India, 13A and the Kachchativu card



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The dotted line on the map indicates the maritime boundary between Sri Lanka and India in the Palk Straits established through the Indira-Sirima agreement of 1974.


The rumour doing the rounds in Colombo is that India is using the Kachchativu card to blackmail Sri Lanka into compromising on or delaying the plans to remove police and land powers from the 13th Amendment.   The argument in relation to Kachchativu would go as follows:


1. The Agreement between the Government of India and the Government of Sri Lanka  to Establish Peace and Normalcy in Sri Lanka (the Indo-Lanka Peace Accord) of 29 July 1987 signed in Colombo is a bilateral treaty between India and Sri Lanka which cannot be unilaterally deviated from.


2. Clause 2.15 of the above agreement makes it conditional upon the Government of Sri Lanka accepting the devolution proposals that were negotiated between the two countries between 4.5.1986 to 19.12.1986.


3. The proposals that Indian Minister P.Chidambaram negotiated with the J.R.Jayewardene government during this period, particularly the 9 July 1986 document, dealt with the police and land powers that were to be devolved to the provincial councils.


4. Since the devolution of police and land powers to the provincial councils was a part of the agreement between India and Sri Lanka, any move to remove police and land powers from the PCs or even to reduce those powers, would amount to a unilateral violation of the Indo-Lanka Peace Accord.


5. If Sri Lanka unilaterally violates an agreement entered into between India and Sri Lanka without India’s concurrence, that would raise questions over the sanctity of the other agreements entered into between the two countries, including the Kachchativu agreement of 1974.


6. Therefore, if the police and land powers given to the provincial councils through the 13th Amendment are diluted in any way, India will retaliate by unilaterally abrogating the Kachchativu agreement thus turning Kachchativu island into a territory claimed by India.


7. If Sri Lanka loses sovereign rights over Kachchativu, she stands to lose all mineral wealth and fishing rights that went with gaining exclusive rights over that island.


8. At this point Chandrika Kumaratunga will re-enter politics claiming that her mother Sirima Bandaranaike obtained Kachchativu for Sri Lanka and that Mahinda Rajapaksa lost what she gained but that if restored to power, she (CBK) will restore Kachchativu to Sri Lanka.


That at least is the story doing the rounds in Colombo. What is the truth behind this and to what extent can the Indian government use Kachchativu to blackmail Sri Lanka? Many people in India as well as in Sri Lanka believe that Kachchativu actually belonged to India but that it was ceded to Sri Lanka. The actual agreement between the prime ministers of India and Sri Lanka of 1974 went as follows.


 The Kachchativu Agreement of 1974


Agreement between the Government of India and the Government of Sri Lanka "On the boundary in historic waters between the two countries and related matters" New Delhi, June 26, 1974 and Colombo, June 28 1974.


The Government of the Republic of India and the Government of the Republic of Sri Lanka, desiring to determine the boundary line in the historic waters between India and Sri Lanka and to settle the related matters in a manner which is fair and equitable to both sides, having examined the entire question from all angles and taken into account the historical and other evidence and legal aspects thereof, have agreed as follows:


Article 1 :- The boundary between India and Sri Lanka in the waters from Adam’s Bridge to the Palk Straits shall be arcs of great circles between the following positions in the sequence given below, defined by latitude and longitude:


Position 1 : 10 05 North, 80 03 East


Position 2: 09 57 North, 79 35 East


Position 3: 09 40.15 North, 79 22.60 East


Position 4: 09 21.80 North, 79 30.70 East


Position 5: 09 13 North, 79 32 East


Position 6: 09 06 North 79 32 East


Article 2:- The coordinates of the positions specified in Article 1 are geographical coordinates and the straight lines connecting them are indicated in the chart annexed hereto which has been signed by the surveyors authorized by the two governments, respectively.


Article 3:- The actual location of the aforementioned position at sea and the sea bed shall be determined by a method to be mutually agreed upon by the surveyors authorized for the purpose by the two governments respectively.


Article 4:- Each country shall have sovereignty and exclusive jurisdiction and control over the waters, the islands, the continental shelf and the subsoil thereof falling on its own side of the aforesaid boundary.


