The law of the Sea

Part I

As an Island State situated in the centre of the Indian Ocean, the sea holds out great potential. The law of the Sea is therefore of importance to Sri Lanka as it determines her maritime boundaries and the jurisdictional zones therein.

The 1982 Convention of the Law of the Sea as a whole can be taken as representing the present international law of the sea.

It seems to be a fair inference to draw that the principles embodied in the treaty can be regarded as having the general acceptability of the international community and would be binding even on non-parties as customary international law. It can be viewed as representing the practice of generality of States as well as the opinion juris. The Convention came into force in 1994 after obtaining the 60th ratification. Today over 166 States including the European Union are parties to the Convention.

The Convention has been constituted out of the two main sources of international law namely custom and treaty. But the other sources too have contributed their share. ‘The Convention has also incorporated the judgements of the International Court of Justice as for example the theory of natural prolongation propounded in the North Sea Continental Shelf Cases which has been adopted as one of the criteria for delimitation of the Continental Shelf, or the concept of the coastal States preferential rights in the adjoining seas as elucidated in the Fisheries Jurisdiction Case which concept has now been extended to comprehend the exclusive economic zone.

The general principles of law recognized by civilized nations have also been worked into the text of the Convention as seen in the notion of equity which is the underlying thread which runs through most of the provisions of the Convention and which is a criterion in the delimitation of boundaries between adjacent and opposite States. Equitable considerations have also underlain considerations of resource management and regional co-operation. The idealistic content of the Convention is particularly evident in the whole new regime of the International Seabed which rests on the notion of the common heritage of mankind, bringing for the first time, into the realm of legal relationships the concept of mankind as a subject of rights and duties and stressing the theme of universality, cutting across narrow national considerations.

Maritime Zones Law No. 22 of 1976

For Sri Lanka, the law relating to the delimitation of boundaries and jurisdictional zones is set out in the Maritime Zones Law No.22 of 1976, and the Maritime Zones Proclamation made in pursuance of this law. The jurisdiction which the State exercises in the different zones, i.e. territorial sea, contiguous zone, exclusive economic zone, continental shelf and pollution prevention zone, is set out in the Maritime Zones Law and the limits of the different zones have been proclaimed, under the Maritime Zones Proclamation. The Maritime Zones law incorporates the terms of the two boundary agreements between Sri Lanka and India, i.e. 'The Agreement between India and Sri Lanka on the boundary in historic waters between the two countries and related matters of 1974’, which sets out the boundary between India and Sri Lanka in the waters from Adam's Bridge to Palk Strait, and ‘the Agreement between Sri Lanka and India on the maritime boundary between the two countries in the Gulf of Mannar, and the Bay of Bengal of 1976'.

The Maritime Zones laws also provide that the President may declare the historic waters of Sri Lanka. The historic waters of Sri Lanka have been declared to comprise of the areas of sea in the Palk Strait, Palk Bay, and the Gulf of Mannar up to Kalpitiya on the Western coast, and Point Pedro on the Northern coast. Furthermore, it is declared that the historic waters in the Palk Bay and Palk Strait shall form part of the internal waters of Sri Lanka and that the historic waters in the Gulf of Manner shall form part of the territorial sea of Sri Lanka. So that in respect of these areas they have been assigned to these two jurisdictional zones arbitrarily by virtue of the Proclamation. In section 2 of the Maritime Zones Law, the President is given the authority to declare the limits of the territorial sea, ‘specifying in such proclamation the baselines from which such limits shall be measured. The waters on the landward side of such baseline shall form part of the internal waters of Sri Lanka'. In order to ascertain what falls within the category of internal waters as well as the limits of the territorial sea, it is necessary to first define the baseline.

The Baseline and Bays

The baseline is defined in the Maritime Zones Proclamation which follows the customary international law as set out in 1958, Geneva Convention on the ‘Territorial Sea and Contiguous Zone'. It states that the low water mark of ordinary spring tides along the coast of the mainland, and along the seaward edge of islands, shall be the baseline from which the territorial sea may be measured. This applies to coastlines which are not sharply indented or fragmented so that in such cases the baseline flows the sinuosities of the coastline. The Convention provides for the drawing of straight baselines where the coastline is deeply indented and cut into or where the there is a fringe of islands along the coast in its immediate vicinity.

Although the Maritime Zones Law Proclamation does not specifically provide a definition of bays it provides that where there are deep bays in a coastline the straight baselines method may be followed. A bay is defined in the 1982 Convention as a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters, and constitute more than a mere curvature of the coast.

In the case of bays which have a mouth wider than 24 miles, the Convention provides that a straight baseline of 24 miles within the bay may be drawn so that the waters on the landward side are internal waters while the territorial sea would be measured from the baseline outwards to the sea. These provisions have also been incorporated into the 1982 Convention. However, these provisions in terms of Article 10(6) of the Convention do not apply to so-called historic bays.

