Tulbul, Sir Creek and Siachen: Competitive Methodologies Bharat Bhushan

The resolution of the disputes over Tulbul Navigation Project/Wullar Barrage, the Sir Creek boundary and the Siachen conflict can help change the parameters of India-Pakistan relations, enabling them to move forward on the more difficult issue of Kashmir. That this is not an impossible task has been evident for quite some time. But the two neighbours have been engaged in such one up-manship that nobody wants to give an inch even if the consequent peace dividend is evident.

India and Pakistan have, in the past, come fairly close to agreements on the Tulbul Navigation Project/Wullar Barrage dispute and the Siachen conflict. Just as nations deserve the political leadership they get, they also inherit their lack of vision from one generation to the next. Besides, successive weak governments in Islamabad and New Delhi have been forced to retreat from possible solutions lest they are seen as compromises. Only strong and popular governments can give concessions and be sure that they are not seen as compromising the national interest.

In a sense this article presents virtually nothing new. What it does, however, is to put together the various aspects of three of the less intractable disputes between the two countries and suggests not specific ways of resolving them but of surrounding them with measures to build confidence thereby making them amenable to resolution.

The Tulbul Navigation Project/Wullar Barrage Dispute

This dispute is over the Indian proposal to construct a barrage on the Jhelum River downstream from the Wullar Lake in Jammu & Kashmir. The project itself, in a sense, goes back to 1912. The then government of Punjab had approached the Maharaja of Kashmir seeking permission to construct a barrage on Wullar Lake. In 1924, the Punjab government renewed the proposal offering Rs. 1.85 lakh as annual royalty. The Maharaja, however, rejected the proposal as he was apprehensive that the construction of the barrage might lead to water-logging in Sopore and Baramulla.

The current dispute, though, arises from Pakistan viewing the construction of a barrage on the Wullar as a storage work. Islamabad refers to it as the Wullar Barrage dispute while India, which sees the project as an attempt to make the Jhelum navigable, calls it the Tulbul Navigation Project. The name Tulbul comes from a village at the western tip of the town of Sopore, although when the project was started by India in 1980 the site was shifted to Ningli, on the eastern side of Sopore which was nearer to the Wullar.
Pakistan's contention is that a barrage at the mouth of the Wullar is a contravention of the Indus Water Treaty. The 1960 Treaty assigned the unrestricted use of the eastern rivers of the Indus basin (including Beas, Ravi and Sutlej) to India and of the western rivers (including Chenab, Indus and Jhelum) to Pakistan.

It, however, permitted India the limited use of the western rivers for domestic and agricultural use, run-of-the-river hydroelectric generation and any non-consumptive use that did not diminish the water flow to Pakistan. The Treaty also permitted India limited storage of water of the western rivers -- a general storage capacity of 300,000 acre feet on the various channels of the Jhelum (excluding Jhelum Main) and 10,000 acre feet on the Jhelum Main itself.

Controlling water for navigation is a permissible activity under the Indus Water Treaty. The Indian position is that the Tulbul Navigation Project is neither an act of storage nor of impounding the waters of the Jhelum, but of controlling the flow for navigation. The project would leave the volume of water flowing to Pakistan intact. India maintains that the project would, in fact, help regulate the water flow in the Jhelum and would benefit power projects downstream both in the Indian side as well as Pakistani side of Jammu & Kashmir.

The problem of navigation in the Jhelum arises in the lean season from October to February. During this period, the flow of water in the river is 2,000 cubic feet per second and its depth is about 2.5 feet. This cannot support navigation. Around the year navigability requires double the flow and depth -- hence the barrage that would make the river navigable from between Sopore and Baramula.

The work on the barrage began in 1984 but was stopped in 1987 by the Rajiv Gandhi government after Pakistan protested. Many in India believe that stopping construction was a mistake and that the decision was taken by Rajiv Gandhi to please Benazir Bhutto. Since then there have been ten rounds of secretary-level talks between India and Pakistan to settle the Tulbul/Wullar Barrage dispute bilaterally. The last round was held in the first week of August, 2004. Although matters have not proceeded apace since then, the basic draft agreement on the dispute had been arrived at in October 1991.

Initially, the barrage was to be gated. After Pakistan's objections, it was decided to un-gate it. This is reflected in the stipulations of the 1991 draft agreement. In the agreement the two sides agreed that: (a) India would keep 6.2 meters of the barrage un-gated with a crest level at EL 1574.90 metres; (b) India would not make any alteration in the salient features of the project without mutual agreement between the two countries; (c) India shall forego the general storage capacity of 30,000 acre feet out of the provision permitted to it on the Jhelum (excluding Jhelum Main); (d) in return for this, the water level in the barrage will be allowed to attain the full operational level of 5177.90 feet -- the timing of the filling of the lake will be decided by the two Indus Water Commissioners and, should they fail to reach an agreement, the filling of the lake would be between June 21 and August 20; (e) except for the stipulation regarding the filling of the lake, India would let all the waters entering the Wullar Lake downstream; and (f) all differences will be settled under the provisions of the Indus Water Treaty.

