September Issue 2010

On August 31, Pakistan handed over 100 Indian fishermen to Indian officials at the Wagah border. It was part of a plan announced late last month to release and repatriate hundreds of arrested Indian fisherman from Pakistani jails. The action has brought Sir Creek to the fore once again.

Pakistanis are well aware of the dispute by the name of Sir Creek. What is lesser known, however, is its connection with our maritime boundary, our exclusive economic zone and our continental shelf. The last time that dispute hit headlines was presumably back in November 2008 when the post-Mumbai terrorist attack scenario had forced the cancellation of the next scheduled round of discussions between Pakistan and India. That set of talks was particularly important for two reasons: one, that it was expected to focus on a common map of the Sir Creek estuary, formulated through a joint survey conducted in early 2007; second, it was to be a last-ditch attempt to resolve the apparently intractable issue of maritime boundaries so as to enable the two countries to submit mutually inclusive claims before the UN for extension of their continental shelves.

The talks fell victim to political expediency. But as it turned out, both countries did meet the given deadline of May 13, 2009, for filing their claims — claims that were ostensibly backed up by relevant charts and data purporting to show a natural submerged prolongation of the land mass to the maximum prescribed limit of 350 nautical miles. If either side thinks that their continental shelf is as good as extended on this basis alone, they have a another thing coming. Procedurally, the UN Commission on the Limits of the Continental Shelf is only supposed to offer its recommendations, on the basis of which the concerned coastal state can establish the limits of its continental shelf.

A simple fact that escapes the notice of the sea hawks on both sides is that the UN is not likely to make any meaningful recommendations in the matter until the land and maritime boundary dispute between the two countries, which has its epicentre at Sir Creek, stands resolved.

And resolving it should be easy. But that would only be the case if the countries involved were not perpetually at each other’s throats. Besides, the issue has become so intractable that more than four decades of talks have brought us no nearer to a solution. This is arguably because of our natural proclivity towards rigidity by establishing needless linkages.

To understand the complexities of the Sir Creek issue, it is helpful to look at the basic facts at the core of the dispute and then move forward.

So, what is the dispute all about, in the first place?

Simply put, it pertains to the demarcation of the final 60km of our southern land border along Sir Creek.

Why couldn’t it be demarcated earlier?

It had been demarcated (surprise, surprise) way back in 1914, in the context of a Government of Bombay Resolution, which sorted out an argument between the rulers of Sindh and Kutch as to the extent of their principalities.

So if the land boundary has been a settled issue since 1914, why is that Resolution no longer relevant?

Far from being irrelevant, it is actually the epicentre of relevance on which the opposing stands revolve. Pakistan bases its claim over the entire Sir Creek on the map annexed to the 1914 Resolution in which a green-dotted line indicates the boundary on the eastern bank of the creek. The Indian counter argument is that the aforesaid line is merely a “ribbon line” that broadly indicates but does not delineate the land boundary. It lays stress on Paragraph 10 of the 1914 Resolution that it feels endorses the internationally recognised Thalweg (mid-channel) principle and which finds its visual representation in the final map of 1925 with proper boundary symbols. Pakistan, in turn, feels that the map issued in 1928 by the Survey of India as B-16, after resolving the objection of the Political Department over depiction of the boundary in the middle of Sir Creek, vindicates its stand.

But consequent to the Rann of Kutch skirmishes in April/May 1965, hadn’t both the countries agreed to international arbitration and accepted the award of the India-Pakistan Western Boundary Case Tribunal as it was called, and if so, what’s the problem now?

The problem now stems from what actually happened then. The tribunal stopped at a point designated as the western terminus just north of the head of the adjacent Kori Creek and didn’t proceed for some 38km due west till the head of the Sir Creek, and downstream thereafter.

But why didn’t they do so?

Because everyone was already aware of the existence of the 1914 Resolution and frankly because neither of the countries were that interested at the time.

So why are they so interested now?

Because this portion of the land boundary has a direct impact on the delineation of the maritime boundary which in turn dictates the size of the Exclusive Economic Zone (EEZ) and the Continental Shelf (CS) that each country can claim.

Why is this so important?

