It is reported in the print that the Hon. Foreign Minister, Prof. Peiris has made certain comments to questions raised by the journalist in Delhi to the effect that the 1974 Agreement determined the demarcation of Kachchativu in terms of an International Maritime Boundary Line with regard to the historic waters between India and Sri Lanka.
His comments provoked to write this article, unfolding the fact that Kachchativu was part of Sri Lanka well before the Agreement of 1974, popularly known as “Kachchativu Agreement”. The said Agreement was signed by Sirimavo Bandaranaike and Indra Gandhi in June 1974.
Kachchativu is a tiny islet in the Palk Bay, about a mile long and less than half a mile broad. It is closer to Delft but uninhabited and its surrounding area is rich in many species of the living resources of the sea and minerals, suspected of geological petroleum and natural gas deposits around its surroundings.
The sea in the Gulf of Mannar, Palk Bay and Palk Strait, a narrow strip of sea that lies between the two countries were treated as ‘historic waters’ of India and Sri Lanka. From immemorial time both India and Sri Lanka, then Ceylon enjoyed historic title in these historic waters.
"Prime Minister, Indira Gandhi too agreed to it and withdrew their claim to Kachchativu and acknowledged our sovereignty over Kachchativu"
The name, ‘Ceylon’ was replaced by the name ‘Sri Lanka’ with the Promulgation of the First Republican Constitution in 1972.
Sri Lanka’s sovereignty over Kachchativu is not only based on the Agreements of 1974 and 1976 but also on historical documentations, by effective occupation and user, legislation for Kachchativu and publication of the acts of sovereignty over Kachchativu without protest by India.
In 1921 a Conference was held in Colombo. A delegation of four officials came to Colombo from the then Government of the Presidency of Madras, headed by C.W.E. Cotton. There were also four officials from Sri Lanka, headed by B. Horsburgh. The Conference went on from March to October 1921. The sovereignty over Kachchativu was claimed by both the countries, placing several documents in support of each one’s claim.
Many Portuguese and Dutch records and maps showing Kachchativu as part of the kingdom of Jaffna Patnam and cartographic evidence showing Kachchativu as part of Sri Lanka were tendered at the Conference in proof of Sri Lanka’s sovereignty over Kachchativu.
"being an astute politician she proved to be a very able negotiator and successfully concluded the Indo Ceylon Agreement"
Though India placed several documents in support of her claim, her claim to Kachchativu was mainly on the title of Rajah of Ramnad, a Zamindari system introduced by Lord Cornwallis in Bengal by Regulation 2 of 1793. Argument was advanced on behalf of India that after its abolition in 1948, Zaminda’s rights passed to the Government of Madras.
Counter argument was effectively made by Sri Lanka that Rajah of Ramnad was not a sovereign in terms of the Bengal Regulation and that he was only a revenue collector and that India was claiming sovereignty over Kachchativu on a pusillanimous title.
At the end of the Conference, a Joint Report was signed on 25th October 1921, demarcating the line of delimitation of the Gulf of Mannar and the Palk Strait with a rider to say that the Indian delegation signed the Report ‘without prejudice to any territorial claim to be made to the island of Kachchativu’. However, it was said by the Indian Delegation that “We are inclined to regard the Ceylon claim to this islet as sentimental rather than practical, and consider that the advantage gained elsewhere more than compensate the Government of Madras for the loss of any fishing rights in its immediate neighbourhood”. Since India failed to ratify the Agreement and it was abandoned.
In 1615 the East India Company exercised jurisdiction over Kachchativu as belonging to the Kingdom of Jaffna.
The several records maintained by the Dutch clearly demonstrate that Kachchativu was part of the Kingdom of Jaffna Patnam, an Independent State before her fall to the Portuguese in 1620.
There are traces of historic evidence that the Last King of Jaffna Patnam, Sankili Kumaran had caused his men to catch green turtles which were abundant around the area of Kachchativu for his delicious plate of meal. There was no evidence of protest by India.