Later, in addition to the above, Pakistan demanded that India forego the construction of the 390 MW Kishenganga hydroelectric project. Its argument was that this project would affect Pakistan's proposed Neelum-Jhelum power project. New Delhi did not give any such commitment. The 1991 draft was reproduced verbatim in the non-papers handed over to Pakistan by India in 1994. During the 1998 composite dialogue, the Pakistani delegation had apparently insisted on starting the talks afresh but then agreed to pick up the threads from the 1991 draft.

By the time the latest round of talks took place in August 2004, the Pakistani position seems to have hardened with Islamabad insisting that India gave up the project. New Delhi is of the view that there are two reasons for this: One, Pakistan has decided that no deviation from the Indus Water Treaty was acceptable to it; and two, wherever Pakistan can prevent India from taking up a project in Jammu and Kashmir it has decided to do so as a signal to the Kashmiris that Islamabad can exercise a veto.

Boundary Dispute along the Sir Creek

Whenever India and Pakistan begin to normalise ties, they begin by releasing fishermen and fishing boats seized by them for crossing over into their respective territorial waters. These fishermen and their boats are seized along the un-demarcated border of the Gujarat Coast.

This dispute of an un-demarcated boundary along the Arabian Sea and the Rann of Kutch straddling Paksitan's Sindh province and the Indian state of Gujarat is not limited only to fishermen and fishing. In August 1999, a Pakistani Atlantique surveillance aircraft was shot down by the Indian Air Force in the Rann of Kutch. New Delhi claimed that the Atlantique was on a spying mission and had violated India's airspace. The ten sailors and six crew members on board the aircraft died. India claimed that the debris fell two kilometres within its territory and Pakistan made a contrary claim. However, as it turned out, it actually fell on both sides of the border.

The next day when the Indian Air Force tried taking a group of journalists to the site where the debris had fallen, Pakistan apparently retaliated by firing on the Indian helicopters ferrying the media personnel. Pakistan's claim was that its ground-to-air missiles were aimed at the Indian fighter jets accompanying the helicopters which were apparently in violation of their airspace. The shooting down of the Atalntique was taken by Islamabad to the International Court of Justice. The verdict eventually came in India's favour i.e., the court accepted that India was justified in shooting down the intruding aircraft.

There is both an international border as well as an un-demarcated border in the Rann of Kutch between India and Pakistan. The incident of the Atalantique surveillance aircraft being shot down took place over the clearly demarcated international boundary -- to the north-east of the un-demarcated one. The 1965 India-Pakistan war also began in the Rann of Kutch.
The Sir Creek dispute, as the name indicates, is about the un-demarcated boundary because of the claims and counterclaims of India and Pakistan. 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.

There are two issues involved in the dispute -- the delimitation of the boundary along the creek and the demarcation of the maritime boundary from the mouth of the creek seawards in the Arabian Sea. The dispute is complicated by Pakistan linking its resolution with the Kashmir issue and its refusal to separate the resolution of the land boundary along the creek from demarcation of the maritime boundary. Without demarcating the maritime boundary, neither India nor Pakistan can exploit the ocean resources in its Exclusive Economic Zone (up to 200 nautical miles). As this area adjoins Bombay High where India has been exploiting sub-sea oil and gas deposits, there is some expectation of similar reserves in the adjoining disputed area.

Legend has it that the Sir Creek dispute began much before Indian independence in 1908 between the ruler of Sind and the Rao of Kutch over a pile of firewood lying on the banks of Kori Creek to the east of Sir Creek, which divided the two principalities. The dispute was referred to the British government in Bombay which gave its ruling in 1914 through a resolution which had a map attached to it. Up to the 1960s, the dispute remained unresolved but was dormant. Then Pakistan began claiming that half of Rann of Kutch along the 24th parallel belonged to it. The 1965 war that began in the Rann of Kutch followed this claim. The boundary dispute was referred to the India-Pakistan Western Boundary Case Tribunal. The tribunal was chaired by a Swedish judge, Gunnar Lagergren and comprised two others -- Ales Bebler of Yugoslavia (Indian nominee) and Nasorallah Intezam of Iran (Pakistan's nominee).

