Bangladesh foreign minister Dipu Moni’s July visit to India has rekindled the discussion surrounding the agreement between the two countries in respect of exchange of enclaves. With the governments in both the countries approaching the end of their respective tenures, there is urgency in building political consensus on The Constitution (One Hundred and Nineteenth) Amendment Bill, 2013, which seeks to ratify the agreement. The bill is likely to be introduced in the ongoing monsoon session of Parliament.
The Bill has met with opposition on the grounds that — (i) the proposed exchange of enclaves will result in a national loss of 10,000 acres of land; (ii) it will fuel secessionist tendencies in other parts of India. This piece highlights why it is important to ratify the Indo-Bangladesh agreement on this matter in a timely manner.
What are enclaves?
In international law, states exercise sovereignty over their territories. There is no requirement that the territory must be contiguous or geographically proximate. An example of geographically non-contiguous territories constituting one state is that of Pakistan before 1971. This possibility of territories lacking geographical contiguity forming parts of one state sometimes results in some parts being surrounded by the territory of another state. Such territories are termed enclaves. The situation can be further complicated by an enclave within an enclave (counter-enclave) or even an enclave within a counter-enclave (counter-counter-enclave).
One aspect of sovereignty enjoyed by states is a near-absolute right to restrict or regulate access to and transportation in their territories. This results in practical difficulties in the context of enclaves. Being surrounded by the territory of another state, the residents of an enclave cannot travel to their ‘home state’ without crossing international borders and obtaining the necessary permission for the same. Similarly, governmental agencies of the home state cannot access the enclave, despite its sovereignty over it, without the permission of the state that surrounds the enclave. In the absence of specific international agreements between the states concerned, this results in the exclusion of governmental services, essential facilities and opportunities to residents of enclaves, counter-enclaves and counter-counter enclaves.
These rules and practical problems relating to enclaves came to India’s aid during the liberation of Portuguese possessions in the region. Dadra and Nagar Haveli, over which Portugal claimed sovereignty, were “enclaved” within Indian territory, and could not be accessed from other Portuguese possessions without crossing Indian territory. In 1954, when Portuguese authorities wished to contain the uprising in Dadra and Nagar Haveli, India refused the right of passage to Portuguese officers, armed forces, etc.. Though Portugal challenged India’s action before the International Court of Justice, the Court found that India was within its rights in international law to refuse permission to the Portuguese authorities to access the enclaves through Indian territory. This clearly highlights how the practical and legal difficulties in accessing enclaves can render sovereignty over them illusory.
As per the joint verification carried out by the Indian and Bangladeshi governments in April 1997, there are 111 Indian enclaves in Bangladesh and 51 Bangladeshi enclaves in India. These include a few counter-enclaves, which are enclaves within enclaves, as well as a counter-counter enclave — a parcel of Bangladeshi territory surrounded by Indian territory, itself surrounded by Bangladeshi territory! In India, these slivers of Bangladesh are in the States of West Bengal, Assam, Meghalaya and Tripura. The residents of these enclaves do not enjoy the same basic amenities that the mainland citizens of their country enjoy, only for practical problems of access. The residents find it difficult to travel outside their enclaves either, since they have no opportunity to obtain valid travel documents. They are essentially prisoners within those enclaves, with fewer facilities than prisoners in these countries enjoy. The same is, of course, true of residents of the Indian enclaves surrounded by Bangladeshi territory.
Exchange of land
By the Land Boundary Agreement of 1974 between the two countries, and the 2011 Protocol to the said Agreement, India and Bangladesh agreed to exchange these small parcels of land and better demarcate the land boundary between them. The borders of the Indian States of Assam, West Bengal, Meghalaya and Tripura will be affected by this exchange of territory. This Agreement has not been implemented yet. The Constitution (One Hundred and Nineteenth) Amendment Bill, 2013 proposes to give effect to this proposed land exchange. This long overdue exchange will endeavour to harmonise India’s land boundaries and, more importantly, improve the lives of all those residents of the enclaves who, by an unfortunate twist of fate, have been living without a national identity and without enjoying or ever knowing the quality of life enjoyed by their neighbours.
If one were to compare the area of land that India receives in this exchange to what India gives away, the former falls short of the latter by 10,000 acres. While it may appear like a net loss of territory, such loss is illusory. What we lose are enclaves we cannot access, govern or use in any way without the consent of Bangladesh. The enclaves surrounded by Bangladeshi territory were never part of any political campaigns, never on the agenda for development or reforms of any kind. In fact, except on paper, mainland India would never know the loss of those territories.
It would also be a great stretch of imagination to believe that such a land exchange can give rise to calls for secession in other parts of India. An enclave is a very unique position, geographically and administratively — they cannot be compared to any other situation worldwide. Claiming a right to secede is an expression of the will of the people (whether rightfully or otherwise). Amending the Constitution of India to give effect to the exchange of these parcels of land is not an expression of the will of the people residing in those land areas.
Even if the residents of an Indian enclave in Bangladesh wished to remain part of Indian territory, it would be an administrative nightmare (as it has been for the past several decades). Whether they wish to remain Indian, and seek to relocate to India, is a separate question. Thus, the proposed transfer, unlike secession, is motivated by the need for efficient administration and for the welfare of those residing in those regions rather than dictated by the will of the people.
No more gambles please
According to some sources, the Indo-Bangladesh enclaves have their origins in chess games between the Raja of Cooch Behar and the Nawab of Rangpur who wagered in these territories. The outcomes of these wagers have meant virtual exclusion from of all governmental services and denial of essential facilities for the residents of these territories for decades. While The Constitution (One Hundred and Nineteenth) Amendment Bill, 2013 proposes a solution, due care must be taken to ensure that another series of political wagers does not prolong the sad state of affairs.
(Rukmini Das is pursuing her Masters in International Dispute Settlement at the Graduate Institute of International and Development Studies, Geneva. Deepak Raju recently graduated from the University of Cambridge with an LLM in international law)