SIR CREEK- dispute and resolution mechanism (Published in ISSN Journal from Tezpur College,2015)

SIR CREEK- dispute and resolution mechanism.

 The Sir Creek is a 96 km (60 mi) strip of water disputed between India and

Pakistan in the Rann of Kutch marshlands. The creek, which opens up into the

Arabian Sea, divides the Kutch region of the Indian state of Gujarat with the

Sindh province of Pakistan. Originally and locally it is called 'Baan Ganga'. Sir Creek is named after theBritish representative. The long-standing dispute hinges in the actual

demarcation "from the mouth of Sir Creek to the top of Sir Creek, and from

the top of Sir Creek eastward to a point on the line designated on the

Western Terminus". From this point onwards, the boundary is unambiguously

fixed as defined by the Tribunal Award of 1968.

The India-Pakistan dispute over Sir Creek can be traced back to the

pre-independence period, to around 1908, when an argument ensued between the rulers

of Kutch and Sind over a pile of firewood lying on the banks of a creek dividing the

two principalities. The dispute was taken up by the government of Bombay state,

which, in 1914, gave its verdict supported by Map Number B44 and subsequently

B74.

Nothing significant happened in the next 40-50 years, and the dispute again

came alive only in the 1960s. This chapter has been broadly organised in three

sections. The first section gives a brief description of the genesis of the dispute and

outlines the basic causes of the dispute. The second section is an account of the

negotiations between India and Pakistan so far. The last section is an effort to analyse

these interactions in the light of the negotiation framework.

Dispute: (in a gist)

 The dispute lies in the interpretation of the maritime boundary line between

Kutch and Sindh. Before India's independence, the provincial region was a

part of Bombay Presidency of British India. After India's independence in

1947, Sindh became a part of Pakistan while Kutch remained a part of India.

 Pakistan lays claim to the entire creek as per paras 9 and 10 of the Bombay

Government Resolution of 1914 signed between then the Government of

Sindh and Rao Maharaj of Kutch.

·         The resolution, which demarcated the boundaries between the two territories,

included the creek as part of Sindh, thus setting the boundary as the eastern

flank of the creek. The boundary line, known as the "Green Line", is disputed

by India which maintains that it is an "indicative line", known as a "ribbon

line" in technical jargon.

 India sticks to its position that the boundary lies mid-channel as depicted in

another map drawn in 1925, and implemented by the installation of midchannel

pillars back in 1924.

 India supports its stance by citing the Thalweg Doctrine in International

Law. 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 1925 map, it maintains that the Doctrine is not applicable in this

case as it only applies to bodies of water that are navigable, which the Sir

Creek is not.

 India rejects the Pakistani stance by maintaining the fact that the creek is

navigable in high tide, and that fishing trawlers use it to go out to sea.

Several cartographic surveys conducted have upheld the Indian claim.

Another point of concern for Pakistan is that Sir Creek has changed its course

considerably over the years.

 If the boundary line is demarcated according to the Thalweg principle,

Pakistan stands to lose a considerable portion of the territory that was

historically part of the province of Sindh. Acceding to India's stance would

also result in the shifting of the land/sea terminus point several kilometres to

the detriment of Pakistan, leading in turn to a loss of several thousand square

kilometres of its Exclusive Economic Zone under the United Nations

Convention on Law of the Sea(UNCLOS).

 In April 1965, a dispute there contributed to the Indo-Pakistani War of 1965,

when fighting broke out between India and Pakistan. Later the same year,

British Prime Minister Harold Wilson successfully persuaded both countries to

end hostilities and set up a tribunal to resolve the dispute. A verdict was

reached in 1968 which saw Pakistan getting 10% of its claim of 9,000 kmÄ

(3,500 sq. miles).

 The disputed region was at the center of international attention in 1999 after

MiG-21 fighter planes of the Indian Air Force shot down a Pakistani Navy

Breguet Atlantique surveillance aircraft over the Sir Creek on August 10, 1999, killing all 16 on board. India claimed that the plane had strayed into its

airspace, which was disputed by the Pakistani navy.

A History of the Dispute:

Sir Creek, which is more of a fluctuating tidal channel, is a sixty-mile-long

estuary in the marshes of the Rann of Kutch. The Rann lies on the border between the

Indian state of Gujarat and the Pakistani province of Sind. In 1965, after armed

clashes, Pakistan asserted that half of the Rann along the 24th parallel was Pakistani

territory. India countered that the boundary ran roughly along the· northern edge of the

Rann. The matter was referred to arbitration and the Indo-Pakistani Western Boundary

Case tribunal's Award on February 19, 1968, upheld 90 percent of India's claim to the

entire Rann, conceding small sectors to Pakistan.

