By S. M. Hali
Of all the bilateral disputes between Pakistan and India, Sir Creek has the simplest solution and can be resolved as a Confidence Building Measure (CBM), paving the way to settle the more complex ones. The issue like many others is a legacy of the undemarcated tracts at the partition of the Indian Sub-Continent in 1947. Sir Creek is a 96 km marshy strip in the Rann of Kutch area lying between the southern tips of Pakistan’s Sindh province and Indian state of Gujarat, opening in the Arabian Sea. The dispute is related to the Rann of Kutch. At Independence, Pakistan inherited the control of the whole of northern Rann of Kutch but India occupied a part of it in 1956 to promote its grandiose plan of establishing a major naval base at Kandla in the Gulf of Kutch, linking it with Rajasthan and adjacent states via an array of rail and roads, backed by military garrisons contiguous to the Pakistani border. Pakistan’s concerns led to ministerial-level talks, which only recognized the dispute but brought no solution resulting in a skirmish in April-May 1965. Threat of a wider conflict was thwarted by then British Prime Minister Harold Wilson, who arbitrated a ceasefire from 1st July 1965.
The dispute, referred to the India-Pakistan Western Boundary Case Tribunal, presided by Swedish judge Gunnar Lagergren, awarded a solution in February 1968, which was accepted by both contestants. The adjudicated boundary stopped short of Sir Creek because neither had requested for the demarcation of this tract. Pakistan believed it had inherited the solution provided in the Bombay Resolution of 1914 when Sindh was a part of the Bombay Presidency of British India and Kutch was ruled by Rao Maharaj. The 1914 Resolution, which awarded the whole of Sir Creek to Sindh, which in 1947 joined Pakistan while Gujarat opted for India, should have been respected. The matter would have been amicably resolved but two developments changed the Indian stance. Firstly, the prospect of oil and gas being found in the Sir Creek area and secondly the advent of the 1982 United Nations Convention on the Law of Seas (UNCLOS), to which both Pakistan and India became signatories. The consequent Exclusive Economic Zone (EEZ) granted Pakistan & India rights under the convention over the sea resources up to 200 nautical miles in the water column and up to 300 nautical miles in the land beneath the column. Resultantly, the position of both Pakistan and India hardened since the EEZ congruent to Sir Creek is not only rich in marine life but may contain sub surface energy deposits and comprises rich nourishment resources at the sea bottom.
The solution to the Sir Creek issue 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. 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. India claims it to be navigable while in reality, the creek itself is located in the uninhabited marshlands, which gets flooded during the monsoon season, making it partially navigable then. 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 kilometers to the detriment of Pakistan, leading in turn to a loss of several thousand square kilometers of its EEZ. Another factor is that the position of the water body is shifting and Hydrographers by both sides, confirmed that the latest position favoured Pakistan. Maritime and international boundaries once fixed, cannot be repositioned on the basis of shifting ground positions of water bodies.
India insists that the maritime boundary be determined first, which is illogical until the Sir Creek issue is resolved. India should be urged to accept the ready-made solution on the basis of the Bombay Resolution of 1914 or seek third party arbitration as it did in the case of Indus Water Treaty of 1960 or the 1968 Rann of Kutch Commission. However, there has to be an honest intent to seek a solution to be viable.