agreements amounted to treachery.
There is enough proof to say that India never “gifted” or “ceded” K to SL through good will. SL has been exercising sovereignty over K from early times and it was never a property of India.
There had been a conference held on fishing in area 100 years ago, in 1921, when both the countries were under Colonial Rule. There emerged a need to avoid over exploitation and conservation of maritime resources and also to avoid fishermen in both countries competing each other in same waters.
Respective area
Both governments, Madras and Ceylon, agreed to delimit the waters in Gulf of Mannar, Palk Bay and Palk strait so that each government can control and regulate fishing in their respective area.
WT Jayasinghe, former Secretary of Foreign Affairs ( 1972-1989 ) in his book “Kachchativu and the Maritime Boundary of Sri Lanka” has included the proceedings of the meeting held in October 25th 1921 together with the copy of the letter written by Mr. Cotton ( Indian Delegation) on the same day.
The two parties , ( India and Ceylon) , have agreed to the principle of Equidistance and Median line as the basis/guiding factor for delimitation.
The covering letter of Mr. Cotton mentions the following;
a. The delimitation line was accordingly fixed with our concurrence 3 miles west of Kachchativu and the Ceylon reps thereupon agreed to a more orderly alignment south of the island than they had originally proposed so that important chank beds in that area should fall entirely within the Madras sphere of influence….
b. We are inclined to regard the Ceylon claim to this island as sentimental rather than practical and consider that the advantage gained elsewhere, more than compensate the government of Madras for the loss of any fishing rights in its immediate neighbourhood.
c. The Indian Rep informed the meeting that Rajah of Ramnad asserts that K is within his Zamindari but Horsburg (Ceylon delegation) maintained that this island belongs to Ceylon and quoted from correspondence with the government of India in which possession was definitely claimed.
(Appendix A of WT Jayasinghe’s book: Letter of CWE Cotton CYE,ICS dated 25th October 1921)
The proceedings of the meeting signed by Indian and Ceylon delegations headed by Mr. Cotton and Mr. Horsburg respectively, mentions as follows;
a. After some discussions it was unanimously agreed that the line of delimitation of Palk Strait and Gulf of Mannar between government of India and Ceylon should run as follows: And the coordinates given were the 3 miles west of Kachchativu.
b. The above is signed by us , the reps of India , without prejudice to any territorial claim which may be made by the government of India to the island of Kachchativu”.
(Proceedings of the Dept of Commerce, meeting held in Council Chamber, Colombo dated 25/10/1921 and ibid page 231)
Boundary line
Also it should be mentioned that during the entire colonial period , the government of India never claimed ownership for the island and accepted the boundary line 3 miles west of Kachchativu.
It may be the reason why the Central government of India submitted to the Supreme Court, when Tamil Nadu was hoping that the Supreme Court would do justice by them that “no Indian territory including K was ceded to SL out of goodwill and therefore the question of retrieval does not arise”.
The manner in which the line 3 miles west of K was decided was shown in the proceeding of the talks held one before, ie 24th October 1921 as follows;
“‘If the principle of Equidistance was applied, the midpoint between Rameshwaram and K would be 7.5 miles west of K. Such demarcation, whilst giving SL a wider area for its fisheries, would considerably narrow the area of operation for Indian fishermen. Therefore Horsburg representing Ceylon, proposed that instead of following a median line, the line at K be demarcated only 3 miles west so that there would be an equitable apportionment in the fisheries domain for both India and SL. The extent of sea so lost to Ceylon would be a concession made to India for the purpose of a settlement’”. ( ibid page 14)
Kachchativu then gradually became a national security issue also because there has been illicit immigrations and smuggling attempts from South India using K as a platform. A Task Force to prevent Illicit Immigration (TAFII) was established in Sri Lanka and most of the illicit immigrants arrested in Jaffna admitted that they had come illicitly through K. That also a main reason why Mrs. Bandaranaike stressed the urgency of resolving K issue, resulting in the 1974 Agreement between the two countries.
Considerable amount
However, in the 1974 Agreement, when dealing with the subject of fishing, it is observed that the 3 miles west of K line has been reduced to 1 mile and thereby SL losing a considerable amount of sea area to India.
