India and Sri Lanka are opposing coastal States in the Indian Ocean and Bay of Bengal. This narrow Territorial Sea coming under the Indian Ocean is divided as a sea between Palk Strait to Adam Bridge and a sea in the Gulf of Mannar. A little uninhabited Katchatheevu island lies in the area between Palk Strait to Adam Bridge.

Historically, neither British India nor British Ceylon – predecessors of the Republic of India and the Republic of Sri Lanka respectively exercised any national jurisdiction in the area between Palk Strait to Adam Bridge. However, the fishermen of both countries routinely conducted their fishing activities to catch fish. In 1921, the British colonial administrations drew up the “Fisheries Line” classifying the zones of fishing^[3]. However, as the fishing technology improved for deep fishing, the tension started brewing up. The area being an area of strategic importance during the Cold War era and potential economic value, the maritime boundary delimitation became necessary.

The law of the sea is not the law at sea. International maritime law has a long history from the seventh century guiding the maritime States in peace and during war^[4]. The concepts namely Territorial Sea, Exclusive Economic Zone and Continental Shelf have come to be recognized. Normally, a coastal State has “territorial sovereignty” extending on the sea known as the Territorial Sea for exercising its national jurisdiction up to 12 nautical miles from the baseline. This customary rule of international law has now been codified under Article 3 of the Law of Sea Convention (LOSC)^[5]. Beyond the Territorial Sea, the marine spaces under national jurisdiction are recognized for exercising sovereign rights. These are the Exclusive Economic Zone and Continental Shelf as defined in Articles 55 and 76 of LOSC respectively.

While identifying the marine spaces of a State namely the Territorial Sea, Exclusive Economic Zone and the Continental Shelf there may not be any difficulties. However, a complex issue may arise when the jurisdiction of two or more coastal States may overlap. In such a case, a dispute on the delimitation of maritime jurisdiction or boundary arises. Without a clear idea of delimitation of maritime jurisdiction, it is said that the “coastal States cannot enjoy the legal uses of maritime space effectively”^[6].

After independence from British imperialism, it is obvious that both India and Sri Lanka were compelled to demarcate the maritime boundaries in the waters of the Indian Ocean and the Bay of Bengal to resolve issues more particularly the issues touching fishing rights, marine resources, strategic concerns, etc. On prolonged diplomatic negotiations between India and Sri Lanka, an agreement was signed on 26th and 28th June 1974 drawing up IMBL. The preamble of the agreement says;

“Desiring to determine the boundary line in the historic waters between Sri Lanka and India and to settle the related matters in a manner which is fair and equitable to both sides,

Having examined the entire question from all angles and taken into account the historical and other evidence and legal aspects thereof.”

Let's see what India got and what India lost under the agreement. Article 1 states that the “boundary between Sri Lanka and India in the waters from Palk Strait to Adam Bridge shall be arcs of Great Circles between … ”. Hence, the line or delimitation is not arbitrary but it is based on the arcs of “Great Circles”. The well-known principle of equidistance was adopted with modification^[7]. Once demarcation is based on objective criteria, the consequences will follow and one must accept the same.

Article 4 clarifies 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.” No doubt, it is under Article 4, that Sri Lanka secured sovereign rights over Katchatheevu island. However, the said sovereign rights of Sri Lanka on Katchatheevu are specifically dented or modified by Article 5 in favor of India. Article 5 states that –“Subject to the foregoing, Indian fishermen and pilgrims will enjoy access to visit Kachchativu as hitherto, and will not be required by Sri Lanks to obtain travel documents or visas for these purposes”. Further, The rights of the vessels of both India and Sri Lanka “traditionally enjoyed” in “each other's waters” are protected under Article 6. The agreement appears to have fairly balanced out the rights of India and Sri Lanka. Jaishankar is not right in saying India “gave away” fisherman's rights. Commenting on the agreement, the author^[8] says:

“India's first bilateral maritime boundary agreement took place with Sri Lanka on June 26/28, 1974, and resolved the vexed question of disputed sovereignty over Kacchativu island, covering an area of 3.75 sq. miles (located in the Palk Straits about 12 miles from the Indian coast and 10.5 miles from Sri Lanka). In a package deal, the Indian government recognised Sri Lankan sovereignty over the island, as well as Indian sovereignty over the Wadge Bank. Indian fishermen and pilgrims were also to continue to enjoy access to Kacchativu without the need for travel documents or visas. In effect, the maritime boundary line between India and Sri Lanka followed the 'median line' principle, with adjustments made in the Palk Straits in relation to Kacchativu. In addition, two more bilateral maritime boundary agreements were signed between the two countries in the same year, as well as a trilateral agreement with Maldives in the same year on the determination of the trijunction point between the three countries in the Gulf of Manaar.”

If we look at international law on the delimitation of maritime boundaries, the International Court of Justice (ICJ) has applied the principle of equity but with variations. In the first case in 1969 concerning the North Sea Continental Shelf Case^[9], the ICJ held that: “delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles”. In 1982, the ICJ in the case of Tunisia vs Libya^[10] observed that: “The result of the application of equitable principles must be equitable. … It is, however, the result which is predominant; the principles are subordinate to the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purposes of arriving at an equitable result.” In 2009, the ICJ in the case of Romania vs Ukraine applied a corrective equity approach. The ICJ said, the first stage is to establish a provisional equidistance line distance line. In the second stage, examining the relevant circumstances calling for adjustment of the provisional equidistance line. In the third stage, verify whether delimitation led to equitable results or not by applying a proportionality test^[11].

Jaishankar cites the legal opinion of former Attorney General M.C Setalwad and legal advisor Krishna Rao. However, the point is India has not departed from the established legal principle and what ICJ has dclared. The agreement begins by stating that it is based on “fair and equitable to both sides”. The fisherman's rights advocated by the legal advisor Krishna Rao are protected in Articles 5 and 6. A deal can't be one-sided. Former Attorney General M.C. Setalwad said India has a good case over the Katchathevu island. However, a deal has to be a is a package. If the Indian government recognized Sri Lankan sovereignty over the Katchathevu, Sri Lanka recognized Indian sovereignty over the Wadge Bank. If India had not signed the deal, what option did it have in 1974 when the LOSC that has now established the International Tribunal for Sea Law was not even signed? India had to either suffer uncertainty or submit to Arbitration. If the Indian Ministry of External Affairs thinks that the agreement of 1974 requires revision in the changed circumstances by applying the principle of rebus sic stantibus, India may apply for revision before the International Tribunal for Sea Law or any judicial authority to promote national interest. But, the politics is unjustified.

The author is a Senior Advocate at Supreme Court of India. Views are personal.