Trends in the Delimitation of India's Maritime Boundaries

Rahul Roy-Chaudhury, Research Fellow, IDSA

 

It often comes as a surprise to many that India has maritime boundaries with a larger number of states than those with which it shares land borders. Whereas India's maritime boundaries necessitate delimitation with seven states on adjacent and opposite coasts—Pakistan, Maldives, Sri Lanka, Indonesia, Thailand, Myanmar, and Bangladesh—its land borders are shared with six states (Pakistan, China, Nepal, Bhutan, Bangladesh, and Myanmar). The Indian coast line (including island territories) of 7,516.5 kms is the 15th longest in the world, with Canada (90,889 kms) and Indonesia (54,705 kms) possessing the longest coasts. Due to considerable political and diplomatic efforts since the 1970s, virtually all of India's maritime boundaries have been demarcated. The exceptions primarily remain those with Pakistan and Bangladesh.

In view of the prospective changes in the international law of the sea (the United Nations Conference on the Law of the Sea [UNCLOS] III), which was to provide vastly extended maritime zones to coastal and island states, India began the difficult task of demarcating boundaries with its maritime neighbours in the early 1970s. This was necessary in order to peacefully resolve disputed and overlapping claims of maritime jurisdiction, arising from the new 200 nms of Exclusive Economic Zones (EEZ) and 200-350 nms of continental shelves allocated to states. In 1982, UNCLOS III was opened for signature, and following the 60th ratification by Guyana in November 1993, came into force a year later, on November 16, 1994. This essentially provided India with a vastly expanded area of sea of as much as 2.2 million sq. kms. or two-thirds of the total area of land, along with the potential addition of 1.5 million sq. kms. of continental shelf by the year 2004.

Although UNCLOS III clearly determined the precise limits of various maritime zones, it failed to agree on any single universal set of principles by which these boundaries were to be delimited. Consequently, the process of delimitation, and subsequent demarcation (of maritime boundaries) continues to remain in dispute. As the 'median' or the 'equidistance' line between two coastal states had been sufficient to determine maritime boundaries in the past, this principle has largely been followed in UNCLOS III, for both adjacent and opposite coastal states. The international law of the sea also stresses that neither of the two states is entitled, failing agreement to the contrary, to extend its territorial sea beyond the 'median' line. However, this is not to apply where it is necessary, by historic title or other special circumstance, to delimit the territorial sea between two states in a manner different from this provision.1

Meanwhile, in terms of the delimitation of the EEZ or the continental shelf between adjacent and opposite states, no universally acceptable formulation could be evolved. As a result, Articles 74 and 83 of UNCLOS III vaguely state that the delimitation of the EEZ or the continental shelf between states with opposite or adjacent coasts shall be affected by agreement on the basis of international law, as referred to in Article 38 of the statute of the International Court of Justice, in order to achieve an equitable solution.2 As no distinction has been made in terms of the delimitation between the EEZ and the continental shelf, or between adjacent or opposite coasts, such a formulation has considerable potential for misinterpretation. In effect, it is widely agreed that this does not constitute a reliable guide to negotiators or even arbitrators of delimitation questions.3

India's Maritime Boundaries

Notwithstanding these problems and difficulties, India, to date, has signed 12 maritime agreements with all five of its neighbours on opposite coasts—nine bilateral agreements with Maldives (1976), Sri Lanka (1974 and 1976 (2)), Indonesia (1974 and 1977), Thailand (1978 and 1993), and Myanmar (1986) (Table 1), and three trilateral agreements with Sri Lanka and Maldives (1976), Indonesia and Thailand (1978), and Myanmar and Thailand (1993) (Table 2). As a result, the delimitation of India's maritime boundaries with four of these five states is complete; the only exception, Myanmar, requires a trilateral agreement to determine its trijunction point with India and Bangladesh. However, this necessitates the prior resolution of the maritime boundary dispute between India and Bangladesh.

