Omair Ahmad

As Pakistan and India celebrate their Independence Days, on 14 and 15 August respectively, the thin line of midnight is a reminder of the terrible violence that ensued just after independence, in the Partition. Those events, in which hundreds of thousands of people were killed and millions displaced, have left an enduring legacy in how people in South Asia view division of the region’s land and resources, and their management.

While Partition divided South Asia by borders, the region’s most essential resources – its rivers and ecosystems – need to be managed as bioregions if they are to continue to sustain us.

The legacy of Partition spills into matters like the Indus Waters Treaty, painfully negotiated over more than a decade after 1948, when engineers in the Indian side of Punjab stopped the flow of water into what was then West Pakistan. It rears its head over the difficulties in renegotiating the Ganges Water Sharing Treaty, and the continued impasse over a treaty on the Teesta River.

These problems are due partially to the logic of Partition: of different administrative units for those defined as ‘different people’. When discussing Partition and its aftermath, most writing focuses on the division as the main issue, especially since the violence was already preceded by other instances of mass conflict between Hindus and Muslims. Nonetheless, division is only part of the story: mismanagement, and a lack of a means of cooperation across boundaries, may have played a much bigger role in its enduring legacy.

A partition without a plan

Two significant pieces of scholarship, Patrick French’s Liberty or Death, which relies heavily on declassified Intelligence Bureau files, and Hormasji Maneckji Seervai’s Partition of India: Legend and Reality, based on the Transfer of Power papers, illuminate the decisions that led to the mismanagement of the greatest population exchange history has ever seen. In both works, the last Viceroy of India, Louis Mountbatten, and his decisions come under great scrutiny. They identify two key focal points where the history of Partition was written.

One was the date of independence, which was chosen not through some well-planned exercise, but to mark two years after the victory of the Allies against the Axis powers in the Second World War. As Seervai documents, Mountbatten’s predecessor, Archibald Wavell, had a carefully drawn plan for British withdrawal from the Indian subcontinent. Mountbatten had none.

Even worse was his decision to suppress news of the plan for Partition until just after the handover of power had happened. This was key because the largest administrative unit in the subcontinent, the military, was also carved in two just as the Partition came into effect, as were the police and other administrative jurisdictions. A population transfer involving millions of people was already going to be a massive challenge. Without an effective government structure, it became a series of bloody atrocities.

Why the history of management matters for rivers

Understanding Partition is central to understanding where South Asia went next. And what South Asia learned after August 1947 was that division inevitably leads to violence. This lesson was compounded by Bangladesh’s secession from Pakistan in 1971.

These turning points in the histories of the three countries have taught us that without cooperation across jurisdictions, breakdowns in governance become an inevitability.

The continuing legacy of a governance approach that sees resources as divided between different, often mutually hostile, legal and administrative units can be best seen in how rivers are handled across the region. Within India, the Cauvery remains a hotly disputed river, with the states of Karnataka and Tamil Nadu locked in a conflict over its waters that goes back to colonial times. Punjab and Haryana, too, continue to contest water rights.

After the Uttarakhand High Court granted legal rights to rivers in March 2017, the Uttarakhand state government filed a special leave petition in the Supreme Court which made it unworkable. The chief secretary of Uttarakhand – the highest administrative official in the state – pleaded inability to be the ‘legal guardian’ of the Ganga and Yamuna because they flowed through different states.

The slicing and dicing of rivers and bioregions by borders is not isolated to India. In March 1991, the provinces of Pakistan signed the Water Apportionment Accord, largely based on the historical use of water by the provinces of Punjab, Sindh, Khyber Pakhtunkhwa and Balochistan. Rather than setting the issue to rest, the provinces continue to tussle over the ownership and distribution of water. The mighty Indus basin, already divided between China, India, Pakistan and Afghanistan, has been divided still further, with nothing and nobody taking responsibility for monitoring – much less maintaining – the health of the basin as a whole.

