Sir Creeek Dispute

What is Creek?

Wherever a river forms a delta before falling into the sea, it develops creeks on the coastal line. Around the area where the present border of Pakistan is supposed to meet India in the delta area south of the Rann of Kutch, a dispute arose on the issue of drawing a dividing line between the two countries. The demarcation becomes significant when the line is extended seawards to divide the sea boundary between India and Pakistan. The line then directly affects the division of sea resources -- including minerals, fish and other marine life - between the two countries. The dispute is about a tidal channel called Sir Creek - a 38 km estuary in the marshes of the Rann of Kutch. The boundary along this tidal channel between India and Pakistan has not been delimited.

Reason behind the Dispute

A country’s rights on the resources of the sea were granted by the 1982 Law of the Sea Convention. The said Convention gives additional rights to both India and Pakistan, over sea resources up to 200 nautical miles in the water column and up to 350 nautical miles in the land beneath the water column. It also provides principles on the basis of which sea boundaries have to be drawn between the states adjacent to each other with a concave coastline.
Pakistan and India have a concave coastline. With the 1982 Law of the Sea Convention adopted by both, the governments have suddenly realized the enormous sea resources that can be lost or won on the basis of the land terminal point where the border between India and Pakistan ends. That is why Sir Creek has become more contentious than ever before. Sir Creek is a 100 km long estuary in the Rann of Kutch. The Rann of Kutch lies between Gujarat on the Indian side and Sindh on Pakistani side. It has many creeks such as Kajhar, Padala, Kori, Sir etc.

There is also a comprehensive dispute relating to maps of the creek. During the British period, the Rann of Kutch was partly administered by the Government of Sind and partly by the Maharaja of Rann of Kutch. In 1913, the Government of Bombay resolved the boundary dispute through a ruling, which became the basis of the 1914 map referred to as B-40. It was around 1925-6 that some pillars were actually erected at distances, demarcating on ground the agreed boundary between the state of Kutch and the Sindh Government. As per this arrangement, the line was to follow a longitude till a specific point called border post (B.P) 1179 and from there run parallel with (longitude) to the mouth of the creek and then follow the eastern side of the creek. The eastern edge was also called the Green Reband because of its visible thickness on the map. Around 1937-8, the Government of India issued the map of the said terrain by the Surveyor General, which affirmed eventually the said position of eastern side being the border. In 1947, due to partition, the eastern edge of the creek was deemed to have been converted as the concluding portion of the international border between India and Pakistan.

India’s stand and Pakistani response

The present problem between India and Pakistan arises from their differing interpretations of the boundary line dividing the Sir Creek. India maintains that this line should run through the middle of the Creek. India supports its case by referring to the Thalweg Doctrine in International Law, according to which the river boundaries between states are divided by the mid channel. In 1965, the well-known Rann of Kutch Arbitration took place. India agreed to exclude the line beyond BP. (border post) 1175 from the subject matter of arbitration on the ground that it is not disputed. India also stated that the border from the mouth of Sir Creek should run on the western side of the creek and not the eastern one. This was a major departure from its earlier position of agreeing to the eastern side.

Pakistan’s stand and Indian response

Pakistan does not agree, because it says the Thalweg Doctrine is only applicable to water bodies that are navigable. Since, the creek, according to Pakistan is not navigable So, the Thalweg Doctrine is not applicable to this case. India maintains that, even if the Creek is navigable only during high tides, it is still navigable and in reality fishing boats are using the Sir Creek to go out to the sea. Pakistan opposes this and instead relies on the Resolution Maps of 1913-14 and the 1937 Map approved by the Surveyor General of India. Pakistan maintains consequently that the boundary should run along the eastern bank of the Creek which is the historical boundary line. India considers this line as a riband that could have been drawn on any convenient side of the creek, hence rejects this line as only a symbolic representation.

