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Home , Bay of Bengal, Environment of Sri Lanka, Gulf of Mannar, Palk Strait

Chinthaka Mendis, Chinthaka Mendis, Nippon Fellow on Law of the 2006/07 Nippon Fellow on Law of the Sea 2006/07 - - UN UN

Sri and and India

Responsibility : a case for Responsibility : a case for

International Environmental International Environmental BackgroundBackground -- PurposePurpose ofof thethe studystudy

• The island state of Sri Lanka is only 30 km away from India’s southern coastal tip.

• Over the years both countries shared common interest in keeping the free from conflict.

• India and Sri Lanka has signed bilateral agreements on the boundary in historic waters in June 1974 and on the maritime boundary in the and the of in March 1976.

• Indian Government is proposing to construct a shipping channel [SethuSamuduram Ship Channel (SSCP)] through the linking the Gulf of Mannar and the .

• This is considered as a flagship project for India with a large economic investment at stake PrimaryPrimary concernconcern

•• The litany for Sri Lanka is that the project has far reaching strategic, economic and ecological implications.

•• Sri Lankan maritime environment and resources could be negatively affected.

•• The primary concern of Sri Lanka is that the Indian studies have not taken the Sri Lankan maritime and terrestrial environment into account in their studies and thus,

•• no mitigation measures are being proposed to prevent or reduce the potential impacts on Sri Lanka. AA birdbird’’ss eyeeye viewview

• Indo-Lanka maritime boundary and the proposed SSCP

Salient features of the proposed ship channel ( phase 1)*

• Ø Two way channel Ø Bottom width of the channel = 300 m Ø Depth of the channel = -12 CD Ø Permissible draft of vessel = 10m Ø Permissible speed of vessel in the channel = 8 Knots Ø Navigation by day and night Ø Overall length of the channel = 167 Km Ø Dredged channel at Adam’s Bridge = 35Km Ø Dredged channel at Palk Strait = 54 Km Ø Maximum vessel size- length = 215 m, breadth = 33 m, draft = 10 m

*Source -NERI ConcernsConcerns relatingrelating toto thethe modelmodel ofof thethe ProjectProject**

•• The lack of reliable field measurements and the validity of the data used for initial formulating of the project

•• The deposition of by cross-currents has not received attention.

•• Lack of clarity in the calibration and application in the dispersal of dredged material.

•• Potential impacts of oil spills.

* Source-Report of the inter-ministerial Experts committee ConcernsConcerns relatingrelating toto fisheryfishery resourcesresources**

•• Loss of livelihoods of northern and north-western fishing communities in Sri Lanka, who are entirely dependent on the fishing related activities.

•• The Gulf of Mannar is considered to be one of the biologically richest coastal

•• The area of Sri Lankan sea affected by the project has a rich assemblage of sensitive marine ecosystems

•• The excavations of the canal and its impact could easily destroy the

* Source- Report of the Inter-Ministerial Experts Committee ConcernsConcerns relatingrelating operationsoperations**

• Oil spills due to accidents

• Undetected slow pollution by leakages and discharges

• Lack of a comprehensive joint monitoring mechanism between India and Sri Lanka.

• Financing of mitigation measures and environmental management plans

• The environmental costs accruing to the poorest sectors of society in the State of and northern Sri Lanka need emphasize in the context of current political situation

* Source-Report of the inter-Ministerial Experts Committee ConcernsConcerns relatingrelating toto managementmanagement**

• The proposed plan of action in respect of oil pollution in the channel is not adequate

• Sri Lanka should invariably be involved in the preparation of such a plan in keeping with the accepted state practice and the MARPOL convention.

• Not having adequate measures to prevent and mitigate de-ballasting pollution. Convention for Control and Management of Ship Ballast water and .

• Given the transboundary nature of the environmental impacts of SSCP, Sri Lanka should have been involved as a key stake holder in the entire process. Hence, case of this nature should have been governed and considered under the contemporary International Law ,in particular, United Nations Convention on the Law of the Sea.

*Source Report of the Inter-Ministerial Experts Committee InternationalInternational lawlaw conceptsconcepts relevantrelevant toto thethe implicationsimplications arisingarising forfor SriSri LankaLanka

•• The principle of territorial sovereignty and the doctrine of abuse of rights.

•• Duty to cooperate, prior notification and consultation.

•• Due diligence for the environment and precautionary approach.

•• Other main principles of International environmental law concerning trans-boundary damage. TheThe principleprinciple ofof territorialterritorial sovereigntysovereignty andand thethe doctrinedoctrine ofof abuseabuse ofof rightsrights

• The principle of territorial sovereignty finds its limitations where its exercise touches upon the territorial sovereignty and integrity of another State.

