International laws are made so that they can be referred to in case of conflicts between two or more states. The cases where the domestic laws cannot be implemented due to territorial boundary jurisdiction. Such in the case of Bottom Trawling in the Palk strait. The issue where bottom trawling was banned by Sri Lanka, as a result the fishermen could not trawl in their waters. Whereas the Indian trawlers did not pay heed to this prohibition and are often caught by the Sri-Lankan Navy for trawling in their territory. The rule of 200-nautical miles cannot be implemented as the distance between the two countries is very less. There are often a lot of conflicts among the fishermen due to this issue. The question arises as to firstly, when and where can international laws be implemented? Secondly, Is the detention of Indian fishermen by Sri Lanka justified and Thirdly, Are the laws made by India and Sri Lanka to prohibit bottom trawling enough or International laws should also be brought in to reduce the conflicts. While answering the mentioned questions, it is foremost important to know the details of the issue and also the related international laws.
What are international laws?
For the first question when and where can the International Laws be implemented. The term ‘International law’ was coined by an English philosopher namely Jeremy Bentham (1748-1832). He defined it as a collection of rules governing relations between states. The system of law that exists outside the boundaries of nations and secular states. The states have to be attentive in performing certain actions that can lead to violation of such laws, as the same can be condemned by communities working at the international level. In case of breach of international laws, the state may result into a decline in their credibility and alter their relations with the rest of the states. We can also regard these laws as a framework for global interactions, the set of procedure that should be carried out to have a good relation with the rest of the world. Due to several conflicts between nations related to overuse of resources or improper division in areas there have been laws made so that they can be referred to in such cases. One of such International law is related to deep sea trawling.
Deep sea trawling and related laws
Deep sea trawling or bottom trawling in layman’s language means dragging the fishing nets along the seafloor to catch fishes and other deep sea water organisms. This bottom trawling is also known as Benthic trawling in the scientific community. There are midwater trawling as well which are constrained to the water much higher than the seabed, this demersal trawling is just above the Benthic level. It is done with some gears that can harm the marine life as it is a method that is infamous for catching huge number of fishes as well as disrupting sea life. Although this method helps us to catch inaccessible species of fishes and helps in marketing the same, it has been banned by many countries. Sharks, Sea turtles and coral reef are the most vulnerable victims which also damages tourism. Some bans on bottom trawling include: –
- JALA: The Indonesian government banned bottom trawling so that the conflicts of industrial trawlers reduces and there is an increase in the income of local fishermen.
- US: The South Atlantic Fishery Management Councils banned trawling for about 23,000 sq. miles starting from North Carolina, running through South Carolina and Georgia up till Florida. It was done with the intention of securing the deep-sea corals.
- US: The pacific and North Pacific Fishery Management Councils were able to successfully ban bottom trawling for more than 840,000 sq. miles, along the seabed in the Pacific Ocean, Bering Sea and the Arctic ocean. California banned bottom trawling for spot prawns to reduce the wastage as bycatches. Catching of fishes with better and unharmful gears help in maintaining the marine environment.
- US: Western Pacific Fishery Management Council banned bottom trawling for an area of 1.5 million sq. miles in the waters near Hawaii and nearby pacific islands. The ban in Pacific islands from Samoa to the Mariana Trench was spread over an area of 330,000 sq. miles.
- Atlantic Waters: In the areas surrounding Azores, Madeira and the Canary Islands, bottom trawling is banned in the waters for more than 500,000 sq. miles.
- New Zealand: The government of New Zealand banned this method of trawling in areas surrounding seamounts and hydrothermal vents.
- Mediterranean: The General Fisheries Commission banned bottom trawling in Europe and North Africa, for an area of 630,000 sq. miles.
The bans had been imposed to promote fishing with gears that don’t leave too much bycatches. By dragging heavy nets on the sea-bed there is a huge number of unwanted catches. These are then considered waste and are generally thrown away.
1.1- Trawling with the use of heavy nets.
Background of the issue in Palk strait
The Palk strait is located between the South-East Indian Peninsula and the island nation, Sri Lanka. The depth between the south Tamil Nadu and northern Sri Lanka is less than 15 meters. For every 3 km there are approximately 2000 trawlers operating in this paradise of millions of fishes. According to a trawler owner, trawling was initiated in 1965 in this area. The government gave subsidies and loans to encourage fish catching. This was a method that was more profitable than the old and obsolete methods.1 But the number of trawlers has increased significantly along the coasts. The whole lot of breeding system is hampered as trawling not only catches the desired fish but all the other organisms living in the sea. The young fishes are caught and this is depleting the marine resources. The fish market has seen a decline in the past few decades which makes it hard for the fishermen to sustain themselves. The fishermen often try to go as far as possible to catch the fishes, as the coastal areas fall short to meet the demands of these people.
