Submitted By: Vinudeep R*
It is not uncommon for Indians, especially for people living in States like Tamil Nadu and Gujarat that share an international sea with Sri Lanka and Pakistan respectively, to hear news about our fishermen being arrested by the coast guards or navy of the other country for crossing international waters. It cannot be denied that there are such prisoners of the said nations in our country as well. In the light of these arrests and lengthy and cumbersome trials, there is a dire need to study the International Law of the Seas. Also, we need to look at the prospects of betterment of the current situation. This paper shall study the Law of the Seas in the commercial parlance generally and specifically in reference to fishermen. This paper shall try to identify the lacunae or glitches in the United Nations Convention on the Law of the Sea (UNCLOS) with specific reference to fishing in international waters. This paper shall try to arrive at a solution to the found glitches and lacunae. This paper shall also analyse and discuss the prospects for bilateral treaties between nations instead of general multilateral treaties.
In the year 1982, the international fraternity came together and felt the need for a revision to the United Nations Convention on the Law of the Sea (hereinafter referred to as UNCLOS). They intended to change the International Law regarding jurisdiction over water and living resources in the sea. This UNCLOS, 1982 was in fact more of a codification of existing customary International Law.
This Convention divided the sea into three categories – the territorial sea, the exclusive economic zone (hereinafter referred to as EEZ) and the high sea. The traditional three nautical miles of territorial sea was extended to four times its original at twelve nautical miles from the base line. The next zone that was created was the Exclusive Economic Zone (hereinafter referred to as EEZ) which was up to two hundred nautical miles from the base line – in this zone the State has exclusive rights to exploit, explore, conserve and manage living resources.
The UNCLOS III (generally) did not vary much from the traditional principle of freedom of the high seas. It recognised the nationals’ right to engage in fishing in the high seas, but it was emphasised that this right of the nationals was subject to the State’s treaty obligations and rights, duties and interests of coastal States covered in the other articles of the UNCLOS III. In short, the earlier absolute freedom of fishing on high seas was now subject to the UNCLOS III.
The real trouble for India started with the EEZs and the traditional freedom to fish. It is to be noted that many countries have historic fishing rights over the EEZs of other countries. With Sri Lanka, India has agreements signed in 1974 and 1976 clearly demarcating the marine boundaries. However, this is absent in the case of Pakistan. Even in the presence of a clear agreement, there are arrests and unrest on both sides i.e., of India and Sri Lanka, regarding this issue. Albeit a political issue, there is much that can be achieved by law. For example, treaties and agreements create a binding obligation on the parties to such a treaty/agreement.
II. THE TROUBLE
A. Historic Rights v. EEZ
Let us first discuss what a historic fishing right is. The International Court of Justice (ICJ, for brevity) in the Fisheries case stated that “historic waters means waters which are treated as internal waters but which would not have the character were it not for the existence of a historic title”.
Historic fishing rights are those rights that a State claims to exercise in what is usually deemed to be international waters. There must be long-established activity and the continuous exercise of these activities that are recognised by other States to establish that there is a historic right. Even given the fact that the requirements for proving both historic waters and historic rights are similar, it is easier for parties to convince the tribunal in the establishment of historic rights. This is because of a small technical difference between the two. To begin with, historic rights claim is not a sovereignty claim. They merely mean giving the Claimant State fishing rights by long usage. To explain it more simply, one may bring in the example of India and Sri Lanka. By the agreement between the Republic of India and the Republic of Sri Lanka in the year 1974, Kachchatheevu was agreed to be part of Sri Lanka. However, fishermen from the Rameshwaram have historically fished in that region and also participated in the Annual St. Antony’s Feast celebrated at the island. The Indian fishermen are given rights to visit this temple and are not even required to possess travel documents or visas. Presently, though the island is not part of India, Indian fishermen have the right to fish there because of their long usage there. This, however, cannot be said to be a claim of territorial sovereignty of India over the said island.
B. Absence of an Agreement
Pakistan was born after the Partition of 1947 and was carved out of India. Ever since its birth, India and Pakistan cannot be given the credit of having maintained healthy international relations. Pakistan has always been the subject matter of national politics in India as has India been in Pakistan. This is a very kind way of explaining the tense relations between India and Pakistan if the two wars that were fought in 1967 and 1999 are not taken into consideration while talking about the relations between India and Pakistan.
Such being the position of the political relationship between India and Pakistan, fishermen are the example of what the Partition has caused and cost both the nations. Fishermen have historically fished in the Arabian Sea. As a result of the Partition, a boundary had to be drawn even at the sea. There came to be in existence a new problem – Sir Creek. Sir Creek is a creek that runs from marshlands into the Arabian Sea. There was a dispute over its title in the early twentieth century between the Province of Sind, then part of the Bombay Presidency, and the Rao of Kutch, a princely ruler.