Table 1. India's Bilateral Agreements on Maritime Boundary Delimitation

Name of Country

Date of Signature

Nature of Agreement

Entry into Force

Indonesia

August 8, 1974

Relating to the Delimitation of the Continental Shelf Boundary between the Two Countries

December 17, 1974

 

January 14, 1977

On the Extension of the 1974 Continental Shelf Boundary between the Two Countries in the Andaman Sea and the Indian Ocean

August 15,1997

Maldives

December 28, 1976

On the Maritime Boundary in the Arabian Sea and Related Matters

June 8, 1978

Myanmar

December 23, 1986

On the Delimitation of the Maritime Boundary in the Andaman Sea, in the Coco Channel,and in the Bay of Bengal

September 14,1987

Sri Lanka

June 26/28, 1974

On the Boundary in Historic Waters between the Two Countries and Related Matters

July 8, 1974

 

March 23, 1976

On the Maritime Boundary between the Two Countries in the Gulf of Manaar and the Bay of Bengal and Related Matters

May 10, 1976

 

November 22, 1976

Supplementary Agreement on the Extension of the Maritime Boundary between the Two Countries in the Gulf of Manaar from position 13m to the Trijunction point between India,Sri Lanka, and Maldives (Point T)

 

February 5, 1977

Thailand

June 22, 1978

On the Delimitation of the Seabed Boundary between the Two Countries in the Andaman Sea

December 15,1978

 

October 27, 1993

On the Maritime Boundary between the Two Countries in the Andaman Sea from Point 7 to the Trijunction Point (Point T) between India, Thailand, and Myanmar

January 17, 1996

Table 2. India's Trilateral Agreements on Maritime Boundary Delimitation

Name of Countries

Date of Signature

Nature of Agreement

Entry into Force

Sri Lanka and Maldives

July 24, 1976

Concerning the Determination of the Trijunction Point between the Three Countries in the Gulf of Manaar

July 31, 1976

Indonesia and Thailand

June 22, 1978

Concerning the Determination of the Trijunction Point and the Delimitation of the Related Boundaries of the Three Countries in the Andaman Sea

March 2, 1979

 

Myanmar and Thailand

October 27, 1993

On the Determination of the Trijunction point between India,Myanmar and Thailand in the Andaman Sea

May 24, 1995

 

India's first bilateral maritime boundary agreement took place with Sri Lanka on June 26/28, 1974, and resolved the vexed question of disputed sovereignty over Kacchativu island, covering an area of 3.75 sq. miles (located in the Palk Straits about 12 miles from the Indian coast and 10.5 miles from Sri Lanka). In a package deal, the Indian government recognised Sri Lankan sovereignty over the island, as well as Indian sovereignty over the Wadge Bank. Indian fishermen and pilgrims were also to continue to enjoy access to Kacchativu without the need for travel documents or visas. In effect, the maritime boundary line between India and Sri Lanka followed the 'median line' principle, with adjustments made in the Palk Straits in relation to Kacchativu.4 In addition, two more bilateral maritime boundary agreements were signed between the two countries in the same year, as well as a trilateral agreement with Maldives in the same year on the determination of the trijunction point between the three countries in the Gulf of Manaar.5

However, in view of the fragile security scenario in the area, due to the activities of the Liberation Tigers of Tamil Eelam (LTTE), Indian fishermen continue to be harassed by Sri Lankan naval vessels. It is estimated that till 1997, approximately 160 Indian fish-workers had been killed, and more than 500 injured, by the Sri Lankan Navy.6

India's second bilateral maritime agreement took place with Indonesia on August 8, 1974, on the delimitation of the continental shelf between the two countries. This was followed by another bilateral agreement on January 14, 1977, and a trilateral agreement, along with Thailand, on June 22, 1978, on the determination of the trijunction point and the delimitation of the related boundaries of the three countries in the Andaman Sea. In effect, all the maritime boundaries between the two countries have been settled by following the 'median line' principle.

On December 28, 1976, India signed its first bilateral maritime agreement with Maldives, on the maritime boundary between the two countries in the Arabian Sea and related matters. This had been preceded in July 1976 by a trilateral agreement with Sri Lanka. Both agreements have been based on the 'median line' principle.

India's first maritime agreement with Thailand took place on June 22, 1978, on the delimitation of the seabed boundary in the Andaman Sea. This was followed by an agreement on the maritime boundary between the two countries in the Andaman Sea (1993), as well as a trilateral agreement with Myanmar on the determination of the trijunction point between the three countries in the Andaman Sea (1993). Earlier, on June 22, 1978, Thailand had entered into a trilateral agreement with Indonesia. Thailand is the only country to be party to two trilateral maritime agreements with India. In effect, minor adjustments in the Andaman Sea were made on the boundary between the Indian Nicobar islands and the Thai coast, through the modification of a series of purely 'median' lines.