• The scope for discretionary action arising from the principle of sovereignty is determined by such principles and adages as ‘good neighbourliness’ and sic utere tuo ut alienum non laedas (you should use your property in such a way as not to cause injury to your neighbour’s) and by the principle of State responsibility for actions causing transboundary damage.

• The prohibition of the abuse by a State of the rights enjoyed by it by virtue of international law. TheThe basicbasic customarycustomary rulerule forfor thethe protectionprotection ofof thethe environmentenvironment ofof otherother StatesStates

• The principles of ‘due diligence’ or ‘due care’ with respect to the environment and natural wealth and resources are among the first basic principles of environmental law.

• The customary duty not to cause damage also contains a preventive component and covers activities, which may have an adverse trans- boundary impact.

• The Precautionary Principle is supported by general principles of law such as: good faith, avoiding abuse of the law, duty of diligence, liability for damages, etc.

• The environmental impact assessment is a systematic and detailed study of the adverse effects that a planned activity may have on the environment. TheThe obligations,obligations, whichwhich IndiaIndia owesowes toto SriSri Lanka,Lanka, whichwhich SriSri LankaLanka cancan invokesinvokes againstagainst India:India:

•• A. The obligation to cooperate with Sri Lanka to address the concerns in a manner that can command the confidence of all stakeholders of the SSCP Project;

•• B. The obligation to carry out a joint environmental assessment of the effects on the environment of the construction and with the operation of the SSCP.

•• C. The obligation to protect and preserve the marine environment. TheThe obligationobligation ofof IndiaIndia toto cooperatecooperate withwith SriSri LankaLanka

• By failing to notify or consult with Sri Lanka, India has breached its obligation to co-operate with Sri Lanka under general international law and in particular Articles 123 and 197 of the UNCLOS.

• Sri Lanka has throughout sought “a proper system of consultation, notification and exchange of information” which clearly falls in line with the accepted State practice.

• Article 123 specifies an increased duty to co-operate, which is incumbent on States bordering a semi-enclosed sea, both in exercising their rights and in performing their duties under the UNCLOS.

• Highlighted by the International Tribunal for Law of the Sea in the MOX Plant case and the /Singapore case IndiaIndia’’ss failurefailure toto provideprovide adequateadequate environmentalenvironmental impactimpact assessmentassessment

•• India has failed to comply with UNCLOS Article 206 (Assessment of potential effects of activities) by failing, properly and fully to assess the potential effects of the SSCP project on the marine .

•• In fact Sri Lanka has a right under contemporary International Law, including Article 206 of the UNCLOS to expect India to subject the SSCP to a comprehensive environmental impact assessment, which takes into account the international environmental standards pertaining at the time of any decision by the Indian authorities StatesStates havehave thethe obligationobligation toto protectprotect andand preservepreserve thethe environmentenvironment

•• Articles 194,204 and 206 of the UNCLOS require the application of the precautionary approach, which has now been consolidated in contemporary international law

•• As ITLOS stated in the orders of MOX Plant and cases, the duty to co-operate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law. ConclusionsConclusions -- basisbasis forfor recommendationsrecommendations

•• SSCP is located entirely within Indian side of the international boundary. •• The impacts of the SSCP however will affect both sides of the international boundary. •• Indian studies have not taken into account the impacts on the environment of Sri Lanka. •• Dredging of the SSCP has already commenced. •• Sri Lanka does not have an on going and continuous monitoring program. •• There is no joint mechanism between the two countries to monitor/review the impacts of the SSCP RecommendationsRecommendations

SriSri LankaLanka cancan emphasizeemphasize thethe failurefailure byby IndiaIndia

•• (a)(a) toto complycomply withwith itsits goodgood neighbourlyneighbourly obligationsobligations underunder UNCLOS,UNCLOS, •• (b)(b) toto notifynotify SriSri LankaLanka ofof projectproject thatthat riskrisk seriousserious transboundarytransboundary impact,impact, •• (c)(c) toto consultconsult withwith SriSri LankaLanka thereonthereon andand •• (d)(d) toto initiateinitiate jointjoint considerationconsideration ofof thethe environmentalenvironmental consequencesconsequences ofof thethe SSCPSSCP project.project. OverallOverall RecommendationsRecommendations

* Sri Lanka should compel India to share all information on environmental impacts and monitoring with Sri Lanka. •• Environment of Sri Lanka also should be taken in to account in all future assessments & monitoring plans. •• Establish a permanent joint mechanism to monitor the impact of SSSP. •• Cooperate with Sri Lanka in all studies and joint activities in a manner that can command the confidence of all stakeholders of the SSCP Project. •• Hold high-level regular review meetings by the relevant authorities of the two countries ThankThank youyou