Article 5:- Subject to the foregoing, Indian fishermen and pilgrims will enjoy access to visit Kachchativu as hitherto and will not be required by Sri Lanka to obtain travel documents or visas for these purposes.


Article 6:- The vessels of India and Sri Lanka will enjoy in each other’s waters such rights as they have traditionally enjoyed therein.


Article 7:- If any single geological petroleum or natural gas structure or field, or any single geological structure or field of any other mineral deposit, including sand or gravel, extends across the boundary referred to in article 1, and the part of such structure or field which is situated on one side of the boundary is exploited, in whole or in part, from the other side of the boundary, the two countries shall seek to reach agreement as to the manner in which the structure or field shall be most effectively exploited and the manner in which the proceeds deriving there from shall be apportioned.


Article 8:- This agreement shall be subject to ratification. It shall enter into force on the date of exchange of the instruments of ratification which will take place as soon as possible.


Sd/- Indira Gandhi for the Government of the Republic of India, New Delhi, 26.7.74


Sd/- Sirima R.D.Bandaranaike for the government of the Republic of Sri Lanka, Colombo, 28.6.74


The agreement came into force from July 8, 1974.


 


Resentment in India


The Kachchativu matter emerged as an issue between Sri Lanka and India for the first time just days before the General Election of 1956.  An Indian parliamentarian moved an adjournment motion in the Lok Sabha to discuss "The urgent serious situation that has since arisen consequent on the present violation by the Ceylon government, of the sovereignty and mutual relations of the Indian government by entering into and occupying the Indian territory of the strategic island of Kachchativu near Danuskodi claiming it as their own, and by directing their air force to use the island for practice bombing and as a gunnery range for the navy from April 1, 1956."


In the course of his speech during the debate, this parliamentarian said that Kachchativu was in the ‘exclusive possession and enjoyment’ of the Raja of Ramnad when he was a Zamindar of the Ramnad state and that after the government abolished the Zamindari system, the island was under the control of the Indian government. Prime Minister Jawaharlal Nehru said that he does not have adequate information about the subject and that he has requested further information from the Madras government. On 14 April 1956, the Indian prime minister was once again questioned in parliament as to whether Ceylon was claiming Kachchativu and whether it was going to be used as a practice bombing and gunnery range by the Ceylon Air Force and Navy. The Deputy Minister of External Affairs replied to this saying that Ceylon had informed  India  that Kachchativu was indeed going to be used for practice aerial bombing and as a naval gunnery rage and that the Indian High Commissioner in Colombo had requested the Ceylon government not to use it for that purpose until the ownership of Kachchativu was clarified. The Ceylon government had affirmed their ownership claims over Kachchativu but had decided to postpone the use of the island for bombing practice. During the course of this debate Nehru said "There is no question of the Government of India and the Government of Ceylon coming into conflict over a tiny little island. There is no national prestige involved in this matter especially with our neighbour Ceylon."


A few years later, on the 9th August 1960, there was an exchange in the Indian parliament about two Indian boats that had had been apprehended by the Sri Lankan Navy. Once again, the matter of Kachchativu also came up for discussion. One MP wanted to know whether Ceylon was claiming Kachchativu as their own. To this Jawaharlal Nehru’s noncommittal and cryptic answer was "I think there is some controversy about it." Another MP said that Kachchativu belonged to the Ramanathapuram Samstanam and wanted to know whether the Ceylon government was contesting that claim. To this Nehru replied that Ramanathapuram Samstanam was a Zamindari, not a state and that if it is a Zamindari, it is a matter for the courts to settle.  To this the MP replied that the Ramanathapuram Samastanam was taken over by the Madras state under the Zamindari Abolition Act and therefore Kachchativu island belonged to the Madras state.  Nehru replied that whether a Zamindari is owned by a Samstanam or a state, it remains a Zamindari and that it does not become something else.  At this point, the Speaker intervened to explain that what the MP meant was that Kachchativu was a part of India and not Ceylon.  Nehru explained during this debate that these were small islands in the sea, some controlled by the Indian government and some by Ceylon, and that he did not know whether anyone lives there or not.    