Nor is this problem any less fractious in the east. As climate change raises the incidence and power of floods, every year a sorry blame game plays out between Nepal, India, Bangladesh and even Bhutan, in which each country, and provinces within the countries, accuse each other of mismanagement and exacerbating the floods. All the while, they keep an eye on China, where the source of the Brahmaputra (or Yarlung Tsangpo) lies, and from where limited information filters south.

Bioregions not borders

The end result of this focus on borders rather than bioregions is that ecosystem health is deeply undermined. The hilsa fish has disappeared from most parts of Pakistan and India as the river ecosystems it depends on have been disrupted. It is now largely confined to Bangladesh. India and Nepal quarrel over the nationality of an individual sloth bear, and healthy yak populations are now largely found only in Tibet.

More fundamentally, none of the countries whose futures are intimately tied to the Hindu Kush Himalayan region, and the trans-boundary rivers that flow from it, have a very good idea of what is going on in the mountains. With the largest concentration of ice after the North and South Pole, the roof of the world is crisscrossed with contested borders, with armies and men even stationed on glaciers such as Siachen (where the militaries lose more lives to the climate than their declared enemies). The shroud of national security has made the Himalayan region a ‘white hole’ in reports by the Intergovernmental Panel on Climate Change.

The horror of Partition has failed to teach the countries of the region the catastrophe’s most important lesson: that cooperation across jurisdictions is the only way to avoid tragedy. As the climate crisis – with its floods and droughts, its plagues of locusts, its storms and disasters – looms over South Asia, there is scant evidence as yet of the cooperation that could help people across all borders protect the rivers and ecosystems they ultimately depend on.

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Omair Ahmad is managing editor for South Asia at The Third Pole. He has worked as a political analyst and journalist, with a particular focus on the Himalayan region. He is the author of a political history of Bhutan, and a few novels.

Courtesy: The Third Pole (Published on August 14, 2022)

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Monitoring Desk

New Delhi/Islamabad  

Over 30 organizations around South Asia and beyond have endorsed a joint statement about cross-border prisoners initiated and coordinated by the South Asia Peace Action 9SAPAN) Network, calling for the humane treatment of cross-border prisoners and to decriminalize inadvertent illegal border crossings.

Titled ‘Release prisoners on completion of jail term, decriminalize inadvertent border crossings, especially for fisherfolk and minors‘, the statement draws attention to the death of two Indian fisherfolk in Pakistani custody this year, and the death of a Pakistani fisherman of Bengali origin in India’s custody last year.

All three had served their sentences but remained in custody on ‘the other side’. Compounding the tragedy, there are terrible delays in the repatriation of the bodies of such fisherfolk, notes the statement.

The statement also draws attention to some teenagers who remain incarcerated in juvenile centers in India, mostly without any contact with their families. One has already served his sentence but remains incarcerated.

Kalu Vira, a fisherman from India incarcerated in Pakistan died at a hospital in Karachi on 6 July 2022. He had completed his jail term in December 2021, and his nationality had been verified.

After his passing, it took over 10 days for the Pakistan authorities to inform the Indian High Commission about the death.

As of 31 July, Kalu Vira’s mortal remains are yet to be repatriated. Meanwhile his family members came to learn of the tragedy through other means and are desperately awaiting the return of his mortal remains.

This is not the first time a fisherman has died while incarcerated on ‘the other side’. It typically takes well over a month to repatriate mortal remains of an Indian or a Pakistani who dies while incarcerated in the other country. The repatriation is carried out through Wagah border although most such incarcerations are in the southern coastal areas.

Nano Ram, another Indian fisherman, completed his jail sentence in Pakistan on 16 January 2019. He died at a cardiovascular hospital in Karachi on 3 February 2022. His remains were repatriated on 4 April 2022.

Amir Hamza, a Bengali migrant fisherman from Karachi arrested by the Indian Coast Guards in 2017 died of Covid-19 in India in June 2021. It took the authorities three months to repatriate his body to Pakistan. He, too, had completed his prison sentence but was kept languishing in custody.