Although bilateral negotiations had begun as early as 1976, India's first maritime boundary agreement with Myanmar took place only on December 23, 1986, followed by a trilateral agreement with Thailand on October 27, 1993. In effect, the bilateral agreement recognised Indian sovereignty over Narcondam island in the Andaman Sea.

Indo-Pakistani Maritime Dispute

The Indo-Pakistani maritime dispute comprises two related issues— the resolution of the land boundary in Sir Creek (a 38 km long estuary in the marshes of the Rann of Kutch) of the Gujarat (India) and Sindh (Pakistan) provinces, as well as the delineation of the maritime boundary seaward within the territorial sea and beyond. A reasonable and satisfactory solution to this dispute has eluded India and Pakistan for decades. Not only do both countries differ with each other on a solution on technical grounds, but Pakistan's insistence on linking it to the dispute over Kashmir has made it impossible for a political resolution of the dispute. Whereas Pakistan also continues to directly link any resolution of the maritime boundary with that of the land boundary in Sir Creek, India continues to attempt to tackle both issues in a related, but separate, manner. However, with a view to concluding a mutually satisfactory agreement at an early date, India's "non-paper" to Pakistan on Sir Creek in January 1994 stated that it was "willing to enter into further discussions on the lines suggested by Pakistan."7

The dispute over Sir Creek began even before Independence, some 90 years ago in 1908, in what was then undivided India. Its origins apparently lay in an argument between the rulers of Kutch and Sindh over a pile of firewood lying on the banks of a creek dividing the two principalities.8 This problem was referred to the then government of Bombay, which gave its decision in 1914 in the form of Map number. B44, and subsequently implemented in the form of Map number B74.9 Although this dispute was not resolved, it remained dormant at Independence, and throughout the late 1940s and the 1950s. It came into prominence once again in the 1960s.

In the wake of Pakistan's claim that half the Rann of Kutch along the 24th parallel was its territory, and India's counter claim that the boundary ran roughly along the northern edge of the Rann, followed soon after by the 1965 Indo-Pakistani war, it was agreed that this issue be decided through arbitration. Consequently, the Indo-Pakistan Western Boundary Case Tribunal upheld 90 per cent of India's claim to the entire Rann, conceding small sectors to Pakistan.10 However, as both state parties had agreed to limit arbitration only to the boundary in the north, the dispute over the boundary to the south was excluded from the purview of the Tribunal. This involved a) the demarcation of the boundary from the head of Sir Creek downward to the west, right up to the mouth of the creek on the Arabian Sea, as well as b) the boundary from the top of the Sir Creek eastwards to a point (on land) designated as the Western Terminus.11

To date, six rounds of official talks at different levels have been held between the two countries on the Sir Creek and maritime boundary issues in the past nine years. The first round of talks took place in Islamabad on June 2, 1989, where the Indian delegation was led by the Surveyor-General, Major General S.M. Chadha, and the Pakistani delegation by Major General Anis Ali Syed (Surveyor-General). Other than a basic discussion of the issues involved, no substantive agreement took place. This was followed by the second and third rounds of talks in 1990 and 1991. These were followed on October 28-29, 1991 by Secretary-level (for the first time) talks on these issues in Rawalpindi. Conducted by the then Secretary (West) in the Indian Ministry of External Affairs (MEA), I.P. Khosla, and the Defence Secretary of Pakistan, Salim Jilani, along with the two Surveyor Generals, these talks floundered over technical differences and the linking of the two issues. There were also differences over the factors which should govern the determination of the boundary of Sir Creek, as well as the principles of 'equidistance' or 'equity' to be used in demarcating the maritime boundary.12

The fifth round of talks on this dispute were held in New Delhi, on November 5-6, 1992, led by the then Additional Secretary in the MEA, Nareshwar Dayal, and the Additional Secretary in the Pakistani Ministry of Foreign Affairs, Khalid Saleem. Although the Indian Navy had conducted considerable research on the possibilities of defining a maritime boundary from the sea (whose starting point was undetermined), this issue was not formally brought up during the talks.13