The dispute was resolved by the Government of Bombay in the year 1914. Ironically, this resolution itself became a matter of dispute between Pakistan and India in this case. In one particular paragraph of the award, it is stated that the land to the east of Sir Creek belongs to Sind province and thereby by the doctrine of succession it would now belong to Pakistan. Subsequently, the resolution itself read that the International Law Doctrine of Thalweg should be used to draw the border in the middle of the creek.
The Government of Bombay resolved the dispute as depicted in the map –
(Source: Ashutosh Sharma, The Sir Creek Boundary Dispute).
The next segment shall in detail deal with how these two troubles can be dealt with by going into the legal remedies that are available and how far these remedies available are possible to be followed. Before we dwell into solving the existing crises, we should take note of the diplomatic relations that India maintains with both the countries. Sri Lanka is a friendly state and was helped by the Indian Army during their civil war. On the other hand, though we have good trade relations with Pakistan, we cannot call it an ally as we have fought two wars with it and there is always tension with respect to Pakistan helping homegrown terrorist groups.
III. THE SOLUTION
A. The Need for a Political Changeover
Sri Lanka as mentioned earlier is a friendly country. India and Sri Lanka have shared quite a lot of history and the most recent one being the help during Sri Lanka’s civil war. Sri Lanka is one of the closest countries that share a sea border with Southern India. There are many similarities between both countries. In both of the nations, there are fishermen who want better solutions to problems faced.
Let us dwell into the agreement signed between both countries in the year 1974 and 1976. These agreements clearly show the split-up of territory between the two. The sovereignty over the territory is a question for another essay. The political parties of Tamil Nadu feel that Kachchatheevu is an integral part of India and needs to be taken back from Sri Lanka. In fact, one could say that it was given to Sri Lanka as a goodwill gesture for better international relations.
Article 6 of the 1974 Agreement states that vessels of Sri Lanka and India will enjoy in each other’s waters such rights that they have traditionally enjoyed therein. Historical rights have been discussed extensively. The historical fishing rights of fishermen of both sides exist on paper. However, we find news articles, stating that Indian fishermen have been attacked by either the Sri Lankan Coast guards or Sri Lankan fishermen or even other forces quite often. The other side of the story is also possible and could even be true. Hence, what could possibly be the remedy here?
There are clear agreements on fishing rights between India and Sri Lanka. The problems that arise have demonstrated a problem with the enforcement of those agreements. The possibility of technical problems such as lack of GPS devices and such also exists. However, the author feels that this is more of an enforcement issue. The solution to it could be dialogues or better diplomatic relations. Fishermen can be trained and taught the international boundaries by both governments and other diplomatic steps can also be taken forward. Additionally, to check other technical issues, the governments need to go for a census of fishermen and their vessels.
B. The Need for Bilateral Agreements
The existence of the Sir Creek problem has already been discussed earlier in this paper. It is for us to see what could be a possible solution to the problem. Most scholars feel that the solution to the problem would be four-fold – Allocation, Delimitation, Demarcation and Administration. Before we go into the solutions, it would be appropriate to discuss the arguments of both the Indian and Pakistani side.
The Indian Government relies upon the International Thalweg Doctrine. Thalweg is the area of the greatest depth of a water body. According to this doctrine, international borders are to be drawn upon the Thalweg. This doctrine, if incorporated herein, would mean that the boundary between India and Pakistan be drawn in the middle of the Sir Creek. This might sound simple, but the loss that Pakistan would incur is heavy, as it claims. Both India and Pakistan will have to give up lands that were part of them historically. It is also to be noted that in the year 1924 such borders were drawn and pillars were placed in the middle of the creek in the year 1925.
Pakistan feels that paragraph nine and ten of the 1914 resolution has to be followed in letter and spirit. That would mean that all the land that is east of the creek belongs to Pakistan. And this stand will also imply that the existing EEZs need not be altered according to the UNCLOS. It is clearly understood that both the governments actually stalk a strong claim to the creek according to their own arguments.
