Joint Mechanism for the Conservation and Sustainable Management of Fisheries and other Marine Resources in the Palk Bay
* Resetting India-Sri Lanka Relations: Report of the Indo-Lanka Joint Study Group
Annexure 1 –
January 24, 2013, 9:01 pm 
The Palk Bay
The Palk Bay, which connects northeastern Sri Lanka and the central part of the Tamil Nadu coastline, constitutes a unique ecosystem. It is a shallow bay circumscribed by sea known for its biodiversity (Venkataraman 2004) and rich fishing grounds, and bordered on both sides by a long string of fishing settlements. This fishing population shares a language (Tamil) and a long history of interaction (Suryanarayan 2009). Several circumstances have, however, contributed to an intensification of conflict between fishers of both shores, which focuses on the use of sea territory and on fishing rights. First of all, the range and catching capacity of fishing vessels from India has increased dramatically since the 1970s. Based in new harbour sites such as Rameswaram and Mandapam, the trawling fleets of Tamil Nadu have a harvesting capacity far in excess of the ecological carrying capacity of the Indian section of the Palk Bay.
The armed conflict in Sri Lanka had provided them with new opportunities to transgress the international boundary line and harvest the stocks in Sri Lankan waters, which due to the decline of local fishing effort, were in far better condition. Transgressions took place from the time of the boundary demarcation in 1974.The imposition of the Prohibited Zone during the conflict, which prevented Sri Lankan fishermen from fishing in this area, resulted in increased transgressions by the Indian fishermen. These activities have, however, brought Indian trawler fishers into regular conflict with the Sri Lankan and Indian navies, thereby generating political dust on both sides. The return of Sri Lankan fishers to the shores of the Palk Bay has added a new dimension.
A variety of parties at different levels have become involved in the resolution of conflicts, which- also because of national security dimensions- have proven to be quite intransigent. Fisher NGOs/movements in Tamil Nadu and Sri Lanka jointly initiated one of the most promising of these efforts in 20042 (Vivekanandan 2004). Taking representatives of the Indian trawler fishers to Sri Lanka for a series of meetings with Sri Lankan fishers, it strove to increase mutual understanding and willingness to arrive at a negotiated, fair and sustainable arrangement.
Establishment of a ‘Joint Mechanism’
It is proposed that a two-tier Joint Mechanism be set up by Sri Lanka and India for the conservation and sustainable management of fisheries and other marine resources in the Palk Bay area.
The need for establishing a durable mechanism for resolving problems arising in the Palk Bay has been felt for years. The main problem relates to issues such as poaching in violation of the maritime boundary, and the use of illegal fishing equipment and practices, which result in degradation of the marine environment. There have been other challenges such as security concerns posed by the involvement of some South Indian fishing vessels in LTTE activity during the armed conflict, including smuggling of petroleum products and other prohibited items, providing of cover to Sea Tiger craft to mount surprise attacks on Sri Lankan naval craft. The end of the armed conflict in Sri Lanka provides both Sri Lanka and India with an opportunity to re-visit this question, with a view to putting in place a consultative mechanism that would resolve problems expeditiously. It should be so designed as to provide on a continuous basis oversight, guidance, monitoring and review of problems arising in the Palk Bay through constant interaction between counterparts from the two countries to resolve all outstanding problems amicably. It would help both countries to move away from an approach based on episodically ad hoc solutions to a structured but flexible approach seeking durable, practical and expeditious solutions, implementable within a definite timeframe and subject to monitoring and review by the Joint Mechanism.
Structure of the ‘Joint Mechanism’
The proposed Joint Mechanism will have a two-tier system. At the first tier, a committee comprising representatives of the two Governments, headed by the respective Ministries of External Affairs, will be set up. Considerable flexibility and adaptability would be in-built into the composition and working methods of the two tiers in order to minimise delays and expedite decision-making. While some Ministries and Departments, including those from the state governments and provincial authorities, will be permanent members of the committee, others will be co-opted or invited to participate as and when necessary, depending on the issues to be considered. It would be empowered to constitute subsidiary mechanisms comprising only those directly concerned for short durations to deal with specific questions as and when required.
At the second tier, a group will be set up, which would consist of representatives of fishermen’s associations, fishermen’s co-operatives, academic community, experts in international law, scientific and research establishments, universities, institutions dealing with marine biology, bio-diversity, oceanography and other related disciplines, and other stakeholders from each country. While some would be permanent invitees, others would be co-opted or invited depending on the topics to be considered, and for specific durations or tasks.
While the bilateral inter-governmental committee would hold regular formal sessions annually, the non-governmental committee would meet as necessary and at least twice a year. The Joint Mechanism would communicate among members through the Internet in order to minimise delays and to deal with problems without having to wait for formal sessions of the mechanism. The two sides would be encouraged to be in regular contact with their respective counterparts so as to work out expeditious solutions to problems that may arise.
The Joint Mechanism will endeavour to build on the existing mechanisms and research projects focussing on the Palk Bay, drawing upon their strengths and avoiding their shortcomings. It should reiterate decisions and conclusions, which have retained their validity and continue to be implementable, and suggest modifications and improvements as required in order to enhance their effectiveness.
