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The Rann of Kutch Arbitration

Published online by Cambridge University Press:  28 March 2017

J. Gillis Wetter
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Extract

The boundary dispute between India and Pakistan in the Rann of Kutch case is one of the major instances of international arbitration in the postwar period.

The object of the ad hoc Tribunal was to determine a sector of the boundary between India and Pakistan in the southwestern region of the Indian subcontinent between what in British times was Sind, now forming part of the Islamic Republic of Pakistan, and the State of Kutch and other Native Indian States, which now form part of the Province of Gujarat in the Republic of India. The length of the boundary eventually established by the Tribunal was about 255 miles. The disputed territory, the area of which has been estimated to be 3,500 square miles, consisted for the most part of a portion of a tract known as the Great Rann of Kutch, or the Rann.

Type
Research Article
Information
American Journal of International Law , Volume 65 , Issue 2 , April 1971 , pp. 346 - 357
Copyright
Copyright © American Society of International Law 1971

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References

1 The following rule was adopted by the Tribunal at the initiative of the parties: Discovery and Inspection —A Party may, by notice in writing, call upon the other Party to make available to it for inspection any document which is or is likely to be in the possession or under the control of such other Party; and thereupon such other Party shall, if the document is in its possession or under its control, provide adequate and expeditious facilities to the Party to take inspection and copies of the document and, on request of such Party and at its cost, shall furnish to it such number of photostat copies as it requires and also produce the document before the Tribunal. If the document is not in the possession or under the control of the other Party, an affidavit shall be filed to that effect before the Tribunal. (Award, Vol. I, p. 6.)

2 All the materials in the case are unprinted except for the memorials of the parties. Complete sets of the entire documentation in the case are available in the Library of the United Nations Office in Europe at Geneva (which also acts as custodian of certain original documents) and in the Harvard Law Library. Excerpts from the Award have appeared in 7 Int. Legal Materials 633-704 (1968).

3 During the oral hearings, India was represented by a delegation of 15 counsel, experts and aides, headed by Mr. B. N. Lokur (now Judge of the High Court at Allahabad) as Agent and the late Dr. K. Krishna Rao as Deputy Agent. India's leading counsel was Mr. C. K. Daphtary, Attorney General, and oral argument was also presented by Mr. R. Palkhivala. Pakistan's delegation comprised 13 counsel, experts and aides, with Mr. I. U. Khan as Agent and Mr. Shahid M. Amin as Deputy Agent. Pakistan's leading counsel was Mr. ManzurQadir, who presented Pakistan's oral argument.

4 An agreement on the procedure for demarcation of the boundary was reached by the parties before the end of the oral hearings. It is attached as an Annex to the Award.

5 Award, Vol. II, pp. 890, 955.

6 Ibid., pp. 895-896.

7 As intimated earlier, the decision of the Tribunal was by majority vote. Before the Award was rendered each member of the Tribunal prepared one opinion. Thus, Mr.Entezam wrote an opinion which is included in the Award (Vol. II, pp. 846-887) and is entitled “Proposal of Mr. NasrollahEntezam Submitted on 17 November 1967“; the conclusion advocated in it was to uphold Pakistan's claim in its entirety by determining that the boundary should run in the middle of the Great Rann. Mr. Bebler, on the contrary, concluded that India's sovereignty over the entire territory had been established and that the boundary should lie as shown on the latest authoritative map of the area. His main reasons for so holding were that the Sind-Kutch border had been authoritatively depicted on maps published by the Survey of India and that the Great Rann had been officially treated by the British Administration as Kutch territory. The correctness of the alignment of the boundary drawn on the first survey maps in 1870 had “stood the test of time and withstood all vicissitudes of the internal history of the British Indian Empire from the time it first appeared, in 1870, till the end of British rule in India in 1947“; and “throughout this period its correctness was never challenged or doubted either by the Government of India, or by the Government of Bombay, or, after 1935, by the Government of Sind” (Award, Vol. II, p. 842). Mr. Bebler found also that “The display of British State authority in the Rann, as far as it was not an activity of the British as the Paramount Power over the whole of India—as in the case of patrolling by customs officials—was sporadic both in time and in space and evidently lacked the most elementary requirements for the establishment of a historic title, i.e., continuity, intention and possession ‘titre de souverain. It is, therefore, far from sufficient to disturb the recognised and depicted boundary. “On the other hand, the instances cited by India regarding display of authority by Kutch confirm the boundary as recognised by the two neighbours and depicted in official maps.” (Ibid., pp. 844-845.) Mr. Bebler's opinion eventually became his dissenting opinion, while the Chairman's opinion became the decision of the Tribunal by virtue of Mr. Entezam's filing a subsequent opinion reading as follows: “In an early stage I considered that Pakistan had made out a clear title to the northern half of the area shown in the Survey Maps as the Rann. I have now had the advantage of reading the Opinion of the learned Chairman, and in the light of it I concur in and endorse the judgment of the learned Chairman.” (Ibid., p. 970.) The findings of the Tribunal referred to and quoted in the text below thus appear in the Chairman's opinion.

8 Ibid., pp. 897-898.

9 Ibid., p. 913.

10 ibid., p. 915.

11 Ibid., p. 936.

12 ibid., p. 937

13 Ibid., p. 955.

14 Ibid., p. 965.

15 Ibid., p. 968.

16 Note 1 above.