A settlement long overdue
Aug 13, 2013 12:13 AM , By Rukmini Das, Deepak Raju | 15 comments
The ratification of the Indo-Bangladesh land boundary agreement will reduce the difficulties in administering border enclaves, and improve the conditions of those living there

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)

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Showing 10 latest comments
  • Excellent. Can the author provide details if people count ie the scale of rehabilitation required?
    From: Kiran
    Posted: Aug 16, 2013 at 16:43 IST
  • The author has very lucidly explained the situation, its complexity and the need to resolve expeditiously. What is the kind of population in numbers that reside in each of these enclaves and how do we propose to relocate them in case of a settlement between India an Bangladesh on this issue. Being a densely populated, would it result in a d kind of turmoil that was seen in the Indo/Pak partition, even if not of that magnitude? A prior assessment of the relocation issue taking in to account the consensus of the people of these enclaves and a viable execution plan would help in smooth passage of the amendment Bill.
    From: M.R.Sampath
    Posted: Aug 15, 2013 at 21:41 IST
  • Very nicely written article .. well done ..the writer has highlighted the point that secession is to be completely kept different from enclave reforming bill .. even if the borders are reformed .. fine for the administrative purpose but what about the rehabilitation of people in the new borders .. it does not express the ideas .firstly reaching on the consensus of rehab followed by the policy of border rehab has to be taken into account .. else it will result into an inefficient 'administration ' not due to the govt machinery but due to the hearts of people being dissatisfied over their rehabilitation .. they must be given a better or on par the conditions than they are in now ..for example .. land quality of farming they are currently using for agriculture
    From: Ajinkya Niwal
    Posted: Aug 15, 2013 at 12:43 IST
  • Thank you very much for the article. It's very helpful in understanding the situation.
    From: rajshekhar RK
    Posted: Aug 14, 2013 at 0:23 IST
  • Why can't the Bangladeshis compensate for the Indian land loss in the form of land from their territory?
    From: Jayagopal
    Posted: Aug 13, 2013 at 23:58 IST
  • A nice and informative article. It seems that our government is doing something good to decrease land dispute, but the amendment must contain steps to take care of interest of the people living in these enclaves.
    From: R.K. Kannaujiya
    Posted: Aug 13, 2013 at 21:04 IST
  • Hope our' netas' will decides this soon. ... in favour of the people there. ... around 6000 hectare land is not worthy while there is peace and friendship. ......
    From: Joe
    Posted: Aug 13, 2013 at 21:04 IST
  • Bangladesh and India agreed for delimiting their boundary in a small section of the river boundary. There are 51 small Bangladesh enclaves in India and 111 small Indian enclaves in Bangladesh. The two countries agreed to allocate these enclaves. But India has not ratified this pact of 1974 because of political reasons and the difficulty of required constitutional amendments to ratify the agreement. These enclaves of both India and Bangladesh remain as no mans land with both governments having no control. These enclaves are haven for drug trade, terrorists and illegal migrations to India. India is unable to construct a border fence in these areas. If it has taken about 40 year for ratification of a border agreement with Bangladesh, you can imagine the difficulties of border settlements with Pakistan and China, where the countries face military confrontations, futile negotiations of more than six decades and no agreement.
    From: Davis K. Thanjan
    Posted: Aug 13, 2013 at 19:45 IST
  • Very nice and a lucid article. Hopefully the parliament passes the bill and give effect to the lives of many people. Though looks like a loss from the outset, but as the author says, is just illusory. Dealing with this problem also helps in boosting the Indo-Bangladesh relationship. And proper demarcation of the boundary will also help in checking the illegal migration and infiltration.
    From: Vijay Seshagiri
    Posted: Aug 13, 2013 at 19:06 IST
  • It is great opportunity to emancipate the imprisoned citizens of both the countries out of the enclaves and hence this opportunity must not be wasted. We also must ensure that there is no loss of land in this deal for either of the countries. Bangladesh should be persuaded to compensate the 10,000 acres of land India will be loosing by imparting same area of land to India, which will be in continuation of the main land India. This way the opposition to the deal will be neutralized. It will be a win-win scenario for both countries and can serve as role model for resolving land disputes throughout the world.
    From: Ritvij Pathak
    Posted: Aug 13, 2013 at 17:49 IST