Beruflich Dokumente
Kultur Dokumente
AND
UNION OF YANALAM
( RESPONDENT)
(WP NO.
/ 2016)
TABLE OF CONTENTS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS...i
INDEX OF AUTHORITIESi
LIST OF STATUTES ..ii
BOOKS...ii
STATEMENT OF JURISDICTION...............................................................................................vi
STATEMENT OF FACTS...........................................................................................................vii
STATEMENT OF ISSUES............ix
SUMMARY OF ARGUMENTS......................................................................................................x
WRITTEN PLEADING............1-25
I.
TABLE OF CONTENTS
TABLE OF CONTENTS
II.
FACTORS RESPONSIBLE FOR FALL IN PRODUCTION WERE BEYOND THE CONTROL OF THE
CLAIMANT.............................................................................................................9
RESPONDENT................................................................10
LIST OF ABBREVIATIONS
LIST OF ABBREVIATIONS
Art.
Article
Edition
Ed.
Honble
Honourable
Ibid
Ibidem
ICJ
No.
Number
p.
Page
Para.
Paragraph
PIL
SC
Supreme Court
SCR
v.
Versus
VCLT
Vol.
Volume
INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
LIST OF STATUTES
Constitution of India
LIST OF TREATIES
Agreement between India and the Sri Lanka on the Maritime Boundaries , in Historic Waters
between the two countries and related matters 1974 and 1976
DICTIONARIES
LIST OF BOOKS
Starkes International Law, J A. Shearer, 6th impression, 2011
Apprehensions International Law, Encl. by (Robert Jennings) and (Arthur Watts), 9 th edition 2003, Vol.1
International Law & Human Rights, Dr. S K Kapoor , 19th Edition, 2014
International Law, Malcom N. Shaw, 4th ED, 1997
Public International Law, M.P. Tandon, 7th Edition, 2012
Public International Law, M.P. Tandon, 14th Edition, 2000
Theory and Practice of International Relations, O.P. Sinha, 2014
International Law and Human Rights, K.C. Joshi, 2006
A concise book on International Law and Human Rights, H.O. Agarwal, 3 rd Edition, 2012
Human Rights, S. R. Myneni1st edition, 2013
Human Rights under International Law and Indian Law, S. K. Kapoor6th edition, 2014
Law Relating to Human Rights, V. Nirmala, 15th Edition 2011
Human Rights and International Organisations, Parihshith K. Naik and Mehrabudin Wakman, 2013
th
14. Basu D.D , Constitution of India ,14
edition 2009, LexisNexis, Butterworth
a. Wadhwa Publication Nagpur.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
15. MP Jain., Indian Constitutional Law, 7th Edition 2014, LexisNexis Butterworth
a. Wadhwa Nagpur.
th
16. Seervai H.M. , Constitutional law of India, 4 Edition 2002, Volume 2, Universal
a. Book Traders.
th
17. Shukla V.N , Constitution of India, 11 edition 2008, Eastern Book Company.
10
INDEX OF AUTHORITIES
LIST OF WEBSITES
1.
2.
3.
4.
5.
6.
www.indiakanoon.org
Manupatra.com
SCC Online
West Law
Hein Online
VakilNo1.com
LIST OF CASES
11
STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
The Respondent has approached the Honble supreme court of Yanalam, in response to the
jurisdiction raised by the petitioner under Article 32 read with Article 21 of the constitution of
Yanalam
12
vi
13
STATEMENT OF FACTS
STATEMENT OF FACTS
Yanalam is a federal state having second highest population in the world, which
is geographically a peninsula, surrounded by Bay of Batalana on the East, the
Nadalay Ocean in the south and the Afrozean Sea in the West.
The sea food exports alone comprises 11% of the total exports of the country,
since 1/6th of the population depend on fishing in the country. Atana, the coastal
state of Yanalam, had access to all three surrounding seas, while fishing the
fisherman of Atanapura, which falls in the south east region of the state, enter
into the territorial waters of the neighboring island nation and set arrested and
at times confiscation and destruction of their boats and fishing nets, by their
naval forces.
The firing incident has resulted in the death of twelve fishermen and arrest of
the remaining sixteen which had resulted mass protest in the costal state and the
state sponsored a complete closure in the state. The National Fishermen Forum
a collective body of fishermen and representatives of civil society had filed a
PIL in this Honble Court seeking directions to the national government to
ensure the protection and traditional fishing rights of the for their livelihood
and seeking further directions to the UOY to take effective steps to protect the
life of the fishermen and all other necessary steps to prevent the confession and
destruction of their boats and fishing nets in the Bay of Batalana, Nadalay
Ocean and Afrozean sea.
The UOY contends that the PIL is not maintainable and seeks the dismissal of
the PIL on the ground that these are no traditional fishing rights recognized by
land.
14
15
STATEMENT OF ISSUES
STATEMENT OF ISSUES
I.
II.
WHETHER THE P I L F I L E D B Y T H E P E T I T I O N E R C A N B E
DISMISSED
ON
THE
GROUND
T H AT
THERE
AR E
NO
T R A D I T I O N A L F I S H I N G R I G H T S R E C O G N I S E D B Y L AW
16
17
SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS
I.
18
the place chosen by the petitioners where the fundamental right of right to life 1 and thereby
to livelihood2 which is sought for to be exercised, does not fall under the territorial
jurisdiction3 of this Honble court. So we submit that this Honble court cannot give any
directions to this respondent in this matter.