According to many historians Sri Lanka is an extension of India, there is close relation and common culture in both the countries. According to a report in Carnegie India, back in the 19th and 20th centuries many Tamil labourers were sent to the island country to meet their labour requirements. In the year 1983, the conflicts brought with itself thousands of refugees to Tamil Nadu through this bay.2 There was a close bond that the North Sri Lankan citizens shared with the Tamils but over the last few decades the bond seems to have rotten over the issues relating to overfishing.
Sri Lanka gets a lot of its national income due to fishing or tourism in Palk bay. But Since the past decade Sri Lankan Tamil fishermen have felt the hindrance in catching fishes due to the Indian ones. As for India the conflict was not as significant a reason as the Kachchatheevu event. According to the United nations Convention on the Law of the Sea, Exclusive Economic Zone is the area of the sea or ocean in which a sovereign state has special rights regarding the exploitation and use of marine resources, including energy production with the use of water and wind.3 The Exclusive Economic Zones are areas that a state has control over, it generally spreads over an area of 200 nautical miles from the base line. (about 370 km distance from the shore) There is an exception when the EEZ of two or more states overlap. In such a case it becomes the duty of the states to decide upon the actual maritime boundaries4.
The sovereignty was questioned when an island named Kachchatheevu was relinquished to Sri Lanka. Earlier the island was used for fishing and trawling by both the countries but after 1976 it solely went to Sri Lanka under the Indo-Sri Lankan Maritime agreement. In the years 1974 and 1976, both the countries showed interest and limited the border of Palk strait, gulf of Mannar and also of Bay of Bengal. The agreements were signed by the then Indian Prime Minister, Indira Gandhi and Sri Lankan Prime Minister Sirimano Bandaranaike. This agreement was signed by the central government to reduce the conflicts and resolving boundaries in the Palk Strait. From what Tamil Nadu thought this was a mistake as the fishermen in the area would suffer largely. Now, this was the point where the conflicts began, Tamil Nadu fisherman continued to fish near the island as they thought it was their traditional rights. The government of India allowed trawling to increase the productivity and enhance exports as there was an increased demand for prawns in countries like Japan, Europe and the United States.
Sri Lanka later made an amendment in the Fisheries and Aquatic Resources Act which banned bottom trawling and exerted fine as well as a probability of two-year imprisonment. While India did not imply any such prohibition it was unfair for the trawlers of Sri Lanka who could not trawl even in their own land while the Indian trawlers could do so. This escalated the feeling of hatred among the fishermen and still causes conflicts. After about eight years after the agreement the civil war, between the Sri Lankan government and Liberation Tigers of Tamil Eelam (LTTE) led to violence and prevention of North Sri Lankan fishermen to fish in the Palk Bay. The Indian Tamil fishermen on the other hand, were free and fished openly in the waters of Sri Lankan territory. After the conflicts when many refugees came to Tamil Nadu, they worked under trawler owners and even started showing them the areas where trawling would be more profitable.
The second question, is the detention of Indian Fishermen by the Sri Lankan Navy justified? The fact that Sri Lanka had banned bottom trawling was dur to the damages it was causing to its national income. The marine ecosystem was destroyed and there was a subsequent rise in the number of trawlers. It not only banned this method but also imposed fines and imprisonment. And as the idiom says “Ignorantia juris non excusat” Ignorance of law is not an excuse in any country. Just thinking it to be a traditional right, Indian trawlers cannot plead that they are innocent as they did not know that trawling is banned in Sri Lanka.
International laws for bottom trawling
The international regulations for deep sea trawling involve some ‘soft law’ that are not binding. The very first one among them is the Law of the Sea Conventions, it provides for the governing of world’s waters. All the Oceans and Seas are to be used equitably and efficiently, keeping in mind the protection and preservation of marine life. It is this law of conventions that brings together all the international laws relating to the international waters as well as the territorial waters in the Exclusive Economic Zones.The law of Sea Conventions was compiled in the year 1982 and its’ central focus of attention was the territorial waters. It relied on the concept of maximum sustainable yield in fishery management. In Article 192 of this Act the general duty for preservation of marine environment is mentioned. The measures that should be taken for the conservation of living resources is contained in the Article 117; it also provides the states with the right to co-operate with the other states for protecting the vulnerable ecosystem.5 This Article can be applied to the Palk Bay, both the states should co-operate and respect the territory of the other. The laws of both the countries should be just and not profitable to one while the other suffers.
Article 55 of the Specific legal regimes of the exclusive economic zones states that it is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in the Part V, under which the rights and jurisdiction of the coastal state and rights and freedoms of other states are governed by the relevant provisions of this conventions. Article 56 states the rights, jurisdiction and duties of the coastal state in the economic zones. In the clause 1 of the Section, it can be noted that the sovereign rights are provided to the state for exploring and exploiting the natural resources on the sea-floor of the Exclusive Economic Zones. The Exclusive Economic zones where the states share the common area should be decided on their own, as stated in the Preamble of the UN, Kachchatheevu on a discussion went to Sri Lanka and as a result became its territory but the Indian fishermen and trawlers still went there. The Sri-Lankan Navy caught many of them trawling within the waters of the island country, as in the case where four fishermen from the Ramanathapuram, a district in Tamil Nadu were hit by the Sri-Lankan Navy and apparently lost their lives.
