1

A CASE CONCERNING THE RIGHT TO LIVELIHOOD OF FISHERMEN AND THEIR

TRADITIONAL FISHING RIGHTS

TABLE OF CONTENTS

S.NO HEADING PAGE NO.

1. BOOKS REFERRED 2

2. LEGAL DATABASE 2

3. ACTS/STATUTES 2

4. INDEX OF CASES/CITATIONS 2

5. JURSIDICTION 2

6. PARTIES AND THEIR DETAILS 2

7. COUNSEL AND THEIR DETAILS 2

8. FACTS OF THE CASES 3

9 SUMMARY OF ARGUMENTS 7

10 ADVANCED ARGUMENTS 9

11 PRAYER 15
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CASE SUBJECT:

A CASE CONCERNING THE RIGHT TO LIVELIHOOD OF FISHERMEN AND THEIR

TRADITIONAL FISHING RIGHTS

BOOKS REFFERED

1. The International Law of the Sea By Donald .R. Rothwell

Publisher Bloomsbury Publishing PLC ; Edition statement 2nd Revised
edition; Publisher Bloomsbury Publishing PLC

2. Land and Maritime Zones of Peace in International LawBy Surya P.

SubediClarendon Press, 1996

3. Admirality Judges: Flotsam on the Sea of Maritime Law?By Brown, John

RHouston Journal of International Law, Vol. 25, No. 2, Winter 2003

4. Visit, Search, and Seizure on the High Seas: A Proposed Convention of

International Law on the Regulation of This Belligerent RightBy Joseph
Lohengrin FrasconaPrinted by Quinn & Boden Co, 1938

5. Marine and Coastal Law: Cases and MaterialsBy Dennis W. NixonPraeger

Publishers, 1994

6. The Royal Navy and Maritime Power in the Twentieth Century by Ian
Speller PUBLISHER: Frank Cass, 2005

7. Oceans Governance and Maritime Strategy BY David WilsonDick

Sherwood PUBLISHER: Allen & Unwin, 2000

LEGAL DATABASE

1. SCC
2. Yanalam law journal
ACTS/STATUTES/TREATIES

1. The Constitution of Yanalam

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2. Public International Law

3. Vienna Convention on Law of Treaties, 1980

4. The Geneva Conventions on Law of the Sea 1958’

INDEX OF CASES/CITATIONS

AAPL vs Srilanka ICSID case No: ARB/87/3

JURSIDICTION

The Counsel for the Petitioner/ Plaintiff humbly submits that the Hon’ble Supreme Court
exercises jurisdiction to hear and adjudicate over the Petition filed under Article 32 read with
Article 31 of the Constitution of Yanalam.

PARTIES

NATIONAL FISHERMEN FORUM ...Petitioner

Vs

UNION OF YANALAM ...Respondent

PETITIONER

The Petitioner is The National Fishermen Forum having office at Door No: 22, Boskey Stret,
Lawsper District, Atana State, Yanalam.

RESPONDENT

The Respondent is The Union of Yanalam.

PETITIONER COUNSEL

The address for service of all notices and process on the Petitioner is that of their Court Miss.
Yogita Velnayaki V having her Office at 1000, New Additional Law Chambers, Supreme
Court Buildings, Yanalam.
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RESPONDENT COUNSEL

The address for service of all notices and process on the Respondent is that of their Counsel
………………………, having her Office of the Government Pleaders and Solicitors,
Supreme Court Buildings, Yanalam.

STATEMENT OF FACTS

Atana is a state in the federation of Yanalam, which is geographically a peninsula, with a

long coast line in the Bay of Batalana on the East, the Nadalay Ocean in the South and the
Afrozean Sea in the West. The federal state of Yanalam has the second highest population in
the world. About 1/6th of the population depend on fishing for their livelihood. The coast line
of the country has contributed to the economic wealth of the country. Sea food exports
contribute to 11% of the total exports from the country.

Yanalam is a federal republic with a written constitution. Under the federal constitution the
Union and the states in the republic guarantee right to life to all its citizens without any
discrimination on any ground. The constitution has established a Supreme Court which has
the power to issue necessary and appropriate directions or orders or writs for the enforcement
of the right to life guaranteed under the constitution. The federal government has the power to
legislate as well as to take all and necessary steps on a list of subjects reserved for the federal
government which includes the coastal defence and maritime security and in all other cases
the states/units of the federation have the legislative and executive powers.

