THE PALK STRAIT PROJECT: A TRANSIT PASSAGE

REGIME FOR A CANAL?

Adilah Binti Hamzah

(Matric No. 1080147)

An academic project report submitted in partial fulfillment for the

BACHELOR OF SYARIAH AND LAW WITH HONOURS

Faculty of Syariah and Law

UNIVERSITI SAINS ISLAM MALAYSIA
NILAI

JUNE 2013

AUTHOR DECLARATION

I hereby declare that the work in this academic project is my own

except for quotations and summaries which have been duly
acknowledged.

Date: 14th of June 2013

Signature

: .

Name

: Adilah Binti Hamzah

Matric No

: 1080147

Address

: No. 36, Jalan TPS 2/6,

Taman Pelangi Semenyih,
43500 Semenyih,
Selangor Darul Ehsan.



.

.
14 2013
:
:
.....................

:
1080147 :
36 2/6
:
. 43500

ACKNOWLEDGEMENT
2

I am indebted to my supervisor, Dr. Mohd Hazmi bin Mohd Rusli whom

this thesis could not been written without his supervision. I am very
thankful to him for his stimulated suggestions and encouragement that
helped me in all the time of writing this thesis.
My hearties appreciation goes to my beloved parents, Hamzah bin Md.
Salleh and Rubiah binti Mustafa,
Abangah,

Abalang

and

Adik,

my respected siblings, Along,

their

support,

love,

patience,

understanding, encouragement are very much appreciated. My dearly

and beloved fianc, Jalaluddin bin Embong, who has made me laugh
and see the brighter side of things within these six years in pursuing
my very first bachelor degree in Syariah and Law and thus completing
this final project. Without them all, I will never come this far.
My sincere thanks go to colleagues, new and old friends, all academic
staffs and lecturers in Faculty of Syariah and Law, USIM for the constant
and consistent supports.
Above

all,

gratitude

Compassionate,

Who

is
has

due

to

Allah

bestowed

S.W.T

upon

me

the
a

Merciful
very

valuable

opportunity to learn a drop on the ocean of His Words and Works.

and

May Allah S.W.T bless and give the best rewards to those who have
contributed, expressed the attention and sympathy to the successful
completion of this work.

ABSTRACT
The Palk Strait is a channel that separates Sri Lanka and the Indian
sub-continent.

The

Indian

Government

in

2001

approved

the

Sethusamudram Shipping Canal Project (SSCP) to deepen the Strait

with an 83 kilometers long canal deepen the Palk Strait between Sri
Lanka and the Indian sub-continent, raises the prospect of the Strait
being opened to international traffic when completed. The travel
distance would be reduced by over 650 kilometers, providing a shorter
route for vessels compared to the present one going around Sri Lanka
to call at East Indian or West Indian ports. Once the project is
completed this Strait may be opened to international maritime
waterway. As far as straits used for international navigation is
concerned, the Palk Strait could not be considered as a strait
categorised in Article 37 of United Nations Convention of Law of the
Sea (UNCLOS) 1982 as the Palk Strait is actually a man-made canal. In
this thesis, the writer for this study is able to discuss in a lengthy and
thorough discussion pertaining to the application of either transit

passage or canal regime in the Palk Strait. The writer projects the
findings in determining the legal regime that applies in the Palk Strait.
Besides, the writer manages to elaborate on the advantages and
disadvantages in having the canal project along the Palk Straits.

ABSTRAK
Selat Palk adalah saluran yang memisahkan Sri Lanka dan benua kecil
India. Pada tahun 2001, kerajaan India telah meluluskan Projek
Penghantaran Terusan Sethusamudram (SSCP) untuk mendalamkan
Selat Palk yang terletak di antara Sri Lanka dan benua kecil India
dengan kedalamannya 83 kilometer

memberi laluan untuk

prospek

Selat dibuka kepada lalu lintas antarabangsa apabila projek terusan ini
selesai. Dengan terusan ini, jarak perjalanan boleh dikurangkan
sehingga lebih 650 kilometer, menyediakan laluan yang lebih pendek
bagi kapal-kapal berbanding dengan laluan yang perlu mengelilingi Sri
Lanka terlebih untuk ke pelabuhan Timur atau Barat India. Selat Palk
akan dibuka kepada laluan air maritim antarabangsa apabila projek
5

terusan ini siap dibina. Walaubagaimanapun, Selat Palk tidak boleh

dianggap sebagai selat yang

dikategorikan dalam Perkara 37

Persatuan Bangsa-Bangsa Bersatu Undang-undang Laut (UNCLOS)

1982 kerana Selat Palk ialah satu terusan buatan manusia. Di dalam
kajian ilmiah ini, penulis

membincangkan dengan perbincangan yang

panjang dan menyeluruh berkaitan dengan perlaksanaan sama ada

laluan transit atau rejim terusan yang akan terpakai di Selat Palk. Di
akhir kajian ilmiah ini, penulis berjaya mengetengahkan perlaksanaan
rejim yang sesuai

dalam menentukan rejim undang-undang yang

terpakai di Selat Palk. Selain itu, penulis juga berjaya mengulas dengan
lebih lanjut mengenai kebaikan dan keburukan berkaitan pembinaan
projek terusan ini di sepanjang Selat Palk.

2001 .
83


6

 .
650
.
.

37

.


.
.

.
.

TABLE OF CONTENTS

CONTENT

PAGE

Author Declaration

i
7

Acknowledgement

iii

Abstract

iv

Abstrak

Mulakkhas Al-Bahth

vi

Table of Contents

vii

List of Abbreviations

Chapter One: Research Proposal

1.1. Title of Research
1.2. Introduction
1.3. Background of the Research
1.4. Statement of Problems
1.5. Research Methodology
1.6. Scope and Limitation of Research
1.7. Objectives and Aims of Research
1.8. Literature Review
1.9. Thesis Structure
1.10.Thesis Timeline
1.11.Conclusion

1
1
2
3
4
5
5
7
8
9
10

Chapter Two: Historical and Geographical Profile of the

Palk Strait
11
2.1. Introduction
2.2. Palk Strait History

11
13
8

2.3. Palk Strait Geography

2.4. Palk Strait Significance
2.4.1. Fisheries
2.4.2. Religious Importance
2.4.3. Coral Reef
2.4.4. Bio-resources and Biodiversity
2.5. Conclusion

14
16
17

Chapter Three: Types of Navigational Regimes Under

18

the International Law of the Sea

20

3.1. Introduction
3.2. Innocent Passage and Non-suspendable Innocent

21

Passage
3.3. Transit Passage
3.4. Straits Used for International Navigation Where

22

Transit Passage Applies

3.5. Navigational Regime Through the Palk Strait
3.6. Conclusion

28

25

29
30
Chapter Four: The Sethusamudram Shipping Canal
Project (SSCP)
31
4.1. Introduction
4.2. Sethusamudram Shipping Canal Project
4.2.1. Advantages and Disadvantages of SSCP
4.3. Transit Passage or Canal Navigational Regime?
4.4. Navigational Regimes in Shipping Canals
4.4.1.Suez Canal
4.4.2Panama Canal
4.5. Conclusion

31
32
34
36
37

38
39

Chapter Five: Conclusion

5.1. Introduction
5.2. Palk Strait to Become An Important International
Maritime Waterway
5.3. The Palk Strait; Canal Navigational Regime Fits
Best
5.4. Conclusion

40
40

4
1
43

Bibliography

45

LIST OF ABBREVIATIONS

EEZ

Exclusive Economic Zone

ICJ

International Court of Justice

IMO

International Maritime
Organization

MIMA

Maritime Institute of Malaysia

SSCP

Sethusamudram Shipping Canal

Project

NASA

The National Aeronautics and

Space Administration

UK

United Kingdom

UNCLOS

United Nation Convention of Law

10

of the Sea 1982

UNCLOS I

The First United Nation

Convention of Law of the Sea 1982

UNCLOS II

The Second United Nation

Convention of Law of the Sea 1982

UNCLOS III

The Third United Nation

Convention of Law of the Sea 1982

UNESCO

United Nations Educational,

Scientific and Cultural
Organization

11

CHAPTER ONE
RESEARCH PROPOSAL

1.1

TITLE OF RESEARCH

The Palk Strait Project: A Transit Passage Regime for a Canal?

