Colombo, June 14: After New Delhi referred its “spy” concerns vis-a-vis Pakistan to the International Court of Justice (ICJ), Tamil Nadu fishermen want the fishing dispute with Sri Lanka to be referred to the international body. India is now facing the consequence of taking its spat with Pakistan on the Kulbhushan Jadhav “spying” case to the ICJ at the Hague, notes P.K.Balachandran in Daily Express.
The act of approaching the ICJ to prevent the execution of the alleged Indian spy Kulbhushan Jadhav and securing his release, has enabled a fishermen’s organization in Tamil Nadu to approach the Madras High Court for an order to the Central Indian and Tamil Nadu governments to refer the fishing row with Sri Lanka to the ICJ.
While India has argued cases in the ICJ before, having been dragged before it by Pakistan (twice) and Portugal (once), it had not itself taken any matter to that court before Jadhav’s case. Its policy has been to settle all matters bilaterally, without the help of third parties.
Last Friday, the Madras High court asked the Central Indian and Tamil Nadu governments to respond to the fishermen’s plea for a referral to the ICF.
Having referred the Jadhav case to the ICF, the government of India cannot now dismiss the fishermen’s plea saying that India does not refer bilateral issues to third parties such as the ICJ. The plea before the Madras High Court has indeed caught the government of India on the wrong foot.
Former Indian Supreme Court Chief Justice, Markandey Katju, had warned India about this when it took the Jadhav case to the ICJ. He said that Pakistan could take the Kashmir issue to the ICJ. Although ICJ’s rulings are not enforceable, an adverse ruling by it will be a moral blow for India and a psychological and political boost for Pakistan which has been trying in vain to awaken to the world’s conscience on the atrocities being committed by the Indian forces in Kashmir.
If the Indo-Sri Lankan fishermen’s issue results in a ruling against Sri Lanka, India’s relations with Sri Lanka will take a turn for the worse and introduce instability and insecurity in India’s southern flank.
A division bench comprising Chief Justice Indira Banerjee and Justice M. Sundar before whom the Public Interest Litigation filed by “Fishermen Care” represented by its president L.T.A. Rayan came up for hearing, directed Assistant Solicitor General Su Srinivasan and government pleader MK Subramanian to get instructions and posted to July 17, further hearing of the case.
According to Rayan, the customary rights (easement rights) of India and Sri Lanka to engage in fishing in the historic waters were retained in the 1974 Indo-Sri Lankan agreement as these rights were enjoyed from time immemorial and shall not be taken away by any treaty.
The President of India had given his assent to this 1974 agreement. But, the customary rights of the fishermen of both the countries in the historic waters were taken away by the letter of Kewal Singh, then Foreign Secretary of India addressed to W.T. Jayasinghe, Secretary in the Ministry of Defence and Foreign affairs, Government of Sri Lanka, dated March 23, 1976.
Rayan said that the President of India did not give his assent to this executive instruction which was issued when a State of Emergency was in force in India.
But, taking advantage of this executive instruction, the Sri Lankan navy has been attacking Indian fishermen who engage in fishing in the Palk Strait between India and Sri Lanka, he said.
Over 111 Tamil fishermen have been killed, 439 injured and 16 missing between 1983 and 2013 in attacks by the Sri Lankan Navy.
The Government of Tamil Nadu has been repeatedly requesting the Indian government to intervene in the issue and secure the release of the Indian fishermen and protect their traditional fishing rights. Therefore, he sent a representations to the Union and state governments to refer the human rights violations committed by the Sri Lankan Navy to the International Court of Justice. But, there was no response, Rayan said.
The Indian and Tamil Nadu governments are likely to argue that a case relating to the alleged transfer of Kachchativu island to Sri Lanka and the related maritime boundary issue are now in the Indian Supreme Court and therefore the matter is sub judice.
It will also be argued that due to consistent negotiations with the Sri Lankan government, there has been no killing of fishermen in the last three years (barring one in which the deceased Indian fisherman had erred). It will also be pointed out that the government of India and Tamil Nadu have launched a INR 15,000 million scheme to convert Palk Bay fishermen into deep sea fishermen in three years so that they do not intrude into Sri Lanka waters.
On the transfer of Kachchativu to Sri Lanka, it has been New Delhi’s case that the status of Kachchativu has been controversial since the 1920s and sovereignty over it had never been with India indisputably, to term the agreement on the island as a transfer.
(The featured image at the top shows Indian fisher women mourning the death of young Brito at the hands of the Sri Lankan navy)