They were seen fishing in the waters and went missing on 19th January, 2021. The former said that a boat with four fishermen sank when they were trying to nab them as they were caught poaching in the Sri Lankan territory. India and Sri Lanka had always tried to avoid any conflicts, some laws relating to trawling has been made from both sides. In India there had been some initiatives taken to stop bottom trawling, this would not only benefit the environment but also lead to better relations of the neighbours. There are several fishermen who are in custody of the Sri Lanka for violating the territorial boundaries and trawling in their waters. The Joint Working Group in Delhi had a discussion on the same and came to the conclusion that bringing back the Indian Fishermen back from the island countries is important to end the conflicts. As Sri Lanka had already banned bottom trawling, the Indian fishermen trawling in Palk bay at a distance that was beyond Indian Territory is considered to be a violation of their laws. So, India has been promoting sea-cage and seaweed farming so as to stop the fishermen from deep-sea trawling. The Joint Working Group was co-chaired by Indian as well as Sri-Lankan delegates, the Indian officials showed their appreciation towards Sri Lanka for releasing the fishermen and requested for the release of the remaining fishermen who were still in their custody.6
The FAO Compliance Agreement contains issues relating to flagging and flagging-out. It states that the state must control the activities of its’ vessels in the high sea. In case of any defaults of the vessel with relation to the international fishery conservation and management measures the state cannot say that it is not responsible as the default has occurred in the sea where it did not have any control over it. This agreement applies to all kinds of fishing and not just migratory stocks. It generally requires the following
- According to Article III (1) of the FAO Compliance agreement, the flag state must have control in the working of the vessel and also ensure that the latter is not involved in undermining any kind of international measures.
- The Article III (2) states that the flag state must not allow its vessel to fish in the high waters without any authorization from the state.
- The next clause (3) mentions that none of the parties must allow any fishing vessel if it is not satisfied with the former’s effectiveness to exercise its responsibilities mentioned in the compliance agreement.
- Article VI implies that the flag states must inform the FAO about high sea vessels. It has also established a record known as the High Seas Vessel Authorization Record. But up till now only a numbered country including Canada, Japan, Norway, the US and 13 EU countries have recorded the same.
- Further Article VIII clause (2) deals with the cooperation between two parties. The parties must co-operate to ensure that the vessels of non-parties don’t get themselves involved in any activities that can undermine the effectiveness of the fisheries conventions.
Now the big question, whether the international laws should be referred to in the case of Palk strait or the domestic laws of the neighbours are enough. When looking at the big picture, we can say that the domestic agreements are enough but not as binding as the international laws. So, for the longer run, and to avoid any large-scale conflict the international laws should also be brought in.
Conclusion
Bottom trawling is against the environment and not a mere issue of a single state. This method has been a part of the causes of depletion of many deep-sea fishes, turtles and sharks. The coral reefs are destructed and tourism also depletes. As for the Palk strait, the shallow sea and close distance between the countries are a reason for most of the conflicts. The fact that Sri Lankan territory starts from a particular point is not known to the fishermen. The international laws are made not only for keeping in check the actions of a sovereign state but also for avoiding any issue that would disturb the world peace. These are some of the ways that can be used for the betterment of not only the neighbouring countries but also the environment. The nature has devised many things and one of them is the deep and dark yet the beautiful sea, it is our duty to sustain it for as long as possible. If these things are not taken care of then even a common fish found in the rivers would be on the verge of extinction. The bycatches left are the worst thing in trawling as the heavy nets not only destroy the sea-bed it catches all things in its way and when the useful things are taken out the others are disposed of. This if continued would only harm our planet earth, so it is our responsibility to look after it.
Suggestions
Both the countries should come up with a stern legislation that would stop the fishermen from using this method of fishing and that would help in the betterment of the marine life. The standard gears for fishing should be provided and if possible, the trawlers should be given GPS devices that would help them locate their particular territory.
This method can also be made obsolete if there are other profitable method, such in the case where seaweed farming was recognised by the government and by providing subsidies and other financial help the fishermen will move on to the method and fields that are more beneficial for them. As the Tamil Nadu government provided 10 Lakhs worth subsidies to the trawlers who shifted from trawling to deep sea fishing, a method that does not leave bycatches and is not dangerous to the ecosystem.
REFERENCES:
- Unregulated and illegal fishing. Available on sciencedirect.com (last visited on 10/06/2021)
- Preamble to the United Nations Conventions on the Sea. Available on un.org (last visited on 08/06/2021)
- Palk bay fishing dispute available on thehindu.com (last visited on 10/06/2021)
- Resolving the fishing dispute in Palk bay The New Indian Express, available on newindianexpress.com (last visited on 09/06/2021)
Author: Annu Kumari from Lovely Professional University, Punjab.
Juris Centre 