1.2

INTRODUCTION

Palk Strait which is located between the Indian continent and Sri Lanka
is not viable for international navigational as it is dotted with islets and
coral

reef.

In

2001,

the

Indian

government

approved

the

Sethusamudram Shipping Canal Project (SSCP) to deepen the sea of

the strait. Having completed the project, the canal will be opened for
the use of international navigation despite the history of the strait itself
that never been used for international traffic. As have been stated
under the United Nations Law of the Sea Convention (UNCLOS) 1982,
Part III, under Article 37 where straits are opened for international
navigation, the transit passage regime will apply, connecting one part
of the high seas or Exclusive Economic Zone (EEZ) to another part of
the seas or EEZ.

1.3

BACKGROUND OF THE RESEARCH

The Gulf of Mannar is located in the Indo-Pacific region, considered to

be one of the worlds richest marine biological resources. The Gulf has
been chosen as a biosphere reserve primarily because of its biological
and ecological uniqueness. The region has a distinctive socio-economic
and cultural profile shaped by its geography. It has an ancient maritime
history and was famous for the production of pearls.1
In recent years, the Indian Government has sought and approved the
construction of a shipping canal that would cut a passage for
commercial shipping from the Arabian Sea and Gulf of Mannar to the
Bay of Bengal between Tamil Nadu province of Southern India and the
island nation of Sri Lanka. Such a canal would be unique in the world in
that it would be the first of this size to link two seas through a noninland route.2

1Unsolved Mystery. Retrieved March 12,2013 from Sethusamudram Shipping

Canal Project
<http://mysteriesunsolvedstory.blogspot.com/2012/02/mysterious-ancientbridge-in-palk.html>
2Academia.Edu. Retrieved May 13, 2013 from Sethusamudram Shipping
Canal Project by Carl T. Feagans
<http://www.academia.edu/1428534/Sethusamudram_Ship_Canal_Project>
2

The notion to shorten the steaming distance and time between the Bay
of Bengal and the Arabian Sea is peculiar to the maritime world. James
Rennel, a British Geographer in the 18th century, proposed dredging a
portion of the Palk Strait that crosses Adams Bridge, though his youth
and lack of prominence may have contributed to the lack of serious
attention to his suggestion.3
The improvement of the navigation through the Palk Strait is an object
of so great value and importance to Indian commerce and so much
depends on the choice of place and on the means to be used, that
precaution ought to be taken to obtain the best possible advice on the
subject.4
There were at least 9 separate proposals to construct a canal
connection the two bays prior to Indian Independence and several
proposals that were post-Independence. In 1955, the Sethusamudram
Project Committee, chaired by Dr. A Ramaswami Mudaliar, appointed to
examine and report on the feasibility and desirability of connection the
Gulf of Mannar and the Palk Bay by cutting a channel at the
approaches

to

the

Adams

Bridge5

3Ibid. p.3.
4 Ibid. p.3.
5 Ibid.
3

published

their

report

and

recommended the development of Tuticorin as a deep sea harbor along

with the construction of the canal through Adams Bridge. Since that
time, several other routes have been discussed and proposed and the
canal has been an item of contention at each election year.6

1.4STATEMENT OF PROBLEM
Sethusamudram Shipping Canal project when completed will transform
parts of the southern Coromandel Coast qualitatively. Since historical
times, this portion of the coast (Palk Bay, Adams Bridge) is used only
to fleets of small crafts involved in coastal trading and fishing.
Sethusamudram canal will transform this into a coast that shall start
witnessing fleets of large vessel involved in overseas trading pass by.7
There are problems that might arise from the idea of this canal
construction:
(i)

Whether transit passage may or may not apply in the Palk Strait?

(ii)

What are the advantages and disadvantages having the Palk strait
been dredged to be open as an international route?

6 Ibid.
7Dr.R.Ramesh M.B.,B.S. 2004. Sethusamudram Shipping Canal Project and the
Unconsidered High Risk Factors: Can It With Stand Them?.Tamil Naidu.p 6.

(iii)

Is the idea that a navigational channel in the newly created canal

can be dredged without any major hazard?

(iv)

What are the environmental factors that might have the capacity
to make this idea a failure?

(v)

What are the actions that would be required to increase the

chances of physical stability of the proposed channel?

1.5RESEARCH METHODOLOGY
The research adopts doctrinal approach and based on a mixture library
research. The library study involved a repeated visit to

library of

Universiti Sains Islam Malaysia and another library as well. The priority
is given to books in the field of law of sea along with relevant articles
and journals. The other sources of data will be the literature reviews of
academic writing, official government and other related documents,
international conventions and conference papers.
This research is also referred to relevant internet sources particularly
on current issue of SSCP. The internet research mostly involved online
database which is provided by the USIM library such as Malayan Law
journal (MLJ), Lexis Nexis, Current Law Journal (CLJ), etc. and other
authorized and reliable sources via online database.
5

1.6

SCOPE AND LIMITATION OF RESEARCH

The research will be discussing on the nature of the SSCP that in fact it
is a canal but someday will be promoted as an international traffic
routes. The research will be aiming on the discussion of the
navigational regimes that available in the straits in this world governed
by UNCLOS 1982.

1.7

OBJECTIVES AND AIMS OF RESEARCH

The primary objective of this research is to determine the legal regime

that applies in the Palk Strait. Palk Strait in its original state is a strait
that not opened for international navigation of shipping. Upon the
completion of the SSCP, the strait will be opened officially as an
international shipping traffic and it would having the capacity to
develop by becoming an important international maritime waterway,
comparable to the Straits of Malacca and Singapore, Strait of Gibraltar
and the Torres Strait.8

8 Mohd Hazmi bin Mohd Rusli, The Palk Strait Project: A Transit Regime for a
Canal? (2012) (087/2012) RSIS Commentaries , 1-2
6

The regime of transit passage is now applicable in many straits that

available around the world namely the Straits of Malacca and
Singapore, the Strait Dover, Torres Strait as well as the Strait of
Gibraltar.
All straits mentioned above are opened for international traffic and the
regime of these straits is covered under Article 37 of the UNCLOS 1982.
This research later will be analysing the regime of transit passage
particularly on its element to be fulfilled and the Palk Strait project
should be analysed too, to determine whether this newly created canal
should it apply the transit passage regime or not.
The other objective of research is to compare between the advantages
and disadvantages in having the canal project along the Palk Straits.
Parties that champion freedom of navigation may assert that transit
passage shall apply in the Palk Strait and having the international
maritime waterways would cut off costs and speed up their way to
another place after waiting for this time to occur. On the other hand,
the disadvantages also might happen if the sea being dredged to be a
canal which is a man-made waterway. Many nature and resources will
be affected because of the construction that will cause harm to marine
environment as well as the land based area.

1.8LITERATURE REVIEW
The existing literature on the research is extensively discussed and
analyzed. In discussing the types of navigational regimes, reference is
made to books that explained thoroughly on the navigational regimes.
In discussing on that subject matter, the main book referred is Law of
the Sea by Hugo Caminos. Part II in this book has touched on the
Straits Used for International Navigation: A commentary on Part III of
the UNCLOS 1982. This book mainly explained extensively straits used
for international navigation that is closely related to the current issue
of this research.
Besides, this research also refers to The Regime of Straits in
International Law by Bing Bing Ja. There is a chapter that extensively
elaborates on UNCLOS III and the Regime of Transit Passage. Transit
passage has been defined very well and the scope of this regime has
been illustrated extremely well.

