Resolving Sir Creek bordering Issue
Khalid Khokhar
12/28/2012

 

Amongst others, one of the contentious issues emanating from the partition of the sub-continent was undefined maritime boundary of Sir Creek between India and Pakistan that still awaits settlement even after a lapse of 65 years. Although, Sir Creek bordering issue was described as most ‘doable’ and ‘low-hanging fruit’ by many observers and analysts, yet there is a dire need to understand the maritime boundary between Kutch (Bombay province, India) and Sindh (Sind province, Pakistan) before arriving at a justifiable and rational solution. The peace process that initiated in January 2004 between the two neighboring countries, pledged to resolve all disputes like terrorism, Kashmir, demilitarization of Siachen, demarcation of Sir Creek and construction of dams on common rivers through composite dialogue by fostering congenial atmosphere. Nonetheless, in the wake of Mumbai Terrorists Attacks-2008, India leadership not only stalled the ‘composite dialogue’ process, it also accused Pakistan of its involvement in Mumbai attacks without any credible evidence. Under duress of the US-led international community, India showed its inclination to resume the new phase of parleys since March, 2009. But practically, the Indian leadership did not take any confidence building measures (CBM) to ease up tension, and every time, the Prime Minister/Foreign Minister ended their meetings/conferences with issuance of positive notes with vows for the solution of all issues. All the peace building efforts were reduced to naught due to lack of will. If India is really interested in peace, it will have to resolve Sir Creek issue on which already lot of ground has been covered.

Sir Creek is a 96 Kilo Meters strip of water that lingered undecided between India and Pakistan in the Rann of Kutch deserted marshlands - involving 100-150 sq. km. of a marshy area that remains flooded through half the year. The creek, which opens up into the Arabian Sea, divides the Rann of Kutch region of India with the province of Sindh in Pakistan. Pakistan argues that the boundary lay along the southeastern bank of the creek, called the Green Line. On the other side, India claims that the Creek boundary should be in the middle of the estuary. The last point on the boundary of where the Creek at low tide hits the sea will be the beginning point of the maritime boundary and its orientation northwards or southwards could add or subtract to the maximum of some 9000 square kilometres of the oceanic Shelf. The area is not only rich in oil and natural gas, it is also abundant in fish resources and every year both India and Pakistan capture each other's fishermen for fishing on what they claim is their territory. Once the boundaries are defined; it would help in the determination of the maritime boundaries, limits of Exclusive Economic Zones (EEZs) and Continental Shelves.
The dispute is not a new one; it rather goes back to 1908 between the ruler of Kutch and the British authorities in Sindh. In 1914, the region was a part of Bombay Presidency of undivided India. The government of Bombay province passed a resolution that demarcated the boundaries between the two territories, included the creek as part of Sindh, thus setting the boundary to be eastern flank of the creek, called the Green Line. Just prior to the run up for 1965-war, armed skirmishes broke out between India and Pakistan on the boundary issue in the Runn of Kutch region, led to formation of Indo-Pakistani Western Boundary Case Tribunal (IPWBCT)-1968, by the British Prime Minister Harold Wilson. Delivering its award on February 19, 1968, India got 90% of its claim to the Rann of Kutch, whereas Pakistan was awarded 10% of the disputed Kutch. However, the tribunal assistance in demarcating their boundary along the Sir Creek was not sought, therefore, the issue remains contentious. Pakistan argues that the compromise between the Nawab of Kutch and the Government of Sindh in 1914 forms part of the United Nations Convention on Law of the Sea (UNCLOS) 1982. It lays claim to the entire creek, in accordance with the Bombay Government Resolution of 1914 signed between Government of Sindh and Rao Maharaj of Kutch. Both Pakistan and India are signatories and have ratified the UNCLOS-1982, but they have not been able to effectively utilize the elaborate dispute resolution mechanism under the UNCLOS to resolve their maritime boundary disputes. In an exceptional paper titled “River boundary delimitation and the resolution of the sir creek dispute between Pakistan and India” published in the Vermont Law Review, Sikander Ahmed Shah, Assistant Professor at LUMS, wrote that “Sir Creek is not a disputed area. Pakistan’s refusal to accept the thalweg principleis on the grounds that it is a difficult way of referring to the deepest continuous line in a watercourse, generally the midcourse”. Under International Law, the thalweg generally constitutes the boundary between two states. This is a generally accepted principle. However, Sir Creek’s settlement in 1914, was made on the basis of a “compromise”. The Sindh government was to forgo its claim on Kori Creek, further east of Sir Creek “to acquire ownership over the entire Sir Creek”.
India takes the position by citing the ‘Thalweg Doctrine’ under international law – suggesting that the boundary was through the middle of the creek. The law states that river boundaries between two states may be, if the two states agree, divided by the mid-channel. Though Pakistan does not dispute the doctrine, it maintains that the same is not applicable in this case, as it only applies to bodies of water that are navigable, which Sir Creek is not. At the same time, India decided to erect a ‘floating fence’, anchored by submerged metallic meshes, along the disputed Sir Creek border area with Pakistan. According to Indian media reports, top sources disclosed that the two agencies would be the National Buildings Construction Cooperation (NBCC) which will erect the fence of 75 km of the Creek, while the Central Public Works Department (CPWD) has already started work in rest of the area. The fence is reported to be a ‘gabion box’, which has all-weather concertina wires and poles. India argues that: a) the green line mentioned in the 1914 Resolution Map was only meant for symbolic representation, b) India also claims that the international boundary between India and Pakistan has moved westward into what was originally Pakistani territory because of geomorphic changes in the Sir Creek river as a result of accretion.
The ambiguity in the 1914 resolution of the Bombay government is the reason why the dispute persists till today - it is the difference of opinion in the interpretation of the boundary line between Rann of Kutch and Sindh. At this juncture, while both the countries are in the mode of re-starting confidence-building measures, Indian decision to erect a ‘floating fence’, along the disputed border of Sir Creek will further complicate this once a trivial and less controversial issue. After the Chief Minister of Gujarat province of India, Narendra Modi’s statement, both states now view the dispute as important because the boundary delimitation of the Sir Creek estuary impacts the maritime boundary delimitations of both states, impacting the determination of the Territorial Sea, the Exclusive Economic Zone (EEZ), and the Continental Shelf. India is averse to any third-party involvement in the resolution of any outstanding dispute with Pakistan. The resolution of this dispute might act as a catalyst towards the resolution of all outstanding disputes currently considered intractable between the two neighboring states. Under UNCLOS, if the two states fail to delimit their maritime boundary by 2009, the International Sea Bed Authority (ISBA) can assume control of their continental shelf area. While sticking to Pakistan’s justifiable stand of resolving the Sir Creek issue firstly, both the countries should work out a way to determine our maritime boundary because under the UN Convention on the Laws of the Sea (UNCLOS), India and Pakistan can claim up to 350 nautical miles (648 km) of exclusive economic zone out into the sea. Such a compromise would result in the demarcation of both the EEZ and continental shelves and would avoid loss of maritime territory belonging to either nation to ISBA.