By S. M. Hali

Rann of KutchSir Creek, a 96 km narrow piece of water between India’s Gujarat state and Pakistan’s Sind province, is a contentious issue, which has plagued the two nations for decades. Historically, Pakistan considers it to be its sovereign territory because when a dispute arose between Sind and the Kutch Durbar, in 1914 a settlement was made on the basis of a compromise; the Sind government foregoing its claim on Kori Creek, further east of Sir Creek to gain ownership over the entire Sir Creek. After India’s partition in 1947, Sind became a part of Pakistan while Kutch remained with India, thus according to the International Law of uti possidetis juris, that decolonized sovereign states should have the same borders that their preceding dependent area had before independence, Pakistan deems to have inherited its right over Sir Creek.

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. 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.

  Oh Canada!

Unfortunately, India has a problem with each of its neighbours, in terms of boundaries as well as the exploitation of natural resources. The dispute over water resources was not enough, the possibility of extracting more resources via intrusion in Pakistan’s EEZ, prompted the Indians to challenge the boundary demarcation in the Sir Creek area. Despite the historical solution mentioned earlier, India injected the dispute by rejecting the demarcation of the 1914 Resolution map, which delineates a green line running along on the eastern bank of Sir Creek on the Kutch side of the river as the boundary between Sind and Kutch and instead bringing in the Thalweg Doctrine in International Law, which states that river boundaries between two states may be, if the two states agree, divided by the mid-channel. Pakistan 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.  Application of the Thalweg Doctrine will cause Pakistan to lose 2,246 square kilometers of EEZ.

Although India and Pakistan had surveyed the 100 km Sir Creek estuary in 2007, yet Indian delaying tactics have frustrated Islamabad’s attempts to resolve the issue. India now proposes that the maritime boundary should be demarcated as per the provisions of Technical aspects of Law of Sea (TALOS). However, Pakistan has staunchly refused the proposal on the grounds that the dispute should be resolved through arbitration before the demarcation. India has flatly refused, maintaining that all bilateral disputes should be resolved without the intervention of third-parties. This is contrary to facts since the issue of Rann of Kutch was arbitrated successfully by the British.

  What Were They Thinking?

Since 1969, many rounds of talks between India and Pakistan have been conducted on Sir Creek issue, relating various steps such as allocation, demarcation and administration. But no breakthrough occurred due to Indian tough stand. In consonance with Indian history of high-handed actions, it has now taken the illegal action of erecting a “floating fence” anchored by submerged metallic meshes along the disputed Sir Creek. The two agencies involved in the project are 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 the rest of the area. The fence decided for the Creek is reported to be a “gabion box” fence, which will have all weather concertina wires and poles. According to Indian media, the Sir Creek dispute is being consumed by India’s domestic politics as BJP’s Gujarat Chief Minister Narendra Modi has accused Congress of being soft on the issue in negotiations with Pakistan. Such desperate acts will only complicate the issue.