Next is The Straits of Malacca; International Co-operation in Trade,

Funding and Navigational Safety published by Maritime Institute of
Malaysia (MIMA). Robert W. Smith and J. Ashley Roach have contributed
an article in this book on Navigation Rights and Responsibilities in
International Rights where the article also has explained on transit
passage regime particularly on its history and state practice.
In Building a Comprehensive Security Environment in the Straits of
Malacca by Maritime Institute of Malaysia (MIMA), Robert Beckman who
is Associate Professor, Faculty of Law from National University of
Singapore has reviewed in one of the articles regarding the regime of
transit passage that is set out in Part III of the UNCLOS 1982. He
highlights the transit passage regime in its historical perspective and
the extensive of state practice since this regime has been introduced
by the UNCLOS 1982 and even before its codification within UNCLOS
1982.
In discussing the history and geography of the Palk Straits, reference
has been made via the internet resources that are authorized and
reliable such as International Maritime Organization. Scholars opinions
also have been gathered to strengthen the facts of the Palk Strait.
Same goes to the SSCP that the articles and facts have been referred
via internet resources since the project still in the middle of its
progression.
9

1.9

THESIS STRUCTURE

This research is organized into 6 Chapters including Chapter 1. This

introductory Chapter is followed by Chapter 2 which provides a
historical background and a current profile of the Palk Strait. Chapter 2
discusses particularly on the history of the Palk Strait before the Indian
government decides to proceed with the canal project. The nature and
geography of the Palk Strait also will be discussed thoroughly within
this chapter.
The focal point of Chapter 3 is on types of navigational regimes
available under the UNCLOS. They are innocent passage, nonsuspendable innocent passage and transit passage. The transit
passage regimes is categorised to straits that apply transit passage
and straits that not apply transit passage.
Chapter 4 elucidates the navigational regime that applies in the Palk
Strait. This chapter will analyse the possible navigational regime to be
applied along the Palk Strait after the completion of the shipping canal
project. Besides, this chapter also will issue regarding the advantages
and disadvantages of having the shipping canal project along the Palk
Strait from the legal perspectives as well as the science view in brief

10

since the construction of the canal will affect a massive part of the Palk
Strait.
Chapter 6 will conclude this research by examining the preferable
navigational regime that applies along the Palk Strait and to what
extent the use of particular navigational regime will increase the
quality of having such shipping canal project along the strait that in
previous never been opened for international used.

1.10 THESIS TIMELINE

This research is expected to be completed within three month starting
from March until the end of June. In March, the research proposal shall
be

completed

before

this

month

ends.

This

research

will

be

commenced with Chapter 2 by the last week of March. Chapter 3 will

be continued at the second week in April. Chapter 4 is expected to be
started by the last week of April. Chapter 5 will be completed within
second week of May and last but not least, Chapter 6 shall be
completed within the last week of May. By June, this research is
expected to be completed and shall be submitted to the supervisor.

11

1.11 CONCLUSION
The

overall

conclusion

drawn

from

this

research

is

that

the

determination of the transit passage to be applied along the Palk Strait

between India and Sri Lanka once the shipping canal project has
completed and the strait is opened for international maritime traffic.
The conclusion on what navigational regime should apply within the
strait shall be made after this research analyses all the navigational
regimes and will be scrutinised on the transit passage as this regime is
likely to be applied along the Palk Strait. If the elements of the transit
passage are fulfilled, the shipping canal shall be declared as an
international route for maritime activities and governed by Article 37 of
the UNCLOS 1982. However, the issue of transit passage in the Palk
Strait may be somewhat controversial. Parties that champion freedom
of navigation may assert that transit passage shall apply in the Palk
Strait because it connects between two high seas and Exclusive
Economic Zone. But parties that are against the application of transit
passage in the Palk Strait may contend otherwise. 9 This research will
examine on what side shall the Palk Strait is determined, to apply or
not to apply the transit passage regime.

9 MohdHazmi bin MohdRusli, The Palk Strait Project: A Transit Regime for a
Canal? (2012) (087/2012) RSIS Commentaries , 1-2
12

CHAPTER TWO
HISTORICAL AND GEOGRAPHICAL PROFILE OF THE
PALK STRAIT

2.1INTRODUCTION
This Chapter explains the historical and geographical of Palk Strait to
get clearer view of the history, geography and location of this future
international shipping way. Palk Strait is an important marine zone of
high productivity lying between India and Sri Lanka. 10 The unveiling of
the SSCP has shed some lime light on the Palk Strait. Unlike other
straits in the world, the Palk Strait is not a strait that is crucial for
international navigation, not just yet.

10 A.K Kumaraguru, V. Edwin Joseph, M. Rajee, T. Balasubramaniam. 2008. Palk Bay

Information and Bibliography Centre for Marine and Coastal Studies Madurai Kamaraj
University Madurai . Tamilnadu, India p i

13

2.2PALK STRAIT HISTORY

Palk Strait has shallow water and its geographical between two
countries which are India and Sri Lanka make easier the movement of
ideas, goods and men. Sri Lankas renowned archaeologist, Dr Siran
Upendra Deraniyagala has highlighted the fact that historically
Sri Lanka was no more than an extension of the Indian
subcontinent during at least 800,000 years of the last one million
years due to the sea level being lower than at present.11
The spread and reach an optimum stage of development of the
Theravada form of Buddhism, the construction of gigantic architectural
monuments,

the

rise

of

powerful

kingdoms

in

Pollanaruva,

Anuradhapura, Kandyand Jaffna and the development of a unique Tamil

culture in the northeast of the island all bear testimony to the fruitful
and kindly interaction between the two countries through the Palk
Strait.12
In the 19th and 20th centuries, thousands of Indian Tamil labourers were
ferried across the Strait to provide much-needed labour for the

11 Siran Upendra Deraniyagala. 2004. Pre-Historic Basis for the Rise of

Civilization in Sri Lanka and Southern India was presented at Second Vesak
Commemoration Lecture. Chennai. p 1.
12 V Suryanarayan. 2005. Conflict over Fisheries in the Palk Bay Region. India.
Lancer Publishers & Distributors. p 4
14

development of tea plantations. When immigrations rules were

tightened by Colombo after independence, illegal migrants found their
way to the island through kallatonis. In a strange twist of history, after
the communal holocaust of July 1983, there was a reverse flow;
thousands of Sri Lankan Tamils fled to Tamil Nadu as refugees through
Kallatonis or what was popularly known as the Eelam Shipping Service.
The tragedy of the present situation is that despite centuries-old
historic links, fishermen on both sides of the Palk Strait see their
comrades as martyrs and those on the other side of the international
boundary line as aggressors.

13

From the history reported above, Palk Strait is a Strait that connecting
between two countries which are India and Sri Lanka and has made
both countries completing each other in many aspects. Both citizens of
those particular countries have totally utilised the nature resources
along this strait as transportation medium, fisheries, tea plantations
and much more.

2.3PALK STRAIT GEOGRAPHY

Palk Strait, inlet of Bay of Bengal between southeastern India and
northern Sri Lanka is bounded on the south by Pamban Islan (India),
13 Ibid.
15

Adams Bridge (a chain of limestone shoals), the Gulf of Mannar and

Mannar Islan (Sri Lanka).14 The Palk Strait unites and separates both
Tamil of India and Sri Lanka.
The Palk Strait is just 22 miles of water, is narrower than the English
Channel and separates the northern coast of Sri Lanka from the
southeast coast of India. The international boundary line is close to the
shores of both countries. The boundary is only 6.9 nautical miles away
from Dhanushkodi, 11.5 nautical miles away from Rameshwaram, 15.9
nautical miles away from Point Calimere, 23.0 nautical miles away from
Vedaranyam and 24.5 nautical miles away from Thondi. 15 It is situated
between Latitude 9 55 - 10 45 N and Longitude 78 58 - 79 55 E.16
The southwestern portion of the strait is also called Palk Bay. 17 The Palk
Bay is named after Robert Palk, Governor of Madras Presidency from
1755 to 1763. In some ways it can be considered as internal waters,
because it is, in most parts, landlocked and is not suitable for
14 Britannica Online Encyclopedia. Retrieved April 9,2013 from Palk Strait.
<http://global.britannica.com/EBchecked/topic/439879/Palk-Strait>
15 A.K Kumaraguru, V. Edwin Joseph, M. Rajee, T. Balasubramaniam. 2008.
Palk Bay Information and Bibliography Centre for Marine and Coastal
Studies Madurai Kamaraj University Madurai. Tamilnadu, India p ,7
16 Ibid. p.1.
17Britannica Online Encyclopedia. Retrieved April 9, 2013 from Palk Strait
(Bay of Bengal) <http://global.britannica.com/EBchecked/topic/439879/PalkStrait>
16

navigation by big ships because of shoals, currents and coral reefs. The
Palk Bay and the Gulf of Mannar are connected by a narrow passage
called the Pamban Strait (1,350 yards wide and 10 to 15 feet deep),
which separates the island of Rameshwaram from the mainland. The
Palk Bay is about 70 miles long and is bounded on the north and the
west by the coastline of the Indian mainland, on the south by the
Pamban Strait, island of Rameshwaram and Ramasethu (a continues
line of coral reefs known as Adams Bridge), on the east by the island of
Sri Lanka and in the northeast by an open passage to the Bay of
Bengal, about 32 miles wide.18

2.4

PALK STRAIT SIGNIFICANCE

2.4.1Fisheries
Fisheries play an important role in the economic life of India and Sri
Lanka. Fishing is a source of cheap and nutritious food, generates
employment and income, earns foreign exchanges through export and
stimulates subsidiary industries.19

18 A.K Kumaraguru, V. Edwin Joseph, M. Rajee, T. Balasubramaniam. 2008.

Palk Bay Information and Bibliography. Centre for Marine and Coastal Studies
Madurai Kamaraj University Madurai. Tamilnadu, India p .1.
19 V Suryanarayan. 2005. Conflict over Fisheries in the Palk Bay Region. India.
Lancer Publishers & Distributors. p vii.