It should be mentioned that there is an International law called Doctrine of Uti Possidetis and it is defined as “The doctrine that old administrative boundaries will become international boundaries when a political sub division achieved independence”.
Also there was an ICJ judgement in the Mali-Burkina Faso dispute case in which it was argued that the principle of Uti Possidetis should apply in any decolonisation situation regardless of the legal or political status of the entities on each side of the border.
SL could have taken full advantage of the provision of the above international law that recognises the legality of Colonial boundaries and insisted on the 3 mile line west of K. By agreeing to reduce it to 1 mile SL has lost a large area of her sovereignty. Why SL failed to do that and preserve her valuable sea area is a disappointment and is beyond comprehension.
Art 5 of the 1974 Agreement gives restricted rights to the Indian fishermen and pilgrims to enjoy access to visit K without obtaining travel documents. The access limited to drying nets, mending sails/boats, resting etc. but does not extend in any way to fishing activities.
Therefore it is incorrect to say that the fishing rights allowed in 1974 was given away by 1976 agreement because in 1974 agreement too Indian fishing rights in SL waters were never allowed.
Final agreement
Also it should be mentioned that India tried her best to “claim” K in 1974 negotiations. As per Jayasinghe, there had been discussions with relevant officials before the final agreement was signed by the two Prime Ministers. Kewal Singh, the then Foreign Secretary of India, never gave up in justifying their claim for K and at one time even suggested to exercise concurrent jurisdiction. The SL delegation has submitted the Dutch records listing K as among the territories of Jaffna. He has also shown a map in the book written by Francois Valentyn called “Description of the Island of Ceylon” showing the location of K implying that it belonged to Ceylon. They also showed that up to 1955 K had been listed as a village of Northern Province in the successive census and the records of Indian government seeking permission from SL government to use K for bombardment practices for Royal Indian Navy!
The 1976 agreement mainly dealt with the EEZ, Continental Shelf, its resources, living ,non living, navigational rights etc. which emerged after the Law of the Sea convention. Both countries agreed not to engage in fishing in the historic waters, the territorial seas and the EEZ of the other country.
The important aspect of 1976 agreement was the Wedge bank, a very rich fish resource, located 22 miles off Cape Comorin, but out of the territorial waters of India at that time. The SL fishermen have been fishing in the Wedge bank right through out and when the EEZs were established it fell within the authority of India. Hence obviously in1976 agreement India first put restrictions to SL fishermen and gave permission only for the next three years but that too to terminate immediately if India decides to explore the Wedge bank for Petroleum and other mineral resources.
However the tragedy is, with all these agreements the Indian fishermen still continue to indulge in illegal fishing in SL waters.
Jaishankar said that 6184 Indian fishermen were detained and 1175 boats arrested by SL Navy for the past two years but these were not boats just crossed the IMBL but those which came right inside the territorial waters of SL, up to Pt Pedro, Mullaitivu etc.
The Indian Fishermen engage in the banned practice of Bottom trawling, rape the sea bed and destroy all the fishing resources. I myself have counted more than 800 Indian trawlers at a time, when I was in the Navy, who rob the fish belonged to SL northern Tamil fishermen.
Northern Tamils
It has been revealed in the “Parliamentary Sectoral Oversight Committee on Alleviating the Economic Crisis” that the Indian fishermen harvest, engaging in fishing in SL territorial waters, comes to about 2000 million dollars worth of fish per year!!
Prime Minister Modi says that SL government must look into the self respect and welfare of the Northern Tamils. If the Indian government is so much concerned about Northern Tamils, what about the livelihood of SL Tamils being destroyed by her own people? The manner in which this poaching is carried out for the last so many years, very soon, the area would be dead with nothing available. Hence it would be necessary for SL to ensure more stringent legal/other measures in this regard.
When talking about K, we agree with Jawaharlal Nehru’s and Indira Gandhis comments such as “small island , waste of time discussing, little rock nothing to do about the territory” etc. because, K is a barren island, with no fresh water and uninhibited. Yet it belongs to SL and the IMBL is drawn now one mile west of the island. It can never be given back to India and anyone crossing the IMBL without permission or anyone robbing the resources inside can be dealt with legally and no law abiding person could object to it.
Rear Admiral (Dr.) Sarath Weerasekera VSV RWP USP MP