A Treatise under the name of “Description of the Island of Ceylon” published by Francois Valentyn in 1726, showing a cartographic map of Kachchativu as part of Jaffna Patnam
There are several documents, specially maps from the Dutch and British Governments showing Kachchativu is part of the Northern Province. Both Survey General’s Departments of India and Sri Lanka acknowledge this title.
In 1876 the Survey Department of India accepted Kachchativu as part of Ceylon. In a Letter dated 23rd April 1876 sent by Major General B.R. Brainhill, an official of Madras Survey Department to the Superintendent of the Trignometrical Survey, stated that “I enclose a description of the four stations built by me on the islands belonging to Ceylon. Two Stations were in Delft and two in Kachchativu”.
In a reply to Ceylon’s letter dated 10th September 1910, India accepted Ceylon’s Claim to the island of Kachchativu.
The Triangulation in India and Adjacent Countries Report of 1915 stated that Kachchativu island belonged to the Jaffna Taluk in the Northern Province of Ceylon.
During the period of World War II, the Government of India sought permission from Sri Lanka to use Kachchativu for her naval exercises. Consequently, the Governor Sir Andrew Caldecott issued on 1st June 1944 Defence Regulations allowing the Government Agent of Jaffna to grant permits with conditions.
When the then Indian High Commissioner for India in Sri Lanka, V.V. Giri sent a letter dated 11th August 1949 to the Ministry of Defence and External Affairs of Ceylon informing that India intended to use Kachchativu for naval exercises, the then Permanent Secretary to the Defence and External Affairs, Sir Kandiah Vythianathan sent a reply. He asserted by his letter dated 3rd January 1950 that “Should the Royal Indian Navy desire to conduct fleet exercises as proposed it will be necessary to obtain the permission of Ceylon Government to do so”.
In receipt of this letter India abandoned her claim to Kachchativu and never attempted to have naval exercises without the permission of Sri Lanka.
In 1956 Kachchativu was used by Sri Lanka for aerial bombarding practice. There was no official protest from India. The Ceylon Tamil Maha Sabai had only protested by its letter dated 29th March 1956 stating that Kachchativu possessed a medicinal herb, called ‘Mukily’ and that ‘Panner leaves’ were abundantly found therein which were used in Hindu Temples and these wonderful herbs and sacred trees would be destroyed.
Occupation and user:
Territory and sovereignty are attributes of statehood. Occupation was the main method by which a State could acquire territory that did not already form part of the domain of another State. Sri Lanka had been in effective occupation of Kachchativu for many decades as espoused in the Island of Palmas Case (Netherlands v US – Permanent Court Arbitration 1928).
On the conclusion of the Spanish-American War of 1898, Spain was said to have ceded the island of Palmas to US. The US Official visited this Island in 1906, and found the Dutch Flag was flying on the Island. US based her claim to Palmas on Spain’s title but Spain did not occupy Palmas or exercised her sovereignty over it. Netherlands based her claim over Palmas on continuous and effective occupation and control over the island without protest from US and on this ground the Arbitrator held that Palmas formed part of Netherlands territory.
The Clipperton Island is similar to Kachchativu. It is a small uninhabited coral reef in the Pacific Ocean. France and Mexico each claimed title to Clipperton. Mexico’s claim was solely based on Spanish discovery and that Mexico was the legal successor to Spanish interests. France established that on her instructions her naval officer sailed along the coast of the Island in 1858 and proclaimed sovereignty over it and the Proclamation was transmitted to her Consulate in Hawaii and it was published in a Hawaiian newspaper without protest from Mexico. The Arbitrator held that the Proclamation gave France effective control and the exercise of sovereignty over Clipperton.
Legislation and Regulation:
India and Sri Lanka attained independence in 1947 and 1948 respectively and since then. Sri Lanka commenced legislating for Kachchativu.
Regulations 37 to 43 were passed specifically in regard to the Naval Bombardment Range, Kachchativu.
