With the Tamil Nadu government commencing the dredging of the Sethusamudram canal at the Adam`s Bridge on December 11, international legal experts opine that Sri Lanka has provisions to seek legal redress in an international court of law against the Indian government.
The project has military, ecological and archaeological implications on both the governments of India and Sri Lanka. As a result, Sri Lanka is now in a position to sue India, based on the provisions of the United Nations Law of the Sea Covenants.
Even if the Sethusamudram canal project is within the ambit of the Indian territorial waters, the United Nations Law of the Sea is also paramount in this instance.
Article 2(1) of the Law of the Sea Convention states
The sovereignty of a coastal state extends beyond its land territory and international waters, and in the case of an archipelago state, its archipelago waters, to an adjacent belt of sea, described as the territorial sea.
Article 2(3) states
The sovereignty over the territorial sea is exercised subject to this convention and to other rules of international law. Therefore, the sovereignty of the territorial sea is not absolute.
Articles 204, 205 and 206 state
The State is obliged to publish reports as results of surveys they make available to all states which are affected, India is bound to monitor positive risks of effects of marine pollution and India is bound to assess the potential effects of its activities to the marine environments of other states under the precautionary principles of customary international law.
If India is not willing to permit a group of independent and international observers to report on the project, or is not willing to abide by the views of such an independent panel of experts then there is provision for Sri Lanka for legal remedy under (a) the principles of customary international law (b) international, regional and bilateral conventions and (c) under the national laws of the state concerned.
Kadir in Parliament
It is moot to note that slain Foreign Minister Lakshman Kadirgamar, responding to a query in Parliament by Ven. Athureliye Rathana Thera in June 2005, and in a seven page reply, ( inter- alia) said: `The Ven. Rathana has asked if the Foreign Ministry was taking precautions to go before an international court of law in the case of the canal construction and Sri Lanka will take all the precautionary steps to safeguard the well being and the interests of our people and our country. This would be done in calibrated and graduated manner opting first for cooperative and consultative approach. As Colombo was engaged in such an exercise, we will consider further action and therefore, if and when necessary.`
Continuing, the late Foreign Minister concluded: `We would use the recognised principles of international law relating to the duty, to have due regard that activities under the jurisdiction or control of a state are so conducted, as not to cause damage by pollution to other states and their environment.`
Diplomatic observers are now asking the question as to whether it is now the right time as forewarned by Lakshman Kadirgamar to escalate matters to the international courts of law for redress as the consultative process has failed.
Flaws in NEERI report
The Indian assertion (by Commercial Counsellor of the Indian High Commission in Colombo Sanjay Sudhir) as exclusively reported in The Nation last week that they have shared the Ahamedabad-based Indian National Environment and Ecological Research Institute (NEERI) report with Sri Lanka, is insufficient justification to prove that there will be no adverse impact on the environment simply because the NEERI report by itself is flawed and is sufficient legal justification to put the entire NEERI report into scientific question.
For example, the NEERI report is yet to explain the sedimentation issue, silting possibilities and underwater ocean currents when the canal is constructed.
According to Sudharshan Rodriguez, a Chennai based conservation analyst, the Environmental Impact Assessment (EIA) report furnished by NEERI, has used secondary data which has gone back to 1976.
So, how can a project which will pass through a biological hot spot and is likely to have so many impacts be assessed on the basis of secondary data is the next most logical question.
The Convenor of the Indian Coastal Action Network, Ossie Fernandez alleges that the NEERI EIA report is also a re-hash of the preliminary report and many activists and professionals are querying the data sources including the bio- diversity readings.
Furthermore, there would be increased turbidity, which has never been studied by NEERI. Neither the possibility of a repeat tsunami through the canal water flow, due to the deep water channel linking the Indian Ocean and the Bay of Bengal.
The United Nations Law of the Sea mandates that the neighbouring states need to be consulted and sufficient safeguards and guarantees provided.
Ecological and archaeological concerns
There are whole range of problems but the major issue is that the canal is gong to be dug through vesicular limestone, which is the formation of the limestone that is a consequence of the myocene sea encroaching upon the parts of Northern Sri Lanka and Southern India. This entails Mannar and Jaffna on the Sri Lankan side and Tuticorin and Rameswaran on the Indian side, which means that the groundwater on both sides of the channel would be affected.
According to research done by Sri Lanka born Monash University`s Professor of Systems Ecology and UNDP Consultant Prof. Ranil Senanayake in Jaffna, fresh water fish such as Dandiya (Rasbora Daniconius), Tittaya ( Amblypharygnodon Melenittus) and other species such as Amblypharygnodon Melenittus migrate during the dry weather down towards the earth to underground caverns and chambers and surface when the rain arrives. This is also a demonstration of the fact that there are massive underground caves with freshwater of Jaffna will mix with the salt water of the Palk Straits, if the dredging continues, like pushing a piston.
This is a shallow area, which is biologically highly productive and as a consequence of the dredging, rare species of mammals, dugongs and specific fish and invertebrates such as the guitar shark and cone shells will be extinct. One cone shell (Conus Zonatus and Conus Gloria Maris ) is worth around US$ 3500 apiece.
It is also salient that no maritime archaeology has been performed on this site. Scientific evidence in a paper which has been presented by Prof. Senanayake which demonstrated 13,000 years ago, the area round the Kalpitiya lagoon up to Mannar, where the land was forested. Even today, the stumps of the old trees remain underwater.
With the dredging, the photo- synthetic rate will also decline, resulting in the collapse of the fisheries industry.
Military and defence concerns
According to Indian military analysts, the architects of the Indian Naval doctrine P. Panikkar ad K.B. Vaidiya have said ( inter- alia) : `Even if Indian does not rule all five Oceans of the world, we must rule the waves of the Indian Ocean.`
Secret submarine base
To this end, India has craftily timed its move on building naval supremacy through a secret submarine basis in a mouth of the Sethusamudram canal at a time when the Government of Sri Lanka is weak and unable to mount a formidable challenge. A canal project will not only provide a nuclear submarine base only but will also enable the Indian Naval craft to carry nuclear fuel supplied by the Kudankulam nuclear project in Tamil Nadu.
Concerned Indian citizens have written to the United Nations Secretary General Kofi Annan as early as 1998, pointing out his dangers to the South Indian Northern Sri Lankan geographies from a potential maritime disaster linked to the secret Indian plans to build a secret nuclear submarine base.
New Delhi has decided to establish a Far Eastern Maritime Command at Port Blair at Anderman Islands independent of operational control from Vishakapatnam.
This was India`s protracted plan to consolidate on her forward lines and the grip on the entrance to the Malacca Straits the second busiest sea lane in the world. At the time when the Indo- Lanka Accord was signed in 1987, it precluded anyone but India from using Trincomalee as a strategic port.
One of the most hushed up Indian nuclear accidents is the particular research facility in South India that led to major deaths and permanent closure of that installation of that unspecified location.
It is patently and crystal clear that all Sri Lankan high commissioners to New Delhi have been advocating an Appeasement Policy towards India and those recommended have been followed by the Colombo government as no independent think thank with expert opinion in Sri Lanka.
However, this is the bomb shell. According to top diplomatic observers, there is a school of thought that if India forces Sri Lanka to compromise its legal position due to the Sri Lanka government`s political and economic weak position, then both the Sri Lankan and Indian governments would be equally culpable the day that a nuclear disaster occurs especially with the Kudankulam nuclear plant is expected to produce 40 percentage of India`s nuclear fuel and the narrow channel would be its major transport artery.