17

Fishing with traditional small craft in the Palk Bay is a customary

practice tradition and a critically important economic activity for the
coastal population on both sides of the Bay. Fishery provides not only
the livelihood but is the very way of life of these people. If human
security is the well being of the people, fishery provides the critical
basis of such security.20
As elsewhere in other oceans of the world, people have led to greater
numbers fishing in the area because of the demand for seafood and the
rising economic aspirations. It has already resulted in over fishing,
extended fishing periods into the breeding season, and the large
tonnages being hauled in with the help of mechanized fishing trawlers.
If one flies over the Palk Bay at dawn, one witnesses a huge armada of
fishing boats and trawlers setting out from the coasts of Sri Lanka and
Tamil Nadu in India.21
The coastline in Tamil Nadu can be broadly divided into three fishing
zones which are Pulicat Lake to Point Calimere that lies in the
Coromandal coast, Point Calimere to Dhanushkodi that covers the Palk
Bay and the Palk Strait and Dhanushkodi to Kanyakumari which covers
the Gulf of Mannar.22

20 Ibid.
21 Ibid.
18

Fishing in Palk Bay is based on multi-gear, multi-species and is carried

out throughout the coast of mainland and the northern side of Pamban
or Rameswarm Islam. There are 87 fish landing centers located along
the Palk Bay coast south of Point Calimere. Fishing is done in the Bay
throughout the day. Fishermen of Mandapam and Pamban Island may
stay put for fishing lasting even for five to seven days at a stretch.23

2.4.2 Religious Importance

The National Aeronautics and Space Administration (NASA) has
discovered a mysterious bridge between India and Sri Lanka in one of
its captured picture. The discovered bridge currently named as Adams
Bridge is made from limestone chain shoals at about 30 kilometers
long,24 with 9 kilometers of islands and shallows and 21 kilometers of
open water, and is of Holocene conglomerate and sandstone mantled

22 A.K Kumaraguru, V. Edwin Joseph, M. Rajee, T. Balasubramaniam. 2008.

Palk Bay Information and Bibliography. Centre for Marine and Coastal Studies
Madurai Kamaraj University Madurai. Tamilnadu, India. p 10.
23 A.K Kumaraguru, V. Edwin Joseph, M. Rajee, T. Balasubramaniam. 2008.
Palk Bay Information and Bibliography. Centre for Marine and Coastal Studies
Madurai Kamaraj University Madurai. Tamilnadu, India .p 10.
24 Krishna.org Community. Retrieved April 3, 2013 from Nasa Images
Discover Ancient Bridge Between India and Sri Lanka
<http://krishna.org/nasa-images-discover-ancient-bridge-between-india-andsri-lanka/>
19

with islands and shoals of shifting sand all of which rest upon Miocene
limestone.25
Some archaeologists have claimed to prove the bridge is man-made,
although not all are convinced. It does look like a very convenient
connection and it is agreed that as late as the 15 th century it was
possible to pass the bridge on foot.26
In 1804, a British cartographer had prepared the earliest map of this
Adams bridge, probably referring to an Islamic legend, according to
which Adam used the bridge to reach Adams Peak in Sri Lanka, where
he stood repentant on one foot for many hundred years, leaving a large
hollow mark resembling a footprint and now both the peak and the
bridge are named after this legend.27

2.4.3 Coral Reef

25 Richard Brook Cathcart. 2004. Palk Bay: A Future Industrial Complex Site?
California. P 849-850.
26 Google Sightseeing. Retrieved April 2,2013 from Ramas/Adams Bridge.
<http://googlesightseeing.com/2005/11/ramasadams-bridge>
27 The Islam Show. Retrieved April 2,2013 from Mystery Behind Adams
Bridge/ Ramas Setu. <http://theislamshow.weebly.com/mystery-behindadam-bridgeramas-setu.html>
20

Other than fisheries and religious matter as the significance of Palk

Strait, the Gulf of Mannar and Palk Bay regions have some of Indias
richest coral reef ecosystems and are also home to some of the most
extensive and diverse seagrass meadows in the country.28
As coral reefs being mentioned it is generally brings to mind warm
climates, colourful fishes and clear waters. 29 In fact, coral reefs are
massive structures made of limestone lay down naturally by living
things. Although thousands of species inhabit coral reefs, only a small
proportion produces the limestone that builds the reef. The most
important reef-building organisms are the corals. 30 Coral reefs support
about 25 percent of all known marine species. As one of the most
complex ecosystem on the planet, coral reefs are home to more than
4,000 species of fish, 700 species of coral and thousands of other
plants and animal.31
28. Dakshin Foundation. Retrieved April 11,2013 from Review of the
Environmental Impacts of the Sethusamudram Ship Canal Project (SSCP) by
Sudarshan Rodriguez.
<http://www.dakshin.org/DOWNLOADS/sudarshan_sethu-%20iotn6_4.pdf>
29 Enchanted Learning. Retrieved April 10,2013 from Coral Reef Animal
Printouts.
<http://www.enchantedlearning.com/biomes/coralreef/coralreef.shtml>
30 Coral Reef Alliance. Retrieved April,10 2013 from Coral Reef Overview,
What is Coral Reef?
<http://www.coral.org/resources/about_coral_reefs/coral_overview#whatreef>
31 Ibid.
21

Healthy coral reefs support commercial and subsistence fisheries as

well as jobs and businesses through tourism and recreation.

32

Based

on the conclusion in the Coral reefs in the Palk Strait and Palk Bay 33
coral reefs in Palk Strait as well as in Palk Bay exist in opaque waters.
Most of these coral habitats are located in the Gulf of Mannar and along
the east coast in the Trincomalee and Batticoloa Districts. In addition,
fringing coral reefs occur in the northern and southern areas of the
Island.34 Coral reefs if the Jaffina Peninsula are located mainly around
islands in the Palk Bay and along the northern coastline in the Palk
Strait.35 Having these ecosystems of coral reefs have contributed to
massive economy production of India country.

2.4.4 Bio-resources and Biodiversity

32 NOAAS Coral Reef Conservation Program. Retrieved April 10, 2013 from
Coral Reefs Support Jobs, Tourism, and Fisheries
<http://coralreef.noaa.gov/aboutcorals/facts/coral_economy.html>
33 National Aquatic Resources Research & Development Agency. Retrieved
April 10, 2013 from Coral reefs in the Palk Strait and Palk Bay in 2005 by Arjan
Rajasuriya. p 84 <http://www.nara.ac.lk/journals/nara%20jouranl
%202007/Article_7.pdf>
34 Ibid. p 77.
35 Swan B. 1983. An introduction to the Coastal Geomorphology of Sri Lanka.
National Museums of Sri Lanka, Colombo. p 182.
22

Palk Bay and Gulf of Mannar are interconnected with each other not
only physically but also oceanographically by way of flow of currents
especially under the influence of the northeast and southwest
monsoons. Therefore, a vast majority of the organisms found in the
Gulf of Mannar are also seen in the Palk Bay particularly those free
living, moving, floating animal and plants. However, the Palk Bay lacks
the habitats such as the islands found in the Gulf of Mannar which
support a wide variety of corals. Otherwise, Palk Bay is as resourceful
and productive as the Gulf of Mannar. Palk Bay environment is unique
in the sense that it is almost an enclosed bay with input from several
small rivers along its coast from Point Calimere in the north to
Mandapam in the south. The branches of the grand river Cauvery
which drain through the districts of Thanjavur, Thiruvarur and
Nagapattinam form a large backwater system between Muthupet and
Point Calimere. The marshlands of this backwater system support lush
growth of Mangrove forests which harbor a wide variety of birds both
native and seasonally migratory. The backwater act as breeding and
feeding grounds for a wide variety of fin-fish and shell-fish. The
enclosed nature of the bay provides protected waters that dolphins,
porpoises and turtles frequent the region. Although scientific literature
available on the Palk Bay are relatively limited compared to that of the

23

Gulf of Mannar, existing information also suggests the presence of

endangered dugongs.