Because, as per the UN Convention on the Law of the Sea (UNCLOS 82), the EEZ bestows on its owner the sovereign right to explore, exploit and manage the area’s living and non-living resources. At stake here is more than 2,000 square kilometres of maritime area, dependent on which country accedes to the other’s stand. So as deadlines of all sorts flick by, neither of the countries want to back down from their official stance.

Do we see a full stop there?

No. Pakistan threw another spanner in the works on August 29, 1996, by notifying its baselines as a series of nine straight lines with their final point ‘K’ terminating off the eastern bank of Sir Creek. India has formally objected to this methodology, finding point ‘K’ in particular to be violative of its “sovereign jurisdiction.”

What did Pakistan try to gain by this move?

Easy. Some extra bit of EEZ and Continental Shelf. The baseline is essentially what it says it is. It can be termed as a legally acceptable coastline from where the territorial sea as well as the EEZ is measured. It is normally the low water line with the straight baselines method being only resorted to where the coastline is deeply indented or fringed with islands. Pakistan’s vain attempt at gaining some added traction is most likely to backfire in the long run as it is inconsistent with the UNCLOS ’82 guidelines and has been objected to by many countries.

So is that all there is to it?

Frankly, no. And it gets weirder. As the two countries were talking with each other, the creek kept subtly changing its course so that even the centre of the navigable channel is not where it was before. India wants a resolution on the basis of historical data since it feels that the geomorphology of the creek had been well documented by the British. Pakistan proposed a joint survey to establish the geomorphological changes in the hope that this would better serve its interests. This survey was duly undertaken in early 2007 and a common map subsequently agreed upon. Beyond that, the differences in approach persist.

Since there’s obviously a bit of a logjam, is there any point in continuing with our bilateral discussions?

Well, the only real progress made since the talks began is that now at least we have a common map of the disputed area. Beyond that, the only other initiative being strongly pursued by the Indian side since 1994 pertains to the delimitation of the maritime boundary from the seaward side first, while leaving the remaining 30km or so until the decision on the land terminus. While not disputing this contention on technical grounds, Pakistan has preferred to stick to its stand in favour of a complete, rather than a partial, solution.

Since the deadlock is likely to persist, how else can an early resolution materialise?

Simple. By a referral to UNCLOS ’82 which lays down five different means of dispute resolution. Conciliation in terms of UNCLOS ’82 Annex V can be sought, though is unlikely to yield any result as any one country’s disinterestedness can scupper the move. The only practicable means available is to resort to an arbitral tribunal constituted in accordance with Annex VII of UNCLOS ’82.

Can this yield the desired results?

Results, yes. Desired, not that certain. It would depend on how strong a case we build up, who represents us and whether the 21-member panel of specialists is more inclined towards the historical perspective or the legalistic one.

Too many imponderables?

Yes, plus the fact that, financial considerations apart, our move towards third-party arbitration would infuriate India, who would seek to settle scores elsewhere. Besides, our past attempts at international arbitration have not been that awe-inspiring.

How long can we afford to wait for a solution?

Not indefinitely. The humanitarian issue of the fishermen being regularly picked up for violation of a non-existent maritime border and incarcerated for long periods is most pressing. Also, the sooner we put the issue of the maritime boundary behind us, the sooner we can get into the profitable offshore business of oil and gas prospecting. Each side is presumably waiting for the other to blink first.

So finally, what can form the contours of a possible agreement?

Firstly, the horizontal land boundary issue (the famous blue-dotted line from the western terminus till the head of the Sir Creek) can be resolved on the basis of the joint survey of January 2005, which had managed to locate more than half of the original 67 pillars erected during the 1922-24 demarcation. Secondly, the joint survey of 2007 has established the eastward drift of the Sir Creek Channel, in that India’s position is naturally inclining itself towards Pakistan’s. Reliance on the joint survey data as well as on the equidistance method of delimitation as recommended by the IHO Technical Manual can form a possible compromise. Once the land terminus at the mouth of the Sir Creek has been agreed upon, delimitation of the maritime boundary should not pose much of a problem.

For now, the citizens of both countries can only keep their fingers crossed and watch how the plot unravels. Ideally, for all involved a solution needs to be found and sooner is better than later. The destinies of both the countries are inter-twined in so many mysterious ways.