Atana is a coastal state and the state has access to the Bay of Batalana, the Nadalay Ocean
and the Afrozean Sea through its major and minor ports and from its coast. The people of
Atana living on the coast have been fishing from the time of recorded history in the Bay of
Batalana, the Nadalay Ocean and the Afrozean Sea surrounding the coastal state. For the
majority of the population living on the coast, particularly in the south east region of the state,
viz., Atanapura, fishing is the only source of livelihood, employment and trade.

During the past five years the fishermen of this area have been subjected to arrest and
detention, confiscation and destruction of their boats and fishing nets by a neighbouring
island nation of Saffna on the eastern sea board, which has its northern area separated from
the southern part of Yanalam which comprises 3/4th of the coastal state of Atana by the Bay
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of Batalana. The longest distance separating the coast of Yanalamin, the State of Atana and
the northern area of the island nation is about 8 nautical miles. A similar problem also exists
for the fishermen of another state within the federation on the west coast of the peninsula
with another neighbouring country on the west.
The arrest and detention, confiscation and destruction of boats and fishing nets of the
fishermen from this coastal area of Atana by the navy of the island nation of Saffna is a daily
occurrence and on several occasions the acts of seizure has resulted in death of the fishermen
and the destruction of their boats and fishing nets. The people from this coastal area are
continuously engaged in protesting the violation of their right to life and their livelihood and
called for protecting the maritime boundary of the country and to ensure protection of fishing
in the high seas.

The issue had been taken up by the coastal state with the national/federal government and
assurances and promises have been made by the Ministers of the national government, the
violation of the right to life and livelihood of the fishermen and their family members have
continued without any respite.

On January 1, 2016 about 15 fishing boats and 28 fishermen left the fishing village from
Atanapura for fishing and on 2016, January 2 the navy of the island nation fired at them and
in the attack all the fishing boats were destroyed and sunk. Twelve fishermen were reported
to be dead in the attack and the remaining sixteen were apprehended and detained and their
boats and their day’s catch were confiscated by the navy of the island nation.

The 2016, January 2 incident became a flash point and resulted in mass protest in the coastal
state. The Chief Minister of the state government reacted with a call for closure of the state
and all activities in the state came to a standstill and the neighbouring states within the
federation of Yanalam were also affected.

Representatives of civil society and the fishermen associations joined together and formed a
collective under the name, style and banner of ‘National Fishermen Forum’ and moved the
Supreme Court of Yanalam with a Public Interest Litigation and notices were ordered to the
national government.
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ISSUES RAISED

1. Whether PIL filed by the petitioner is maintainable in this honourarble court

2. Whether the PIL filed by the petitioner can be dismissed on the grounds that
there are not traditional fishing rights recognized by law.
3. To give directions to the Union of Yanalam to take effective steps to protect the
life of the fishermen and to take all necessary steps to prevent the confiscation of
their boats and fishing nets in the Bay of Batalana, the Nadalay Ocean and
Afrozen sea.
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SUMMARY OF ARGUMENTS

I. THAT THE PIL IS MAINTAINABLE

It is humbly submitted that this Hon’ble Court does not have jurisdiction over the issue, since
the place chosen by the petitioners where the fundamental right of ‘right to life’ 1 and thereby
to livelihood2 which is sought for to be exercised, does not fall under the territorial
Jurisdiction3 of this Hon’ble court. So we submit that this Hon’ble court cannot give any
directions to this respondent in this matter. The territorial waters of that area of sea falling
between this UOY and the island nation is governed by a bilateral treaty4 between these
countries made in the year 1974, and a further treaty made in the year 1976. Any issue related
to such treaties can only be addressed by the ICJ5 and not by the supreme courts of the
member countries. So protection, ensuring, guaranteeing of any traditional fishing rights in
case of existence of such rights can be filed in the ICJ only. Moreover, the place of
incidences are the territorial waters of the adjacent island nation6. Neither the Union
government nor this Hon’ble court can exercise the sovereignty and jurisdiction respectively.

