International Environmental International Environmental Responsibility : a case for Responsibility : a case for

Sri Lanka and IndiaSri Lanka and India

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

Background Background -- Purpose of the studyPurpose of the study

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

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

•• India and Sri Lanka has signed bilateral agreements on the boundIndia and Sri Lanka has signed bilateral agreements on the boundary in ary in historic waters in June 1974 and on the maritime boundary in thehistoric waters in June 1974 and on the maritime boundary in the Gulf of Gulf of Mannar and the Bay of Bengal in March 1976. Mannar and the Bay of Bengal in March 1976.

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

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

Primary concernPrimary concern

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

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

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

•• no mitigation measures are being proposed to prevent or no mitigation measures are being proposed to prevent or reduce the potential impacts on Sri Lanka.reduce the potential impacts on Sri Lanka.

A birdA bird’’s eye views eye view

•• IndoIndo--Lanka maritime boundary Lanka maritime boundary and the proposed SSCPand the proposed SSCP

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

••ØØ Two way channelTwo way channelØØ Bottom width of the channel = 300 mBottom width of the channel = 300 mØØ Depth of the channel = Depth of the channel = --12 CD12 CDØØ Permissible draft of vessel = 10mPermissible draft of vessel = 10mØØ Permissible speed of vessel in the channel = 8 KnotsPermissible speed of vessel in the channel = 8 KnotsØØ Navigation by day and nightNavigation by day and nightØØ Overall length of the channel = 167 KmOverall length of the channel = 167 KmØØ Dredged channel at AdamDredged channel at Adam’’s Bridge = 35Kms Bridge = 35KmØØ Dredged channel at Palk Strait = 54 KmDredged channel at Palk Strait = 54 KmØØ Maximum vessel sizeMaximum vessel size-- length = 215 m,length = 215 m, breadth =breadth =

33 33 m,m, draft = 10 m draft = 10 m

*Source *Source --NERI NERI

Concerns relating to the model of the ProjectConcerns relating to the model of the Project**

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

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

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

•• Potential impacts of oil spills.Potential impacts of oil spills.

* Source-Report of the inter-ministerial Experts committee

Concerns relating to fishery resourcesConcerns relating to fishery resources**

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

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

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

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

* Source- Report of the Inter-Ministerial Experts Committee

Concerns relating operationsConcerns relating operations**

•• Oil spills due to accidentsOil spills due to accidents

•• Undetected slow pollution by leakages and discharges Undetected slow pollution by leakages and discharges

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

•• Financing of mitigation measures and environmental management plFinancing of mitigation measures and environmental management plansans

•• The environmental costs accruing to the poorest sectors of socieThe environmental costs accruing to the poorest sectors of society in the ty in the State of Tamil Nadu and northern Sri Lanka need emphasize in theState of Tamil Nadu and northern Sri Lanka need emphasize in the context context of current political situationof current political situation

* Source-Report of the inter-Ministerial Experts Committee

Concerns relating to managementConcerns relating to management* *

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

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

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

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

*Source Report of the Inter-Ministerial Experts Committee

International law concepts relevant to the International law concepts relevant to the implications arising for Sri Lankaimplications arising for Sri Lanka

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

•• Duty to cooperate, prior notification and consultation.Duty to cooperate, prior notification and consultation.

•• Due diligence for the environment and precautionary Due diligence for the environment and precautionary approach.approach.

•• Other main principles of International environmental law Other main principles of International environmental law concerning transconcerning trans--boundary damage.boundary damage.

The principle of territorial sovereignty and The principle of territorial sovereignty and the doctrine of abuse of rightsthe doctrine of abuse of rights

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

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

•• The prohibition of the abuse by a State of the rights enjoyed byThe prohibition of the abuse by a State of the rights enjoyed by it by virtue it by virtue of international law. of international law.

The basic customary rule for the protection of The basic customary rule for the protection of the environment of other Statesthe environment of other States

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

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

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

•• The environmental impact assessment is a systematic and detailedThe environmental impact assessment is a systematic and detailed study of study of the adverse effects that a planned activity may have on the envithe adverse effects that a planned activity may have on the environment.ronment.

The obligations, which India owes to Sri The obligations, which India owes to Sri Lanka, which Sri Lanka can invokes against Lanka, which Sri Lanka can invokes against India:India:

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

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

•• C. The obligation to protect and preserve the marine C. The obligation to protect and preserve the marine environment.environment.

The obligation of India to cooperate with Sri The obligation of India to cooperate with Sri LankaLanka

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

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

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

•• Highlighted by the International Tribunal for Law of the Sea in Highlighted by the International Tribunal for Law of the Sea in the MOX the MOX Plant case and the Malaysia/Singapore casePlant case and the Malaysia/Singapore case

IndiaIndia’’s failure to provide adequate s failure to provide adequate environmental impact assessmentenvironmental impact assessment

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

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

States have the obligation to protect and States have the obligation to protect and

preserve the environmentpreserve the environment

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

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

Conclusions Conclusions -- basis for recommendationsbasis for recommendations

•• SSCP is located entirely within Indian side of the internationalSSCP is located entirely within Indian side of the internationalboundary.boundary.

•• The impacts of the SSCP however will affect both sides of the The impacts of the SSCP however will affect both sides of the international boundary.international boundary.

•• Indian studies have not taken into account the impacts on the Indian studies have not taken into account the impacts on the environment of Sri Lanka. environment of Sri Lanka.

•• Dredging of the SSCP has already commenced.Dredging of the SSCP has already commenced.•• Sri Lanka does not have an on going and continuous monitoring Sri Lanka does not have an on going and continuous monitoring

program.program.•• There is no joint mechanism between the two countries to There is no joint mechanism between the two countries to

monitor/review the impacts of the SSCPmonitor/review the impacts of the SSCP

RecommendationsRecommendations

Sri Lanka can emphasize the failure by India Sri Lanka can emphasize the failure by India

•• (a) to comply with its good neighbourly obligations (a) to comply with its good neighbourly obligations under UNCLOS, under UNCLOS,

•• (b) to notify Sri Lanka of project that risk serious (b) to notify Sri Lanka of project that risk serious transboundary impact,transboundary impact,

•• (c) to consult with Sri Lanka thereon and (c) to consult with Sri Lanka thereon and •• (d) to initiate joint consideration of the environmental (d) to initiate joint consideration of the environmental

consequences of the SSCP project.consequences of the SSCP project.

Overall RecommendationsOverall Recommendations

* Sri Lanka should compel India to share all information on * Sri Lanka should compel India to share all information on environmental impacts and monitoring with Sri Lanka. environmental impacts and monitoring with Sri Lanka.

•• Environment of Sri Lanka also should be taken in to account in Environment of Sri Lanka also should be taken in to account in all future assessments & monitoring plans.all future assessments & monitoring plans.

•• Establish a permanent joint mechanism to monitor the impact Establish a permanent joint mechanism to monitor the impact of SSSP.of SSSP.

•• Cooperate with Sri Lanka in all studies and joint activities Cooperate with Sri Lanka in all studies and joint activities in a in a manner that can command the confidence of all stakeholders manner that can command the confidence of all stakeholders of the SSCP Project.of the SSCP Project.

•• Hold highHold high--level regular review meetings by the relevant level regular review meetings by the relevant authorities of the two countriesauthorities of the two countries

Thank youThank you