The two sides agreed before the tribunal that their dispute should be limited only to the boundary to the north. There was some agreement on the boundary to the south, which began at the head of Sir Creek and moved eastwards along the 24th parallel. India claimed that after moving eastwards for a short distance, the boundary turned sharply north at a right angle to meet the northern boundary of the Rann. Pakistan, on the other hand, claimed that it went on straight eastwards along the 24th parallel. The tribunal gave its award on February 19, 1968. It rejected Pakistan's claim that the border between Gujarat and Sindh should run roughly along the 24th parallel beginning at the head of Sir Creek, moving eastwards from there. This would have involved dividing the Rann in the middle and transferring about 3,500 sq miles of territory from India to Pakistan.

The tribunal upheld India's claim that the boundary line from the head of the Sir Creek went a short distance eastwards, then turned northwards at a right angle and then ran along the northern edge of the Rann (see map at the end of the article). This northern edge had also formed the boundary between the British Indian state of Sindh and the Kutch state before 1947. As a result of the tribunal broadly accepting the Indian contention, only about 300 sq miles of territory was awarded to Pakistan. The decision was accepted by both India and Pakistan.

This still left the boundary of the Sir Creek -- from its head in the marshy lands of the Rann to its mouth in the Arabian Sea -- and the maritime boundary between India and Pakistan un-demarcated. India and Pakistan had agreed not to refer this part of the un-demarcated boundary for adjudication to the tribunal. Because of this understanding between the parties, the tribunal had noted that it had not taken into consideration the boundary along the Sir Creek.

The dispute has festered since then. As a result, it is not possible for India and Pakistan to distinguish between their territorial waters (the zone up to 12 nautical miles, where states enjoy exclusive rights and can restrict passage of foreign boats), their contiguous zones (up to 24 nautical miles, where states can enforce custom and fiscal laws, fisheries laws and ban acts prejudicial to the state) or their Exclusive Economic Zones (up to 200 nautical miles extendable to 350 nautical miles for countries with continental shelf).

Pakistan's contention is that the boundary along the Sir Creek must lie along the eastern edge of the creek. India believes that the boundary should be along the middle of the creek; that it should be demarcated using the 'thalweg' or the mid-channel principle ('thal'- valley, 'weg' - way). The 'thalweg' principle lays down that boundaries along a river or a valley must lie along the line connecting the deepest points along a river channel or the lowest points along the valley floor. The case for a mid-channel boundary is based on the Sir Creek being a navigable channel throughout the year. Pakistan's contention is that the creek is not navigable and, therefore, the mid-channel principle does not apply.

India and Pakistan both refer to the 1914 resolution of the Bombay government about the dispute between Sindh and Kutch over the Kori Creek and the map attached to it. The map shows a green line running along the eastern edge of Sir Creek on the Kutch side and Pakistan claims that this was the boundary between Sindh and Kutch. This was the map that India had relied on prior to the constitution of the India-Paksitan Western Boundary Case Tribunal.

However, in 1958 Pakistan had itself admitted that this map was 'intended no more than an annexure to the Bombay Government resolution'. This resolution, according to veteran lawyer and analyst A. G. Noorani, has a reference to the Indian government's 'sanction' on November 11, 1913, of the Kutch-Sindh compromise over Kori Creek, which had been spelt out by the Bombay government in a letter of September 20, 1913. The letter referred to the line on the attached map 'from the mouth of Sir Creek to the top of Sir Creek.'

The letter also quoted the Sindh Commissioner as saying, '... the Sir Creek changes its course from time to time and the western boundary of the area, which it is proposed to surrender to the Rao [of Kutch] should, therefore, be described as “the centre of the navigable channel of the Sir Creek”.' This is seen as support for the Indian contention. The Secretary to the Bombay government commented on this, saying: 'I am to explain that the term 'navigable' is really inappropriate in the larger sense. The creek is, of course, tidal, and it is only at certain conditions of the tide that the channel is navigable and then only to the country craft as the point from which the proposed boundary turns due east from the creek.' Noorani concludes, 'This is not a rejection of the Sindh Commissioner's condition but essentially an acceptance of it.'

Today, the Sir Creek does not flow as shown in the 1914 map. It has shifted westwards i.e., towards Pakistan. However, the head of the creek, as it existed then, is marked by a boundary pillar, called Western Terminal -- it was from this point that some 38 pillars marked the horizontal boundary eastwards. Pakistan neither recognises the existence of the Western Terminal nor the pillar-based horizontal boundary eastwards. Pakistan's contention is that the eastward boundary should be based on the dotted line as drawn in the 1914 map. This line is below the boundary marked by the pillars. The contentious question is: What should be recognised -- the pillars on the ground or the line on the 1914 map? In the current climate, neither country is willing to concede territory.

So the dispute remains where it was -- with Pakistan insisting on the left bank of the creek and the dotted line on the 1914 map as the boundary and India insisting on the mid-channel of the creek and the pillars to the east as the boundary.