The sixth round of talks on Sir Creek and the maritime boundary dispute took place six years later, on November 9, 1998, in New Delhi. The resumption of the talks was the result of the Indo-Pakistani Foreign Secretary-level talks of June 1997 and September 1998, where it was agreed to address all outstanding issues of concern under the framework of a two plus six "composite dialogue," which included the establishment of a Working Group on Sir Creek (as one of six such groups). Whereas the Indian delegation was led by the Surveyor General, Lt. General A.K. Ahuja, the Pakistani delegation was led by an Additional Secretary in the Ministry of Defence, Rear Admiral M. Jameel Akhtar.14

The technical differences between the two sides on the resolution of the maritime dispute are the following:

a) India considers the boundary of Sir Creek to be defined by its mid-channel, whereas Pakistan considers it to be on the eastern bank of the creek, thereby claiming the entire Sir Creek. Both countries have provided maps and legal interpretations through the years to support their cases. In this respect, India has provided a 1925 Pakistani map (B74), which shows the boundary defined by the 'mid-channel principle', and represented by proper boundary symbols. Although Pakistan argues that the map attached to the Resolution of 1914 (B44) shows a "green line" on the eastern bank (thereby indicating the official boundary), the Indian counter-argument remains that this does not have any legal value as it is only a mere riband (cartographic symbol), as also that the map served simply as an annexure to the 1914 Resolution.

b) India's case for a mid-channel boundary is based on the characteristic of Sir Creek as a navigable channel throughout the entire year, especially so during the period of high tide. Pakistan, however, states that as the creek is not a navigable channel, this principle does not apply to it.15 Meanwhile, India's case for mid-channel demarcation is firmly recognised under the thalweig principle of international law, which divides river boundaries between states in the middle of the mid-channel.

c) India's proposal for the initial delimitation of the maritime boundary from the 'seaward' side was rejected by Pakistan, which insisted that Sir Creek and the maritime boundary delimitation issues were inseparable. India had even suggested that the delimitation of the maritime boundary could proceed towards land from the extremity of the EEZ limit to a mutually acceptable limit. This limit could be governed by the internationally recognised technical aspects of the Law of the Sea. In effect, this would settle the greater portion of the maritime boundary.

d) In the 1994 "non-paper" India had also proposed that the delineation of the maritime boundary in the territorial sea could be governed by the 'median'/'equidistant' principle, using the low water lines and low tide elevations of both countries, whereas beyond the territorial sea it could be governed by 'equidistant' as well as 'equitable' principles.16 However, it appears that Pakistan could very well insist on the 'equitable' principle alone to define its seaward maritime boundary with India, thereby disregarding India's larger coast line and EEZ.

e) Finally, Pakistan's declaration of straight baselines on September 10, 1996 (a series of nine straight lines), has been challenged by India. Not only are some of these lines not in accordance with Article 7(2) of UNCLOS III, but its Point K lies off the eastern bank of Sir Creek as well.17 Meanwhile, India, which has not yet declared its baselines (as required by UNCLOS III), is expected to do so shortly.

Meanwhile, a consensus of sorts appears to exist between the two countries on the horizontal sector of the land boundary, in that both could accept the boundary line defined by the existing boundary pillars along the horizontal line, as well as by fixing intermediary pillars on the same alignment if required.18 India also forcibly rejected Pakistan's attempt to internationalise the Sir Creek issue through arbitration by an international tribunal, by stating that differences between the two countries had to be resolved bilaterally in accordance with the Indo-Pakistani Simla Agreement (1972).

It has been calculated that the differences between the two countries on Sir Creek involve a disputed area of only 6-7 sq. miles of marshy swamp land, but as much as 250 sq. miles of ocean and ocean floor.19 Moreover, this area is expected to be rich in hydrocarbons, with considerable potential for exploitation. However, the major implications of the absence of a satisfactory resolution of the Indo-Pakistani maritime dispute are political and humanitarian. In terms of the former, there remains considerable tension between the two states in patrolling and guarding their respective maritime zones. Although this has not led to a clash between naval/coast guard forces, the stakes in the area remain high.