36

2.5 CONCLUSION
It is an indisputable fact that Palk Strait is important waterways for
minor shipping activities as well as many other industries namely
fisheries, marine environmental protection and preservation, and much
more.

However,

despite

these

importances,

the

proposed

Sethusamudram Shipping Canal Project might bring harm to the

sensitive marine environmental of that area. Some scholars have put
forward view that the proposed canal will bring benefits like surge in
36 A.K Kumaraguru, V. Edwin Joseph, M. Rajee, T. Balasubramaniam. 2008. Palk Bay
Information and Bibliography. Centre for Marine and Coastal Studies Madurai Kamaraj
University Madurai. Tamilnadu, India. p 5.

24

the development of coastal trade that may boost the economic

capacity of countries particularly those situated in South Asian region.

CHAPTER THREE
TYPES OF NAVIGATIONAL REGIMES UNDER THE
INTERNATIONAL LAW OF THE SEA

3.1INTRODUCTION

25

This chapter analyses the types of navigational regimes available

under the UNCLOS 1982 through straits used for international
navigation. The applicable navigational regimes are explained along
with its features to determine and identify the obvious distinctions
between them.
There are a number of types of navigational regimes applicable to
straits. The UNCLOS in Part II, Part III, Part IV and Part VII prescribe the
navigational

regimes

applicable

depending

on

the

particular

characteristics of straits. These navigational regimes include innocent

passage, transit passage, and freedom of navigation in the EEZ and on
the high seas.

37

3.2INNOCENT

PASSAGE

AND

NON-SUSPENDABLE

INNOCENT

PASSAGE
This regime of innocent passage is categorised into two forms: the right
of innocent passage and the right of non-suspendable innocent
37 Mohd Hazmi bin Mohd Rusli. 2012. Balancing Shipping and the Protection
of the Marine Environment of Straits Used For International navigation: A
Study of the Straits of Malacca and Singapore. (PHD Thesis). University of
Wollongong. p 80.
26

passage. The first category of innocent passage is exercisable by

foreign vessels in the territorial sea of a coastal State.

38

According to Article 2 of the UNCLOS 1982, the coastal State exercises

sovereignty over its territorial sea subject to this Convention and
other rules of international law. A very important limitation to the costal
States sovereignty is that it has to allow ships of all States the right of
innocent passage through its territorial sea.39
Passage under this Article40 means that navigation through the
territorial sea for the purpose of just traversing that sea or proceeding
to or from internal waters, which shall be continuous and expeditions,
except where stopping or anchoring is necessary by force majeure or
distress.41 The Convention expressly extends the distress exception to
cases where one ship seeks to assist another ship, person or aircraft in
danger or not allowed to hover or cruise around in the territorial sea,

38 Mohd Hazmi bin Mohd Rusli. 2012. Balancing Shipping and the Protection
of the Marine Environment of Straits Used For International navigation: A
Study of the Straits of Malacca and Singapore. (PHD Thesis). University of
Wollongong. p 80.
39 UNCLOS 1982, Art. 17
40 Ibid.
41 Ibid, Art 18
27

because regardless of whether or not they are innocent they would

not be engaged in passage.

42

Western maritime States generally maintain that the right of innocent

passage extends to war ships, but this is denied by some other
countries. In the Corfu Channel case, the regime of innocent passage
has been regarded as customary international law. The International
Court of Justice (ICJ) held that war ships have a right of passage
through international straits, but did not decide the wider question of
passage through the territorial sea in general. The UNCLOS contains no
provision expressly allowing or denying a right of innocent passage for
war ships. However, it has heading rules applicable to all States
before the articles on innocent passage and requires submarines to
navigate on the surface.43
Article 19(1) states the general definition of innocent as long as it is not
prejudicial to the peace, good order or security of the coastal state

44

whereby Article 19(2) provides a particular list of activities that are

prejudicial to the peace, good order or security of the coastal State,
which include weapons practice, spying, propaganda, embarking or
42 Abdul Ghafur Hamid @ Khin Maung Sein. 2011. Public International Law A
Practical Approach. 3rd edition. Malaysia. Sweet & Maxwell Asia. p 262.
43 Ibid. p 263.
44 UNCLOS 1982, Art 19(1)
28

disembarking persons or goods contrary to customs, fiscal, immigration

or sanitary regulations, willful and serious pollution, fishing, research
and survey activities, and interferences with the coastal States
communication or other facilities.
Besides the right of innocent passage, it is generally recognised that in
such a strait used for international navigation there must be some kind
of freedom of navigation for ships of all countries for otherwise the
freedom of navigation will be impeded. The ICJ said in the Corfu
Channel case45:
It is, in the opinion of the Court, generally recognised and in
accordance with international custom that States in time of
peace have a right to send their warships through straits used for
international navigation between two parts of the high seas
without the previous authorization of a coastal State, provided
that the passage is innocent.46
There have been different conceptions of freedom of navigation
through the international strait. One theory integrates the freedom of
navigation to innocent passage with an additional provision that it
45 Mohammed Bedjaoui. 1991. International Law: Achievements and
Prospects. UNESCO, Paris. Martinus Nijhoff Publishers. p 856.
46 Corfu Channel Case (United Kingdom v Albania) I.C.J. Reports 1949, p. 244;
General List No. 1
29

cannot be suspended. Another theory qualifies the passage through

such a strait as high seas passage, a much broader scope of freedom. 47
The other type of innocent passage which is non-suspendable innocent
passage that applies in straits prescribed in Article 45(1) (a) and (b) of
the UNCLOS 1982.48 The article explains in two instances, straits used
for international navigation will be subject to a non-suspendable
innocent passage, rather than transit passage when a strait between
an island and the mainland is excluded from the transit passage regime
under

article

38(1)49

because

of

high-seas

route

of

similar

convenience seaward of the island50 and when the strait connects a

part of the high seas or and EEZ not with another part of the high seas
or an EEZ but with the territorial sea of a foreign state.

51

With regard to the second instant where the non-suspendable innocent

passage is laid down, there is a significant example of this regime
which are Strait of Georgia that connects the North Pacific Ocean which
47 Mohammed Bedjaoui. 1991. International Law: Achievements and
Prospects. UNESCO, Paris. Martinus Nijhoff Publishers. p 857.
48 UNCLOS, Art 45(1)
49 Ibid. Art 38(1)
50 Mary George. 2008. Legal Regime of the Straits of Malacca and Singapore.
Malaysia. Lexis Nexis. p 48.
51 UNCLOS, Art 45(1)(b) and (2)
30

is partly within the American EEZ to the Canadian state of British

Columbia and the other example is the Strait of Tiran that connects the
Red Sea and the Gulf of Aqaba.52
This regime of non-suspendable innocent passage shall not be
suspended through such straits prescribed under the UNCLOS 1982.

53

The rule of non-suspendable innocent passage allows all hips,

merchant marine or warships, to pass through an international strait for
the purpose of either traversing that sea without entering internal
waters or of proceeding to internal waters, or of making for the high
seas from internal waters.

