By V. Suryanarayan
The Daily News, the Sri Lankan Government owned newspaper, has published an article entitled “Kachchativu – Issues at International Law” on August 20, 2011. The author is Dr. Ruwantissa Abeyratne, who has specialized in Aviation Law and is currently Acting Deputy Director, Air Transport Bureau at the International Civil Aviation Organisation. He is concurrently associated with the Concordia University, Montreal.
There is one significant point in Dr. Abeyratne’s article which requires elucidation. It relates to the 1921 Conference between India and Ceylon to demarcate fisheries line between the two countries, where issues relating to ownership and sovereignty of Kachchatheevu figured. To quote the exact words in the article, “discussions of issues of ownership and sovereignty of Kachchativu go back to 1921, when the Conference to demarcate the fisheries line between India and Sri Lanka was convened. Several bilateral discussions followed the conference…”
It is necessary to describe in some detail what happened in the 1921 Conference, because according to many Sri Lankan scholars, the British Government tacitly agreed that Kachchatheevu belonged to Sri Lanka. The first scholar to stake such a claim was late Prof. Shelton Kodikara in his book, Indo-Ceylon Relations Since Independence. According to Prof. Kodikara “Ceylon considered the decision of the 1921 Conference as a tacit acknowledgement by the Government of India of Ceylon’s claim to the Island”. The underlying principles behind the Agreement had an important bearing on the 1974 Conference, when the island was ceded to Sri Lanka.
In his book, Kachchativu and the Maritime Boundary of Sri Lanka, WT Jayasinghe, the former Defence and Foreign Secretary of Sri Lanka, has written that for purposes of delimitation of the waters in the Palk Strait and Palk Bay, both sides had accepted the principle of equidistance and the median line could be the guiding factor. At Kachchativu in the Palk Bay, however, “there had to be a deviation”. The Ceylon delegation in the 1921 Conference argued that “instead of following a median line, the line at Kachchativu be demarcated only three miles west of the island”. The argument for such a course of action was that there would be “an equitable apportionment in the fisheries domain for both Sri Lanka and India”. As is well known, in the 1974 Agreement, the principle of equi-distance in the Palk Bay was followed, except in relation with Kachchatheevu.
Since the ownership of Kachchatheevu has become a subject matter of controversy between the Government of Tamil Nadu and the Government of India and since the matter is pending before the Supreme Court for final decision, it is necessary to analyse the details of the 1921 Conference. The Conference was held in Colombo on 24 October 1921 to discuss the question of “delimitation of the Palk Strait and the Gulf of Mannar” between the British Government which administered Ceylon and the British Government which administered Madras Presidency. The Ceylon delegation was led by Horsburgh, the principal Collector of Customs and former Government Agent, Northern Province. He was assisted by B Constantine, WCS Inglies and Dr. J Pearson. The British Indian delegation was led by CWE Cotton, assisted by Captain Finnis, J. Hornell and AG Leach.
As the Conference proceeded Horsburgh proposed that the “delimitation should follow the median line, subject to an incursion beyond that line so as to include the Islet of Kachchativu and three miles to the Westward”. Horsburgh quoted from the correspondence with the Government of India in which Ceylon claimed possession of the island and “it was to be inferred, acquiesced in”.
The British Indian delegation was “unprepared” for this situation; they had no “instructions either to contest or admit such a claim”. However, they pointed out that the Raja of Ramnad had asserted that “Kachchatheevu was within his Zamindari”; that he had regularly leased it and was “receiving rent therefrom”. Horsburgh maintained that “if the territorial claim to the island was disputed”, the “conference must dissolve”. Horsburgh’s brinkmanship paid dividends, for the British Indian delegation did not want to create a crisis. As a compromise it was decided that the “delimitation of the new jurisdiction for fishing purposes could be decided independently of the question of territoriality”. The delimitation was “accordingly fixed … three miles West of Kachchativu”. According to the British Indian delegation, since important chank beds fell within the “Madras sphere of influence” it compensated for the loss of any fishing rights.
From the Tamil Nadu perspective what happened subsequently is of utmost importance. Unfortunately Dr. Abeyratne has not touched on those details. First, how did the British Indian delegation view the brinkmanship of Ceylonese delegation? According to the letter dated October 25, 1921 written by CWE Cotton to his superiors, Ceylon’s claim to the island of Kachchatheevu is “sentimental rather than practical”. Equally significant, the British Indian delegation added a rider to the report “so as not to prejudice any territorial claim which the Government of Madras or the Government of India may wish to prefer in respect of the island of Kachchativu”. What is still more interesting, the Secretary of State for India questioned the validity of the Agreement. As a result, the British Colonial Office did not ratify the Agreement. Hence the Agreement had no legal validity.
When the issue of Kachchatheevu began to figure in the Indian Parliament prominently in the 1960’s, Dinesh Singh, then Minister of State for External Affairs, on May 17, 1966 summed up the Government’s view in the Rajya Sabha: “There was a meeting in 1921 in which representatives from the Government of Madras and they had agreed that while the Zamindari rights of the Raja of Ramnad would continue, the island belonged to Ceylon. The Secretary of State for India does not accept the fact and since then, the dispute has been going on”. Three points should be highlighted. The British Indian delegation, as mentioned earlier, added the rider that the Agreement has been signed on condition that it does not prejudice the territorial claims of India. The Agreement related to only fishing rights, not to ownership claims on the Island. Secondly, the agreement itself has no legal validity because the British Colonial office did not ratify it.
I have written extensively on the 1974 Maritime Boundary Agreement between India and Sri Lanka and the background to the ceding of the Island of Kachchatheevu. I do not propose to dwell on those details here. However I would like to highlight one point. New Delhi’s decision that Kachchatheevu is a disputed territory was a political decision taken by Prime Minister Indira Gandhi. The personal chemistry between Sirimavo Bandaranaike and Indira Gandhi came into play in a big way and the island was ceded to Sri Lanka. As stated earlier, if the principle of median line was strictly enforced Kachchatheevu should have been an integral part of India. In order to gift Kachchatheevu to Sri Lanka the precedent of the 1921 fisheries agreement was followed (where Kachchatheevu came within the fisheries jurisdiction of Ceylon). Let us await Supreme Court’s decision in this subject.
The personal equation between Indira Gandhi and Sirimavo Bandaranaike which played a decisive role in the conclusion of the 1974 Agreement has been aptly summed up by Prof. Partha Ghosh of Jawaharlal Nehru University. To quote Prof. Ghosh, “Kachchativu was the most typical case of a personal equation, playing the role of diplomacy. When the negotiations had virtually failed, and the Indian official delegation was virtually pressurizing Indira Gandhi not to give up India’s claim on the islet, Sirimavo Bandaranaike made a personal appeal to Indira Gandhi to come to her rescue, as it would otherwise spell political disaster for her. Indira Gandhi appreciated Mrs Sirimavo Bandaraniake’s predicament and manipulated the situation in such a way that it became a fait accompli even before the Indian delegation could react. Sirimavo Bandaranaike remembered this gesture as late as 1990 with immense gratitude”.
Dr. V. Suryanarayan, former Director and Senior Professor, Centre for South and Southeast Asian Studies, University of Madras is currently Senior Research Fellow in the Center for Asia Studies, Chennai. His e mail address:[email protected]
Note: A comment on the spelling. Sri Lankans spell the island as Kachchativu and in Tamil Nadu it is generally spelt as Kachchatheevu