In terms of the latter, both Indian and Pakistani fishermen suffer by straying into the other countries perceived maritime zones, and facing arrest and imprisonment, at times as suspected spies. As early as 1986, fishing trawlers have been seized and fishermen apprehended by both countries. Although exchanges of fishermen take place occasionally, far more needs to be done at a humanitarian level. For example, in the wake of the Foreign Secretary-level talks in June 1997, India released 26 Pakistani boats and 195 crew, and Pakistan 25 Indian boats and 194 crew, as gestures of goodwill.20 On the eve of the "composite dialogue" in New Delhi in early November, India finalised the release of 148 Pakistani fishermen, with Pakistan simultaneously finalising the release of 155 Indian fishermen. However, it is estimated that an additional 100 Indian and 34 Pakistani fishermen still remain in each other's jails.21

Indo-Bangladeshi Maritime Dispute

The Indo-Bangladeshi maritime dispute primarily focuses on differences in the principles by which the maritime boundary is to be demarcated, as well as disputed sovereignty over a small island. Whereas India has consistently favoured the 'equidistant'/'median-line' principle for the demarcation of maritime boundaries, Bangladesh favours the application of the 'equitable' principle alone. In effect, the consideration of a 10-fathom baseline for the measurement of its 200 nm EEZ would serve to mitigate the negative effect of its concave coast, thereby enclosing hundreds of square miles of continental shelf within its internal waters (by drawing straight baselines along the farthest seaward extent of a submerged sedimentary delta).22 Moreover, by the application of the 'median line' principle between India and Bangladesh, as well as between Myanmar and Bangladesh, it is seen that Bangladesh will get self-locked, thereby being unable to claim the full extent of its EEZ or continental shelf.23

Both India and Bangladesh also continue to claim an island covering an area of 2 sq. miles, lying in the estuary of the Haribhanga and Raimongal rivers in the Bay of Bengal. Known as New Moore or Purbasha in India, and South Talpatty in Bangladesh, this island emerged in 1970 in the wake of acute volcanic activity in the area. It lies 5 nms off the Ganges delta from the coast of Bangladesh, and 2 nms off India's coast. India claims the island on the basis that the flow of the Haribhanga river is to the east of the island, and the island lies on the natural prolongation of Indian territory. Meanwhile, Bangladesh claims that the river flows to the west of the island, as a result of which it is not possible to distinguish the natural prolongation of Indian territory.24 In May 1981 there was a brief scuffle over its possession—three Bangladeshi gunboats threatened an Indian survey ship in the area. This ended with the dispatch of an Indian frigate, the INS Andaman, to the island.25

The dispute over the island has more to do with the extent of the maritime zone to be potentially acquired in the oil rich Ganges-Brahmaputra delta of the Bay of Bengal, than the island itself.26 If India is given sovereignty over the island, it can claim an additional 16,000 sq. metres of continental shelf.27 However, if Bangladesh is given sovereignty over the island, it will get a much lesser area of the continental shelf.28

Several rounds of talks on the Indo-Bangladeshi maritime dispute have taken place since 1974, but to no avail. Even during the regime of Prime Minister I.K. Gujral (1997-98) and the implementation of the so-called "Gujral doctrine", this complex and contentious issue could not be resolved.

Conclusion

During the nine-year period in which international negotiations on UNCLOS III were being conducted (1973-1982), India began to carry out the difficult task of delimiting its maritime borders with states on its opposite coasts. This led to a series of maritime boundary agreements in the 1970s and 1980s, which finally culminated in the bilateral agreement with Thailand and the trilateral agreement with both Thailand and Myanmar in 1993. To date, however, a trilateral maritime agreement with Myanmar and Bangladesh is still required, although this can only take place after the delimitation of India's maritime boundary with Bangladesh.

The delimitation of the Indo-Bangladeshi maritime boundary, meanwhile, is fraught with technical problems, with considerable economic consequences for both countries. Nonetheless, a resolution of this dispute is not prevented by political complications. It is therefore imperative that a technical solution be arrived at, even if it needs to be based on the 'equitable' rather than the 'equidistant' principle. In view of possible Indian concessions in this respect, the actual maritime boundary could be somewhat adjusted in certain areas to favour India. In the interim period, the joint development of the area between India and Bangladesh could take place.

