Continued from last week
The Constitution of Sri Lanka in defining the territory of Sri Lanka states that ‘the territory of the Republic of Sri Lanka shall consist of the twenty-four administrative districts….. and its territorial waters. The 7th Amendment to the Constitution has added one new district making it now a total of 25 districts. The land and sea territory are treated as being in no way different and it is implied that the sovereignty of the State applies over both parts of its territory equally without distinction.
On the question of territorial waters and functional or jurisdictional zones, Sri Lanka’s policy in common with India and other developing nations was one of extension of national jurisdiction and the control of economic resources line off shore as is evidenced by the declaration of a Fisheries Conservation Zone as earlier as 1957, and the extension of territorial waters from 3 to 6 and then to 12 miles, which was confirmed by the Maritime Zones law of 1976, which also declared a 200 – mile Exclusive Economic Zone and Pollution Prevention Zone.
By the Maritime Zones Proclamation of January 1977, the territorial limit was declared to be 12 miles. This limit is now further confirmed in the 1982 Convention. The 12 miles is drawn from the baseline, and is the low water mark of ordinary spring tides along the coast.
However from the port of Kalpitiya up to the islands forming Adam’s Bridge in the area demarcated as the Gulf of Mannar, the territorial sea is much wider than 12 miles because here the regime of historic waters prevails and these waters have been delimited by the Boundary Agreements between Sri Lanka and India of 1976.
Criminal and Civil Jurisdiction in the Territorial Sea
The territorial sea being under the sovereignty of Sri Lanka, Sri Lanka can legislate for this region and has civil and criminal jurisdiction over foreign ships and shipping where they contravene such laws within this region. From early times, legislation had been passed in respect of control of fisheries and implementation of custom regulations
The first legislative instrument to protect the coast was introduced in 1865 titled ‘An Ordinance to provide against the removal of stones and the substances from certain parts of the seashore’. The primary intention of introducing this law, empowering the Government Agent of a Province to prohibit the removal of stones or other substances from the seashore, was the prevention of damage to roads and thoroughfare adjoining the seashore.
This Ordinance was repealed by Seashore Protection Ordinance No 12 of 1911. Two Ordinances were also introduced during the British Period for the protection of Chank Fisheris (Ordinance of 1925) and for the protection of rights in the Digging of Peal Chanks Ordinance No. 14 of 1842 followed by the Ordinance No.19 of 1866 which addressed the issue of unnecessary destruction of fish by the use of certain nets.
The Crown Land Ordinance of 1947 which repealed the Seashore Protection Ordinance provided for custody, control and management of the foreshore from as amended by later statutes. But the Crown (State) Land Ordinance is still a key Ordinance in state land matters.
The Pearl Fisheries Ordinance of 1925, the Whaling Ordinance of 1936, the Chank Fishery Act of 1953 are now superseded by the Fisheries and Aquatic Resources Act of 1996 and the territorial waters are now defined as 12 nautical miles. The Fisheries Act and the Fisheries (Regulation of Foreign Fishing Boats) Act No.59 of 1979 provide that foreign fishing boats are prohibited from fishing in Sri Lankan waters unless they obtain a licence.
Those fishing boats without a permit, which are passing through these waters must store their fishing gear away. The Minister can prescribe areas of Sri Lanka waters which are to be reserved solely for Sri Lanka fishermen and local fishing boats. Authorised officers are given the power to stop board and search any foreign fishing boat in Sri Lanka waters and when they have reasonable ground to believe that an offence has been committed, seize and detain any boat and fishing gear, or arrest any person.
Similarly, under the Customs Ordinance of 1870 and Customs Law No 35 of 1974 as amended the customs officers have power to board and search ships hovering within the territorial waters of Sri Lanka. Punishment can be imposed by way of fines and even forfeiture of a ship where it does not exceed a particular tonnage. Under the Immigrants and Emigrants Act, authorised officers have the power to enter or board any ship and to detain and examine any person arriving in or leaving Sri Lanka and to require production of any documents.