And the UOY and the Island nation has entered into a valid treaty in the year (1976), giving
effect to the final phase among transfer of islands or lands among them. Any military actions
may destabilize peace in the region. Violation of an internationally valid bilateral treaty
cannot.

2.WHETHER THE PIL FILED BY THE PETITIONER CAN BE DISMISSED ON

THE GROUND THAT THERE ARE NOT TRADITIONAL FISHING RIGHTS
RECOGNISED BY LAW

The traditional fishing rights claimed by the petitioner refers to such a period, when the
disputed area for fishing was regarded as high seas by fishermen of both regions., i.e of
Yanalam and of the island nation.

1
Article 21 of the constitution
2
Olga Tellis vs Bombay Municipal Corporation and Ors SC, 1985
3
First Schedule of the Constitution defines territorial jurisdiction
4
Indo Srilankan Maritime Boundary Agreement. 1974
5
Artilce 93 of UN charter of which UOY is a member
6
Classified reports as provided by the navy of the island nation to the High Commissioner of
Yanalam
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In the period before the treaty, fishing in both the nations was largely non-mechanised and
the fishermen used traditional boats (known as vallams) and traditional fishing nets.
However, with the advent of mechanization, the fishermen of ATANA have been using large
diesel- powered boats and trawlers and also have been using drift-nets (known as Irattai Madi
valai in Tamil) and purse-seine nets (Surukku valai in tamil) which have been banned by the
fisheries department of ATANA.7

In spite of repeated warnings issued by Governments of both countries, these fishermen have
been trespassing into the maritime territory of the island nation. They have been poaching 8 on
their waters using banned equipment and depriving the traditional fishermen of the island
nation from earning their livelihood

3.To give directions to the Union of Yanalam to take effective steps to protect the life of
the fishermen and to take all necessary steps to prevent the confiscation of their boats
and fishing nets in the Bay of Batalana, the Nadalay Ocean and Afrozen sea
The arrest and detention, confiscation and destruction of boats and fishing nets of the
fishermen from the coastal area of Atana by the navy of the island nation is illegal. In so far
as the shooting and killing of the fishermen for fishing in the Bay, such acts amount to crimes
punishable under the Penal Code. Courts in Yanalam get jurisdiction over such crimes. The
Government of Yanalam has got the right to enforce the terms of the 1980 agreement. It also
has the obligation to ensure that Yanalamn citizens, Yanalamn (Atana) fishermen, safely
and continuously exercise and enjoy their traditional right of fishing in the ‘historic waters’
of Bay, as per the terms of the agreement. The Government of Yanalam also has the
Constitutional duty to ensure, safeguard and protect the lives and interests of Yanalamn
citizens, Atana fishermen. Government of Yanalam can take appropriate action to enforce the
rights and obligations that flow from the agreement. It can even repudiate and terminate the
entire agreement. It can, if needed, move the International Court of Justice and enforce the
obligations accepted by Saffna, by the agreement; since the agreement itself was signed only
for the settlement of disputes in a peaceful manner.

7
Deep sea fishing Regulation Act, 2001
8
Banned equipment seized by navy island nation
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ADVANCED ARGUMENTS

WHETHER PIL FILED UNDER PETITIONER IS MAINTAINABLE

1.1 The Hon’ble Court do not have Territorial Jurisdiction to entertain the PIL

The Territory9 where the petitioner claims exercising of fundamental rights of right to life, is
such a territory where the Jurisdiction of the Hon’ble Court does not exist. Since Hon’ble
Court does not have Territorial Jurisdiction, a PIL claiming a fundamental right in that
territory is not maintainable.

1.2 The Maritime territory is not under the sovereignty of union of Yanalam

A PIL with reference to claiming of a constitutional right, whereon there is no sovereignty of

the nation UOY exist, is not maintainable. In other words, the Hon’ble court cannot direct
UOY, i.e., this Respondent to do an act or refrain from an act, where there exists no
sovereignty of this respondent.