Not only would the Indo-Bangladesh maritime boundary then be settled once and for all, but an agreement marking the trijunction point with Myanmar and Bangladesh could also be put into place. This would represent a major political achievement for India, signifying the delimination of international boundaries with all its maritime neighbours, with the sole exception of Pakistan. Indeed, this could serve as an important lesson to the countries of South-east and East Asia, where maritime disputes are a major source of potential conflict.

The Indo-Pakistani maritime dispute, on the other hand, is quite different, tied as it is to the political relationship between the two countries, and from Pakistan's point of view, dependent on the resolution of the Kashmir dispute as well. Clearly, in such a perspective there can be no resolution of the disputes over the demarcation of the maritime boundary or Sir Creek. From India's point of view, however, it is imperative to stress the economic and political gains to be achieved by both countries by beginning to solve the problem from the seaward side first. This could then possibly lead to modifications of India's position on Sir Creek.

It also needs to be stressed that a resolution of the maritime dispute between the two countries will remain bilateral by nature, and cannot, indeed should not, be internationalised. Neither the Jamaica-based International Seabed Authority's Commission on Continental Shelves (to which extended continental shelf claims are to be submitted by the year 2004) or the German-based International Tribunal for the Law of the Sea have the mandate to arbitrate over this dispute. Nonetheless, it is in the interests of neither India nor Pakistan to let these issues continue to affect relations between the two countries.

 

Notes

1. Rear Admiral O.P. Sharma, "Delimitation of Maritime Boundary and the question of Islands in Maritime International Law," Sea Gull, Vol.4, No.13 (May-July 1998), p. 37.

2. Ibid.

3. Ibid., pp. 37-38.

4. R.C. Sharma and P.C. Sinha, India's Ocean Policy (New Delhi: Khama Publishers, 1994), p.106.

5. The Gazette of India, Extraordinary Part II—Section 3, No. 397, December 9, 1981, p.1838.

6. Souparna Lahiri, "Entangled in the Diplomatic Net," The Economic Times, October 16, 1998.

7. See text of the "non-paper" on Sir Creek, in the "Suggestions and Confidence-Building Measures sent by the Government of India to the Government of Pakistan," on 24 January 1994.

8. Palash Kumar, "Sir Creek Row began over Pile of Firewood," The Asian Age, November 10, 1998.

9. Ibid.

10. A.G. Noorani, "Easing the Indo-Pakistani Dialogue on Kashmir: Confidence-Building Measures for the Siachen Glacier, Sir Creek and the Wular Barrage Disputes," The Henry L. Stimson Centre Occasional Paper 16, April 1994, p.26.

11. Ibid, and The Hindu, November 10, 1998..

12. J.N. Dixit, Anatomy of a Flawed Inheritance: Indo-Pakistani Relations 1970-1994 (New Delhi: Konark Publishers, 1995), pp. 157-58.

13. Rear Admiral K.R. Menon (Retd.), "Maritime Conflict Resolution and Confidence-Building in South Asia," Indian Defence Review, October-December 1995, p.32.

14. See The Hindu, November 10, 1998.

15. Ibid.

16. Note 7.

17. Vivian Louis Forbes, "Pakistan's Claim to Maritime Space," The Indian Ocean Review, December 1997, p.13

18. Note 7.

19. Note 13, p.34.

20. See the text of the "Joint Press Statement", at the Indo-Pakistani Foreign Secretary Level Talks, June 23, 1997.

21. The Hindu, November 6, 1998.

22. P.C. Sinha, "Settlement of Maritime Claims by India: Issues and Options", Sea Gull, August-October 1998, p.27.

23. Note 1, p.42.

24. P.C. Sinha, "Issues in Maritime Boundary Demarcation in South Asia: A Case Study of Bangladesh," Journal of Indian Ocean Studies, November 1995, p.49.

25. Rahul Roy-Chaudhury, Sea Power and Indian Security (Brassey's (UK) London: 1995), p.83.

26. See Mohd. Khurshed Alam, "Regional Maritime Cooperation under the Auspices of South Asian Association for Regional Cooperation (SAARC)," BIISS Journal, Vol.18, No.1, 1997, pp.30-31.

27. K. Jayaraman, Legal Regime of Islands (New Delhi: Marwah Publications, 1982), p.108.

28. J.R.V. Prescott, The Maritime Political Boundaries of the World (London: Methuen, 1985), p.176.