54

Passage is innocent so long as it is not

prejudicial to the peace, good order or security of the coastal state. 55

The coastal state is under the obligation, so long as a foreign ship
effects a passage which is innocent, not to hamper it nor to suspend
passage for any reason whatsoever.56

52 Mohd Hazmi bin Mohd Rusli. 2012. Balancing Shipping and the Protection
of the Marine Environment of Straits Used For International navigation: A
Study of the Straits of Malacca and Singapore. (PHD Thesis). University of
Wollongong. p 91.
53 Ibid, Art 45(2)
54 Ibid.
55 UNCLOS, Art 19
56 Ibid.
31

3.3TRANSIT PASSAGE
Generally, transit passage regime is governed by Article 37 of the
UNCLOS 1982. Transit passage regime is applicable in straits used for
international navigation connecting one part of the high seas or an EEZ
and another part of the high seas or an EEZ. 57 This type of strait has
have been completely amalgamated into the territorial seas of the
bordering States with the result that there is no EEZ or high seas
corridor through them.58
Transit passage is the exercise of the freedom of navigation and
overflight solely for the purpose of continuous and expeditious transit
of the strait. There are differences between transit passage and
innocent passage apparently. Robert Beckman 59 has laid down the
differences between transit passage and innocent passage as follows:
First, transit passage is described as the exercise of a freedom
rather than a right. This implies that it is similar to the freedoms
of navigation and overflight which apply on the high seas and in
57 Ibid. p 88.
58 Ibid.
59 Robert Beckman. 2004. Transit Passage Regime in the Straits of Malacca :
Issues for Consideration (Paper presented at the Building A Comprehensive
Security Environment in the Straits of Malacca, Kuala Lumpur) p 245.
32

the EEZ. Second, transit passage includes the freedom of

overflight of aircraft, whereas innocent passage is limited to the
right navigation of ships. Third, transit passage can never be
suspended.

Fourth,

vessels

exercising

transit

passage

are

permitted to navigate in their normal modes of transit, which

means that submarines can navigate submerged, whereas in the
territorial sea generally, submarines are required to navigate on
the surface and to show their flag.
According to Article 38(2)60 transit passage means the exercise, in
accordance with this Part III of the Convention of the freedom of
navigation and overflight solely for the purpose of continuous and
expeditious transit of the strait. This definition highlights three main
elements namely, (a) transit passage is the exercise of the freedom of
navigation and overflight; (b) the passage should be solely for the
purpose of continuous and expeditious transit; (c) it exercise should be
in accordance with the Part dealing with Straits Used for International
Navigation.61
From the elements mentioned above, the transit passage regime
applies in the strait used for international navigation to ensure the
60 UNCLOS, Art 38(2)
61 Jose A. De Yturriaga. 1991. Straits Used For International Navigation A
Spanish Perspective. Boston. Martinus Nijhoff Publishers. p 166.
33

smooth navigation of all ships, vessels and aircraft and does not in any
way affect the legal status of the waters forming such straits and the
Coastal states exercise of sovereignty over the straits. This regime
applies on all types of foreign ships or aircraft to navigate or to fly
above straits used for international navigation, even though the straits
may form part of the territorial sea of another state.
Ships and aircraft must proceed without delay and refrain from
activities that may compromise the security of the coastal state in
exercising the right of transit passage through straits used for
international navigation.62
The definite meaning of the phrase proceed without delay is not
provided under the UNCLOS 1982. In spite of that, in most cases it is
understood that vessels should transit a strait at a reasonable speed
which be controlled on the weather, traffic and the existence of
navigational hazards along the waterways, without loitering or
stopping, unless by force majeure or distress.63 In navigation, vessels
must comply with internationally accepted regulations relating to safe
navigations and prevention, reduction and control of pollution from

62 UNCLOS, Art 39(1)(a) and (b)

63 Mohd Hazmi bin Mohd Rusli. 2012. Balancing Shipping and the Protection of the
Marine Environment of Straits Used For International navigation: A Study of the Straits
of Malacca and Singapore. (PHD Thesis). University of Wollongong. p 85.

34

ships endorsed by the International Maritime Organization (IMO).

Nordquist contends that word used in Article 38(2) of the UNCLOS 1982
equivalent to Articles 58(1) and 87(1) (a) and (b) of the UNCLOS 1982,
implying that the right of transit passage is of equivalent meaning
with the freedom of navigation and overflights in the EEZ and the high
seas.

64

3.4STRAITS USED FOR INTERNATIONAL NAVIGATION WHERE

TRANSIT PASSAGE APPLIES
The UNCLOS has categorised straits used for international navigation
into two main categories which are straits used for international
navigation where transit passage

applies

and

straits

used

for

international navigation where transit passage does not apply. These

are apparently used for the navigational purposes.
Straits used for international navigation that connect one part of the
high seas or EEZ to another part of the high seas or EEZ that have
breadths of 24 nautical miles or less, as laid down under Article 37(1)
and 38 of the UNCLOS 1982, foreign vessels may exercise this regime
along this type of straits. Multiple instances of this strait are Straits of
Malacca and Singapore, Strait of Gibraltar, Bab-el-Mandeb, Strait of
64 UNCLOS, Art 39 (2)(a) and (b)
35

Hormuz, Torres Strait and the Dover Strait. 65 The second type of strait
where transit passage applies to foreign ships is a strait used for
navigation that connects one part of the high seas or EEZ to another
part of the high seas or EEZ exceeding 24 nautical miles in breadth, but
the EEZ or high seas corridors running through them are too dangerous
for navigation, as laid down under Article 36 of the UNCLOS. 66 Example
of this strait is the Bass Strait that separates the continental land mass
of Australia from the Australian island state of Tasmania, particularly in
areas between King Island and the Australian mainland state of
Victoria.67

3.5NAVIGATIONAL REGIME THROUGH THE PALK STRAIT

Having discussed the navigational regimes applicable in straits used for
international navigation and the international waterway which knows
as canal, it is now to determine on which type of navigational regime
65 Mohd Hazmi bin Mohd Rusli. 2012. Balancing Shipping and the Protection
of the Marine Environment of Straits Used For International navigation: A
Study of the Straits of Malacca and Singapore. (PHD Thesis). University of
Wollongong. p 88.
66 UNCLOS, Art 36
67 Mohd Hazmi bin Mohd Rusli. 2012. Balancing Shipping and the Protection
of the Marine Environment of Straits Used For International navigation: A
Study of the Straits of Malacca and Singapore. (PHD Thesis). University of
Wollongong. p 89.
36

will apply along the Palk Strait. At the moment, the Palk Strait is not
opened for international navigation as it is not navigational viable. The
ongoing SSCP which involves digging an 83km long deepwater channel
connection the Palk Strait with the Gulf of Mannar at the southeastern
tip of India is intended to be opened for international navigation as a
shorter route for vessels compares to the present one where vessels
need to go around Sri Lanka.68
However, the Palk Strait could not be considered as a strait categorised
in under Section 2 in Article 37 of the UNCLOS 1982 because without
the SSCP, the Palk Strait may never be opened to international shipping
traffic.69

3.6CONCLUSION
This chapter addressed the key issue of the navigational regimes
applicable in straits used for international navigation. There are four
types of passage rights through straits used for international navigation
which are the right of innocent passage, the right of non-suspendable
innocent passage, transit passage and freedom of navigation in the
68 Mohd Hazmi bin MohdRusli, The Palk Strait Project: A Transit Regime for a
Canal? (2012) (087/2012) RSIS Commentaries , 1-2
69 Mohd Hazmi bin MohdRusli, The Palk Strait Project: A Transit Regime for a
Canal? (2012) (087/2012) RSIS Commentaries , 1-2.
37

EEZ or on the high seas where all of these regimes are codified in the
UNCLOS 1982.
In a nutshell, the Palk Strait need not be considered as a strait that is
used for international navigation under the UNCLOS 1982 as there is no
viable navigable channel through it. The following chapter discusses on
the legal implication on the navigational regimes applicable through
the Palk Strait once it is opened for international navigation.

CHAPTER 4
THE SETHUSAMUDRAM SHIPPING CANAL PROJECT

4.1

INTRODUCTION

This chapter is believed to be inter-related with the previous chapter in which the types of
navigational regimes available for straits used for international navigation have been
discussed and highlighted. The focal point of this chapter would be on the issue as to the
38

type of navigational regime which shall be applied along the SSCP in the Palk Strait. In
fact, this chapter will also be discussing on the advantages and disadvantages of the
establishment of the SCCP.