Registration of ships
The Merchant Shipping Act No. 52 of 1971 which provides for the registration of ships provides that only Sri Lankan ships may trade in Sri Lanka waters, foreign ships may do so only under a licence. Any person or body contravening the provisions of the Act can be punished by fine and the ship involved may be detained.
Admiralty jurisdiction is vested in the High Court of Colombo. In 1981, three Acts were passed: an Act setting up a National Aquatic Resources Research and Development Agency (NARA), the Coast Conservation Act, and the Marine Pollution Prevention Authority Act. In 2008, Maritime Environmental Pollution Prevention Authority was initiated. The titles of these Acts are self explanatory.
The Coast Conservation Act deals mainly with the coastal zone and the coast is defined to mean ‘the broader of land which is adjacent to the sea and not bound by sea water’, hence its applicability just not generally extend to the territorial sea and the foreign vessels. The applicability of the other two Acts, however, is much wide.
The Act relevant natural aquatic resources deals with the development of aquatic resources. National aquatic resources are interpreted to include living and non-living resources contained in or found beneath the medium of water and which are subject to the sovereignty jurisdiction or control of Sri Lanka. This would include both the exclusive economic zone and the continental shelf.
The regulations which the Minister can make under this Act, would have effect in this entire zone. The Marine Pollution Act applies to which is termed Sri Lanka waters and Sri Lankan Waters defined as Territorial Sea, the Contiguous Zone, Exclusive Economic Zone, the Continental shelf and the Pollution Prevention Zone, in the Maritimes Zones Law No. 22 of 1976.
Our examination of the Sri Lanka legislation in respect of Sri Lanka’s territorial waters, shows that in many instances, the Sri Lanka authorities have the right of boarding and searching, as well as arresting persons contravening its laws, and authority to detain, or forfeit the offending vessel. In respect of crimes committed on board the foreign ship, the coastal State exercises no jurisdiction, as here the jurisdiction of the flag State applies.
The rule of customary international law is spelt out in Article 27, of the Convention which provides that the criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea, to arrest any person, or to conduct any investigation in connection with any crime committed on board the ship during its passage save only in the specified cases. In respect of the warships and other Government vessels operated for non-commercial purposes, the international law principle of sovereign immunity applies i.e. no State can exercise jurisdiction over another on the basis that all States are equal, par in parem non habet imperium. This principle is given recognition in Article 32 of the 1982 Convention.
However, the Convention provides that if a warship fails to comply with the laws and regulations of the coastal State, the coastal State may require it to leave the territorial sea immediately. The Sri Lanka Maritime Zones Law is more stringent as it provides that a foreign ship or a foreign aircraft which acts in contravention of the provisions of this section is liable to confiscation only under exceptional circumstances.
State’s authority over resources / the territorial sea
The Maritime Zones Law speaks of the sovereign rights in territorial waters. Hence, in the territorial sea, Sri Lanka has exclusive rights to the fisheries. This right also extends to the historic waters, part of which has been designated as territorial sea and part of it as internal waters.
The common law of Sri Lanka recognised the right of every member of the public to fish in the sea. In Fernando v Fernando (1920) 22 NLR 260), Bertram CJ., said, “Prima facie all the kings” subjects have a right to fish in the waters of the sea and in all tidal estuaries connected therewith.” However, the common law right to fish can be restricted and controlled by statutory legislation.
Under the Fisheries and Aquatic Resources Act of 1996, fishing in Sri Lankan waters can be done only under a licence issued by the Director of Fisheries. Similarly, local fishing boats have to be registered. In the case of other fisheries, under the Regulation of Foreign Fishing Boats Act of 1979, foreign fishing boats are prohibited from fishing in Sri Lankan territorial waters except under the authority of a permit and there too certain areas can be reserved only for local fishermen. Foreign fishing boats which are fishing in these waters have to be licensed.
