By Sudha Ramachandran
Among the many victims of the terrorist attacks in Mumbai in November last year was a possible resolution to the India-Pakistan dispute over Sir Creek.
The two countries were apparently making progress towards resolving their differences on demarcating a boundary along the creek when the terrorist attacks happened. An angry India suspended the composite dialogue with Pakistan, scuttling the possibility of the two sides hammering out a mutually acceptable solution to their conflicting claims.
As a result, India and Pakistan will not be able to meet the May 13 deadline to submit to the United Nations a mutually acceptable claim on the limits of their continental shelves at Sir Creek. They are now expected to file separate claims to the UN.
Sir Creek is a 96-kilometer estuary that runs between the marshes of the Rann of Kutch in the Indian state of Gujarat and the Pakistani province of Sindh, opening into the Arabian Sea. The India-Pakistan boundary along this creek has not been demarcated.
The dispute over Sir Creek goes back a century; it predates the creation of India and Pakistan. Before the 1947 independence, it was a bone of contention between the rulers of Sindh and Kutch. An agreement reached in 1914, which was followed up with a map finalized in 1925, kept the dispute dormant for several decades. But the dispute came alive in the 1960s, with Pakistan claiming over half of the Rann of Kutch.
A verdict given by an international tribunal in 1968 upheld India's claim to around 90% of the Rann of Kutch. The Sir Creek section of the boundary was not considered by the tribunal.
While the India-Pakistan dispute over Sir Creek does not trigger the kind of passionate debate that divided Kashmir does in the two countries, it has been an important flashpoint. It was in the Rann of Kutch that the 1965 India-Pakistan war began. And it was here that an Indian Air Force MIG-21 shot down a Pakistani surveillance aircraft in August 1999. What is more, the haziness of where the boundary lies has resulted in hundreds of fishermen from both countries straying into hostile waters unintentionally and being taken into custody.
The dispute over Sir Creek involves two issues - demarcation of the India-Pakistan boundary along Sir Creek and demarcation of the maritime boundary from the mouth of the creek seawards into the Arabian Sea.
As for the boundary along Sir Creek, Pakistan says that this should run along the creek's eastern bank, defined by a "green line" that is represented on the 1914 map. That is, it lays claim to the entire creek.
India points out that the "green line" is only an indicative line and argues that the boundary should be defined by the "mid-channel" of the creek as shown on the map drawn up in 1925.
India cites the Thalweg doctrine in international law, which states that river boundaries between two states will run through mid-channel, to bolster its position. Pakistan has countered this argument by pointing out that the Thalweg doctrine applies to navigable water bodies. Sir Creek, it has maintained, is not navigable. But India insists that that the creek is navigable during high tide.
Sir Creek itself has little value. It is a marshy wasteland. But where the boundary line runs through it will determine how much Exclusive Economic Zone (EEZ) one country will lose or gain. If the boundary line runs along the Eastern Bank as claimed by Pakistan, India will lose several hundred square kilometers of continental shelf. It is the prospect of finding substantial reserves of oil in the continental shelf that made the two sides inflexible in their positions.
But that changed thanks to a move by the United Nations, which pushed the two sides to look for a compromise. The UN Convention on Law of the Sea set May 13, 2009, as the deadline for signatories to claim maritime rights over territorial waters, contiguous zones, EEZs and the continental shelf.
Parties to a dispute such as the one over Sir Creek have until May to make a mutually acceptable claim on the limits of the continental shelf, failing which the UN would declare disputed areas as "international waters".
This put pressure on India and Pakistan to move to resolve the Sir Creek dispute. Talks on Sir Creek made progress since the start of the composite dialogue in early 2004. India and Pakistan agreed to a joint survey of the region last year. The maps the two sides drew up following the survey were in agreement with each other. According to a report in the Indian Express, India and Pakistan had come "excruciatingly close" to an agreement on a boundary through Sir Creek. With the fixing of a land boundary almost done, the two sides were "a significant step closer to defining the maritime boundary".
India and Pakistan were due to discuss the next steps on Sir Creek on December 2 and 3 last year. That did not happen. Terrorists attacked Mumbai on November 26. An angry India called off the talks and the composite dialogue. The dialogue remains in a state of suspension.
With talks called off, the chances of India and Pakistan resolving differences on Sir Creek by the May deadline and filing mutually acceptable claims on their respective continental shelves are slim.
With the deadline a little over a month away, the two countries are now preparing to file their individual claims to around 250 square miles of area. Since these will be conflicting claims, neither will be able to use the resources here.
While both India and Pakistan stand to lose since neither will be able to use the resources, it is India that is the greater loser as Pakistan had come around to accepting India's viewpoint. After the survey, Pakistan is said to have accepted that Sir Creek was navigable, which means it would have in all likelihood agreed to the creek being divided mid-channel as India wanted, had the talks continued.
While the dispute over Sir Creek has survived for decades, it is among the less politicized disputes between India and Pakistan and as a result was more amenable to settlement.
A settlement was close at hand and could have well gone in India's favor. Did India shoot itself in the foot by suspending the composite dialogue?
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