It is to be noted that up until 2012 there have been twelve dialogues between India and Pakistan, all of them in vain, mostly due to political ambitions and reasons on both sides of the border. Unlike the case of Kachchatheevu, here there is no definitive exchange of territory. There is no agreement that can be sought after. The plight of the fishermen is even worse in this case. To explain this, we could take the aid of an illustration:
Let us assume that an Indian fisherman’s boat is attacked in the waters that are historically used by him and his community for fishing by Sri Lankan officials. India could resort to Article 6 of the said 1974 Agreement and ask for performance on the part of Sri Lanka. Also, the territories are clearly defined so that the fishermen on both sides know where they can go and where they cannot. In the case of Sir Creek, there is absolute ambiguity as to what is the right position. If we take the arguments of Pakistan, the EEZ of India is smaller. In the light of India’s argument, the EEZ would have to be altered according to the UNCLOS.
A solution to this could only be a consensus between both countries. As we saw in the case of Sri Lanka, there is complete clarity of territoriality and sovereignty. This is absent in the Pakistani case, leading to more and more pain and suffering for the fishermen of the Kutch. It is not only the Indian fishermen that are suffering; it is also the Pakistani fishermen that are arrested in India.
A bilateral agreement to this effect would mean clearer borders and rights and lesser suffering. It is also to be noted that the dialogue between both countries has to be swifter and definitive. Political narratives on both sides of the border are putting many innocent lives at stake. It is understood that diplomatic relations are not that easily maintained. Peace has always been our path and walking by that path, it is the humble opinion of the author that bilateral agreements would be one of the best options that can solve this issue.
From the arguments of both countries, it seems that India wants the borders to be in the middle of the creek. Pakistan is opposed to this idea because it might have to lose out on a lot of its EEZ according to the UNCLOS. However, it is to be noted that a special bilateral agreement would have an overriding effect over the UNCLOS given that certain conditions such as an express abrogation clause are fulfilled. So, what could possibly be done is that both countries could discuss on having an agreement to the effect that India gets its borders and Pakistan gets to retain its EEZ as earlier. This is only one humble solution with the limited knowledge of the author. The discussions on both sides with great minds may bring in better ideas and make the world that we live in a better place.
 Preamble, United Nations Convention on the Law of the Sea, 10 Dec. 1982, 1833 U.N.T.S. 397 (in force 01 Nov. 1994).
 Id. Art. 3.
 Id. Arts. 56(1) and 57.
 See, Mack, International Fisheries Management: How the U.N. Conference of Straddling and Highly Migratory Fish Stocks Changes the Law of Fishing on the High Seas, 26 CAL. WEST. INT’L. LJ, (1996), 313-333 AT 317.
 UNCLOS, Supra note 1, Art. 116.
 Ferderick L. Kirgis, Treaties as binding International Obligations, 2(4) ASIL Insights (1997).
United Kingdom v. Norway (1951), ICJ Rep. 116. [Anglo-Norwegian Fisheries Case].
 Clive R Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal (Leiden/Boston: Martinus Nijhoff Publishers, 2008) at p. 4.
 Continental Shelf Case, (Tunisia/ Libyan Arab Jamahiriya) (1982), ICJ Rep. 74 (paras 98-99).
 Arts. 1 and 2 r/w. Annex 1, Agreement between Sri Lanka and India on the Boundary in Historic Waters between the two countries and Related Matters, 28 Jun. 1974, 1049 U.N.T.S. 26, (1977) (in force 10 July 1974).
 Johny Stephen, et al, Transboundary Dialogues and the ‘Politics of Scale’ in Palk Bay Fisheries: Brothers at Sea?, 33(2) SAGE South Asian Research 141-161 (2013).
 Supra note 11, Art. 5.
 See generally: Ashutosh Misra, The Sir Creek Boundary Dispute: A Victim of India-Pakistan Linkage Politics, IBRU Boundary and Security Bulletin, Winter 2000- 2001.
 Raghavendra Mishra, The ‘Sir Creek’ Dispute: Contours, Implications and the way ahead, 39(2) Strategic Analysis 184-196 (2015).
 Misra, Supra note 14 at 92.
 Mishra, Supra note 15.
 Supra note 11, Annex 1.
 Supra note 11, Annex 2.
 Supra note 11, Art. 6.
 Dennis Rushworth, Mapping in Support of Frontier Arbitration: Delimitation and Demarcation, IBRU Boundary and Security Bulletin, Spring 1997.
 Misra, Supra note 14.
 Muhammad Ali, (2012) MARITIME ISSUES BETWEEN PAKISTAN AND INDIA: SEEKING COOPERATION AND REGIONAL STABILITY. Post Graduate. Naval Postgraduate School, Monterey, California.
 Misra, Supra note 14; Mishra, Supra note 15; Rushworth, Supra note 22; Ali, Supra note 25; et al.
 Hans Aufricht, Supersession of Treaties in International Law, 37 Cornell L.Q. 655, 656-57 (1952).