On 6 June 2015, the 1974 India Bangladesh Land Boundary Agreement entered into force, following the exchange of instruments of ratification by Prime Minister Narendra Modi of India and Prime Minister Sheikh Hasina of Bangladesh, during a State visit to Bangladesh by Prime Minister Modi. The Agreement provides for the exchange of pockets of Indian and Bangladesh territory and the clarification of the India-Bangladesh border, which remained unresolved following partition in 1947.

Boundary disputes (whether relating to land or maritime boundaries) between neighbouring territories can cause significant risk and difficulties for companies looking to operate or invest in the disputed areas. In the energy sector in particular, boundary uncertainties have the potential to curb exploration or to create uncertainty in ownership of oil or gas. They also introduce risk to those who seek to invest in other sectors (for example, infrastructure, construction and telecommunications), which is particularly significant where the dispute itself may have led to under-development of essential services. Any consideration of investment into a disputed area should be supported by specialist international law legal advice.

The implementation of the Land Boundary Agreement has paved the way for significant cross-border investment by Indian investors in Bangladesh and will offer increased opportunities for foreign investment from further afield. In the energy sector, the two countries have indicated that an annual India-Bangladesh Energy Dialogue will be introduced between energy Ministers from both countries. The dialogue will undertake comprehensive energy sector cooperation including in areas of coal, natural gas, LNG, supply of petroleum products in the sub-region, renewable energy and oil and gas pipelines.

India and Bangladesh have a land boundary of approximately 4,100 km. This boundary was determined by the 1947 Radcliffe Award as the India-East Pakistan land boundary, but disputes quickly arose regarding certain aspects. Following the independence of Bangladesh, India and Bangladesh signed the 1974 Land Boundary Agreement (“1974 LBA“), in an effort to resolve outstanding issues. The 1974 LBA was amended in 2011 by an additional Protocol (“2011 Protocol“, together with the 1974 LBA, the “Land Boundary Agreement“).

As the implementation of the Land Boundary Agreement involved the acquisition and cessation of territory by India, its ratification by India required an amendment to the Constitution. This was effected by the Constitution (One Hundredth Amendment) Act 2015. The Land Boundary Agreement entered into force on 6 June 2015. Implementation of the Land Boundary Agreement deals with three outstanding border issues, relating to:

(i) adverse possessions; (ii) enclaves; and (iii) an undemarcated land boundary of approximately 6.1 km.

Adverse possessions

Adverse possessions are territories contiguous to the border of one country and within the control of that country, but legally part of the bordering country (e.g. contiguous to India’s border and within Indian control, but legally part of Bangladesh). Residents of these adverse possessions were considered to be citizens of the country in adverse possession, despite the territory being legally part of the bordering country.

The 1974 LBA called for these adverse possessions to be exchanged. However, both India and Bangladesh agreed in the 2011 Protocol to redraw the international boundary to recognise the status quo. It was recognised that the people living in territories in adverse possession had strong ties to their land and were unwilling to be uprooted. The 2011 Protocol also recognised that the areas of adverse possession which the 1974 LBA called to be transferred were, in reality, within the de facto possession of the country in adverse possession. In this regard, the 2011 Protocol was merely the legal (de jure) recognition of this fact by both India and Bangladesh.

Enclaves

An enclave is a territory of one State which is surrounded completely by the territory of another State (for example, West Berlin before the reunification of Germany). The enclaves on the India-Bangladesh border were hundreds of years old, but remained unsettled following the independence of India and East Pakistan.

Because the enclaves were physically cut-off from the “home” State, the inhabitants of the enclaves, while citizens of the “home” State, suffered from a lack of access to basic State services, such as electricity, health services and schooling. Under the terms of the Land Boundary Agreement, India transferred 111 enclaves to Bangladesh and Bangladesh transferred 51 enclaves to India. The inhabitants of the enclaves were given the right to remain on the territories as nationals of the State to which the territories were transferred. As with the territories on adverse possession, the transfer of the enclaves is a legal (de jure) recognition by both India and Bangladesh of the de facto situation on the ground.

6.1 km land boundary

The Land Boundary Agreement also demarcated the boundary between India and Bangladesh in three sectors (in the Indian states of West Bengal, Tripura and Assam), totalling 6.1 km.

Comment

Both India and Bangladesh have hailed the implementation of the Land Boundary Agreement as historic, finally settling a border dispute which had remained unresolved for decades. It is hoped that implementation of the Land Boundary Agreement will give the people living in the enclaves access to the basic state services which were unavailable due to the isolated nature of the territories.

The implementation of the Land Boundary Agreement marks the second precedent in 12 months for the peaceful settlement of boundary disputes between India and Bangladesh, following the July 2014 UNCLOS Annex VII Tribunal Award on the India-Bangladesh maritime boundary (discussed on the blog here). As with the Annex VII Award, implementation of the Land Boundary Agreement shows how States can ultimately de-politicise sovereignty issues and cooperate to achieve political and commercial certainty. In this regard, it is notable that the State visit to Bangladesh by Prime Minister Modi, which announced the implementation of the Land Boundary Agreement, also marked closer ties between India and Bangladesh, with a reported USD 4.5 billion investment by India in Bangladesh’s power sector and an extension by India of a USD 2 billion line of credit to Bangladesh.