When fisherfolk cross the unmarked maritime borders in the region, lengthy incarceration is just one of the risks they face. Currently, Pakistan holds 632 Indian fishermen in Landhi Jail, Karachi, while India holds 95 Pakistani fishermen in prisons in Gujarat. All were arrested for inadvertently crossing the maritime boundary.

Even after serving their jail sentences, they end up remaining in prison. Had Kalu, Manu and Hamza been repatriated promptly after having completed their sentences they might have been alive today.

We note that Sri Lankan and Bangladeshi fisherfolk arrested by India and vice versa also face similar issues.

In some cases, border patrol personnel on the other side have shot dead fisherfolk caught transgressing the unmarked maritime border. This happens between Pakistan and India, and also between Bangladesh and India.

Additionally, several minors who inadvertently crossed the border across the Line of Control in the disputed area of Kashmir, are lodged in reformatory centers on the other side. In some cases, they are repatriated within days, once their identities are verified and contact is made with families across the border.

Sri Lankan and Bangladeshi fisherfolk arrested by India and vice versa also face similar issues. In the case of Sri Lanka and India, there are generally fairly fast repatriations, sometimes within weeks of arrest, including boats being returned.

We call on the governments of the region to immediately take following steps:

Release and repatriate prisoners of each other’s country as soon as they have completed their prison sentences, particularly aged prisoners, women prisoners and civilian prisoners with minor offences. Promptly return any fishing boats that are confiscated.

Revive the India-Pakistan Joint Judicial Committee on Prisoners and allow medical teams of the other country to periodically visit and conduct inspections. Institute similar bilateral committees between India-Sri Lanka, and India-Bangladesh.

Allow consular access to cross-border prisoners and communication between them and their relatives, including the option of online communication.

Allow those who are jailed in or who die in Sindh and Gujarat to be repatriated through the sea route or Khokhrapar border rather than having to travel 1000 km up-country to Wagah-Atari border, and down again to their homes; Decriminalize inadvertent border crossings; All countries of the region must institute measures to ameliorate the plight of the incarcerated in their custody, particularly cross-border prisoners. This will also help build confidence and trust between the two countries and improve overall neighborly relations in the South Asian region.

The following organizations have endorsed the statement:

Pakistan Fisherfolk Forum

National Fishworkers Forum, India

National Fisheries Solidarity Movement, Sri Lanka

Aaghaz-e-Dosti

Aman Ki Asha

Centre for Social Justice – Pakistan

Confederation of Voluntary Associations, COVA – India

Haqooq Khalq Party Pakistan

Human Rights Commission of Pakistan

National Alliance of People’s Movements (NAPM) – India

Nijera Kori – Bangladesh

Pakistan Kissan Rabita Committee

People’s Watch – India

People for Peace and Change – India, Pakistan

Pakistan-India People’s Forum for Peace and Democracy, PIPFPD

Peace and Development Organization – Pakistan

Pakistan Institute of Labor and Education Research, PILER

People’s Union For Civil Liberties, India

South Asia Peace Action Network

South Asia Partnership-Pakistan

South Asia Citizens Web

Tehrik-e-Niswan, Pakistan

Boston South Asian Coalition

Sangat – South Asia

Samaaj

American Alliance of Physicians for Peace in South Asia

International Solidarity for Academic Freedom in India

Uks Research Centre – Pakistan

Anna’s Tuin en Ruigte, Amsterdam

Bebaak Collective – India

Driksakshi – India

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Courtesy: South Asia Peace Action Network

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Group Captain (R) Sultan M Hali

