Insights into Editorial: A dispute that begs resolution
16 March 2016
The resolution to the Sir Creek dispute has been considered a low-hanging fruit for sometime now. The demarcation of the 96 km strip of water in the Rann of Kutch marshlands was one of the factors that contributed to the 1965 India-Pakistan war.
- Pertinently, it is tied to the larger issue of delineating maritime boundaries and exclusive economic zones. That the creek has changed its course significantly over the years complicates matters further.
Background:
Sir Creek is a strip of area between Pakistan and India in the Rann of Kutch marshlands. It is situated in south east of Karachi, and divides the Kutch region of the Indian state of Gujarat with Sindh province of Pakistan.
- Both countries have many creeks in the delta region such as Kajhar, Kori, Sir and Pir Sanni creek. The significance of Sir Creek is that it lies between the boundary of India and Pakistan. The far ends starts from Border Pillar (BP) 1175 and other end opens up into the Arabian Sea.
- A dispute arose on the issue of drawing a dividing line between the two countries. The demarcation becomes significant when the line extends seawards to divide the sea boundary between India and Pakistan. The line then directly affects the division of sea resources including minerals, fish and other marine life between the two countries.
- Going over to the history of this dispute, it is worth mentioning that the Bombay Presidency, a British Indian Province established in the 17th century, was divided into four commissionerates and twenty-six districts with Bombay city as its capital. The four divisions were Sindh, Gujarat, Deccan and Karnataka.
- In 1908, the commissioner of Sindh brought to the notice of government, an act of encroachment on the part of Kutch State and Kutch Darbar was asked for an explanation by Government of Bombay. During several sessions and series of meetings, both representatives of Sindh and Kutch states were provided ample opportunity to explain their positions before final decision. In 1914, with Kutch Darbar awarding a triangular area to Sindh state in the north and some area to Kutch state in south, resolved the issue.
- The boundary demarcation as per 1914 resolution was marked on the map B-44. To demark the boundary on land, 66 pillars were erected vertically and 67 pillars were erected horizontally. Last Border Pillar (BP) 1175 was at the far end of the Sir Creek and a green line was marked on the eastern bank of the Sir Creek.
During recent past history, the question of boundary in the Sir Creek region came up first time for discussion during 1969, when a delegation from the Government of India visited Islamabad for the purpose of actually settling the question of boundary alignment from BP 1175 to Mouth of Sir Creek opening up into the Arabian Sea. Since then twelve rounds of talks and three technical level meetings have been held in this regard but any success could not be met due to Indian evasive attitude.
Significance of this region:
The issue may not have risen, since the creek itself is located in the uninhabited marshlands, has limited military value but holds immense economic gain. The region being rich in oil and gas below the sea bed, control over the creek will add enormously to the energy potential of each nation.
How Convention of the Laws of the Sea has further increased the tension?
Initially territorial waters extended only till 12 nautical miles but since the advent of the 1982 UN Convention on the Law of the Sea, a coastal state can now have control over five sea zones: internal water, territorial sea area (12 nautical miles wide), contiguous zone (12 nautical miles wide), the (EEZ) Exclusive Economic Zone (200 nautical miles wide), the continental shelf (from 200 nautical miles up to maximum 350 nautical miles wide). The EEZ can thus be exploited commercially both for the undersea energy as well as nutrient sources.
- The said Convention gives additional rights to both India and Pakistan over sea resources up to 200 nautical miles in the water column and up to 350 nautical miles in the land beneath the water column.
- It also provides principles on the basis of which sea boundaries have to be drawn between the states adjacent to each other with a concave coastline. In short, the land boundary’s general course of direction on the land leading up to the coast can make a difference of hundreds of square nautical miles of sea when stretched into the sea as a divider between the said two states.
- With the adaptation of 1982 Law of the Sea Convention by both countries, the governments have suddenly realised the enormous sea resources that can be lost or won on the basis of the land terminal point where the border between India and Pakistan ends. That is why Sir Creek has now become more contentious than ever before.
- Besides, both countries are bound to protect their sea-lanes of communications and make efforts for increasing the Exclusive Economic Zone (EEZ) area through claiming Continental Shelf by submitting claim to UN Commission on Limits of Continental Shelf (CLCS).
Pakistan’s arguments:
Pakistan claims the entire Sir Creek based on a 1914 agreement signed between the government of Sindh and rulers of Kutch.
India’s arguments:
India contests Pakistan’s claim, stating that the boundary lies mid-channel of the Creek. In its support, it cites the Thalweg Doctrine in International Maritime Law, which states that river boundaries between two states may be divided by the mid-channel if the water-body is navigable.
Who is being affected?
The biggest casualty of not delimiting the Sir Creek is the incarceration of thousands of innocent fishermen from the border region who are routinely arrested and their boats and materials confiscated under the premise of illegal intrusion, even though there is no cognisable territorial and maritime boundary delimitation in the area.
- These innocent civilians are deprived of their fundamental human rights. They are denied consular assistance; many are allegedly tortured and languish in jails while being subjected to horrible living conditions and without any meaningful access to judicial process.
- Some prisoners go missing and may even be presumed victims of custodial killings. In goodwill gestures, some prisoners are fortunate enough to be freed, often in swaps.
- Various studies have also shown that this region has become a safe haven for international drug mafia.
Why deadlock?
One of the chief reasons for the deadlock is that India wants the dispute resolved solely through bilateral dealings in the spirit of the Shimla Agreement of 1972, while Pakistan favours third-party involvement and wants to link the resolution of the dispute to contested territories under Indian occupation.
Options before both the countries:
- Designating the non-delineated area — Sir Creek and its approaches — as a zone of disengagement or a jointly administered maritime park. Such a joint administration could see licensed fishermen from both countries fish in the area without fear of incarceration.
- Alternatively, given the creek’s ecological sensitivity, both countries could designate the area a maritime sensitive zone. In fact, given the challenges posed by climate change, environment protection offers a significant opportunity for bilateral cooperation.
- Another option available is the constitution of an arbitration tribunal under Article 287 (c) of the UN 1982 Convention on the Law of the Sea (Unclos).
- The solution to the Sir Creek issue also lies in the adoption of the Bombay Government Resolution of 1914, which demarcated the boundaries between the two territories, included the creek as part of Sindh, thus setting the boundary line known as the “Green Line” or the eastern flank of the creek.
Conclusion:
Both India and Pakistan are passing through a crucial phase that offers huge potential for collaboration. While issues such as terrorism remain, the youthful demography of both countries holds out significant hope. The post-1971 generation in both countries is increasingly stepping into leadership roles. Unburdened by the baggage of history, and tackling issues on the basis of pragmatism, a paradigm shift in bilateral relations is within grasp.