Proposals of India and Pakistan during the talks

India proposed a Seaward approach, viz, until the boundary is formalized in the Sir Creek, India and Pakistan could delimit the maritime boundary from the sea. Pakistan rejected this proposal, on the ground that such a proposal could only be considered after the determination of the boundary in the Sir Creek. Besides, Pakistan emphasised that the two issues should not be delinked but should be discussed in one package. Instead, Pakistan proposed, if India is confident and its case was valid, then both India and Pakistan should go for an international arbitration. India rejected Pakistan’s proposal for a third party arbitration in line with its general objection to outside mediation.

Importance of Sir Creek

The significance of the Sir Creek is that it lies between the boundary of India and Pakistan, which has not been defined precisely by both the countries so far. The Indo-Pakistan Western Boundary Tribunal’s Award in 1968 did not include Sir Creek, because India and Pakistan had then agreed to exclude, the boundary from the head of Sir Creek up to the mouth of the creek on the Arabian Sea from the scope of the Tribunal.
Why should India and Pakistan fight for swampy land? Does Sir Creek have any strategic significance? What are the motives behind the proposals of both the countries and the rejection of each other’s proposals? Sir Creek assume importance because of the prospect of finding petroleum deposits, and the presence of schools of fish in the continental shelf, off the coast of Rann. According to the UN Convention on the Law of Seas, India and Pakistan would have to demarcate the Continental Shelf by the year 2004. Hence, it was believed that international pressure was bound to operate on India to meet this deadline, and hence India would ultimately agree for third party arbitration. Secondly, the area of the Exclusive Economic Zone (EEZ) will change by hundreds of square kilometres, with the change in boundary in Sir Creek. It is this economic aspect of the EEZ that makes the Sir Creek dispute significant.

Pak-India talks on Sir Creek

The fundamental technical confusion is that the dialogue process has failed to realized that Sir Creek negotiations is not part of political process alone, but it is actually a clear obligation on the two states under the 1982 Law of the Sea Convention. Whether the dialogue process is on or not, both the states have obligations under Article 76 (in respect of Continental shelf), Article 74 (in respect of the Exclusive Economic Zone) and Article 15 (in respect of the territorial sea) of the 1982 Law of the Sea Convention to arrive at a negotiated settlement based on principles of International Law. India could argue that there is no dispute on delimitation of sea boundary and that the present dispute is regarding the international border, which was simmering much before the 1982 Law of the Sea Convention came on line. However, even if this argument is accepted, the obligations under the 1982 Law of the Sea Convention remain unfulfilled because the sea boundaries remain undivided.

In case both the parties fail to reach an agreement then Part XV of the 1982 Law, which provides for the formal mechanism in respect of settlement of disputes, can be invoked. In the above context, the process of dialogue can authorize resort to the 1982 Law of the Sea Convention. The dialogue process between India and Pakistan is continuing nowadays in India. Twelve-member delegation was led by Major General Jamil ur Rehman Afridi, Surveyor General of Pakistan. While Indian side was headed by Brig Girish Kumar, Deputy Surveyor General at the meeting. The two sides held constructive and fruitful discussions but unfortunately uptil now, both sides are unable to gather enough space during the talks for the convergence of views on working out terms of reference and modalities to undertake Joint Survey of the Creek.

Sir Creek is one of the eight issues, being discussed under Composite Dialogue Process between the two countries. Next round of Composite Dialogue is scheduled to be started in January 2006

Maritime Boundary

Not to be overlooked is the boundary between nations that extend beyond land into the sea. Because of disputes over the coastal land boundary along Sir Creek, there is an accompanying dispute over the maritime boundary that extends 200 miles into the sea, covering the exclusive economic zone of the two nations as well as their national security boundary. The undemarcated and disputed nature of this maritime boundary has already caused international incidents; fishermen from both sides have been detained for claimed violation of maritime boundaries. Continuing this boundary dispute could lead to increased naval conflict. Conflict in the region also limits the potential of both sides to attract the capital investment to develop the natural resources potential of the region, including offshore oil or gas deposits.