Historic waters

The coastline of Sri Lanka does not have any large bays on its Eastern coast, except for the China Bay in Trincomalee. As the mouth of this bay is only three and a half miles, the waters of the bay are regarded as internal water. On the Northern and North Western coastline, we find the Palk Bay and the Gulf Manner. The Palk Bay, however, does not strictly conform to the definition of a bay as it does not entirely enclose the sea on three sides so as to contain landlocked waters.

It opens out into the Palk Strait on one side and the Gulf of Mannar on the other and is bordered by the Indian peninsula on the West, the island chain of Adam's Bridge on the South and the island of Sri Lanka on the East. However, as the bay is regarded as a historic bay the provisions relating to the drawing of baselines do not apply and its waters have the status of historic waters. These waters had been claimed from time immemorial as historic waters on the basis of Sri Lanka's user of the pearl and chank fisheries off these coasts and on the seabed.

Subsequently, by the Maritime Zones Law Proclamation of 1977, these waters were declared the historic waters of Sri Lanka, and they have been further subdivided into the territorial sea and international waters. The Maritime Zones Law states that Sri Lanka exercises sovereignty, exclusive jurisdiction and control in and over the historic waters, as well as in and over the islands and the continental shelf, and the seabed and subsoil thereof within such historic waters. The Palk Strait which provides the entrance to Palk Bay has also been declared internal waters.

The waters in this entire sector are very shallow being generally in the region of 12 metres in depth. In this area the question of a baseline is not relevant, the internal waters being all those waters line on the Sri Lanka side of the boundary line. In the internal waters of a State which would include rivers, lagoons, bays whose mouths are less than 24 miles, as well as ports, which include permanent installations further out to sea which form an integral part of a port system, the coastal State exercises full sovereignty as it does in respect of its land territory.

The Territorial Sea

The Maritime Zones Law recognizes the principle of sovereignty as it states that the sovereignty of the Republic extends to the territorial sea and the air space over the territorial sea and subsoil. The Constitution of Sri Lanka in defining the territory of Sri Lanka states that the territory of the Republic of Sri Lanka shall consist of the twentyfour administrative districts….. and its territorial waters. The 7th Amendment to the Constitution has added one new district making it now a total of 25 districts. The land and sea territory are treated as being in no way different and it is implied that the sovereignty of the State applies over both parts of its territory equally without distinction.

By the Maritime Zones Proclamation of January 1977, the territorial limit was declared to be 12 miles. This limit is now further confirmed in the 1982 Convention. The 12 miles is drawn from the baseline and is the low water mark of ordinary spring tides along the coast.

However, from the port of Kalpitiya up to the islands forming Adam's Bridge in the area demarcated as the Gulf of Mannar, the territorial sea is much wider than 12 miles because here the regime of historic waters prevails and these waters have been delimited by the Boundary Agreements between Sri Lanka and India of 1976.

The Boundary Agreements

The first boundary agreement of 1974 demarcates the waters from Adam's Bridge to Palk Strait. The boundaries were drawn by connecting by straight lines two terminal points and four turning points which have been plotted by the system of drawing arcs of great circles from points on the baselines of the two countries and taking the point of intersection as the required point. The baselines here follow the low water mark of the seaward edge of the islands off the coastline. The Agreement states that each country shall have sovereignty and exclusive jurisdiction and control over the waters, the islands the continental shelf and the subsoil thereof, falling on its own side of the aforesaid boundary. Article 5 of the Agreement gives Indian fishermen and pilgrims access to visit Kachchativu as hitherto, which in the context means access to visit Kachchativu during the annual church festival of St. Anthony, without obtaining travel documents or visas for this purpose. Article 6 states that the vessels of India and Sri Lanka will enjoy in each others’ waters such rights as they have traditionally enjoyed hearing.

This Article which is framed in broad terms has, however, to be interpreted in the context of the Exchange of letters between the two governments annexed thereto as well as the surrounding circumstances. Article 7 refers to the fact that if there is any single geological or natural gas structure or field straddling across the boundary, the two countries should seek to reach an agreement on the manner in which the structure or field should be most effectively exploited and the manner in which the proceeds deriving therefrom shall be apportioned. This agreement which was signed in June 1974 was ratified on July 8, 1974 and the agreement entered into force from that date.

In 1976 a second boundary agreement was entered into in order to extend the maritime boundary between the two countries by determining the boundaries in the Gulf of Mannar and the Bay of Bengal, i.e. to the West and East respectively of the boundary which had already been delimited above. Under the terms of this Agreement, the boundary on the Western coast was extended from Adam's Bridge southwards to a specified position. Article 1 says the extension of the boundary beyond that position will be done subsequently. This was extended in July of the same year (1976) up to another specified position marked on the relevant map by tri-junction agreement between India, Sri Lanka and the Maldives. This marks the limit of Sri Lanka's Exclusive Economic Zone and Pollution Prevention Zone on the South West. On the North, the boundary is drawn up to 200 nautical miles, (Outer limit of the Exclusive Economic Zone) up to a specific position in the bay of Bengal.

The Agreement states that each party shall have sovereignty over the historic waters, territorial sea, continental shelf and exclusive economic zone. It also provides that each party shall respect the rights of navigation through its territorial sea and exclusive economic zones in accordance with its laws and rules of international law.



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