Opinion Writ in water

Ninety-six kilometres of a water channel draining out from the Rann of Kutch into the Arabian Sea is the subject of the dispute. Pakistan claims the creek lies in its territory; with the international border falling on the east of the creek. Since 2011,it has extended its claim to Pir Sanai Creek. The landmass separating Pir Sanai from Sir Creek has disappeared,it says,and the mouths of the two water bodies have “almost merged”. India insists the creek should be divided between the two countries along the thalweg or the main navigable channel. Since Indian naval assets use Pir Sanai,it is not thrilled about Pakistan’s latest claim either.

Pakistan bases its claim on a map that accompanied the Bombay Government Resolution of 1914,which ruled on a boundary dispute between the British province of Sindh and the princely state of Kutch. The resolution is ambiguous,claiming in para 9 that the border lay to the east of Sir Creek,only to say in para 10 that the creek was navigable most of the year and should be divided along the thalweg. This ambiguity was inherited when borders were drawn at Independence. It remained after the India-Pakistan War of 1965 was fought on the Rann,and the border between Sindh and Kutch,now an international one,had to be determined by a tribunal set up under the aegis of the UN.

Most of India’s border disputes are a legacy of its colonial past. But some date back to feudal polities that were later absorbed into the colonial administration. Establishing the historical title to Sir Creek is near impossible. Till 1968,India and Pakistan were providing competing histories of the region. In arguments made at the UN tribunal,India claims that Kutch was a well-defined entity. The Raos of Kutch only paid tribute to imperial powers,first Mughal,then British. Pakistan uses different colonial sources to say the Kutch never had an existence of its own,that the rulers of Sindh had invaded and occupied parts of the Rann in the 18th century,and that the whole breadth of the Rann was the boundary between Kutch and Sindh. In spite of this historical nebulosity,the tribunal supported India’s claim to 90 per cent of the Rann,fixed the land border up to a point called the Western Terminus,but left the westernmost part of the border fluid. This includes the stretch of water now under dispute.

If Sir Creek is to be treated as a water border,it must be divided according to international laws that govern such boundaries. Under such laws,the international boundary in a navigable river lies along the thalweg. To be divided along the thalweg,the navigability of Sir Creek had to be established. The 1914 resolution had said the creek was navigable for most of the year. According to the legal scholar Sikander Ahmed Shah,India now claims that the creek is navigable at high tide,which occurs maybe twice a day. That is not enough,says Shah; for it to fulfil the requirements of the law,the creek must be deemed navigable at all times,in its “natural and ordinary state”. Legal scholars are also divided on the nature of the thalweg. For some,it is the the line joining the deepest parts of the waterbed. By another definition,it is not a line but the main navigable channel in a river. Finally,the application of international laws becomes difficult in terrains that constantly change shape. How much such changes should affect international borders is still debated. In marshy areas like the Rann,landmasses emerge and slip back into water. The joint survey held by India and Pakistan held in 2007 claimed Sir Creek had shifted nearly 1.5 km eastwards.

In spite of the hurdles,India and Pakistan are said to have been close to an agreement in 2007; the two sides had reportedly exchanged maps that matched. The process was derailed by the 26/11 attacks and it was not until 2011 that talks started again. The resolution of the Sir Creek dispute would have resonances in larger economic and strategic matters. The boundary at the creek would have a direct bearing on maritime borders between India and Pakistan,determining the exclusive economic zone of each country in the Arabian Sea. Solving Sir Creek has also been held up as a first step to the resolution of graver border conflicts between India and Pakistan. In the end,the decision on Sir Creek might not be one of historical or legal provenance. This “doable” might have to be a conscious political decision by both countries to fix a boundary in the interests of greater stability in the region.

ipsita.chakravarti@expressindia.com