Sri Lanka’s Legal Regime on the Sea - Part 2

The Maritime Zones Law recognizes the principle of sovereignty as it states that the sovereignty of the Republic extends to the territorial sea, and to 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 24 administrative districts….. and its territorial waters. 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.

On the question of territorial waters, and functional or jurisdictional zones, Sri Lanka’s policy in common with India and other developing nations was one of extension of national jurisdiction, and the control of economic resources lying offshore as is evidenced by the declaration of a Fisheries Conservation Zone as early as 1957, and the extension of territorial waters from 3 to 6 and then to 12 miles, which was confirmed by the Maritime Zones Law of 1976 which also declared a 200 mile Exclusive Economic Zone and Pollution Prevention Zone. 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.

Boundary Agreements between Sri Lanka and India

The first boundary agreement of 1974 demarcates the waters from Adam’s Bridge to Palk Strait. The boundaries drawn by connecting by straight lines to terminal points and four turning points which have been plotted by the system of drawing arcs are 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 coast line.

The Agreement states 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 4 of the Agreement). Article 5 of the Agreement gives Indian fisherman and pilgrims access to visit Kachativu as hitherto, which in the context means access to visit Kachativu during the annual church festival of St. Anthony, without obtaining travel documents or visas for this purpose. Article 6 states that vessels of India and Sri Lanka will enjoy in each other’s waters such rights as they have traditionally enjoyed. 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 herein 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 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 position marked 13M on the annexed. Article 1 says the extension of the boundary beyond position 13M will be done subsequently. This was extended in July of the same year 1976 up to position marked T on the map.

Legal Regime in the Territorial sea

It is necessary to examine the legal regime which operates within this 12 mile area of territorial sea. The Maritime Zones Law clearly states that the right exercised by Sri Lanka is a sovereign right which extends not only over the territorial sea, but also over the airspace, as well as over the seabed and subsoil. This is in keeping with the text of the Geneva Convention on the territorial sea and contiguous Zone, which have now been repeated in the 1982 Convention of the Law of the Sea. Sovereignty would mean that the State exercises all powers and jurisdiction in respect of this Zone and has full dominants over the living and non-living resources of the area.

The Right of Innocent Passage

Innocent passage which is a right which customary international law recognizes may be viewed as a right or privilege given 3rd states to travel within these waters, while at the same time recognizing the jurisdiction of the coastal states. It may be viewed from the point of view of policy as a sensible form of accommodation between the necessities of sea communications and interests of the coastal states. In Sri Lanka the Maritime Zones Law specifically recognizes right of innocent passage, and states that ships of all States shall enjoy the rights of innocent passage through the territorial sea. In keeping with the 1958 Convention it categorizes the passage as ‘innocent only so long as such passage is not prejudicial to the peace, good order or security of the Republic’. The proviso to the section states that no foreign warship shall enter or pass through the territorial sea except with the prior consent of and subject to such conditions as may be specified by the Minister. The Act also provides for innocent passage of air craft through the air space above territorial sea which must be in accordance with the written laws in force. The Military aircraft must have the prior consent of the Minister as in the case of warship.

Criminal and Civil Jurisdiction in the Territorial Sea

The territorial sea being under the sovereignty of Sri Lanka, Sri Lanka can legislate for this region and has civil, criminal and jurisdiction over foreign ships and shipping where they contravene such laws within this region. From early times legislation had been passed in respect of control of fisheries and implementation of custom regulations.

The first legislative instrument to protect the coast was introduced in 1865 titled; “An Ordinance to provide against the removal of stones and other substances from certain parts of the seashore” The Primary intention of introducing this law, empowering the GA of a province to prohibit the removal of stones or other substances from the seashore was the prevention of damage to roads and thoroughfares adjoining the seashore. This Ordinance was repealed by Seashore Protection Ordinance No 12 of 1911. Two ordinances were introduced in British period for the protection of Her Majesty’s Chank fishery Ordinance No 5 of 1842) for the protection of Her Majesty’s rights in the digging of dead chanks (ordinance no 4 of 1842) followed by the ordinance no 19 of 1866 with addressed the issue of unnecessary destruction of fish by the use of certain nets. The Crown Lands Ordinance of 1947 which repealed the Seashore Protection ordinance and provided for custody, control and management of the seashore has been partly amended by later sectorial statutes.

Fisheries Act and the Fisheries (Regulation of Foreign Fishing Boat) Act No.2 of 1996. (Regulation of Foreign Fishing Boats Act No. 56 of 1979) provides that foreign fishing boats are prohibited from fishing in Sri Lanka waters unless they obtain a license. Those fishing boats without a permit which passing through these waters must store their fishing gear away. Furthermore the Minister can prescribe areas of Sri Lanka waters which are to be reserved solely for Sri Lanka fisherman and local fishing boats. Authorized officers are given the power to stop boat and search any foreign fishing boat in Sri Lanka and when they have reasonable ground to believe that and offence has been committed, seize and detain any boat fishing gear etc., or arrest any person.

It must be noted here that the definition of Sri Lanka waters is very wide as the interpretation section states that it includes territorial seas, contiguous zone, exclusive economic zone, historic water and all internal waters. So that in effect the operation of this Act applies not only to the territorial sea, but up to the limits of the Exclusive Economic Zone which extends up to 200 miles on the Southern and Eastern coasts, and up to the Indo-Sri Lanka Boundary on the Northern and Western coasts. Similarly under the customs ordinance as amended of 1970, the customs officers have power to board and search ships hovering within the territorial waters of Sri Lanka. This is modeled on the Hovering Acts of the United Kingdom. Where the ship continues to hover despite being ordered to depart the customs officers can bring such ship into port and search and examine her cargo. Punishment can be imposed by way of fines and even forfeiture of a ship where it does not exceed a particular tonnage. The Ordinance provides that a customs vessel can even fire upon a vessel within territorial waters which refused to halt when required to do so.

Similarly under the Immigrants and Emigrants Act, authorized officers have the power to enter or board any ship and to detain and examine any person arriving in or leaving Ceylon and to require production of any documents. The Merchant Shipping Act (Merchant Shipping Act No. 52 of 1971, I.E. of Sri Lanka (1971)) which provides for the registration of ships provides that only Sri Lankan ships may trade in Sri Lanka waters, foreign ships may do so only under a license. Any person or body contravening the provisions of the Act can be punished by fine, and the ship involved may be detained. In this Act, Sri Lankan waters is interpreted to mean territorial waters. Apart from these matters, it is mentioned that in relation to salvage and tonnage of ships, and damage to cargo, or damage to ships caused by collisions. Admiralty jurisdiction is vested in the High Court of Colombo.

In 1981 three Acts were passed, an Act setting up a National Aquatic Resource Research and Development Agency (NARA), The Coast Conservation Act, and the Marine Pollution Prevention Authority was instituted. The titles of these Acts are self-explanatory but one may briefly explain their functions and the extent of their application.

(The writer is a retired Professor in Law in University of Sri Jayewardenepura. He is an Attorney at- Law who has practised in Courts and Holds Ph.D in Law with four other University Post Degrees).

To be continued


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