4.2

SETHUSAMUDRAM SHIPPING CANAL PROJECT (SSCP)

The Sethusamudram Ship Canal Project (SSCP) has been under construction since 2008
and the construction works is still progressing at the time of this writing. It is located
between India and Sri Lanka. India does not have a viable and navigable route due to the
existence of shallow bridge in between at depths of 1.5 to 3.5 meter. This bridge is known
as Adams Bridge. The Palk Strait itself is too shallow for navigation. Therefore, the
SSCP is conceived to create a continuous ship canal by dredging across the Adams
Bridge and in the shallow parts of Palk Strait. The project needs about 90 kilometers
dredging which will be done for 35 kilometers length in the southern leg from Adams
Bridge and for a length of 54 kilometers in the northern leg at Palk Strait.70
The proposed canal itself, if constructed as originally planned, would be a two-way, 300
meter wide, 12 meter deep canal that links the Bay of Bengal to the Gulf of Mannar via
the Palk Strait and Palk Bay at Adams Bridge. Upon completion, the canal would have
been within Indian waters just west of the maritime boundary between India and Sri
Lanka and generally aligned with the axes of wave, current, and wind directions. The

70A.K Kumaraguru, V. Edwin Joseph, M. Rajee, T. Balasubramaniam. 2008.

Palk Bay Information and Bibliography. Centre for Marine and Coastal Studies
Madurai Kamaraj University Madurai .Tamilnadu, India p 22.
39

length of the proposed canal was 167 kilometers and it would suffice to accommodate
vessels 215 metres long and 33 metres wide with a 10 meter draft traveling at a maximum
speed of 8 knots.71

4.2.1Advantages and Disadvantages of SSCP

According to Sethusamudram Corporation Ltd, the SSCP would provide a great economic
opportunities for the Tamil Nadu coast and India in general. The primary concern of the
SSCP is the fact that the need to steam around Sri Lanka would be cut in both distance
and times. At present, ships that wish to travel from the west coast of India to the east
coast or vice-versa need to travel up to 36 hours. 72 The canal stands to provide the Indian
economy with advantages, particularly in the Tamil Nadu Province, as it will link western
and eastern ports and perhaps promote development of new and existing harbours.73
On the other hand, the SSCP is expected to also affect in many negative ways. The most
immediately affected group of people by the construction and operation of a completed
canal would be the fishermen in the region. Roughly, about 100,000 fishermen in 127
villages who live in close proximity to the Palk Bay and Gulf of Mannar will be affected.

71 Academia.Edu. Retrieved May 13, 2013 from Sethusamudram Shipping

Canal Project by Carl T.
Feagans<http://www.academia.edu/1428534/Sethusamudram_Ship_Canal_Pro
ject>
72Ibid. p 4.
73 Ibid. p 4.
40

The groups economic activity mostly rely on fishing, harvesting seaweed, mining coral,
some agricultures and collecting chanks. Chanks Shells are basically refer to a type of
conch, Turbinellapyrum, which is native to the region and has special religious
significance among Hindus and Buddhists. The Gulf of Mannar is already among the
most ecologically stressed regions of India as coral and species of fish and shellfish as
well as sea-weed are being over harvested. Fishermen complain about the decline in fish
catches in Indian waters and have been reported to seek fresh sources in Sri Lankan
territorial waters.74
The significant dredging at Adams Bridge and to either side of it have many negative
impacts as most of the environmentalists and the scientist are in the propensity to suggest
that the fragile ecosystem of the region may not survive the ordeal. 75 In a study depicted
that the second largest harbor in India, show that the short-term effects of dredging are
immediate and severe in which the bottom faunas are believe to be significantly reduced
and the content of the water is changed drastically with regard to turbidity, transparency
and sediment load, which affect nutrients in the water.76
From the advantages and disadvantages mentioned above, the SSCP is clearly a project
that invites debates and heated discourses in the sphere of a collective global society.
74The Hindu. Retrieved on April 22, 2013 from Katchatheevu is settled, say Indian media
<http://srilankatoday.com/index.php?option=com_content&task=view&id=2999&Itemid=52.>

75 Victor, A. C. C. 2000. SethusamudramShip Canal Project in the Gulf of Mannar Marine

BiosphereReserve - Its Impact on Environment. Central MarineFisheries Research Institute, Mandapam . p
25-27.

76Balchand, A.N. and K. Rasheed.2000.Assessment of Short Term Environmental Impacts on Dredging in

a Tropical Estuary.Teraet Aqua. p16-26.

41

Parties that benefit from the project will come out with the argument in supporting their
cause where the opposing parties will believe to act vise-versa.

4.3TRANSIT PASSAGE OR NAVIGATIONAL REGIME?

It is questionable whether transit passage regime or canal regime should apply along the
Palk Strait. With the existence of the SSCP, the legal regime applies there would be the
canal regime since the SSCP itself is to provide a viable navigation along the Palk Strait
that is too narrow, shallow and dotted with many islets and sandy shoals that make vessels
difficult to navigate.
Once the SSCP is completed, where it would be viable for international navigation that
provides for a shorter route for vessels compared to the present one going around Sri
Lanka, the Palk Strait could be considered as a strait categorised in Article 37 of the
UNCLOS 1982 because of the SSCP, it allows large vessels to navigate through the
waters of the Palk Strait. The Palk Strait will potentially become an important
international maritime waterway comparable to the other straits available in the world.
Parties that navigate along the Palk Strait in carrying their missions and objectives of
shipping might assert that transit passage shall apply in the Palk Strait as it connects one
part of the high seas of Arabian Sea to another part of the high seas of Bay of Bengal.
They might claim that the governmenrs of India and Sri Lanka may not be allowed under
the UNCLOS 1982 to impose temporary suspension upon ships transiting the Palk Strait.
If the transit passage applies in the Palk Strait, ships that go through the proposed canal

42

will have the right to traverse without being hampered or impaired by any laws and
regulations.77
As the truth of facts, by imposing the regime of transit passage upon the canal upon its
completion is utterly said to be simply unfair to the states bordering straits which are
responsible for the work done; i.e. India and Sri Lanka. It is because the nature of transit
passage regime usually implies that the states bordering straits will gain nothing obvious
from it either financially or environmentally, in fact, their hard works and effort, spending
a huge amount of time and cost will be defied if the transit passage regime comes into
effect. Supposedly, by mere logical, they should be given some leverage or consideration
to be awarded from the efforts made. Hence,granting the canal regime to the SSCP would
be it. Besides, the cost and the time spent for the canal to internationally accommodate
vessels from all around the world could be redeemed and compensated through taxes and
services imposed upon the passage.
Regarding the discussion, one may tend to analyze the already established canals to
resolve the issue on what is the most significant navigational regime to be applied in
SSCP. In the international community, we have several well-known and established
canals in several countries which apply the canal regime such as Suez canal, Panama
canal and various others. The focal point of the discussion would be on the Suez and
Panama canals because they are the most significant examples due to their attribute as
canals which are used for international navigation.

77 UNCLOS 1982, Art. 42(2)

43

4.4NAVIGATIONAL REGIMES IN SHIPPING CANALS

International canals are artificially-created waterways that facilitate navigation along
international water navigations. The legal regime of canals in straits used for international
navigation is basically determined by treaties. Thus, international canals can be defined as
artificial waterways under the sovereignty of the State whose territory they cross and used
for international navigation in accordance with the principles and norms for international
law, including norms of treaties relating to individual canals, as well as by the legislation
of States possessing sovereignty over the canal.78
Generally, international legal norms regulating the regimes of the principal international
canal such as Suez Canal and Panama Canal are basically determined by the states
hosting the canal.

4.4.1 Suez Canal

Suez Canal was built in 1869 and joining the Red Sea with the Mediterranean Sea. The
international legal regime of the canal was determined by the Convention of
Constantinople signed at 17 October 1888 by ten States which are England, Austria,
Hungary, Germany, Italy, Spain, Netherlands, Russia, Turkey and France. Countries that
78 A.A Kovalev. 2003. Contemporary Issues of the Law of The Sea Modern Russian Approaches.
Netherlands. Eleven International Publishing. p 223.
44

later acceded to the Convention are Greece, Sweden, Norway, Denmark, Portugal, Japan
and China.79 The Suez canal allowed vessels from East Asia to sail to Europe through the
Straits of Malacca and Singapore towards the Gulf of Aden and the Red Sea and gain
access to the Mediterranean Sean without having to sail around the African continent. 80
The opening of the Suez Canal on 17 th of November 1869 has undeniably brings great
benefit and use to the international community. In analyzing the attributes of the Suez
Canal to be applied upon SCCP, the canal regime applied there mostly because of the
standing conventions and treaties between the affected and benefited jurisdictions. Hence,
for the SCCP to effectuate in the same regime, it is proposed for the jurisdictions
especially the Indian and Sri Lankan governments to hold a convention or treaties to
indicate their wish and desire for the SCCP to be applying the canal regime as the
paramount consideration for the establishment of the canal itself.

