A DIPLOMATIC INERTIA - THE SIR CREEKS ISSUE

This article has been authored by Shruti Saxena, a fourth year student Amity Law School, Amity University Lucknow Campus.

Sir Creeks is a tidal estuary that was named after Sir Creeks, a representative of the British Raj. It extends to 96 km in the uninhabited marshlands of the Indus River Delta on the border between India and Pakistan. The estuary flows into the Arabian Sea and separates Kutch in India from the Sindh province in Pakistan. Sir Creeks were originally called Ban Ganga.

Before the partition, Sindh along with the Rann of Kutch was a part of the Bombay presidency. Now, this estuary follows upstreams that altogether meet into the Arabian sea. However, what makes this estuary so essential that both sides are holding onto it by their teeth and none is ready to give up? An estuary is a mix-up of seawater and high water, is a sanctum of high-level nutrients, not only in the water but the surrounding sedimentary columns as well.

The reason for the dispute between the two nations is that even though sir creeks is a small strip of water, it holds immense economic significance for both India and Pakistan. The estuary is said to hold massive significance for the import-export business as well as for setting up tidal energy. Also, it has an effect on the ecosystem in the area. The mangroves forest, for example, are largely dependent upon tides, which is rich in nutrient, supports the growth of mangroves as well as other coral reefs.

What is the dispute?

Pakistan extends its claim to the entire sir creeks estuary. It does so to back its claim with the Bombay Government Resolution, 1914. The Resolution was signed with Pakistan by the then Rao Maharaj of Kutch, and in the same Sir Creeks was defined as a part of Sindh. The Bombay Government Resolution map places the boundary on the eastern bank of the creeks but its para 10 speaks of the mid-channel being the boundary. All these areas were under the jurisdiction of the Bombay province. India differed with this claim posing a counterclaim of the entire Bombay Presidency being under the legal jurisdiction of British India.

In 1925 another map was drawn, which is followed by India. To back its claim, India cites 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. According to this principle, the United Nations Convention on the Law of the Sea (UNCLOS) supports India's position which would cause the fluctuation of the Land/ Sea terminus point several kilometers to the disadvantage of Pakistan, leading in turn to a loss of several thousand square kilometers of its Exclusive Economic Zones under the UNCLOS.

In February 1968 the India- Pakistan Tribunal on the Kutch border gave its award, which upheld 90 percent of India's claim. However, this 90 percent did not cover the Sir Creeks.

Also, against the suggestion made by Pakistan for the involvement of International Arbitration, India stands against a third-party involvement, citing Simla Agreement that provides that any issue between the two nations should be decided bilaterally.

According to Pakistan, the entire Sir Creeks, with its eastern banks defined by a “green line” and represented on the 1914 map, belongs to it.

In 1997, both India and Pakistan resume composite dialogue and, among the issues discussed, was the resolution of the Sir Creeks dispute. In the years 2005- 2007 two rounds of joint surveys of Sir Creeks were carried out by a joint Indo- Pak team. And in the year 2008, at the fourth round of the composite dialogue in Islamabad, the two sides agreed on a joint map of the area, which had been worked out through the joint survey.

The UNCLOS required both sides to find a solution to their maritime dispute by 2009. The failure of which by the signatories invokes Part XV of the Convention providing a comprehensive mechanism for dispute settlement or may also declare the unresolved maritime zones to be international waterways.

Despite these deliberations, at the third edition of WION’s global summit held in Dubai the former Pakistan minister Kasuri recalled the area of Sir creeks to be a Pakistani territory.

Why are we fighting over this part?

First and foremost, the reason, for the long battle over Sir Creeks, is its given strategic location. It is amongst the largest fishing grounds in Asia. Not only is it an accessible route for the ships' movement from inland to the ocean and vice versa, but also is a hotspot for fishermen as well. Henceforth, as both the countries consider different borderline of Sir Creeks, it gets difficult for the common fishermen involved. Fishermen from both countries desire access to the nutrient-rich estuary, but who will be considered native and who will be considered foreigner, is an urgent matter of legal as well as diplomatic deliberation.

Secondly, the possible presence of great oil and gas concentration under the sea. As the area is disputed, neither of the countries has harnessed the soil bed of the estuary. Being major importers of oil and gas resources, both the countries hold significant importance attached to the economic benefit sir creeks can draw.

Thirdly, the maritime boundaries on this specific international border not being determined makes both the countries powerless in securing the development of the area. As the area is in a deadlock situation, neither Pakistan nor India can rightfully carry out any activity due to the maritime border not being decides.

Fourthly, as no border, with peaceful negotiation, is decided; We lack on a significantly and strategically potential economic zone. This potential economic zone could contribute to the growing Import-export business, as well as to fishery and aquaculture. Thus, due to being rich in mineral and nutrient deposits as well as having an underlying oil and gas concentration, this particular area can be an important economic zone to both countries.

Lastly, being home to Flamingos and other migratory birds, this region is important for ecotourism.

It must be noted that Maritime boundaries help in demarcating the boundary limits of Exclusive Economic Zones (EEZ) along with the continental shelves. These Economic Zones extend up to 200 nautical miles and are subject to commercial exploitation. New Delhi's claim of potential year-long navigation through the channel, that too especially during the High-tide period, needs protection and implementation. This claim has been backed by several cartographic surveys that have been carried out between Gujarat and Sindh, thus the Indian claim is scientifically proven.

Conclusion

With the continuous tension at the Line of Control and strained diplomatic ties, reaching a bilateral solution to this issue does not seem foreseeable. The dispute has a major Ecological side which if dwelled in carefully could potentially bring an end to this dispute. Sir Creeks, being part of the Indus Delta region, qualifies to be considered under the Ramsar Convention on the Protection of Wetlands. Both India and Pakistan being signatories to the UN Convention on Biological Diversity, both these conventions can collectively declare Transboundary Joint Management and protection of this estuary, falling in line with the countries’ obligations under the UNCLOS. By becoming a Ramsar site residents on both sides of the border could have access to economic opportunities, as well as the fishermen could freely carry on with their profession. Even though this approach would rule out the defense department partially, with the inclusion of the Ministry of Natural resources, but a similar demonstration of action, in a similar issue that happened between Ecuador and Peru in the Cordillera del Condor Region successfully ended several decades of border conflict.

However, given the Indo-Pak sentiments, an easy ride towards harmony and cooperation could be difficult. Only time could tell what the future has in store for Sir Creeks.