While Pakistan and India are involved in a plethora of disputes, like Kashmir and Siachen, the Sir Creek issue has the propensity for a solution. Sir Creek, a 100 nautical mile strip of water between the state of Gujarat in India and the province of Sindh in Pakistan, has also kept the two countries at loggerheads for decades. The issue like many others is a legacy of the under-marketed tracts at the partition of the Indian subcontinent in 1947. Sir Creek is a marshy strip in the Rann of Kutch area lying between the southern tips of Pakistan’s Sindh province and Indian state of Gujarat, opening in the Arabian Sea. The dispute is related to the Rann of Kutch. During the Partition of India in August 1947, Pakistan inherited the control of the whole of northern Rann of Kutch, but India occupied a part of it in 1956 to promote its grandiose plan of establishing a major naval base at Kandla in the Gulf of Kutch, linking it with Rajasthan and adjacent states via an array of rail and roads, backed by military garrisons contiguous to the Pakistani border.

Pakistan’s concerns led to ministerial-level talks that only recognized the dispute, but brought no solution, resulting in a skirmish in April-May 1965. The threat of a wider conflict was thwarted by the then British Prime Minister, Harold Wilson, who arbitrated a ceasefire from 01 July 1965.

The dispute, referred to the India-Pakistan Western Boundary Case Tribunal, presided by Swedish Judge Gunnar Lagergren, awarded a solution in February 1968 that was accepted by both contestants. The adjudicated boundary stopped short of Sir Creek because neither had requested for the demarcation of this tract. Pakistan believed it had inherited the solution provided in the Bombay Resolution of 1914 when Sindh was a part of the Bombay Presidency of British India and Kutch was ruled by Rao Maharaj.

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Poor fishermen suffer as the Indo-Pak dispute over Territorial waters remains unresolved 

• A Border Security Force (BSF) patrol caught four Pakistani fishermen and seized their 10 boats from the ‘Harami Nalla’ creek area of Kutch along the India-Pakistan maritime boundary in Gujarat on July 7, 2022, a force spokesperson said. Nothing suspicious has been recovered from the fishing boats, the BSF spokesperson said.
• On June 25, 2022 also BSF arrested two Pakistani fishermen from the Harami Nala creek area close to the India-Pakistan border.
• On February 28, 2022, Pakistan’s maritime authorities arrested 31 Indian fishermen and seized five of their vessels for allegedly fishing in the Pakistan territorial waters.
• On January 25, 2022, twenty Indian fishermen arrested by Pakistan for allegedly entering into the country’s territorial waters were handed over to Indian authorities.
• Out of 26 Pakistani fishermen arrested by India in 2016, twenty were released in March 2022.
• Some 116 Pakistani fishermen are still held by India, as of March 2022.
• On March 22, 2022, the Union ministry of external affairs informed the Rajya Sabha that according to data shared by the Pakistan government, there are 577 Indian fishermen in their custody. Nine fishermen have died in jails.
• As a result of efforts by the Indian government, 2,140 Indian fishermen and 57 Indian fishing boats have been repatriated from Pakistan since 2014.

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 The 1914 resolution that awarded the whole of Sir Creek to Sindh, which in 1947 joined Pakistan while Gujarat opted for India, should have been respected. The matter would have been amicably resolved, but two developments changed the Indian stance: firstly, the prospect of oil and gas being found in the Sir Creek area and secondly, the advent of the 1982 United Nations Convention on the Law of Seas (UNCLOS) to which both Pakistan and India became signatories. The consequent Exclusive Economic Zone (EEZ) granted Pakistan and India rights under the convention over the sea resources up to 200 nautical miles in the water column and up to 300 nautical miles in the land beneath the column. Resultantly, the position of both the countries hardened, since the EEZ congruent to Sir Creek is not only rich in marine life but may also contain sub-surface energy deposits and comprises rich nourishment resources at the sea bottom.

The solution to the Sir Creek issue lies in the adoption of the Bombay Government Resolution of 1914, which demarcated the boundaries between the two territories, included the creek as part of Sindh, thus setting the boundary line known as the “Green Line” or the eastern flank of the creek.