4.4.2 Panama Canal

Panama Canal joining the Atlantic and Pacific oceans was opened to international
navigation in 1914 where the legal regime of the canal was determined before it was built
by the Clayton-Bulwer treaty of 19 April 1850 concluded between the United States and
79 Ibid.
80Mohd Hazmi bin MohdRusli. 2012. Balancing Shipping and the Protection of the Marine
Environment of Straits Used For International navigation: A Study of the Straits of Malacca and
Singapore. (PHD Thesis).University of Wollongong.p 20.
45

England. This treaty declared the future canal in peacetime and wartime to be opened to
all merchant ships and warships without distinction of flag. Moreover, the parties to the
Anglo-American treaty obliged themselves not to establish their sovereignty over the
canal and neighboring states. The Panama Canal began to operate in 1914 and was
opened officially in 1920. It was determined that ships passing through the canal would
not be subjected to charges except those for the use of the canal and other installations.81
With respect to international navigation, canals joining areas of the high seas or waters
leading to them are geographically in the same position as straits. However, the
significant different between straits used for international navigation and canals is canals
have been constructed in accordance with international treaties. The Suez Canal which
located in Egypt and the Panama Canal are instances of most important canals in
international commerce.82 It can be concluded that every canal has its own rules and
regulations based on treaty laws between countries rather than to apply transit passage
along the canal even the object of a canal is for international navigation which the word
international, transit passage is the regime that seems to be more dominant over an
international waterways. In analyzing the common attributes projected in Panama Canal
and the SSCP, it is an artificial canal, built by the hosting state to accommodate the
international navigation, but it does not mean that it will be automatically regarded as

81 A.A Kovalev. 2003. Contemporary Issues of the Law of The Sea Modern Russian Approaches.
Netherlands. Eleven International Publishing. p 224
82The Free Dictionary.Retrieved April30, 2013from International Waterways n<http://legaldictionary.thefreedictionary.com/International+Waterways>

46

transit passage merely by looking at to whom it serves, but the sovereignty and
jurisdiction of the hosting state should also be respected by the user countries.

4.5 CONCLUSION
From the analysis made, it is at the peak of certainty that the most appropriate
navigational regime applies along the Palk Strait where the SCCP will be completed is the
canal regime. The Indian Government has the dominant power to impose laws and
regulations upon the SSCP when it opens for navigation soon. It is because the SSCP is
intended to be operated similar to that of the Suez Canal and Panama Canal where both of
them are bounded by treaties of countries that hosting the canal. The Indian Government
has the right to levy tolls upon ships that transit in the Palk Strait.

CHAPTER 5
CONCLUSION
47

5.1INTRODUCTION
This Thesis has the primary objective of determining the navigational
regime applicable in the Palk Strait. The navigational regimes in
discussion comprise of transit passage regime and canal regime. A
careful analysis has been made regarding the subject matter; analysis
from the historical and geographical aspect views, analysis upon the
nature of available navigational regimes, and analysis upon the nature
and concept of the proposed SSCP.

5.2

PALK STRAIT TO BECOME AN IMPORTANT INTERNATIONAL

MARITIME WATERWAY
Being located between the Indian continent and Sri Lanka is one of the
paramount attribute of the Palk Strait into becoming a potential
important international maritime waterway. The fact that the strait is
dotted with islets and coral reefs does not impede the objective of
rendering the Palk Strait into a viable future international shipping
waterway. With the evolving modern engineering technology, the
Indian government has approved the SSCP to deepen the vertical and
horizontal sectors of the sea into becoming a perfect strait passage for

48

vessels especially large vessels to traverse along the strait without

permanent foreseeable navigational hazards.
Currently, the portions of the coast (Palk Bay, Adams Bridge) were
used only to fleets of small crafts involved in coastal trading and
fishing. Upon the completion of the SCCP, it will transform parts of the
southern Coromandel Coast qualitatively. With the existence of the
SCCP the coast shall start witnessing fleets of large vessel involved in
overseas trading pass by. It would cut a passage for commercial
shipping from the Arabian Sea and Gulf of Mannar to the Bay of Bengal
between Tamil Nadu province of Southern India and the island nation of
Sri Lanka. Such a canal would be unique in the world in that it would be
the first of this size to link two seas through a non-inland route. The
supreme output is going to be observed by the shipping industries,
frankly, would be the time and cost-saving shipping activities.

5.3

CANAL NAVIGATIONAL REGIME FITS BEST

Once the SSCP is completed, the legal issue at the sphere of international community will
tend to arise; as to whether the navigational regime of transit passage will apply in the
Palk Strait. It is noted that SCCP will provide and accommodate for international
navigation that provides for a shorter route for vessels compared to the present one going
around Sri Lanka.

49

Parties that navigate along the Palk Strait in carrying their missions and objectives of
shipping might assert that transit passage shall apply in the Palk Strait as it connects one
part of the high seas of Arabian Sea to another part of the high seas of Bay of Bengal.
They might claim that the governments of India and Sri Lanka may not be allowed under
the UNCLOS to impose temporary suspension upon ships transiting the Palk Strait. If the
transit passage applies in the Palk Strait, ships that go through the proposed canal will
have the right to traverse without being hampered or impaired by any laws and
regulations.
This would be the probable arguments for parties that champion the idea and concept of
mare liberum. The argument perhaps, is proven to be right and reasonable through the
existence of Article 37 of UNCLOS.
However, having analysed and considered the outcome and output of imposing the
navigational regime of transit passage in the SCCP along the Palk Strait, it is utterly said
to be simply unfair to the states bordering straits which are responsible for the work done;
i.e. India and Sri Lanka. It is because the nature of transit passage regime usually implies
that the states bordering straits will gain nothing obvious from it either financially or
environmentally, in fact, their hard works and effort, spending a huge amount of time and
cost will be defied if the transit passage regime comes into effect. Supposedly, by mere
logical, they should be given some leverage or consideration to be awarded from the
efforts made. Hence, granting the canal regime to the SSCP would be it. Besides, the cost
and the time spent for the canal to internationally accommodate vessels from all around

50

the world could be redeemed and compensated through taxes and services imposed upon
the passage.
Furthermore, in the international community, we have several well-known and established
canals in several countries which apply the canal regime such as Suez Canal, Panama
Canal and various others. The navigational regime of canal applied by the Suez and
Panama Canals might be the best precedent to be followed by the Palk Strait.

5.4

CONCLUSION

In revising the importance of international shipping to the world, it is

undeniably for the international community to cooperate in finding the
best and the most excellent resolution to any issue relating to the
activity of international shipping including reviewing and re-routing the
best international shipping ways; especially to the one with time and
cost-saving. The benefits derive from this cooperation is not on the
basis of ex parte in which the benefits will go one-sided only; instead
the quid-pro resolution might be the best resolution in balancing every
partys interest.
The establishment of the SCCP will transform the Palk Strait into an
important international waterway soon. It will accommodate the world
shipping activities and the importance of the Palk Strait someday will
be comparable to the Straits of Malacca and Singapore, Strait of
51

Gibraltar and the Torres Strait. Such a canal would be unique in the
world in that it would be the first of this size to link two seas through a
non-inland route. The supreme output is going to be observed by the
shipping industries, frankly, would be the time and cost-saving shipping
activities.
With regards to the issue of navigational regime, it is still in ongoing
arguments and debates. The obvious quality in the Palk Strait is
deemed to be related to the navigational regimes of transit passage
and canal. Both types of navigational regimes are the most probable
with reference to the specific criteria of the strait. However, after
thorough analysis has been made, the navigational regime of canal
seems to fit best in the Palk Strait.

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56