• SL’s sovereignty over the Island was based on specific historical documentation & the consistent exercise of jurisdiction
• Notes SL must prepare to respond to future pressures and pleas from the Indian side for licensed fishing

Now and then, the Katchatheevu Island, lying halfway between the Islands of Rameswaram (India) and Delft (Neduntheevu, Sri Lanka), has been hitting the news headlines. Mainly, such interests are evinced when several of the hundreds of Indian trawlers that cross the International Maritime Boundary Line (IMBL) three times a week and engage in bottom trawling in Sri Lankan waters get arrested for a variety of offences, including illegal entry into Sri Lankan waters, engaging in fishing without licence and practising bottom trawling, which is an offence in Sri Lanka. 

Compared with the regularity of these infractions, arrests are few and far between, and those arrested are released within weeks, if not days, after court cases are completed in keeping with the country's laws. Yet, egged by fishing-related interests, Tamil Nadu (TN) politicians have made it a fine art to complain against such arrests to New Delhi, demanding the retrieval of Katchatheevu, as if it would address the problem. While the eye of the storm remains on the Island, the Indian public appears to be unaware that illegal fishing by Tamil Nadu fishermen covers a wide ark from Chilaw in the North-West of Sri Lanka to Mullaitivu in the North-East of the Island, hundreds of kilometres (km) away from Katchatheevu. Nobody in India, either in New Delhi or TN, wishes to address the larger problem of the illegal entry of TN fishermen into a foreign country, carrying out unlicensed fishing, and, in the process, damaging the fragile marine ecology by resorting to bottom trawling within Sri Lankan waters. Ironically, the Indian side, while demanding humanitarian treatment of its fishermen, seems to be oblivious to the denial of a decent livelihood to Sri Lankan fishermen in the North and the East of Sri Lanka, who are warned by their Indian counterparts not to venture into Sri Lankan waters three times a week, when they pillage their marine resources at will. Sri Lankan Tamil fishermen in the North and the East, being the real victims of the tragedy, ask in unison whether the continuation of this illegal practice for many decades is because New Delhi finds it easier to manipulate the Sri Lankan Government than making TN fishermen comply with bilateral and international agreements.

A new Indian RTI report 

The latest round of controversy over Katchatheevu started with a social media post by the Indian Prime Minister (PM) Narendra Damodardas Modi on 31 March referring to a Right to Information (RTI) report provided to the Bharatiya Janata Party (BJP) President of TN, which reportedly claimed that the Congress Party “callously gave away” the Island of Katchatheevu in 1974. The Indian External Affairs Minister Dr. Subrahmanyam Jaishankar followed up on the matter and said that when drawing the maritime boundary in June, 1974, “Katchatheevu was put on the Sri Lankan side.” Quoting relevant articles of the agreement and a statement made by External Affairs Minister Sardar Swaran Singh on 23 July 1974, he added that the exchange of letters between the two Foreign Secretaries on 23 March 1976, ensured that fishing vessels and fishermen of India and Sri Lanka would not engage in fishing in the historic waters, the territorial sea and the exclusive zones of the two countries without the express permission of the two countries. He referred to the continuous arrests of Indian fishermen and the detention of their fishing vessels by Sri Lanka over the years, over which Chief Ministers (CMs) of TN had repeatedly protested to New Delhi. It was evident that he was not making a case for reclaiming the Island but striving to restore fishing rights “around the waters of Katchatheevu.” To strengthen his case, he quoted the legal opinions of the former Indian Attorney General (AG) Motilal Chimanlal Setalvad (1958) and the Legal Advisor of the External Affairs Ministry, Dr. K. Krishna Rao (1960), citing customary rights for Indians to fish around Katchatheevu. However, what was not figured in the interview was that thousands of TN cross the IMBL and engage in fishing over a wide arc from Chilaw in the North-West to Mullaitivu in the North, covering more than 450 km of Sri Lankan coastline.

Even if Sri Lanka were to concede fishing rights around the Katchatheevu Island as demanded, how India would prevent the pillage of natural resources by Indian fishermen beyond the shores of Katchatheevu of its economically-debilitated neighbour, covering a vast stretch of coastline, was not made clear. It is noteworthy that at least for the last 25 years, India has been pressing Sri Lanka for licensed fishing in these waters to facilitate the majority of its 4,000-strong trawler fleet to continue bottom trawling in Sri Lankan waters, ignoring the illegality of that practice according to the Sri Lankan law.