India contests Pakistan’s claim, stating that the boundary lies mid-channel of the Creek. In its support, it cites the 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. India claims it to be navigable, while in reality, the creek itself is located in the uninhabited marshlands that get flooded during the monsoon season, making it partially navigable then. If the boundary line is demarcated, according to the Thalweg principle, Pakistan stands to lose a considerable portion of the territory that was historically part of the province of Sindh. Acceding to India’s stance would also result in the shifting of the land/sea terminus point several kilometers to the detriment of Pakistan, leading, in turn, to a loss of several thousand square kilometers of its EEZ.

Another factor is that the position of the water body is shifting and hydrographers by both sides confirmed that the latest position favored Pakistan. Maritime and international boundaries once fixed, cannot be repositioned on the basis of shifting ground positions of water bodies. India insists that the maritime boundary be determined first, which is illogical until the Sir Creek issue is resolved. India should be urged to accept the readymade solution on the basis of the Bombay Resolution of 1914 or seek third party arbitration, as it did in the case of Indus Water Treaty of 1960 or the 1968 Rann of Kutch Commission.

Today, owing to a surge in commercial activities in sea trade, such as shipping and extraction of natural resources, the laws of the sea hold utmost importance in international law.  The scope of modern sea laws have gone well beyond defining states’ national coastal territories and tend toward the protection of trade, environment, and maritime zones in its contents.  This evolution of the law faces emerging contemporary challenges in governing maritime legal issues, such as defining the EEZs and national jurisdictions along disparate coastal lines and unclear low-water marks or baselines.

History is replete with examples, where similar cases have been heard and resolved, while some remain disputed. One such case, the Anglo-Norwegian Fisheries case, was brought in the International Court of Justice (ICJ) in 1951 to define the legitimacy of straight baselines along coasts.  This case later helped to develop the intricate rules defining baselines along coasts under the Law of the Sea Convention (LOSC). The world has since seen armed conflicts over the demarcation of baselines in this way; for instance, Libya and United States faced off in armed conflict over the demarcation of straight baselines along coastal lines in Libya.  Furthermore, complications in marking these baselines are further complicated when marking baselines along river mouths and fringe islands.  Moreover, Thailand, which has the world’s largest number of islands, is currently counting its islands again to revise its baselines along its coasts, in order to enjoy the privileges of internal waters and resolve the conflicting interests of its neighboring countries.  Similarly, the US is currently seeking to challenge China’s straight baselines in the South China Sea coastal areas, which were claimed by China in 1996.

More interestingly, the boundaries of the disputed Sir Creek do not only provide a massive fishing resource; the successful delimitation of borders in accordance with Indian desires will reduce the area of Pakistan’s EEZ by 2,246 resource-rich square kilometers. This fact is a substantiation of how a generous demarcation of baseline can affect maritime jurisdiction and the interests of neighboring states. 

Besides this, Pakistan applied the straight baseline technique to demarcate its coastal areas in 1996; the United States contested the legitimacy of this demarcation in 1997.  However, recently, in 2015, the United Nations Commission agreed to Pakistan’s extension of the seabed territory from 200 nautical miles to 350 nautical miles, such that Pakistan’s continental shelf would enjoy a further 50,000 square kilometers of seabed territory.  So, arguably, since the UN has approved the demarcation of maritime zones of Pakistan, and since the United States alone challenges every nation’s baseline without particular interests, demarcation by Pakistan using straight baselines can be argued to be legitimate boundaries. In order to establish and comprehend excessive state practices of boundary demarcations at sea, it is essential to define the legal framework of the laws governing the demarcation of baselines and understand all maritime zones and national boundaries of coastal states. It is hoped that the Sir Creek issue may be amicably resolved thus.

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Group Captain (R) Sultan M Hali completed his Masters and M Phil in Mass Communication along with broadcast journalism from USA. He regularly writes in various national and international newspapers/ journals.

Courtesy: Strategic Foresight For Asia (Published on Jan. 17, 2020)

Other news sources: NDTV, Hindustan Times, Dawn 

The post Can the Indo-Pak issue of Sir Creek be resolved? first appeared on Sindh Courier.