The resolution of the Sir Creek dispute between India and Pakistan is held up as a result of political, rather than legal reasons, an article in leading Pakistani daily Dawn said Monday.
"The Sir Creek dispute is not hard to resolve as a legal matter. Political considerations rather than legal issues are preventing its resolution," Sikander Ahmad Shah, the former legal advisor to Pakistan's foreign ministry, stated in an opinion piece.
Sir Creek is a 96-km strip of water, opening into the Arabian Sea, which separates the Indian state of Gujarat from the Sindh province of Pakistan.
Shah attributed the frequent episodes of conflict between the two neighbouring countries, leading to the detention and incarceration of poor and unsuspecting fishermen on either side of the "border", to the long-running dispute over Sir Creek.
"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," the article said.
It added that an option available could be the constitution of an arbitration tribunal under the UN Convention on the Law of the Sea (Unclos), which both India and Pakistan have signed and ratified.
"The resolution of the dispute in Pakistan's favour would result in Pakistan gaining around 3,614 sq km of exclusive economic zone (EEZ)," Shah said, adding that the "area is rich in oil, gas, minerals and plant life and therefore, has immense potential for commercial exploitation".
The article pointed out that the location of the land terminus of Sir Creek was significant because displacement of a few kilometres could affect both the length and angulations of coastal baselines, effectively changing the size of the territorial sea and the EEZ.
"Sir Creek is a river boundary dispute, which impacts the delineation of maritime boundaries," the article said.
It explained that the dispute stemmed from a compromise between the government of Sindh in British India and the Kutch Darbar over boundary delimitation in the Kori Creek, which lies east of Sir Creek and originally divided the two in 1908.
The resolution of this dispute by the British government was in the form of a compromise and a map was drawn showing a green line running along the eastern bank of Sir Creek on the Kutch side of the river as the boundary, the article noted.
It pointed put that the Indian view has been that the green line mentioned in the map was symbolic and under international law, thalweg (most navigable route) is the actual boundary and in the event that a river was non-navigable, it would be divided equally between two states.
Sir Creek is a non-navigable river under international law, since it is not navigable in its ordinary state. Furthermore, it was tidal in nature and was only navigable for a few hours during high tide, Shah said, adding that the thalweg principle, emphasised by India was hence, inapplicable to the Sir Creek dispute.
He also argued that Pakistan's position that the boundary was on the eastern bank owing to historical entitlement seemed accurate.
"Further, Pakistan can convincingly argue that the border was meant to be permanently fixed," Shah argued, adding that "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".
Shah argued that evidence suggested that Sir Creek was meandering eastward through accretion. If so, the middle of the river might have or eventually would 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 (was) applied," he argued.
The biggest casualty of not delimiting Sir Creek was the thousands of innocent fishermen from the border region who were routinely arrested and their boats and material confiscated under the premise of illegal intrusion, Shah noted.
However, "the question remains whether there is a real desire or intent to compromise on behalf of both states", he stated.
"Sadly, to most of us, the answer at this juncture is self-evident," he added.