It may be recalled that in June 2011, the TN Government led by TN CM Jayaram Jayalalithaa filed a petition in the Supreme Court (SC) of India seeking to declare the 1974 and 1976 agreements unconstitutional. However, the Indian Government objected to the TN Government’s arguments, stating that, “No territory belonging to India was ceded, nor sovereignty relinquished, since the area was in dispute and had never been demarcated” and that the dispute on the status of the Island was settled in 1974 by an agreement. Both countries considered the historical evidence and legal aspects when arriving at the decision. The legality of the two agreements was confirmed in August 2014 by the Indian AG Mukul Rohatgi, who represented the Centre. He told the SC bench led by Chief Justice of India Rajendra Mal Lodha, “If you want Katchatheevu back, you will have to go to war to get it back.”

When a previous RTI report was made public in 2015, the Indian side adopted the same position in 2011, that the two agreements did not involve acquiring or ceding territory belonging to India since the area in question had never been demarcated. Against this backdrop, it is not a surprise that three highly-respected former Indian High Commissioners of India in Sri Lanka, Shivshankar Menon, Nirupama Menon Rao, and Ashok K. Kantha, two of whom later functioned as Foreign Secretaries, came out publicly against the latest Indian claim over Katchatheevu.

Elections in TN at the state or national level are occasions when the issue of Katchatheevu receives undue prominence, as happened in March when a report under the RTI was released to the TN BJP President K. Annamalai regarding the 1974 decision of the Premier Indira Gandhi Government to “hand over” the territory in the Palk Strait to Sri Lanka.

From a legal perspective, India did not “hand over” Katchatheevu to Sri Lanka as claimed by the Indian side, simply because the Island concerned was not a territory owned by India. Both countries claimed the Island, and Sri Lanka established that historically, cartographically, and legally, the Island had been administered by Sri Lanka since the Portuguese period, going back to 1615.

Indian claims to Katchatheevu rebuffed 

It has been recorded that even during the colonial period, India made claims over Katchatheevu. It will be recalled that an Indian delegation visited Sri Lanka in October 1921 to discuss the fisheries line between the two countries. At the meeting, the Indian side made a vain attempt to establish the fisheries line one mile east of Katchatheevu so that the Island would be located within India’s waters. The Principal Collector of Customs, B. Horsburgh, who had also been the Government Agent of the Northern Province of Sri Lanka and therefore thoroughly knowledgeable on the subject, threatened not to proceed with the conference if the Madras officials led by Charles William Egerton Cotton continued disputing Sri Lanka’s sovereignty over Katchatheevu, seeking to stake a claim over the Island. Eventually, both sides agreed to set the fisheries line three miles west of Katchatheevu, thus bringing the Island firmly under Sri Lanka’s control.

Records confirm that even after the Independence of the two countries, India used to seek the approval of Sri Lanka to use the Island as a bombardment target. In response to a request made by Indian High Commissioner Varahagiri Venkata Giri in August 1949, his Sri Lankan counterpart Kanthiah Vaithianathan responded that the suggestion made by the Indian side to the effect that Katchatheevu was situated outside the territorial limits of Ceylon was not correct and that, “should the Royal Indian Navy desire to conduct fleet exercises as proposed, it will be necessary to obtain the permission of the Ceylon Government to do so”, which response effectively ended the Indian request. Further, except for the claim made at the 1921 conference by the colonial officials of Madras, no other claim had been made by the Government of India until the mid-1950s. Therefore, it can be maintained that Sri Lanka’s sovereignty over the Island was based on specific historical documentation, the consistent exercise of jurisdiction and the physical control over the Island.

The 1974 agreement was concluded after painstaking negotiations spanning the administrations of two Sri Lankan PMs, Dudley Shelton Senanayake (1965-1970) and Sirima Ratwatte Dias Bandaranaike (1970- 1977), during the tenure of Indian PM Gandhi. 

It is clear that the RTI episode was election-related propaganda activity, and that the Indian side had decided to use the opportunity to obtain approval for licensed fishing in Sri Lankan waters. Against this backdrop, Sri Lanka must prepare itself to respond to future pressures and pleas from the Indian side for licensed fishing.

(The foundation is a think tank based in Sri Lanka)

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The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.