On 17 May 1966, there was a debate in the upper house of the Indian parliament the Rajya Sabha on Kachchativu where the Minister of State for External Affairs Dinesh Singh stated that Kachchativu was in fact a part of the Zamindari of the Raja of Ramnad, but that Zamindari right does not confer sovereignty. Dinesh Singh pointed out that in 1921, there was meeting where the representative of the government of Madras  had agreed that while the Zamindari rights of the Raja of Ramnad would continue, the island belonged to Ceylon. 


On March 1, 1968, there was a stormy debate in the Lok Sabha where Kachchativu was discussed as a matter of urgent public importance. During this debate, one parliamentarian said "In the case of India, neighbouring countries occupy our territory and then our government either protests or pretending danger of war, or bad international reaction, gifts it to them."  He said further that the forcible occupation of Kachchativu was a ‘challenge to the sovereignty of India’. The Minister of State for External Affairs B.R.Bhagat stated in the course of this debate that this matter had come up in 1921 as well and that as far as possession is concerned, this island is completely uninhabited because there was no water there. Indira Gandhi, who had become prime minister by this time, chipped into say that she thinks that there is occasionally a religious festival for which people go there and that she would get further information.  Joining the debate Atal Behari Vajpaee said that he wants the prime minister to say in parliament that this island is a part of India.


A few days later, on March 4 1968, Indira Gandhi made a statement in the Lok Sabha titled "Occupation of an Indian island Kachchativu by Ceylon." Where she said that there was some controversy between India and Ceylon with regard to jurisdiction over the island and that fishermen from India and Ceylon use this island during the fishing season which lasts from  February to April and that there was a small church on the island which is visited by  Catholic pilgrims from  India and Ceylon in March every year.  She stated that India and Ceylon would discuss Kachchativu at the annual meetings between senior officials in India and Ceylon. 


On the 1st April 1968, Muhammed Sheriff speaking in the Lok Sabha on the Ministry of Defence budget emphatically contradicted any claim by Ceylon over Kachchativu. He stressed that this tiny island has always remained Indian territory. He said that he can table records which establish beyond doubt that this island belonged to the Raja of Ramnad. He said he has in his possession a lease deed dated 23.6.1880 registered in the Sub-Registrar’s Office in Ramnad as document No: 510/80 which leases the island to another party for gathering ‘Saya Ver’ from Umri plants; a lease deed dated 4.12.1885 registered as document No: 134/85 with the Ramnad Sub-Registrar; a similar lease deed of 1913 relating to chank fisheries for 15 years extended to 1936; and many such other documents. Sheriff stressed that the island of Kachchativu will assume importance once the Sethusamudram project is completed.


(The Sethusamudram project which remains stalled at the present moment still continues to generate interest in Tamil Nadu. This project was meant to deepen the Palk Straits so that ships could pass through the Palk Straits without having to circumnavigate Sri Lanka when ships travel from the west coast of India to the east coast. In the meantime, the R.K.Pachauri Committee appointed by the Manmohan Singh government to examine the viability of the project has advised against proceeding with it, as the anticipated benefit in terms of reduced travel time, will not be worth the financial and environmental cost. The AIADMK of Jayalalitha Jeyaram opposes this project while the DMK fiercely supports it. The Sethusamudram project will feature at the forthcoming Indian general election in 2014. If the Indian government finally goes through with this project, the new shipping lane will pass a very close to Kachchativu island. Just last week, the Indian Shipping Minister G.K.Vasan reiterated that the Congress led government was committed to implementing the Sethusundaram project. However, the present Chief Minister of Tamil Nadu opposes the Sethusamudram project due to various reasons including religious beliefs. Hindus believe that lord Rama built the Ram Sethu, the line of sand banks that extends from Danushkodi  Point in India which juts out into the Palk Straits and the Mannar island in Sri Lanka. They oppose cutting a channel through this line of sand banks for shipping to pass through on religious grounds. )


When Prime Ministers Indira Gandhi and Sirima Bandaranaike concluded the treaty demarcating the boundary on the Palk Straits between the two countries, the boundary line fell one nautical mile to the west of the Kachchativu island, and thus this island became officially a part of Sri Lankan territory. At the conclusion of this treaty, all hell broke loose in the Lok Sabha. One MP complained that parliament was not consulted or taken into confidence before this ‘unholy agreement for the surrender of the territory of India’ was concluded. Another described the agreement as ‘anti-national and anti-patriotic’. Atal Behari Vajpaee complained that parliament has been kept in the dark and that Indian territory has been given to foreign countries.


