INDIA URGED TO APPROACH INTERNATIONAL COURT OF JUSTICE
ON KACCHA THEEVU ISSUE
There is an urgent need to sue Srilankan Government in the International Court of Justice for compensation to 980 Indian fishermen killed in the International waters, as well as retrieval of the Katcha Theevu. It is will be appropriate to recall the words of our Present Prime Minister in the Parliament on 23 rd July 1974 (cols 186-201), when the then External Affairs Minister Swaran Singh made a statement on the Re Agreement between India and Srilanka on the boundary in the historical waters between the two countries and related matters.
Hon’ble Atal Bihari Vajpayee who strongly condemned the bartering away of Katcha Theevu, had said that the old mythological name for Katcha Theevu is VALI DEEP, the island where legendary Rama fought a mythological Vali. Dravida Peravai now reminds the Government headed by the same Atal Bihari Vajpayee to fulfill what he had once demanded while he was in opposition; namely retrieval of the Katcha Theevu islands from the Srilankan government. The lives of 980 of our fishermen is lost due to this agreement imposed during the darkest days of emergency and it is time that we scrap this agreement or take it to the International Court of Justice to get due compensation for our fishermen.
There has been precedents in international inter country matters where issues have been taken to the International Court of Justice.1). In the English Channel there is a rocked island known as Minquires-Enrou. They are far way from the British coast and were closer to the French coast. Since it was near its international waters France staked the claim over that island. Britain showed the documents in its possession and the basis of the documents in 1953 the International Court of Justice decided that this island belongs to Britain. As in this case the documentary proof will be in our favour and we will retrieve Katcha Theevu, is we approach the Court.2) An island Clipporton which was closer to Mexican coast actually belonged to France, and since it was far away from French soil no one visited there and hence Mexico claimed right over these islands. But the International Court of Justice decided in the favour of France.
3). Near Philipines an island Palmus Mianjus was in the possession of Spain. Spain one fine morning handed over that island to America. But Netherlands had rights over that island much before Spain had, and in view of this when this matter came before the Court, the Court decided in favour of Netherlands.
These are past precedents. We have recent judgements too wherein decisions by International Court of Justice had been impartial and in the interests of natural justice. Let me quote about a recent judgement in 2002.
The International Court of Justice, principal judicial organ of the United Nations, has today given (17.11.2002) Judgment in the case concerning sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia). In its Judgment, which is final, without appeal and binding for the Parties, the Court finds, by 16 votes to 1, that “sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia”. Ligitan and Sipadan are two very small islands located in the Celebes Sea, off the northeast coast of the island of Borneo.
Reasoning of Court: The Court begins by recalling the complex historical background of the dispute between the Parties. It then examines the titles invoked by them. Indonesia’s claim to sovereignty over the islands is based primarily on a conventional title, the 1891 Convention between Great Britain and the Netherlands. Indonesia, thus, maintains that that Convention established the 4° 10′ north parallel of latitude as the dividing line between the British and Dutch possessions in the area where Ligitan and Sipadan are situated. As the disputed islands lie to the south of that parallel, “[I] t therefore follows that under the Convention title to those islands vested in the Netherlands, and now vests in Indonesia”. Malaysia, for its part, asserts that the 1891 Convention, when seen as a whole, clearly shows that Great Britain and the Netherlands sought by the Convention solely to clarify the boundary between their respective land possessions on the islands of Borneo and Sebatik, since the line of delimitation stops at the easternmost point of the latter island. After examining the 1891 Convention, the Court finds that the Convention, when read in context and in the light of its object and purpose, cannot be interpreted as establishing an allocation line determining sovereignty over the islands out to sea, to the east of the island of Sebatik, and as a result the Convention does not constitute a title on which Indonesia can found its claim to Ligitan and Sipadan. The Court states that this conclusion is confirmed both by the travaux préparatoires and by the subsequent conduct of the parties to the Convention. The Court further considers that the cartographic material submitted by the Parties in the case does not contradict that conclusion.