Regulation 43 states that “on any day on which firing takes place at the Kachchaitivu Range, no person shall visit the island of Kachchativu for the purpose of a pilgrimage to the Roman Catholic Shrine on that island unless he is in possession of a permit issued in that behalf by the Government Agent of the Northern Province”.
India in 1956 and Sri Lanka in 1957 extended their territorial sea to six nautical miles: in 1967 and 1971 both countries extended to 12 miles in keeping with state practices of the international communities. State practice has crystallized into customary international law and acquired the force of jus cogens. Likewise, India and Sri Lanka extended their respective contiguous zones for conservation of fisheries. Consequently, the Agreement of 1974 falls within the conditions of the UN Convention of the Law of the Sea of 1982 (UNCLOS III ).
Prime Minister Sirimavo Bandaranaike
an astute politician:
Prime Minister Sirimavo Bandaranaike, being an astute politician proved to be a very able negotiator. She successfully concluded the Indo Ceylon Agreement (better known as Sirima Shastri Pact) on 30th October 1964.
She consulted Shirley Amerasinghe who was the then Chairman of the UN Convention of the Law of the Sea of 1982 (UNCLOS III ) and received confirmation from him that, in the event of demarcation of the historic waters on the basis median line, Kachchativu would come within the territorial jurisdiction of Sri Lanka
From 1968 to 1969 Dudley Senanayake had several rounds of talks with Indira Gandhi to resolve the Kachchativu issue in accordance with the median line of international practice. By a letter dated 22.03.1969 Dudley Senanayake reminded that India agreed to settle the matter on the basis of the median line as agreed in 1921. She sent a letter to Dudley Senanayke and got confirmation from him in writing and sent a letter to Indira Gandhi of this confirmation. She wanted the settlement of Kachchativu on the basis of the median line as agreed by India in 1921.
She sent Indira Gandhi a letter dated 28th September 1971 asserting that ‘Kachchativu is part of the territory of Ceylon and that the island continues to be under my Government’s jurisdiction and control’.
She refused to yield to any compromise on the question of sovereignty over Kachchativu.
Before Prime Minister Sirimavo Bandaranaike went to New Delhi, she collected all necessary documents and realised that, though Kachchativu is a small islet without human habitation, it was valuable to Sri Lanka from the point of mineral resources and fisheries and she refused to participate at any Conference to decide the title of Kachchativu but agreed only to demarcate the boundary in the Historic Waters between the two countries on the line of the October 1921 Agreement. Prime Minister, Indira Gandhi too agreed to it and acknowledged our sovereignty over Kachchativu.
Agreement of 1974 and
Consensus was finally achieved and ‘the Agreement between Sri Lanka and India was signed on 26/28th June 1974 and the maritime boundary line was drawn on the basis of the median line in ‘the Historic Waters between the Two Countries and Related Matters’. It was ratified upon the exchange of instruments and accordingly, a Joint Statement was issued on 28th June 1974.
At the time of signing the agreement DMK was in power while ADMK was the main opposition party in Tamil Nadu. None of them protested as they are involved today except passing resolutions, condemning the withdrawal of the claim to Kachchativu by the Central Government. However, Jana Sangh of Tamil Nadu filed a Writ of Mandamus Application in the High Court of Madras challenging the validity of the Agreement and it was dismissed.
One Krishnamoorthy filed a Writ challenging that the Agreement violated the provisions of the Indian Constitution and that it was signed without proper amendment to the Constitution and without the approval of Parliament. The Writ Application was dismissed by Justice Bhagawatte of the Supreme Court of India.
Subsequent to this Agreement, two other Agreements were signed on 23rd March 1976 and 22nd November 1976, followed by an exchange of letters.
In terms of the Law, Sri Lanka made a Proclamation on 15th January 1977 and a Map too was published with the knowledge and consent of India. Likewise, in terms of the Indian Act, a Press Release was issued on 17th January 1977 by the Indian High Commission in Colombo.
The constitutional and legal efficacy of the Agreement of 1974 had reached its completeness in terms of the dualist theory of both countries. The Agreement cannot be now cancelled under any circumstances of whatsoever or howsoever nature.