 


Was Kachchativu a favour?


As the Indian External Affairs Minister Swaran Singh pointed out in parliament after the conclusion of the Indira-Sirima agreement on the maritime boundary between Sri Lanka and India in 1974, the Kachchativu island is three quarters of a square mile in extent and located ten and a half miles from the nearest landfall in Sri Lanka and twelve and a half miles from the nearest Indian shore.


According to Article 15 of the UN Convention of the Law of the Sea, to which both Sri Lanka and India are signatories; "Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured". Even at the time the Kachchtivu agreement was entered into in 1974, it was a well accepted rule that when the coasts of two states are adjacent, the median line which is equidistant from the nearest landfall between the two states would be the boundary between the two states. The boundary line between India and SL according to the 1974 Sirima-Indira agreement falls one nautical mile to the west of Kachchativu.


 So the boundary has been fixed at a point equidistant between the two countries and it just so happened that Kachchativu fell into SL’s side. Had it been located on the other side of the line, it would have gone to India despite any Sri Lankan claims to it. The agreement of 1974 was not so much about Kachchativu as about fixing the maritime boundary between the two nations. As far back as 1 April  1957, the official spokesman of the Sri Lankan government said in relation to this issue that the normal practice in cases like the Palk Straits was to fix the maritime boundary at a point midway between the two countries. The present Law of the Sea also follows this time honoured practice in Article 15 of the Law of the Sea Convention quoted above.


 So if India abrogates the Indira-Sirima agreement of 1974 in retaliation for diluting the police and land powers of the PCs and reasserts claims to Kachchativu, they will be flouting the present law of the sea. The International Court of Justice or arbitration will be the appropriate forum to deal with such a situation. After the Indira-Sirima Agreement of 1974, Swaran Singh, the Minister of External Affairs, stated in parliament that "Exhaustive research of historical and other records was made by our experts on Kachchativu and every available piece collected from various record offices in India, such as in Tamil Nadu, Goa and Bombay as well as abroad in British and Dutch archives." He added that "This question of Kachchativu...had necessarily to be dealt with as part of the broader question of the boundary in the Palk Bay so as to eliminate the possibility of any further disputes on similar matters in these historic waters."


Later in the same debate Singh said that in the year 1921 when India and Ceylon were both under British rule, the fishery line had been decided on by the British government because they had control over both India and Ceylon and that this fishery line was about three and a half miles west of Kachchativu. The west of that line was for Indian fishermen and the east for Sri Lankan fishermen.


Thus the Palk Straits boundary agreed on between Indira Gandhi and Sirima Bandaranaike in 1974 had a solid basis in long standing maritime practice, and was not really a favour done by India to Sri Lanka. In any case, if India abrogates the 1974 Kachchativu agreement, that will change the entire balance of power in the Indian ocean, with Sri Lanka having no option but to seek the protection of China and to stop four billion dollars worth of imports from India not to mention canceling the Sampur power project and expelling many other Indian interests in SL. India is going to lose much more than it gains. Even if Sri Lankan fishing in the Palk Straits is disrupted due to India seizing Kachchativu, fishing is being disrupted even today and will be so for all eternity so long as there are fishermen in Tamil Nadu! They are stealing fish that belongs to the northern Tamil fishermen and there is nothing that Sri Lanka can do about it. So what material difference will the loss of Kachchativu make to Sri Lanka? If there is oil, under the sea bed, the Indians will be sucking it off from their side as Saddman Hussein accused Kuwait of doing to his oil. Even if Sri Lanka loses Kachchativu to India the bottom line is that no Sri Lankan government in its proper senses will implement the police or land powers given to the provincial councils under the Indo-Lanka Accord. 


 
 
 
 
 
 
 
 
 
 
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