|The Telegraph report on July 9
New Delhi, July 15: A missing signature on a letter from Jawaharlal Nehru’s foreign ministry to its Pakistan counterpart more than six decades ago tilted in Bangladesh’s favour a UN tribunal’s ruling last week under which India has lost a patch of sea larger than Bengal to its eastern neighbour.
The UN’s Permanent Court of Arbitration at The Hague in the Netherlands rejected a key piece of evidence India had presented because of the missing signature, a close study of the 168-page judgment delivered on July 7 shows.
The tribunal’s verdict, made public on July 8, handed Bangladesh 106,613sqkm of a 172,220sqkm area of sea south of Bengal and Bangladesh that India had claimed but accepted was disputed.
The judgment means this zone of the sea is out of bounds for Indian fishermen, and that Indian companies like the Oil and Natural Gas Corporation cannot hunt for oil and gas reserves here.
For the maritime boundary demarcation, the UN court had to identify the deepest points in the middle of the river Hariabhanga that separates South 24-Parganas in Bengal from Khulna in Bangladesh.
Once identified, a line joining these deepest points in the river would represent the start of the maritime boundary at the point where the Hariabhanga meets the sea.
Bangladesh argued that this line, extrapolated directly southwards, should constitute a straight maritime boundary between the nations.
India, though, insisted that the concave dents that mark Bangladesh’s coast, and a river and seabed whose topography is constantly changing — because of, among other factors, climate change — made a straight boundary unfair.
At the hearings before the court, India presented what it thought was clinching evidence for its argument — an exchange of letters from 1951 that appeared to show that India and Pakistan had agreed on the need for a fluid, non-straight boundary. Prior to the creation of Bangladesh in 1971, India and Pakistan had been negotiating their contentious eastern maritime boundary.
“I am directed to say that the Government of Pakistan have very carefully considered the question of river boundary between Khulna and 24-Parganas, and they are of the opinion that the boundary in this section should be fluctuating,” Pakistan’s then foreign secretary A.A. Shah wrote to his Indian counterpart K.P.S. Menon on February 7, 1951.
“It is hoped that the Government of India will agree and issue necessary instructions to the authorities concerned.”
India responded to Shah’s letter on March 13. “We agree that the boundary between Khulna and 24-Parganas running along the midstream of the rivers should be a fluid one and are issuing necessary instructions to the authorities concerned,” the Indian letter to Pakistan’s foreign office said.
“Kindly issue instructions to East Bengal also.”
But unlike Shah’s letter, which was signed by him, the Indian letter did not name the sender and did not contain any official’s signature. It merely carried a notation: “The issue of the above has been authorised.”
When India submitted the letters as evidence at The Hague, Bangladesh protested, questioning the absence of a signature or name on India’s letter to challenge its authenticity.
The UN tribunal listened to India, then to Bangladesh’s criticism and concluded that it could not trust the veracity of the letters as evidence of a deal struck between India and Pakistan in 1951 over how to define their maritime border.
It eventually used the principle of a straight, fixed line marking the maritime boundary, awarding Bangladesh marine territory that may have instead gone to India but for a missing name and signature on a letter from an era long gone.