S. Muthucumaran

14 May 2006 - Courtesy - Sangam.Org

"..A state in the process of formation has a right to the seas surrounding the land territory over which it has control. Such a right flows from the control of territory. It is control over land territory that gives control over the adjacent sea. The term “territorial sea” itself makes this relationship of the land and the sea clear... The failed state of Sri Lanka, which does not control the whole land territory of the island, cannot lay claims to the whole of the appurtenant seas. of the island..."

The Sri Lanka Monitoring Mission (SLMM) recently made a determination that the LTTE were non-state actors who had no rights in the seas appurtenant to the land area it controls. As such, the SLMM declared that they had no right to intercept the traffic of naval vessels in the seas around Sri Lanka. They gratuitously added that the LTTE had no rights in the air as well, presumably on the same theory. The LTTE has questioned this determination on several grounds.

The SLMM stated :

“The sea surrounding the Sri Lanka is a Government Controlled Area. This has been ruled so by the Head of the Sri Lanka Monitoring Mission in line with international law. Non-state actors cannot rule open sea waters or airspace. The LTTE has therefore no rights at sea.”

This statement contains fundamental errors of international law. The LTTE is an entity in control of territory and cannot be equated with non-state actors, a term reserved for groups such as multinational corporations, international institutions or other agencies such as Amnesty International or the World Wild Life Fund.

In any event, the view that non-state actors have no rights to open sea waters or airspace has never been a part of international law. In fact, what is considered the first work on international law concerning the sea, De Mare Liberum (Concerning the Freedom of the Seas) by Hugo Grotius, articulated the rights of a non-state actor, the Dutch East India Company, to the freedom of the seas. It asserted the right of this non-state actor to take forcible action to ensure that these rights to the sea are asserted. The immediate context for writing the work was the sinking of the Portuguese vessel, the Santa Catarina, in a naval action by the Dutch East India Company ships in the Malacca Straits off Malaysia. Grotius asserted that the Santa Catarina constituted a prize taken by the Dutch Company. A short tract, De Praedium, was the basis of the later longer work, De Mare Liberum.

It is sad that the SLMM has made lofty propositions without a basic knowledge of the origins of the law of the sea and thereby sullied not only its impartiality, but its comprehension of basic tenets of international law.

Let alone history, the statement of the SLMM that “non-state actors cannot rule open sea waters or airspace” is at variance with fundamental legal tenets. In domestic law, one starts discussion of land ownership with the maxim, cuis est solum, eius est usque ad caelum ad inferos. This Latin maxim states that the owner of land owns not only rights to the skies above the land, but also to the land well below the soil level. Though curtailed by modern legislation, the maxim does hold still as a general principle. As a general principle, it is also a part of international law. So, the tacking on of airspace, which is not warranted by the facts of the circumstances which was confined to the sea is an unwarranted act of partiality and an attempt to forestall any future action by the LTTE in the airspace above Eelam.

The LTTE is a not a non-state actor. In any event, the idea that non-state actors do not have rights in international law is in itself a proposition that is so archaic that it is not taken seriously in modern times. Rights are articulated in modern international law, not on behalf of states, but on behalf of peoples. Self--determination and a series of collective human rights are rights of peoples. But, that apart, the rights of a state which is in the process of formation has always been recognized in international law, both old and new. The facts of the famous Caroline Incident arose out of a civil war situation during the American War of Independence. Rights of revolutionariy states have always been recognized in international law. Otherwise, international law would not be able to accommodate the historically frequent phenomenon of the birth of new states through secessionist wars.

Eelam is a state in the process of formation. It has a distinct area, a constant population, an effective administration and definite boundaries. It is administered by the LTTE. As a result, Eelam and - the LTTE as the controlling entity in Eelam - have a distinct identity in terms of international law, with distinct rights and duties in international law. Rights and responsibilities in international law flow from the existence of such a factual situation.

A state in the process of formation has a right to the seas surrounding the land territory over which it has control. Such a right flows from the control of territory. It is control over land territory that gives control over the adjacent sea. The term “territorial sea” itself makes this relationship of the land and the sea clear.

There is also the idea that the link is with the people of the territory. This idea comes from the Anglo-Norwegian Fisheries Case, with which Scandinavians who speak on international law would be expected to have basic familiarity. The International Court of Justice took into account the special relationship which the people of Norway had with the sea in determining the baseline of the territorial sea of Norway. Such a relationship exists between the Tamil fishing people and the seas off the coasts of Eelam. Besides, the defence of Eelam mandates, under the doctrine of necessity, the right of the LTTE to exercise control over the seas that surround Eelam. The failed state of Sri Lanka, which does not control the whole land territory of the island, cannot lay claims to the whole of the appurtenant seas. of the island.

In the ISGA proposals, the LTTE laid clear claims to the maritime areas adjacent to Eelam. This is not without precedent. The Aceh Settlement, which ended the secessionist war between Indonesia and the people of the Aceh Province, contains a clear recognition of the control of the adjacent seas of the province by the people of Aceh. Other peace settlements contain similar principles. The SLMM is far off from the position that is reflected in modern settlements.

The competence of the SLMM to pronounce on the rights to the sea has already been questioned by the LTTE. Whatever competence the SLMM has, it must get its international law right before it makes pronouncements on such vital questions of importance to the Tamil People, lest they be suspected of not holding an even-handed position.

( S. Muthucumaran is a practicing international lawyer.)