In July 2017, Sri Lanka adopted an amendment to its Fisheries and Aquatic Resources Act banning bottom-trawling fishing1 in  its waters. Those in violation of the new law will face a significant  fine and the possibility of two years in prison. It is an important move  for Sri Lanka in addressing Indian fishing in the Palk Strait. The Palk  Strait lies between the Indian state of Tamil Nadu and the Northern  Province of Sri Lanka. It was recently estimated that 1,000 Indian  fishing trawlers are taking 200,000 kilograms of fish in a day from the  Sri Lankan side of the boundary. Both the ongoing depletion of fish  stocks as well as Indian fishers continued use of bottom trawler fishing  vessels in Sri Lankan waters has been a source of high tension between  India and Sri Lanka.The adoption of this amendment is an important step forward for Sri  Lanka, as it ensures that the island state has the proper legal  framework in place to act to protect its resources and its marine  environment. It also sends a strong signal to its own fishers and to  India that it wants this practice stopped now. The critical questions  that follow are whether Indian fishers will heed the ban and how zealous  Sri Lanka will be in the enforcement of its new law.India has thus far urged restraint by Sri Lanka. Such a policy would  make sense as the central Indian government seeks to ensure good  relationships with state governments. This approach is critical in  relation to Tamil Nadu where many of the fishers are also involved in  state politics.But, how restrained does Sri Lanka need to be? Acting sooner rather than  later may be preferable to ensure the long-term sustainability of the  fish stocks and the preservation of the marine environment. Continued  progress on this issue is essential to respond to the needs of the  impoverished Tamils living in northern Sri Lanka. Depending on how law  enforcement efforts proceed, one further option for Sri Lanka to  consider is litigation under the UN Convention on the Law of the Sea.  Both India and Sri Lanka are parties to this treaty. As parties, each  has consented to the possibility of disputes concerning the  interpretation and application of the UN Convention being referred to  international arbitration. Sri Lanka could readily claim that India has  failed to act with sufficient diligence in preventing illegal fishing in  Sri Lanka’s waters. It will be a question of fact as to whether India  can demonstrate that it has done enough. India’s response to Sri Lanka’s  bottom-trawling ban will become a vital part of this assessment.Dispute settlement under the UN Convention has already addressed these  sorts of questions. In an Advisory Opinion for the Sub-Regional  Fisheries Commission, the International Tribunal for the Law of the Sea  noted that states are to take all necessary measures to ensure  compliance with fishing laws. States are also to take measures to  prevent illegal fishing by those vessels flying its flag. In the South China Sea arbitration,  a tribunal found that China was aware of, tolerated, and failed to  exercise due diligence over Chinese flagged vessels in violation of the  Philippines’ fishing rights.Sri Lanka could also argue that allowing the continued practice of  bottom trawling is a violation of India’s obligations to protect and  preserve the marine environment. It is well recognized under the UN  Convention that the conservation of marine living resources is an  element in the protection and preservation of the marine environment. In  the South China Sea arbitration,  China’s failure to prevent its fishers from engaging in harvesting in a  manner that was severely destructive of the ecosystem, in this context  the use of dynamite and propeller chopping, violated the UN Convention.  In instituting proceedings, Sri Lanka would also have the possibility of  seeking provisional measures pending the resolution of the dispute.  Provisional measures might allow for an order that India take all steps  immediately to prevent bottom trawling by its nationals in the Palk  Strait so as to prevent on an urgent basis serious harm to the marine  environment.While this legal option is clearly open to Sri Lanka, is it politically  feasible? One of the notable features about litigation under the UN  Convention of late is that smaller states have been taking on larger  states as a way of asserting their rights in a way that has not proven  successful in other forums. Such was the situation for the Philippines  against China, Mauritius against the United Kingdom, and even the  Netherlands against Russia. Sri Lanka can note that Bangladesh has  previously pursued this option against India.Sri Lanka would of course be sensitive to the political relationship  between the central government in India and the state government in  Tamil Nadu. Yet one advantage of international litigation is that the  judgment may provide a government with a new basis to act. The central  government might find itself with more leverage over the state  government if it has to take prompt action because it must show its  commitment to the rule of international law in complying with a possible  award against it. Such a show of commitment to India would be  appropriate following the recent election of Neeru Chadha to the International Tribunal for the Law of the Sea.2 Moreover,  India has previously shown its support of the rules-based system  established under the UN Convention in resolving other maritime  disputes.For example, India could have blocked Bangladesh in its efforts to  resolve their maritime boundary dispute through litigation under the UN  Convention. However, India was prepared to settle this long-standing  dispute with its less-powerful neighbour through arbitration under the  UN Convention. India also has experience as a respondent to a case under  the UN Convention with Italy’s challenges to India’s exercise of  jurisdiction over two of its marines on the MV Enrica Lexie.In light of this experience, a Sri Lankan effort to utilize  international litigation may not be an excessive diplomatic affront to  India. As a smaller state forging a new foreign policy post-civil war,  Sri Lanka can and should show its commitment to the rules-based  international system. While international litigation may be perceived as  a hostile move between countries, it actually takes a major bilateral  issue off the table and allows discussion on other important topics  between the parties while the case runs its course. This was an  important advantage for Australian diplomats in their dealings with  Japan once litigation over Japan’s whaling activities began.Taking on this fight against its neighbour may prove too daunting for  Sri Lanka. For the moment, the enforcement of its new trawler ban will  be a priority. However, going forward its negotiating position with  India should at least be strengthened in the knowledge that there is an  international legal system at its disposal to support Sri Lanka in  stopping damaging fishing practices in its part of the Palk Strait.

Notes

1 ‘Sri Lanka bans bottom trawling’, The Hindu; https://www.thehindu.com/news/national/tamil-nadu/sri-lanka-bans-bottom-trawling/article19227034.ece2 ‘Neeru Chand, 1st Indian Woman on Law Board’, The Times of India; https://timesofindia.indiatimes.com/india/neeru-chadha-becomes-1st-indian-woman-as-member-of-un-law-board/articleshow/591571*Natalie Klein is  a Nonresident Fellow at the Lakshman Kadirgamar Institute of  International Relations and Strategic Studies (LKI). The opinions  expressed in this article are the author’s own and not the institutional  views of LKI, and do not necessarily reflect the position of any other  institution or individual with which the author is affiliated. This  article was originally published in The Diplomat.Source:LKI The Prospector