ON Feb 16, Pakistan released 172 Indian fishermen who had been serving prison terms at the Malir district jail for straying into Pakistan’s territorial waters. It may not be widely known that the frequent episodes between Pakistan and India involving the detention and incarceration of poor, unsuspecting fishermen on either side of the ‘border’ is related to a long-running dispute over the Sir Creek, a 60 mile-long estuary that separates Sindh from Indian Gujrat.

It became a contentious border after the Rann of Kutch dispute was resolved between the two countries through international arbitration proceedings. The Sir Creek dispute is not hard to resolve as a legal matter. Political considerations rather than legal issues are preventing its resolution.

One of the chief reasons for the deadlock is that India wants the dispute resolved solely through bilateral dealings in the spirit of the Shimla Agreement of 1972, while Pakistan favours third-party involvement and wants to link the resolution of the dispute to contested territories under Indian occupation. One option available is the constitution of an arbitration tribunal under Article 287 (c) of the UN 1982 Convention on the Law of the Sea (Unclos). Both India and Pakistan have signed and ratified Unclos.

The resolution of the dispute in Pakistan’s favour would result in Pakistan gaining around 3,614 square kilometres of exclusive economic zone. This area is rich in oil, gas, minerals and plant life and therefore has immense potential for commercial exploitation. As such, the location of the land terminus of the Sir Creek is significant because the displacement of a few kilometres affects both the length and angulations of coastal baselines, effectively changing the size of the territorial sea and the EEZ.

The Sir Creek dispute is not hard to resolve as a legal matter. Political considerations are preventing its resolution.

Sir Creek is a river boundary dispute, which impacts the delineation of maritime boundaries. It stems from a compromise between the government of Sindh in British India and the Kutch Darbar over boundary delimitation over the Kori Creek, which originally divided the two principalities in 1908, and lies east of the Sir Creek. The resolution of this dispute by the British government was in the form of a compromise: Resolution 1192 (1914) with an attached map — B-44. The map shows a green line running along the eastern bank of the Sir Creek on the Kutch side of the river as the boundary. Resolution 1192 explicitly refers to this line as the border.

The Indian view is that the green line mentioned in the map was symbolic and under international law the thalweg (most navigable route) is the actual boundary. In the event that a river is non-navigable the river is divided equally between two states under the median line medium filus aquae rule.

These customary international law principles are default rules and only govern if there is no prior arrangement between states. There have been many international agreements between states where the boundary has been fixed up till the banks of one state, leaving complete sovereignty of the river to the other state.

The default rule in international law is that while accretion (gradual natural shifts in the course of the river) will cause the river boundary to move, avulsion (abrupt changes, whether natural or artificial) will not. However, both these norms are superseded if agreements between contracting states express a contrary view.

The Sir Creek is a non-navigable river under international law, since it is not navigable in its ordinary state. It is tidal and is only navigable for a few hours during high tide. The thalweg principle is hence inapplicable to the Sir Creek.

Pakistan’s position that the boundary is on the eastern bank due to historical title seems accurate. Under the established principle of uti possidetis both Pakistan and India, on gaining independence, inherited the original borders of their predecessor state and the delimitations effected by them. In this regard, Resolution 1192 classifies the B-44 map as authoritative and expressly rejects the applicability of the thalweg principle.

Further, Pakistan can convincingly argue that the border was meant to be permanently fixed. It represented a precise location on an officially scaled map prepared by the surveyor general of India, as a result of a compromise agreement on factors extraneous to the Sir Creek. The boundary was agreed upon in relation to the Kori Creek dispute. It was thus meant to be a permanent geographical location and its presence on the bank of the Sir Creek is an incidental fact.

Interestingly, recent evidence suggests that the Sir Creek is meandering eastward through accretion. If so, the middle of the river might have or eventually will move east of the eastern bank of the river as it was located in 1914 or at the time of independence. Hence, India would actually lose territory to Pakistan if the median line principle coupled with accretion applied.

The biggest casualty of not delimiting the Sir Creek is the incarceration of thousands of innocent fishermen from the border region who are routinely arrested and their boats and materials confiscated under the premise of illegal intrusion, even though there is no cognisable territorial and maritime boundary delimitation in the area.

These innocent civilians are deprived of their fundamental human rights. They are denied consular assistance; many are allegedly tortured and languish in jails while being subjected to horrible living conditions and without any meaningful access to judicial process. Some prisoners go missing and may even be presumed victims of custodial killings. In goodwill gestures, some prisoners are fortunate enough to be freed, often in swaps.

Such goodwill gestures are carried out on a cyclical basis by both India and Pakistan and are perhaps meant to give the impression of flexibility, compassion, and sincerity in resolving core disputes. But the question remains whether there is a real desire or intent to compromise on behalf of both states. Sadly, to most of us, the answer at this juncture is self-evident.

The writer is former legal advisor to the Ministry of Foreign Affairs.

Published in Dawn February 23rd , 2015

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