The territorial waters of that area of sea falling between this UOY and the island nation is
governed by a bilateral treaty4 between these countries made in the year 1974, and a further
treaty made in the year 1976. Any issue related to such treaties can only be addressed by the
ICJ5 and not by the supreme courts of the member countries. So protection, ensuring,
guaranteeing of any traditional fishing rights in case of existence of such rights can be filed in
the ICJ only. Moreover, the place of incidences are the territorial waters of the adjacent island
nation6. Neither the Union government nor this Honble court can exercise the sovereignty
and jurisdiction respectively.
And the UOY and the Island nation has entered into a valid treaty in the year ( 1976 ) , giving
effect to the final phase among transfer of islands or lands among them. Any military actions
may destabilize peace in the region. Violation of an internationally valid bilateral treaty
cannot be under the jurisdiction. Issues arising out of valid International bilateral treaty and
its implications can only be addressed in the ICJ which has jurisdiction of the same.
II.
THAT THERE
ARE
NO
TRADITIONAL FISHING
RIGHTS
RECOGNISED BY LAW
The traditional fishing rights claimed by the petitioner refers to such a period, when the
disputed area for fishing was regarded as high seas by fishermen of both regions., i.e of
Yanalam and of the island nation.
In the period before the treaty, fishing in both the nations was largely non-mechanised and the
fishermen used traditional boats (known as vallams) and traditional fishing nets. However,
with the advent of mechanization, the fishermen of ATANA have been using large dieselpowered boats and trawlers and also have been using drift-nets(known as Irattai Madi valai
in Tamil) and purse-seine nets(Surukku valai in tamil)which have been banned by the
fisheries department of ATANA7.
In spite of repeated warnings issued by Governments of both countries, these fishermen have
been trespassing into the maritime territory of the island nation. They have been poaching 8 on
their waters using banned equipment and depriving the traditional fishermen of the island
nation from earning their livelihood.
21
ARGUMENTS ADVANCED
WRITTEN PLEADING
1.1
The Honble Court do not have Territorial Jurisdiction to entertain the PIL
22
The Territory9 where the petitioner claims exercising of fundamental rights of right to
life, is such a territory where the Jurisdiction of the Honble Court does not exist. Since
Honble Court does not have Territorial Jurisdiction, a PIL claiming a fundamental right
in that territory is not maintainable.
1.2
1.3
Subject Matter of Issue is Governed by a valid Bilateral treaty and thereby International
Law and not governed by municipal Law
The Subject matter of issue of protection of fishermen and their fishing activites in a
territory of the neighbouring Island nation is governed by the terms of bilateral treaty
between the union of Yanalam and the Island Nation. This Bilateral treaties of 1974 and
1976 are subject matters of International Law.
Such matter of International Law, cannot be filed under municipal law as Public Interest
Litigation
1.4
5 An gl o - N or wa ge n ( S e r i e s C a s e IC J R e p 1 95 1 , P.116 )
23
_________________________________________
24
ARGUMENTS ADVANCED
1.5
25
_________________________________________
26
ARGUMENTS ADVANCED
COUNTRY
CANNOT
GRANT
AN Y
L AWF U L
RIGHT
TO
ITS
PEOPLE
W H E R E I N S O V E R E I G N T Y OF AN O T H E R N ATI O N I S E XE R C I S E D .
Lawful rights can be given to citizens by the state, with in their territory wherein sovereignty
of the state exists. Any right granted to the citizens away from the sovereign territory is
unlawful, leading to unjustified intervention with another sovereign power.
Such intervention is violation of Art 51 of Charter of UN, since there is no armed attack by
an alien enemy on the territory of UOY, which is a condition precedent for resorting to use of
force in self-defence.
A r t i c l e 5 1 o f U N c h a r t e r : To b e d o w n l o a d e d & a d d e d
The use of force in self added defense ByBib Vol.37 ( 1966) P.266
27
ARGUMENTS ADVANCED
2.3 : ENFORCEMENT OF LAWFUL TREATY RIGHTS OF ART 8
Issues related to bilateral treaty between two sovereign nations cannot be addressed in a
municipal court of the member countries of that treaty.
Lawfulness of such claims can only be represented in any unbiased international forum like
UNO for remedial actions or in the ICJ for adjudication.
2.4: THERE IS NO DIRECT EVIDENCE OF POSSESSION BY THE UOY OR ANY ACTUAL EXERCISE OF
SOVEREIGNTY BY THE UOY IN THE SUBJECT TERRITORY
28
29
2.6 FOR
RELEVANT BASELINES ON THE UOY SIDE, THE COURT MUST FIRST ESTABLISH WHETHER
KACHATHEEVU
ISLAND
WHICH IS NOT
The above formula of establishing sovereignty was first applied in the Bahrain case,
by the ICJ.
Katchatheevu does not exist so that relevant coasts, baselines are decided over it
The world court has observed in number of cases that maritime rights are derived
from the coastal states sovereignty over the land , a principle which can be
summarized as The Land Dominates Sea 12
PRAYER
PRAYER
In the light of the issues raised, arguments advanced and authorities cited, the Counsels for
the Claimant humbly prays before this Honble Court to kindly adjudge and declare:
Seeking dismissal of the Public Interest Litigation on the ground that there are no
traditional fishing rights recognized by law
And pass any other appropriate order as the court may deem fit.
And for this act of Kindness, the Respondent as in duty bound, shall forever pray.
Respectfully Submitted
Sd/Counsel for
Respondent
31
32