Meanwhile, under the UN Convention on Law of the Sea (UNCLS) both countries have to bring their Maritime Zone laws in consonance with it by defining their base-line points to define their maritime boundary and its co-ordinates have to be deposited with the UN. Islamabad has, in an attempt to define its maritime boundary along the eastern edge of the Sir Creek in the 1914 map up to a point on an Indian low tide elevation. This would allow Pakistan not only to claim the Sir Creek entirely but even the Pir Sinai Creek to its east. This would not be acceptable to India and this claim is likely to be protested against.

India also has to deposit its baseline point co-ordinates with the UN. Once it does so, Pakistan may also object to the manner in which India defines its baseline point. There would be no way out but bilateral negotiations, provided for in UNCLS to sort this out. Why is this of any significance? Although the area under dispute along the Sir Creek is estimated to be only about six to seven square miles, it also involves as much as 250 sq. miles of ocean and ocean floor. If the boundary was moved by, say, one kilometre along the coastline, it could translate into the loss of a few hundreds of square kilometres of the Exclusive Economic Zone in an area which could be rich in oil and natural gas. The issue, therefore, not only concerns land claims but also sub-sea resources. Both Indian and Pakistani experts believe that the Sir Creek dispute is amenable to a solution. But their governments have been intransigent and there has been no real progress on the ground.

There are two simple ways of increasing cooperation between India and Pakistan in the Sir Creek area: One, by decreasing the area in dispute by settling those parts which are easier to resolve and leaving the more intractable parts for later; two, by leaving the boundary question aside for the time being and exploring cooperation in the non-boundary related areas which would have a direct and fruitful bearing on the disputed area in the long run.

To reduce the area of the dispute, India has proposed the median or the equidistant method where the demarcation of the maritime boundary would begin from the seaward side. This would involve taking a point 200 nautical miles from both Indian and Pakistani coasts and moving the point forward by drawing an equidistant line towards the coast. This series of equidistant points or equidistant line can move up to an agreed point towards the coast -- perhaps 50 nautical miles from the coast. This would help demarcate the boundary along the better part of the Exclusive Economic Zone of the two countries and leaving the boundary near the coast undefined for the time being (see map at end of article).

This proposal has not been accepted by Pakistan. If the equidistant principle is not accepted by Pakistan, India may even be willing to take its baseline point on the coast and the Indian baseline point and use the trinagulation method to mark the boundary up to a certain mutually acceptable distance (say, 50 nautical miles once again) and narrow down the differences on the maritime boundary.

The second way out, some experts have suggested, is to temporarily set aside the boundary dispute and explore cooperative ventures in the region. The fishermen's unions in Gujarat and Sindh have suggested licensed joint fishing with quantity restrictions. They point out precedents for sharing border resources. The fish in Lake Victoria breed in the territorial waters of Kenya but then go off to Ugandan waters but this fact can be used to prevent the Kenyan fisherman from access to this resource, they point out. India and Sri Lanka have already agreed to declare their border fisheries a joint resource. The joint fishing licenses that the fishermen's unions of Sindh and Gujarat in India suggest could be photo-identity cards issued by the coastguards and the fishermen's unions jointly on either side. This would prevent unnecessary harassment of fishermen whose unions, in fact, enjoy excellent fraternal ties.

Some experts have also suggested that, since the marine environment of India and Pakistan along the Sindh and Gujarat coasts are closely linked, the two countries could conduct cooperative environmental studies and share data. These could, for example, relate to oil spills or preservation of mangroves.

Oil spills in this region are bound to go up over time as it is estimated that by the year 2007 nearly 50 per cent of India's oil imports would be through ports along this coast. In 2002, when an oil tanker broke near Karachi Port, the first thing that the Pakistani authorities did was to inform India of the oil spill and the danger it may pose to its marine environment. Pollution caused by oil and heavy metals seeping into the sea from ship-breaking activities have damaged marine life and also caused environmental concern in this area. The loss of coral reefs and mangroves due to pollution along the Gulf of Kutch has led to cyclones hitting the mainland with undiminished fury. Experts have also suggested that India and Pakistan should jointly study the threats to these mangroves and coral reefs. A mechanism for carrying out these studies already exists under the South Asian Seas Action Plan of which both India and Pakistan are signatories.

The Dispute over 'Mountain Rose'

Siachen is the world's highest battlefield with gunfire being exchanged at 16,000 to 20,000 feet above sea level. Nine out of ten deaths on the Siachen are due to climate with only one being combat-related. It is no wonder then that the Siachen dispute between India and Pakistan is described as one of the most futile and wasteful in the world both in material and human terms.

The defence secretaries of India and Pakistan have met eight times to discuss the Siachen dispute in an attempt to resolve it -- their last meeting being in August 2004. Twice the two sides came close to settling the