Local fishermen too have to license their vessels and to observe certain rules regarding the use of explosives and poisonous substances which are prohibited. The National Aquatic Resources Research and Development Agency (NARA) has, among other functions, that of promoting the development of fisheries and the fishing industry and regulations may be made under this Act too by the Minister (Act No. 54 of 1981).
The sovereignty of the State extends over the seabed and subsoil of this zone too, so that the State can exploit and extract any minerals in this region. The main activity in this sphere has been exploration for petroleum. In view of the fact that the State has sovereign rights over the seabed, any oil discovered would vest in the State.
The Indo-Lanka Boundary Agreements of 1974 and 1976 both provide that where petroleum deposits in the waters delimited between the two countries, forms a single geological petroleum or natural gas structure or fields which extends across the boundary, one State should not exploit any part of such structure or field from its side without seeking to reach an agreement with the other State as to the manner of exploitation as well as apportionment of proceeds deriving there from.
Maritime delimitation
The delimitation of the territorial sea between adjacent or opposite States is accomplished on the basis of the “equidistance / special circumstances” rule contained in article 12 of the 1958 Convention on the Territorial Sea and article 15 of the 1982 Convention, while there is a close relationship between the delimitation of the continental shelf and the delimitation of the exclusive economic zone respectively between adjacent or opposite States.
While delimitation is in principle an aspect of territorial sovereignty, where other States are involved, agreement is required. Most difficulties in this area are indeed resolved by agreement and the principle of international law now is that disputes over continental shelf boundaries are to be settled by agreement in accordance with equitable principles.
The International Court noted in the Gulf of Maine Case, that ‘no maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. Such delimitation must be sought and effected by means of an agreement, following negotiations conducted in good faith and with the genuine intention of achieving a positive result. Where, however, such agreement cannot be achieved, delimitation should be by recourse to a 3rd party possessing the necessary competence’.
Article 74 of the 1982 Convention provides that delimitation of the exclusive economic zone between States with opposite or adjacent coasts is to be effected by agreement on the basis of international law, in order to achieve an equitable solution. Since this phrase is identical to the provision on delimitation on the continental shelf (article 83), it is not surprising that cases have arisen in which States have sought a single maritime boundary applying both to the continental shelf and the economic zone.
There is now a substantial convergence of applicable principles concerning maritime delimitation, whether derived from customary law or treaty. In all cases, whether the delimitation is of the territorial sea, continental shelf or economic zone, the appropriate methodology to be applied is to draw an equidistance line and then see whether any relevant or special circumstances exist which may warrant a change in that line.
Boundary agreements between Sri Lanka and India
The first boundary agreement of 1974 demarcates the waters from Adam’s Bridge to Palk Strait. The boundaries have been drawn by connecting by straight lines two terminal points and four turning points which have been plotted by the system of drawing arcs of great circles from points on the baselines of the two countries and taking the point of intersection as the required point.
The baselines here follow the low water mark of the seaward edge of the islands off the coastline. The Agreement states that 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 of the Agreement gives Indian fishermen and pilgrims access to visit Kachchativu as hitherto, which in the context means access to visit Kachchativu during the annual church festival of St. Anthony, without obtaining travel documents or visas for this purpose.
Article 6 states that the vessels of India and Sri Lanka will enjoy in each other’s waters such rights as they have traditionally enjoyed therein. This Article which is framed in broad terms has, however, to be interpreted in the context of the exchange of letters between the two governments annexed thereto as well as the surrounding circumstances.
Article 7 refers to the fact that if there is any single geological or natural gas structure or field straddling across the boundary, the two countries should seek to reach an agreement on the manner in which the structure or field should be most effectively exploited and the manner in which the proceeds deriving therefrom shall be apportioned. This agreement which was signed June 1974 was ratified on July 8, 1974 and the agreement entered into force from that date.
To be continued next week