The proposed Joint Mechanism could draw upon the work being done by ‘REINCORPFISH’ research project with the objective of providing space for small-scale activities, in the sustainable development of fisheries of South Asia and South Africa.3
Issues Relating to Fisheries
The main recurring problem has been fisheries. Poachers get arrested and are detained prior to legal action leading to suffering for fishermen and their families. It may be recalled that the International Maritime Boundary Line (IMBL) demarcating the maritime boundary between Sri Lanka and India in the Palk Bay was concluded in 1974, eight years prior to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). This Agreement recognized Sri Lanka’s sovereignty over Kachchativu Island, while permitting Indian fishermen the right to dry nets on the island during the fishing season and for pilgrimage to the St. Anthony’s Church, under the ecclesiastical jurisdiction of the Bishop of Jaffna. The 1976 agreement established maritime borders in the Bay of Bengal and the Gulf of Mannar. The fishermen, who had been traditionally using these waters, did not find the establishment of the IMBL a deterrent in accessing the fishery resources in these waters.
Three decades of armed conflict in Sri Lanka necessitated imposition of several prohibitions and restrictions on fishing; one of the consequences was poaching by fishermen from the Indian side. Indian fishermen crossing the IMBL were arrested during these years, mainly on account of security reasons by the Sri Lankan Navy, and some were detained. With the termination of the armed conflict Sri Lankan fishermen have resumed fishing, but find the circumstances adverse, as they have to compete with Indian ‘trespassers’, especially trawler fishermen, who are crossing the IMBL in large numbers, depleting resources, and giving rise to rivalries and hostilities. Finding a lasting solution by the two friendly neighbours acceptable to all parties concerned is imperative.
The advent of trawler fishing introduced new tensions to the Palk Bay. Operation of mechanised crafts resulted in unsustainable fishing practices such as ‘bottom trawling’, thereby adversely impacting on the livelihoods of hundreds of fishermen. There have been allegations that fishermen from coastal districts of Tamil Nadu such as Nagapattinam, Thanjavur, Pudukkottai and Ramanathapuram shifted their trawling operations into Sri Lankan waters after degrading the fishery resources on the Indian side. Thus, ‘bottom trawling’ by Indian fishermen on the Sri Lankan side of the IMBL, a practice prohibited on a wide scale, including by Sri Lanka’,has continued over the years, significantly depleting fisheries resources and destroying marine organisms. When Sri Lankan fishermen poach on the Indian side of the maritime boundary, they get arrested by the Indian authorities, mostly under the Maritime Zones of India Act (1981), the Passport Act (1967) and the Foreigners’ Act(1946). With a view to addressing this issue, both countries reached an understanding some time ago, that those merely transgressing the IMBL as a result of ‘innocent straying’, would be leniently dealt with, whereas those deliberately engaging in prohibited activity would be charged under the applicable laws, including the Prevention of Terrorism Act (PTA).
The Joint Working Group (JWG) set up in 2004-2005 had its first meeting in New Delhi on 21 April 2005. India handed over a draft Memorandum of Understanding to the Sri Lankan side. It referred to ‘poaching and arrests’ and provided for co-operation for enhanced surveillance, institutionalisation of assistance for salvage operations of released vessels, procedures to deal with arrested fishermen and their boats, modalities for prevention of use of force against fishermen, easy and simple procedures to facilitate early release of boats and so on. However, implementation of this MoU has been far from satisfactory.
The Joint Declaration during the state visit to India by His Excellency Mahinda Rajapaksa, President of Sri Lanka, from 08 to 11 June 2010 emphasised the need to revive the meetings of the JWG on fishing and to enhance and promote contacts between the fishermen’s associations on both sides. Dialogue between the fishermen from both sides took place in May 2004 in Colombo and August 2010 in Chennai. As no mechanism was set up for follow-up and effective monitoring of their conclusions and decisions, there has been no way of verifying the efficacy of these meetings. The Chennai meeting proposed the establishment of a Joint Working Committee to monitor the problem of poaching and arrests. It also proposed that the joint monitoring group should be composed of representatives from the fisheries officials, fishermen and the Navy/Coast Guard from both countries.
Three broad conclusions have emerged from the fishermen’s dialogues. (i) Both sides agree that trawling is harmful to marine resources and that it should be stopped. (ii) Indian fishermen accept that they should stop poaching in Sri Lankan waters. (iii) Fishing activities in Palk Bay should be monitored by the two governments by a forming a Joint Monitoring Committee.
Issues Relating to Detentions/Arrests
Arrests of Sri Lankan fishermen by the Indian authorities are made for violations of relevant Indian Acts. The lengthy process involving preliminary enquiries by the state government of Tamil Nadu, sending of the report to the authorities in New Delhi and decision by the latter often takes about a year. The owners of the fishing boats do not bear any responsibility, as they are not bound by any laws giving effect to ILO conventions on ‘work in the fishing sector’. Similarly, Indian fishermen crossing the IMBL in the Palk Bay are arrested under applicable laws in Sri Lanka, including security legislation. After preliminary enquiries, they are produced before the Anuradhapura Courts. They are also moved to various detention centres before their cases are heard and penalties imposed. The process takes anywhere from three to six months.
