Sri Lankan Claims to Kachchatheevu: A Rejoinder

30 Aug, 2013    ·   4103

V Suryanarayan responds to an article entitled Kachchatheevu: A Matter of Sri Lanka’s Sovereignty (27 August 2013) by CV Vivekananthan, published in the Sri Lanka based Daily Mirror

This commentary is in response to an article entitled 'Kachchatheevu: A Matter of Sri Lanka's Sovereignty' (27 August 2013) by C Vivekananthan, published in the Sri Lanka based Daily Mirror. Vivekananthan’s arguments can be summed up as follows: I) Kachchatheevu was part of Sri Lanka well before the boundary agreement of 1974 II) Sovereignty over Kachchatheevu is not only based on a maritime boundary agreement but also on historical documentation, by effective occupation and user, legislation for Kachchatheevu and publication of the acts of sovereignty without protest by India. Vivekananthan refers to the decisions of the 1921 conference to justify his contention.  III) Indian claims to Kachchtheevu are based on zamindari rights which are not valid IV) The demarcation of the maritime boundary was based on the median line.

The island was a part of the zamindari of raja of Ramnad and the island and the surrounding seas were leased out to various parties for exploiting the rich marine resources. While a zamindar is not sovereign, the British sovereign had delegated the power of collecting revenue to the zamindar. And when zamindari was abolished after Independence, the island became a part of the Madras Presidency. It should be highlighted that on the eve of Independence, large parts of India was under the zamindari system. In the nine provinces of British India, the zamindari system covered 57 per cent, the ryotwari system covered 37 per cent and the mahalwari system, 5 per cent. If we accept the Sri Lankan argument that the zamindari system was ‘ill defined’, the very existence of India as a united country will be at stake. 
When was Kachchatheevu included as part of Sri Lanka? In a conversation with the author, KP Ratnam, who was elected to Parliament from the Kayts constituency as a TULF candidate in the 1977 elections, he mentioned that Kachchatheevu was included in his constituency only after the conclusion of the 1974 Agreement.

Can the proceedings of the 1921 Conference be used to justify Sri Lanka’s claim to Kachchatheevu? The 1921 Conference was convened to delimit the fisheries zones and not to decide the ownership claims of Kachchatheevu. The leader of the Ceylon delegation raised the issue of ownership; the Indian delegation was unprepared to face such a contingency because they had no instructions to ‘contest or admit such a claim’. However, the Indian delegation pointed out that the raja of Ramnad had zamindari claims over the island. Horsburg, the leader of the Ceylon delegation, resorted to brinkmanship, which paid Ceylon rich dividends. It was decided that delimitation for fishing purposes could be decided independent of the claims of ownership. The delimitation, therefore, was fixed ‘three miles west of Kachchatheevu’. However, a rider was added ‘so as not to prejudice any territorial claims’, which India might wish to make at a future date. What is more interesting, the Secretary of State for India questioned the validity of the agreement. As a result the agreement was not ratified by the Colonial Office. 

On the question of the median line, it has been pointed out by SP Jagota, then Director, Legal and Treaties Division, Government of India that adjustments were made so that Kachchatheevu would fall on the Sri Lankan side. To quote, “The boundary line between India and Sri Lanka followed the median line, except as adjusted in the Palk Bay, in relation to the settlement on the question of the Island of Kachchatheevu.” DP O’Connel, another distinguished authority in International Law, also underlined the point that the principle of equi-distance was adopted, but ‘modified for pragmatic purposes’. Dr Nirmala Chandrahasan, the well known Sri Lankan academic, has also written that ‘delimitation was based on agreement rather than on equi-distance principle’. 

The 1974 maritime boundary agreement is an illustration of personal friendship determining bilateral relations. Despite strong historical claims, Indira Gandhi ignored them and ceded the island to Sri Lanka. Perhaps it was an offshoot of her desire that Kachchatheevu should not degenerate into a source of discord between the two countries.

The author is aware of the fact that international agreements, however unjust they might have been, have sanctity and cannot be abrogated at the whims and fancies of political leaders. Keeping this basic premise in mind, it was suggested that the Government of India should reopen dialogue with Sri Lanka and get the island of Kachchatheevu and the surrounding seas on ‘lease in perpetuity’, in other words, Tin Bigha in reverse. Under the 1974 agreement with Bangladesh, sovereignty over Tin Bigha is with India, but Tin Bigha has been leased to Bangladesh on ‘lease in perpetuity’. Both Jayalalitha and Karunanidhi have suggested to New Delhi on several occasions to follow this course of action. The problem is that New Delhi and Colombo do not want to reopen what they consider a settled matter.