Having rejected this argument by Indonesia, the Court turns to consideration of the other titles on which Indonesia and Malaysia claim to found their sovereignty over the islands of Ligitan and Sipadan. The Court determines whether Indonesia or Malaysia obtained a title to the islands by succession. The Court begins in this connection by observing that, while the Parties both maintain that the islands of Ligitan and Sipadan were not terrae nullius during the period in question in the present case, they do so on the basis of diametrically opposed reasoning, each of them claiming to hold title to those islands. The Court does not accept Indonesia’s contention that it retained title to the islands as successor to the Netherlands, which allegedly acquired it through contracts concluded with the Sultan of Bulungan, the original title-holder. Nor does the Court accept Malaysia’s contention that it acquired sovereignty over the islands of Ligitan and Sipadan further to a series of alleged transfers of the title originally held by the former sovereign, the Sultan of Sulu, that title having allegedly passed in turn to Spain, the United States, Great Britain on behalf of the State of North Borneo, the United Kingdom of Great Britain and Northern Ireland and finally to Malaysia.
Having found that neither of the Parties has a treaty-based title to Ligitan and Sipadan, the Court next considers the question whether Indonesia or Malaysia could hold title to the disputed islands by virtue of the effectivités cited by them. In this regard, the Court determines whether the Parties’ claims to sovereignty are based on activities evidencing an actual, continued exercise of authority over the islands, i.e., the intention and will to act as sovereign. Indonesia cites in this regard a continuous presence of the Dutch and Indonesian navies in the vicinity of Ligitan and Sipadan. It adds that Indonesian fishermen have traditionally used the waters around the islands. In respect of the first of these arguments, it is the opinion of the Court that “it cannot be deduced [from the facts relied upon in the present proceedings] that the naval authorities concerned considered Ligitan and Sipadan and the surrounding waters to be under the sovereignty of the Netherlands or Indonesia”. As for the second argument, the Court considers that “activities by private persons cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority”. Having rejected Indonesia’s arguments based on its effectivités, the Court turns to consideration of the effectivités relied on by Malaysia. As evidence of its effective administration of the islands, Malaysia cites inter alia the measures taken by the North Borneo authorities to regulate and control the collecting of turtle eggs on Ligitan and Sipadan, an activity of some economic significance in the area at the time. It relies on the Turtle Preservation Ordinance of 1917 and maintains that the Ordinance “was applied until the 1950s at least” in the area of the two disputed islands. It further invokes the fact that the authorities of the colony of North Borneo constructed a lighthouse on Sipadan in 1962 and another on Ligitan in 1963, that those lighthouses exist to this day and that they have been maintained by Malaysian authorities since its independence. The Court notes that “the activities relied upon by Malaysia … are modest in number but … they are diverse in character and include legislative, administrative and quasi-judicial acts. They cover a considerable period of time and show a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands”. The Court further states that “at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest”.
The Court concludes, on the basis of the effectivités referred to above, that “sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia”.
There are many cases, which can be quoted. But the need here is to stress that India must revoke the Katcha Theevu agreement with Srilanka since it was imposed during emergency and take it to the International Court of Justice to establish India’s right over this island. Also As per clause 76 of the International Law of Seas 1982 ” The coastal state shall establish the outer edge of the continental margin wherever the same extends beyond 200 nautical miles from the base lines from which the breadth of the territorial sea is measured on sub marine ridges. The continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured.” Inview of this clause there is a necessity to redraw the territorial waters between India and Srilanka. So we have compulsions as per UN obligations to carve out our Exclusive Economic Zone, and while such opportunity is at our doorstep we must reopen the Katcha theevu issue with Srilanka and get it back.
Tamil Nadu assembly had passed many resolutions demanding the retrieval of Katcha Theevu, and the Miss J.Jayalalitha in a sudden reversal of assembly demand had favoured for taking Katcha theevu on lease.
This is a text of the memorandum submitted to Indian Defence Minister George Fernandes on 20.09.2003 which appeared in all editions of Dinamani. Now also the demand is relevent. Only one change, more fishermen had been killed by Srilankan navy since then. Pakistan only arrests our fishermen and for same violation Srilanka kills. India had failed to protect the fishing rights of Indian fishermen.The lives of 1000 fishermen is lost because of this agreement to barter Katcha theevu and it is time that we claim compensation from Srilanka for the lives lost apart from staking our rights to regain Katcha Theevu
N.Nandhivarman, General Secretary, Dravida Peravai