Emerging Voices: The Old Woe of Contemporaneity and Cartographic Evidence in a New Bottle

[Arpita Goswami currently serves as an Assistant Editor to China Oceans Law Review, and is a Graduate Assistant at the South China Sea Institute, Xiamen University, P.R. China. The views expressed here are her own and have no connection whatsoever to the above mentioned organizations.]

The recently concluded Bay of Bengal Maritime Arbitration Case between India and Bangladesh offers interesting insights into the application of the judicial pronouncements to the factual situation contemporaneous with it for determining the boundary lines and the usage of cartographic evidence in the same. This post examines the section of the Award delimiting the riverine boundary between the two States. The reasoning given by Tribunal in this case makes an interesting read regarding the technicalities of demarcation of boundaries, challenges in the contemporaneous applications and the validity of cartographic evidence in such an application.

Background (para. 50-55 of the judgment)

The Indian Independence Act, 1947 of the United Kingdom, partitioned from India, the states of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947 which was chaired by Sir Cyril Radcliffe. In Aug. 1947, the Commission submitted the report describing the boundary, and is known as “Radcliffe Award”. However, in 1948 the Indo-Pakistan Boundary Dispute Tribunal was set up by India and Pakistan to address the disagreement in the application of the Radcliffe Award. In 1950, the above mentioned Tribunal gave its Award, known as the “Bagge Award”.

In 1971, East Pakistan declared independence from West Pakistan, and succeeded as a new state of Bangladesh to the territory of East Pakistan and its boundaries.

The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. Among its tasks of finding the land boundary terminus anddelimiting the territorial sea, EEZ and continental shelves between the two States, the present Tribunal also had to concern itself with delimiting the boundary river between the two, which will be discussed in the passages below.

Delimitation of the Boundary River

The 1947 Radcliffe Award pronounced the riverine boundary to be running “…along the mid stream of the main channel for the time being of the rivers…[names of the rivulets]“, and annexed a map (compiled from a survey conducted in 1915-1916) indicating the boundary as determined by the Commission. The Award carefully adds that the map (to be referred to as Radcliffe map) is “for purpose of illustration, and if there is any divergence between the boundary as described, and as delineated in the map, the description is to prevail.” (para. 88-89)

The 1950 Bagge Award confirmed that the boundary has to be demarcated in the midstream of the main channel of the Haribhanga River (one of the four rivulets mentioned in the Radcliffe Award) as it was at the time of the Radcliffe Award, but attached to it a rider, that, if the demarcation of that line is found to be impossible, then the riverine boundary should be the line following the mid stream of the main channel as determined on the date of demarcation and not as it was on the date of Radcliffe Award. (para 160-161)

The present Tribunal in 2014, found no evidence that the demarcation was found impossible, but in fact, some exercise to that effect was carried out in the forms of  putting up marker posts or buoys. Thus, the exceptional clause notwithstanding, the Tribunal concluded in accordance with the Bagge Award that the riverine boundary needs to be demarcated “in the midstream of the main channel of the Haribhanga River [must be] as it was in 1947 at the time of Radcliffe Award, and not as it might become at later times.” (para 162-163)

India argued that as in 1951 the Indian and Pakistani governments had exchanged letters agreeing to undo the Bagge Award and keep the riverine boundary fluid, implying that any act of demarcation was invalidated, and the present Tribunal is charged with the task of delimiting the riverine boundary as per the factual situation existing today. However, the Tribunal did not find compelling enough the evidence presented by India. Thus, as stipulated in the Bagge Award, it proceeded to delimit the boundary based on the conditions that existed during the Radcliffe Award and not as per the present day conditions.(para 165)

Delimitation and Demarcation – Technical Difference

A fine technicality is worth to be noted here, i.e., the conceptual difference between the words ‘delimitation’ and ‘demarcation’, which has an important significance in this case. More often than not, these two terms are used interchangeably, and are widely believed to be having the same meaning. In reality, however, delimitation means, “the laying down – not the laying down on the ground, but the definition on paper, either in words or on a map – of the limits of a country. Delimitation covers all the preliminary processes and procedure involved before a boundary is laid down on the ground” (Mc Mahon). Demarcation, on the other hand is “fixing the boundary on the ground…as applying to the final stage and the marking out of the boundary on the spot”. (Lord Curzon).

Following from the above distinction, in the present case, an act of demarcation, as minor it may be in magnitude or as brief it may be temporally, was taken as evidence of the possibility of demarcation. It is important to note that the ‘possibility of demarcation’ was taken strictly to be a physical possibility of marking the channel, and no question was raised as to the diplomatic or administrative effectiveness of that demarcation. This is when, even though both the States were in dispute for fifty years nevertheless and there is some, if not preponderant in the eyes of Tribunal, evidence that both the States had expressed an intention through a brief correspondence, to keep the boundary fluid. This strict technical interpretation of ‘possibility of demarcation’ helped the Tribunal maneuver straight into applying the Radcliffe Award to delimit the boundary as it existed at the time of its pronouncement.

Determining the Contemporaneous Factual Situation

The present Tribunal relied on the map annexed to the 1947 Radcliffe Award, taking the delineation made upon it to delimit the riverine boundary between India and Bangladesh. This map was taken to be the best evidentiary source to give ‘photograph of the territory’ as it existed at the time of the Radcliffe Award.

However, what raises the doubts in the evidentiary value of the map in the Radcliffe Award is the fact that the map is not declaratory in nature, instead has been described in the Award for ‘illustrative purposes’. This supposition of the non-declaratory nature of the map is strengthened further by the rider in the Award itself, that in the case of divergence between the boundary described and the boundary delineated, the former will prevail. Thus, it can be interpreted to mean that the Radcliffe Award intended that the actual physical location of the midstream of the main channel be used for demarcation and that reliance should not be put solely on the basis of the annexed map. The map is not intended to be preferred over the description of the main channel, and it seems that the original author put this caveat as he harbored some sort of understanding that the map may not represent the ‘photograph of the territory’ and the actual lines may diverge.

Therefore, while the Bagge Award and the present Award throw us back to delimit the boundary as existed at the time of Radcliffe Award and present the map in question to be an authoritative ‘photograph of the territory’, on the contrary, it seems that the actual act of demarcation in the Radcliffe Award was intended as, one, to undertake demarcation on the basis of existing factual reality, and, two, not to give the declaratory status to the position of the riverine boundary as delineated in the annexed map, which in present case has been used to solidify the riverine boundary in a final and binding judgment.

This above analysis raises a serious question, that in such a case wherein the subsequent judicial rulings on a legal document (an agreement, treaty or a judicial ruling itself) may recommend it to be executed in accordance with the contemporaneous factual situation — but that the legal document in itself is drafted in a way to resist contemporaneity — will such a judicial pronouncement be self contradictory, or will the subsequent judicial rulings be applied? Another question, worthy of asking here is on determining the criteria for the evidentiary value of cartographic evidence. Although it is expected that we may be able to build an answer to the latter concern, the first question may continue to confound us.