Colombo, January 16: On January 12 the Tamil Nadu State Assembly unanimously adopted a resolution urging the Indian government to immediately implement the long-pending “Sethusamudram project” envisaging a canal cut through the Gulf of Mannar and the Palk Bay to facilitate ship movement between the East and West coasts of India.
The proposal to cut a canal in the shallow sea dividing India and Sri Lanka to save on journey time and promote the development of South Tamil Nadu, has been objected to on navigational, environmental and economic grounds in India.
The proposal was mooted in 1860, but only to be taken up and dropped multiple times. The project will have an impact on Sri Lanka too. Therefore, it is not surprising that objections have been raised in the island nation also.
Although Sri Lanka has an Environmental Impacts Assessment procedure for coastal conservation, the Sethusamudram project was not brought under its jurisdiction because it was to be within India’s territorial waters. But despite this, Sri Lanka’s environmental concerns have to be addressed in the Environmental Impacts Assessment (EIA) done by the Indian authorities, given the geographical proximity of the project to Sri Lanka. The EIA on the project carried out by India is said to have alluded to Sri Lanka only in passing, though Sri Lankans see themselves as key stakeholders.
Calls by Lankan environmental groups for a joint Indo-Lankan Environmental and a Social Impacts Assessment fell on deaf ears in India. It is said that in 2005, Colombo sought the establishment of a standing joint mechanism for the exchange of information on the project. It wanted to set up a common database on the hydrodynamic modelling, environmental measures and impact on fisheries resources, fisheries-dependent communities and measures to cope with navigational emergencies.
In a 2016 paper entitled: “Sethusamudram Ship Canal Project adverse to Sri Lanka?” Legal and Environmental Impact on Sri Lanka” S C Withana and C V Liyanawatte of the General Sir John Kotelawala Defense University in Sri Lanka said that Sri Lanka’s concerns had not been taken into account by the planners of the project and that the UN Convention on the Law of the Sea (UNCLOS) had been violated.
Like the Indian environmental activists, Withana and Liyanawatte pointed out that the environmental impact study carried out by the National Environmental Engineering Research Institute (NEERI) of India in 1988 and the technical feasibility report carried out for the Tuticorin Port Trust (TPT) had failed to pay attention to the latest studies carried out by specialist groups on sedimentation dynamics in the Palk Bay and ignored major risks inherent in that cyclone-prone area.
The Sri Lankan researchers pointed out that the project was to be implemented in an ecologically sensitive area. The researchers quote Article 15 of the Rio Declaration on Environment and Development 1992 which says that “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”
According to the executive summary of the EIA, the channel is to be built in a biologically rich and highly productive sea area. There are over 3600 species of plants and animals, including 117 species of corals and 17 species of mangroves. Further, the EIA report states that this area is home to rare species such as sea turtle, whales, dolphins and sea cows. Sea cow is a rare and endangered species migrating with the change of seasons.
The authors quote the website Ramasethu.Org to say: “Dredging the canal could stir up the dust and toxin that lie beneath the sea bed, affecting marine life.”
Even though the shipping lane does not pass exactly through this water, the closeness of the route will damage coral reefs and pollute the marine environment. “This project could also affect the ecology of the zone which could cause changes in temperature, salinity, turbidity and flow of nutrients, leading to high tides and more energetic waves and hence coastal erosion and could affect the local sea temperature and thereby alter the pattern of sea breeze and rainfall pattern.”
The Hindu quoted R.K. Pachauri, who was Chairperson of the Intergovernmental Panel on Climate Change (IPCC), as saying: “We stand by what we said in our report that the project will not be economically and ecologically viable.”
Resort to UNCLOS
Withana and Liyanawatte say that Sri Lanka said that Sri Lanka could use the UN Convention on the Law of the Sea (UNCLOS) for getting redress.
Article 235 (1) of UNCLOS says that: “States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment.”
Art. 194(2) recognizes that: “States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.”
Article 235 (3) mentions that: “With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of the related dispute.”
Part XV of UNCLOS deals with applicable mechanisms for the settlement of disputes. Section 2 of part XV of the convention looks upon the general provisions dealing with the settlement of disputes by negotiations.
Article 283 says that “when a dispute arises between state parties concerning the interpretation and application of the convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiations or other peaceful means”.
Article 290(5) of UNCLOS provides that a Tribunal may prescribe provisional measures if, inter alia, it considers that, prima facie, the tribunal to be constituted would have jurisdiction.
Withana and Liyanawatte said that Sri Lanka and India could negotiate for a dispute settlement mechanism. Sri Lanka could point out that India had not exchanged views regarding the project with Sri Lanka.
“If India is looking at continuing the project notwithstanding the objections of Sri Lanka, Sri Lanka can move on to the compulsory procedures entailing binding decisions according to Article 287. Sri Lanka can move on to a settlement of the dispute by compulsory procedure through the International Tribunal for the Law of the Sea (ITLOS).”
In 2003 Malaysia complained against Singapore over ‘Land Reclamation’ and got a ruling in its favor, Withana and Liyanawatte recalled.