1.3 Subject Matter of Issue is Governed by a valid Bilateral treaty and thereby
International Law and not governed by municipal Law

The Subject matter of issue of protection of fishermen and their fishing activites in a territory
of the neighbouring Island nation is governed by the terms of bilateral treaty between the
union of Yanalam and the Island Nation. This Bilateral treaties of 1974 and 1976 are subject
matters of International Law. Such matter of International Law, cannot be filed under
municipal law as Public Interest Litigation

1.4 Delimitation of Sea Areas has an International Aspect, It cannot be dependent

merely upon the will of Coastal State as expressed in its municipal Law

Since the Delimitation of Sea areas has international repercussions, it cannot be dependent
merely upon the will of the coastal state as expressed in its municipal Law. Any Unilateral
declaration of delimitation of sea areas may Invite hostile reaction from the Island nation and
a teaming up of other neighbouring nations, which may initiate a conflict in that region whose
dimensions are much huge than the petitioners claim of public interest.

1.5 There is no effective nationality in that maritime territory.

9
Indo Srilankan Maritime Boundary Agreement, 1974
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This respondent, i.e., UOY does not exercise effective nationality in that maritime zone,
which is essential for claiming sovereignty10. Without existence of such Sovereignty of a
nation over the territory, any PIL in that territory will not lie in that nation’s apex court. So, it
is humbly submitted that this PIL is filed by the petitioner not maintainable, since UOY do
not exercise effective nationality, over the maritime.

2.1 WITHDRAWAL OF DE JURE RECOGNITION IS NOT POSSIBLE IN

INTERNATIONAL LAW.

The de jure recognition of the island nation’s sovereignty over the fishing area near to Kachatheevu in
the sea, by the union of Yanalam cannot be withdrawn as per norms of International Law.

2.2 A COUNTRY CANNOT GRANT ANY LAWFUL RIGHT TO ITS PEOPLE WHEREIN
SOVEREIGNTY OF ANOTHER NATION IS EXERCISED.

Lawful rights can be given to citizens by the state, with in their territory wherein sovereignty of the
state exists. Any right granted to the citizens away from the sovereign territory is unlawful, leading to
11
unjustified intervention with another sovereign power. Such intervention is violation of Art 51 of
Charter of UN, since there is no armed attack by an alien enemy on the territory of UOY, which is a
condition precedent for resorting to use of force in self-defence.

2.3: ENFORCEMENT OF LAWFUL TREATY RIGHTS OF ART 8 OF THE BILATERAL

TREATY OF 1974 IS CAN NOT BE FILED IN THIS HON’BLE COURT.

Issues related to bilateral treaty between two sovereign nations cannot be addressed in a municipal
court of the member countries of that treaty. Lawfulness of such claims can only be represented in any
unbiased international forum like UNO for remedial actions or in the ICJ for adjudication.

2.4: THERE IS NO DIRECT EVIDENCE OF POSSESSION BY THE UOY OR ANY

ACTUAL EXERCISE OF SOVEREIGNTY BY THE UOY IN THE SUBJECT TERRITORY

Acquisition of territory through occupation was a determining factor in earlier times, especially in
middle Ages. Such indirect presumptions, based on middle ages do not warrant acquisition of
territory. But Direct Evidence of possession and the actual exercise of sovereignty is of decisive
importance.

10
Salini Nottelolum (Liechenstien Vs Gautemals ICJ)
Article 51 of UN Charter; The use of force in Self added defense “By Bib Vol. 37 (1966)
11

P.266
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2.5 “SOVEREIGN RIGHTS” ARE STRONGER THAN, “PREFERENTIAL RIGHTS”.

“Preferential Rights” cannot be exercised in the territorial waters of another sovereign state, by an
adjacent coastal state as good as “Sovereign Rights”12. In the case of UK and Northern Ireland Vs
Iceland, ICJ in its Judgment13 has talked about the application of preferential rights, after crossing the
territorial waters of Iceland. Why because, such rights can never be a matter of claim, with in the
territorial waters of Iceland. In the same way, the ‘Preferential Rights” claimed by the petitioner
cannot be claimed with in the maritime territory of the Island Nation. And hence, such rights cannot
be a recognizable lawful right.