One of the major reasons for the long periods of detention is the time taken to establish the identity of the arrested fishermen, in order to establish they are bona fide fishermen. In this respect, both Governments are encouraged to consider issuing a ‘document of identity’, such as photo ID, to fishermen operating in the Indian Ocean. Both sides should adopt strategies to minimise delays.
There have been allegations of harassment of fishermen while in detention. Their families suffer in the absence of their breadwinners. Humane treatment of those arrested and providing assistance to their families until their release would serve to mitigate the sufferings of fishermen as well as their families.
The capabilities of the authorities of the two countries are asymmetrical. The Indian Coast Guard has strong monitoring, control and surveillance capacities, whereas the Sri Lankan Navy had to engage in surveillance activities and monitor illegal boundary crossing by the fishermen, whilst conducting security operations against the LTTE. The nascent Sri Lankan Coast Guard does not yet have the capacity to police the Palk Bay. In a few cases, there have been allegations that Indian fishermen have been killed by the Sri Lankan Navy after being apprehended. There is also well-documented information that ‘Sea Tigers’ of the LTTE resorted to murdering Indian fishermen with the intention of using the captured fishing vessels for smuggling of military hardware and other illegal activities.
Policy failure has been costly on both sides: Indian fishermen are unable to earn a living without trawling the ocean bottom of the Palk Bay. This has deprived predominantly Tamil fishermen in the Northern Province of Sri Lanka of considerable revenue, resulting also in degrading the marine eco-system and the Sri Lankan fishermen being unable to exploit their side of Palk Bay resources to which they have traditional and legal rights.
Authorities in both countries, including the political leaders in the State of Tamil Nadu and provincial authorities in the Northern Province of Sri Lanka should accept that the issue has ecological, humanitarian, economic and political dimensions. Similarly, it should be recognized that political leaders in the State of Tamil Nadu would find it difficult to take practical action that would harm the interests of the fishermen in the State due to political considerations. Against this backdrop, it is noteworthy that during a previous dialogue, fishermen of the two countries had agreed that: trawling was harmful to marine resources and that it should be stopped; they should stop poaching in Sri Lankan waters and fishing activities in Palk Bay area should be monitored by a joint monitoring committee.
The proposed Joint Mechanism should address the welfare goals of the fishermen on both sides taking on board proposals that fishermen and their associations on both sides may have in dealing with the problem.
Other Recommendations
1. The Government of India should:
i. Take up with the state government of Tamil Nadu the issue of illegal crossing of IMBL by Indian fishermen for fishing in Sri Lankan waters, by highlighting that such practices adversely affect particularly the Tamil fishermen, from the Mannar, Kilinochchi and Jaffna Districts, who had been traumatised and economically disadvantaged due to the long drawn armed conflict in Sri Lanka;
ii. Undertake a survey of the current fleet of Indian mechanized boats/trawlers operating in the Palk Bay and specify the maximum number of boats/trawlers that can be operated sustainably. Action should also be taken to downsize the number of boats/trawlers that could be operated on the Indian side of the IMBL through a ‘buy back’ scheme, within a specified time;
iii. Recognize the impact of such a limitation on the livelihood of fishermen depending on the Palk Bay and develop in consultation with the Tamil Nadu State government a strategy with adequate funding, to compensate the affected Indian fishermen and assist them to engage in alternative livelihood practices, including deep sea fishing.
iv. Authorize Indian Coast Guard to take action and prevent illegal crossing of the IMBL by Indian fishermen with a view to engage in fishing in Sri Lankan waters. The Sri Lankan authorities should take similar action. It should be noted that Sri Lankan Coast Guard does not possess capabilities similar to those of their Indian counterparts for surveillance.
2. Both Governments should:
i. Take legal action against fishermen, who illegally cross the IMBL and engage in fisheries, including by imposing fines, so as to make such illegal activities financially unattractive to boat owners as well as fishermen.
ii. Persuade State and provincial authorities to accept that fishing in the Palk Bay has ecological, humanitarian, economic and political implications and therefore should work jointly to solve the problems without attempting to politicize the issue.
iii. Provide the fishermen of each country a ‘document of identity’, such as photo IDs, issued and registered by the authorities of each country;
iv. Ensure that the legal authorities in each country are empowered to complete the legal proceedings within a specified time frame, wherever possible.
v. Institute arrangements for financial assistance to families of fishers in detention by their respective governments.
vi. Recommend measures to be put in place for re-generating fish stocks in the Palk Bay.
vii. Put in place measures to preserve and protect coral reefs to facilitate regeneration.
viii. Authorise studies and make recommendations to preserve protect and enhance the marine eco-system and marine bio-diversity of the Palk Bay.
(-Sathyapalan et al. 2008; Vijayan 1999; http://www.marecentre.nl/reincorpfish/project_south_asia.html
2Vivekanandan 2004
Sathyapalan et al. 2008; http://www.marecentre.nl/reincorpfish/index.html )
