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India and Bangladesh: calculus of territorial dispute settlement February 8, 2012

Posted by southasiamasala in : Bangladesh, Guest authors, India , trackback

Guest author: Sourabh Gupta, Samuels International

This article was first posted in East Asia Forum on 10 October 2011.

On 7 September 2011 in Dacca, the prime ministers of India and Bangladesh signed a landmark protocol to their 1974 Land Boundary Agreement, providing for final settlement of their long-pending boundary issues.

Given that instances of territorial dispute settlement in this sovereignty-conscious region have been few and far between, this exercise in statesmanship is both commendable and long overdue. A review of the principles and processes underlying the compromises reveals useful insights into territorial dispute settlement at New Delhi’s end.

The India-Bangladesh boundary is no ordinary one. Hastily constructed in the dying days of British colonialism, it was the longest international boundary created during the age of decolonisation. The border was intended to separate a contiguous majority area of Muslims from that of non-Muslims — but for only about a quarter of its length does it separate a Muslim-majority in Bangladesh from a Hindu-majority in India. As many as 162 tiny enclaves (111 Indian and 52 Bangladeshi) dot a section of the frontier: in the extreme an Indian enclave sits within a Bangladeshi enclave, itself situated within a larger Indian enclave, all surrounded by Bangladeshi territory!

Shifting rivers, mapping errors and ‘adversely possessed lands’ — that is, lands unwittingly encroached upon and (illegally) occupied by both countries — added to the maze of identity, loyalty and insecurity along the Bengal borderland. Sixteen Indian and three Bangladeshi border guards were killed in 2001 following a show of force in a disputed area along the border. Demarcating a boundary has unsurprisingly been a protracted affair.

According to the recent agreement, the Indian enclaves in Bangladesh and the Bangladeshi enclaves in India are to be swapped, enabling unbroken territorial continuity — with minor exceptions — for both states. New Delhi’s claim to compensation for the additional acreage ceded to Bangladesh is waived. The bewildered 51,000 residents in these enclaves will presumably be offered the choice of either relocating or, more likely, having their citizenship switched — although this is not accounted for in the Protocol. The ‘adversely possessed lands’ are to be mutually vacated, something that will be done in conjunction with the swapping of enclaves. Finally, the remaining disputed points are to be marked and delimited, enabling India thereafter to share its first fully demarcated land boundary with a neighbour.

The Protocol lays down weighty precedents for New Delhi’s territorial dispute settlement practices. Especially notable is admitting an uncompensated swap of territory — during the course of exchanging the enclaves — in effect ceding land to which it holds undisputed title. Minor exchange of disputed territory by New Delhi is not groundbreaking. In 1951, India and Pakistan agreed to exchange two disputed territories on the India-East Pakistan (now Bangladesh) border. And in 1959 the two countries prepared modalities for future exchange of territories pending boundary demarcation. Letting-out undisputed territory on a ‘perpetual lease’ is not groundbreaking either. In 1974, New Delhi leased a narrow strip of territory (Tin Bigha corridor) to the then newly-inaugurated independent government of Bangladesh. The Indian Supreme Court interpreted the lease as a form of ‘undisturbed possession’ for Dacca’s use which did not divest India of its sovereign rights.

But uncompensated cession of undisputed territory along its land border is altogether unprecedented. It also sets a useful precedent for that significant patch of disputed territory that will necessarily have to be ceded to China in the context of a Sino-Indian boundary arrangement in the foreseeable future. With New Delhi already having ceded a small, uninhabited island to Sri Lanka along their maritime boundary line in the mid-1970s, and with the Indian judiciary vesting treaty-making authority wholly to the executive, the swap of enclaves on the India-Bangladesh border should pass constitutional muster.

Two fundamental principles and processes that underlie New Delhi’s calculus of territorial dispute settlement are particularly noteworthy. First, an imperative of good neighborliness has been a fundamental pre-requisite for settlement — New Delhi was willing to meet the Bangladeshi Prime Minister mid-way, even beyond, but only after the latter had met India’s security concerns and walked the extra mile to extend the hand of friendship. Significant credit for the settlement belongs at the Bangladeshi end.

Second, and more important, is a practice of Indian boundary diplomacy which has seen New Delhi admit to the exigencies of ‘zamini haqeeqat’ (ground realities) in disputed border areas — formally seeking to resolve territorial disputes according to the status quo, with least disturbance to local inhabitants. ‘Ground realities’ is formally acknowledged in the India-Bangladesh Joint Statement. Paired with the acceptance of a political parameters-based approach to dispute resolution, it has also unlocked potential for resolving the long-dormant Sino-Indian boundary dispute.

India and Bangladesh should use the goodwill generated through the settlement to resolve their long-pending maritime border dispute. That dispute consists of: (a) demarcation of the coastal boundary line around a tiny island at the point where a common boundary river meets the estuary on the Bay of Bengal, and (b) overlapping EEZ boundary and resource development claims emerging from the concave geography of the Bengal coastline.

For the former, international arbitration on the tried-and-tested lines of the 1968 settlement between India and Pakistan that divided a semi-submerged tract at the mouth of the Arabian Sea may provide a model for determining the coastal boundary. For the latter, New Delhi should desist from unilateral surveying of the overlapping maritime zones pending judgment of their respective claims at the Permanent Court of Arbitration (PCA) at The Hague. Better still, submitting to settlement principles in the analogous Myanmar-Bangladesh maritime baseline claims case, currently under fast-track International Tribunal for the Law of the Sea (ITLOS) proceedings would be an act of graciousness on New Delhi’s part. Best of all would be joint survey and development of the overlapping India-Bangladesh maritime zone without prejudice to the ITLOS or PCA verdicts. In doing so, New Delhi would also set a portentous precedent for claimants in the South China Sea.

Sourabh Gupta is a Senior Research Associate at Samuels International Associates Inc in Washington DC and a contributor to the East Asia Forum.

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