Understanding policy of neutrality
by Neville Ladduwahetty
In order to assuage the apprehensions of India regarding the intended arrival of the Chinese research vessel Shi Yang 6 to Sri Lanka, an informed source of the National Aquatic Resources Research Agency (NARA) is reported to have said “a team of officials from the NARA would board Shi Yang 6 to observe research activities”. This act is “widely seen by Sri Lankan interlocutors as an attempt by the Government to signal to the countries which are at loggerheads with China that Sri Lanka is privy to what is transpiring in the whole process and to make sure that it will pose no security threat to any third country” (Daily Mirror, September 19, 2023).
Continuing the above DM report states: “Sri Lanka advocates a neutral foreign policy. However, India, Japan and the United States are skeptical about Chinese maritime activities in the Sri Lankan territorial waters since they fear that it is part of a major effort by China to systematically map the seabed across the vast swath of the Indian Ocean. They fear hydrographic data, collected in the process, can be used for security related purposes later …. Nevertheless, Sri Lanka insists that it is a neutral venue to all countries, and won’t allow its territory, be it sea, air space or land to be used against the security interests of another country, particularly India” (Ibid).
EXERCISING SOVEREIGN RIGHTS
Sri Lanka is indeed encouraged and heartened by the stand the country has taken to exercise its rights in keeping with its stated policy of Neutrality backed up by provisions of Internationally accepted Customary Law relating to entitlements, such as exploring within Exclusive Economic Zones of Coastal states. However, this stand could be strengthened by incorporating provisions of International Law as stated in Part V of the United Nations Convention on the Law of the Sea presented below.
By incorporating these provisions into the Corpus of Domestic Law, Sri Lanka would be in a much stronger position to exercise its sovereign rights in the Exclusive Economic Zone by way of imposing penalties on those who violate its provisions and in particular those who engage in illegal fishing and destroying natural resources by the fishing crafts of India and other countries.
ARTICLE 56: EXCLUSIVE ECONOMIC ZONE
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting conserving and managing the natural resources» whether living or non-living» of the waters superjacent to the sea-bed and of the sea-bed and its subsoil» and with regard to other activities for the economic exploitation and exploration of the zone such as the production of energy from the water currents and winds
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures:
(ii) marine scientific research:
(iii) the protection and preservation of the marine environment:
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI.
CAPACITY to EXERCISE SOVEREIGN RIGHTS
A top source that is considered to be familiar with Indian affairs is reported to have stated: “Sri Lanka’s neutral position is acceptable but it is doubtful for India whether Sri Lanka being economically weak, has the strength to maintain such an approach” (Ibid), and cited the example of India purchasing fuel from Russia despite objections by the United States. That top source has forgotten that India despite its power, once “invaded” Sri Lanka hoping to resolve the conflict in Sri Lanka and was compelled to return in shame having failed to fulfill its mission.
According to him “India can act in this way because it is powerful enough to resist any pressure…”. For India to buy oil from Russia despite objections from the U.S. means that these objections are relatively benign because the U.S. needs India as part of QUAD to counter China. However, this being a commercial arrangement, it cannot be compared with the legacy of despicable acts repeatedly committed against humanity of weaker States by so called “powerful states” in the pursuit of their interests.
It is evident that the “top source” is unaware that the International Order does not make a difference between “powerful states” and the rest, because one of the principal pillars on which the United Nations Charter rests states in Article 2 (1) that “The Organization is based on the principle of the sovereign equality of all its Members”.
Furthermore, Principles and Duties of a Neutral State are based on International Customary Law, which in its Introduction states: “The sources of the international law of neutrality are customary international law and, for certain questions, international treaties, in particular the Paris Declaration of 1856, the 1907 Hague Convention No. V respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, the 1907 Hague Convention No. XIII concerning the Rights and Duties of Neutral Powers in Naval War, the four 1949 Geneva Conventions and Additional Protocol I of 1977 (ICRC Publication June 2022).
Despite the existence of such International provisions “powerful states” have not hesitated to brazenly flout its provisions in the pursuit of their interests most of which are warped imaginations.
For instance, it was India that imposed its will on Sri Lanka when it forced Sri Lanka to accept the 13th Amendment; an act that denied Sri Lanka the fundamental right of self-determination enshrined in Article 1 (2) of the Charter of the United Nations that state:
“To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…”. This Amendment crafted by India compels Sri Lanka to adopt devolution to Provinces as a form of internal government to satisfy the imaginations of the Tamil community in Sri Lanka and Tamil Nadu. This was violently rejected by the People when it was first introduced and ironically even after more than three decades continues to be rejected not only by the majority but also by the Tamil community in Sri Lanka. Despite such rejections, India keeps insisting the Sri Lanka should live by its provisions; the latest being at the ongoing General Assembly Secessions in New York.
Under the circumstances, Sri Lanka has to come up with an innovative strategy within the provisions of the Constitution to get free of 13A because its entrenched contradictions hinder peripheral development. What is most objectionable about devolution as a concept is that it fosters the operation of Central Government and Provincial Government functions simultaneously that often are at variance thus perpetuating disparities within and among Provinces amounting to entrenching discrimination among the Peoples; a fact that is starkly evident among the States in India and other countries that have divested Central power.
Another practice adopted by “powerful” India is to overlook the violations committed by the Fishing community in Tamil Nadu at the expense of the Fishing community in Sri Lanka, by robbing the maritime resources and vandalizing the marine environment by resorting to bottom trawling within Sri Lanka’s Exclusive Economic Zone notwithstanding the fact that it is a violation of Article 56 of the U.N. Convention on the Law of the Sea. Instead of raising such issues at bilateral meetings, despite the presence of the Minister of Fisheries, Sri Lanka has been trapped into commitment to issues of connectivity that bolster India’s influence over Sri Lanka.
CONCLUSIONS
While Sri Lanka appreciates and is proud of the position taken by NARA and the Government in respect of the intended arrival of the Chinese research vessel, Sri Lanka has to exploit all International safeguards to overcome potential threats from the so called “powerful states”. In a background where “powerful states” would not miss an opportunity to exploit the circumstances in other States, countries such as Sri Lanka have to depend on the shield or weapon of international law to protect their interests.
Therefore, for them, it is the codified rule of the Rights and Duties of a Neutral State and the incorporation of the relevant provisions of the U.N. Convention on the Law of the Sea into Domestic Law or the fact that its provisions are part of Customary Law to protect its sovereign rights and enforce its interests in the Exclusive Economic Zone.
Such material should form the framework of a Standard Operating Procedure as suggested in a previous article (Neutral Foreign Policy in Practice, August 22, 2023). A strengthened Sri Lanka would then be in a position to avail itself of the resources of the International Court of justice, as other countries have done to seek redress. Furthermore, since they are numerically greater, their strength lies in a Rules based World Order and not on “power”, irrespective of its source.