The Sir Creek dispute originated after the parties had agreed before the Kutch

tribunal to limit their larger dispute over the Rann to the boundary in the north. Well

to the south lay an agreed boundary that began at the head of Sir Creek and ran a short

distance eastward roughly along the 24th parallel. However, India's contention was

that this line moved up sharply at a right angle to meet the northern boundary of the

Rann. Pakistan sought to extend the line further eastward and claim half of the Rann

along the 24th parallel. The sole issue, therefore, was whether the short agreed

boundary from the head of Sir Creek went all the way east or rose at a right angle at its

western end to reach the northern limit of the Rann. The tribunal accepted India's case

that it did turn north and that the entire Rann was Indian. 2. The dispute hinges on the

demarcation of the boundary from "the mouth of Sir Creek to th.e top of si:_cr~k" and

from "the top of the Sir Creek eastwards to a point (on land) designated as the Western

Terminus." The boundary thereafter has been fixed. A. G. Noorani writes:

That the short agreed border from the head of Sir Creek eastward was excluded from the tribunal's consideration was understandable. Unfortunately, the parties agreed also to exclude the boundary from the head of Sir Creek downward to the west, right up to the mouth of the creek on the Arabian Sea; in short, the Indo-Pakistan boundary along Sir Creek.

I

According to the 1992-93 Ministry of External Affairs Annual Report, the talks failed

to make any progress. India asserts that the boundary lies in the middle of the Creek.

Pakistan claims that the line lies on the Creek's eastern bank, on the Indian side, and,

therefore, the entire Creek is Pakistan's. The delineation of the Indo-Pakistani

maritime boundary is linked to this determination. Pakistan insists that the boundary in

the Creek first be delimited in order to establish the point on the land from which a sea

boundary may be defined. India's concerns center on the maritime boundary. Pakistan

in its arguments, referred to the map on which India had relied prior to the tribunal and

which does show the boundary on the eastern bank, on the Kutch side. Sind had

claimed in 1905 that its boundary lay on the Kori Creek, which is well to the south of

Sir Creek. A compromise was arrived at in 1913, approved by the Government of

India, and recorded in a Resolution of the Government of Bombay, to which the map

was attached. The map in the Appendix annexed to the Resolution of the Government

of Bombay, dated February 24, 1914, recorded a compromise of the dispute between

Kutch and Sind which was then part of the Bombay Presidency.

This Resolution is authoritative, and India's earlier reliance on it constitutes an

admission in law. 8 Pakistan itself, however, had contended in a May 19, 1958 note

that "this map was intended to be no more than an annexure to the Bombay Government

Resolution" of February 24, 1914. Pakistan was right. It is the Resolution, not the

attached map, that is decisive.

This Resolution refers to the Indian government's "sanction" on November 11,

1913, of the Kutch-Sind compromise over Kori Creek which the government of

Bombay had spelled out in its letter of September 20, 1913. This letter refers to the

line on the accompanying map "from the mouth of the' Sir Creek to the top of the Sir

Creek", which ran on the Kutch side. It also contains a provision by the commissioner

in Sind that suppo.rts India's stand. It reads : "He observed, however, that the Sir

Creek changes its course from time to time and the Western boundary of the area,

which it is proposed to surrender to the Rao [of Kutch], should therefore be described

as the center of the navigable channel of the Sir Creek." 10 The Secretary to the

Bombay government replied, "I am to explain that the term 'navigable' is really

inappropriate in the larger sense. The Creek is, of course, tidal, and it is only at

certain conditions of the tide that the channel is navigable only to the country craft as

far as the point from which the proposed boundary turns due east from the Creek." 11

This does not contradict the Sind commissioner's condition but in fact endorses it.

Negotiations:

The six rounds of talks have made every piece of informationavailable to both the parties and made each other aware of the other's plans. However, neither has showed much signs of compromise. That is the reason why talks have proved futile in producing any settlement. In 1994, India had sent a "non paper" on SirCreek, but it evoked little interest in Pakistan. 30 There are several unfinished tasks

which need to be accomplished for a better understanding of the dispute. Pakistan,

unlike India, is yet to complete the hydrographic survey between Gujarat and Sind.

Similarly, India has yet to declare its base lines as required by the United Nations

Convention on the Law of the Sea III (UNCLOS).31

Having said that, after several rounds of discussion, a consensus has developed

regarding the horizontal sector of the land boundary and hopefully both will accept the

boundary line as defined by the existing boundary pillars along the horizontal line as

well as by fixing intermediary pillars on the same alignment if required.

Agreement:

From the preceding analysis, it is clear that there are still many

issues relating to the dispute that need to be discussed. The dispute is still in the

prenegotiation stage, where every minute detail is being worked out and discussed.

Both parties have at least agreed .to resume the talks after a long gap, and this is very

encouraging. But it will be some more time before the dispute becomes ripe enough to

produce a final agreement.

Way ahead:

Though seen from the above facts the dispute between India and Pakistan on Sir Creek Issue is a rather complicated one, but the solution is not impossible. Some of the ways suggested for possible postitive outcome on part of both the sides could be:

1.    A bilateral round of talks with UN as a special judging body in a third country.

2.    A Presence of a high level delegation or expert on International Law (under UN surveillance or UN International Servant) on the panel of dispute resolution.

3.    Agreement to be made on hearing the allegations/counter allegations of both the countries and only then after judiciously judging on the flip-flop of the matter, an ultimate decision to be taken by UN.

4.    Agreement to be made permanent so that no side/country violates it after the agreement takes place and a unilateral ceasefire by both the sides to be made mandatory for ever as per International Law norms.

(writer is indebted to different write ups while preparing the article)

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