2.6 FOR DETERMINATION OF WHAT CONSTITUTE RELEVANT COASTS AND WHAT

ARE RELEVANT BASELINES ON THE UOY SIDE, THE COURT MUST FIRST
ESTABLISH WHETHER KACHATHEEVU ISLAND COMES UNDER THE SOVERIGNTY
OF UOY WHICH IS NOT EXISTING IN THIS CASE.

The above formula of establishing sovereignty was first applied in the Bahrain case, by the ICJ. But
the establishment of sovereignty by in the claimed island of Katchatheevu does not exist so that
relevant coasts, baselines are decided over it. The world court has observed in number of cases that
maritime rights are derived from the coastal state’s sovereignty over the land, a principle which can be
summarized as “The Land Dominates Sea” 14

3.To give directions to the Union of Yanalam to take effective steps to protect the life of
the fishermen and to take all necessary steps to prevent the confiscation of their boats
and fishing nets in the Bay of Batalana, the Nadalay Ocean and Afrozen sea
It is submitted that the arrest and detention, confiscation and destruction of boats and fishing
nets of the fishermen from the coastal area of Atana by the navy is Illegal. In so far as the
shooting and killing of the fishermen for fishing in the Bay, such acts amount to crimes
punishable under the Penal Code. Courts in Yanalam get jurisdiction over such crimes. Penal
Code provides in Section 4 as follows:-

“4. Extension of Code to extra –territorial offences:— The provisions of this Code apply also
to any offence committed by –

(1) ………..

(2) any person on any ship or aircraft registered in Yanalam wherever it may be.

12
Miniquires and Corehos (France Vs UK) ICJ Reports 1953, P.47
13
North Sea Continental Shelf, ICJ Reports (1969) P.51, Para 96
14
Aegean Sea Continental Shelf, ICJ Reports (1978) p.36, para 86
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The prosecution of the Italian marines for shooting and killing two Yanalamn fishermen, on
board a vessel registered in Yanalam,, is done only under this provision. Similarly the
persons responsible for shooting and killing Yanalam fishermen in the Bay, while they are
exercising a right recognised by both Yanalam and Saffna, can be prosecuted before the
Yanalam Courts.

It is submitted that in all, three agreements have been signed between Yanalam and Saffna,
relating to the waters in Straits and the Bay,of Batalana. The first was signed on 26th and
28th June 1974, relating to the ‘historic waters’ of Bay. It relates to the area falling north of
the Bay,of Batalana. The second agreement was signed on 23rd March 1976.That relates to
area falling South of Bay,of Batalana up to a certain limit. It also deals with ‘territorial
waters’, as that area was not part of the ‘historic waters ‘. The third agreement was signed on
22nd November 1076. That relates to area falling South of the area covered under the second
agreement and refers to the islands as well. Apart from these three agreements no other
agreement seems to have been made. Hence there appears to be no modification of the terms
of the agreements.The Government of Yanalam has got the right to enforce the terms of the
1980 agreement. It also has the obligation to ensure that Yanalamn citizens, Yanalamn
(Atana) fishermen, safely and continuously exercise and enjoy their traditional right of
fishing in the ‘historic waters’ of the Bay,of Batalana, as per the terms of the agreement.

It is submitted that the Government of Yanalam also has the Constitutional duty to ensure,
safeguard and protect the lives and interests of Yanalamn citizens, Atana fishermen.
Government of Yanalam can take appropriate action to enforce the rights and obligations that
flow from the agreement. It can even repudiate and terminate the entire agreement. It can, if
needed, move the International Court of Justice and enforce the obligations accepted by
Saffna, by the agreement; since the agreement itself was signed only for the settlement of
disputes in a peaceful manner.
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PRAYER

The Supreme Court jurisdiction was invoked in the Public Interest Litigation seeking
directions to the national government on the basis of the constitutional guarantee of
right to life to the citizens of Yanalam and the continued violation of the right to life
and livelihood of the fishermen with the following prayers:

(a) To ensure, protect and guarantee the enjoyment of the traditional fishing rights of the
fishermen for their livelihood.

(b) To take effective steps to protect the life of the fishermen and all other necessary steps
to prevent the confiscation and destruction of their boats and fishing nets in the Bay of
Batalana, the Nadalay Ocean and the Afrozean Sea.