Autumn 2015

India and Bangladesh implement land-swap deal for territorial enclaves

Introduction

In May 2015, the Indian Parliament passed a bill to amend the Indian Constitution in order to give effect to a Land Boundary Agreement (the “LBA”) concluded between India and Bangladesh more than forty years ago. The amendment to the Indian Constitution now passed allows the LBA to become fully effective, in particular by “giving effect to the acquiring of territories by India and transfer of territories to Bangladesh through retaining of adverse possession and exchange of enclaves”. As a result, the amendment cleared the way for India’s ratification of the LBA. On 6 June 2015, the Prime Ministers of both States finally signed the Protocol for Exchange of Instruments of Ratification Regarding the India-Bangladesh Land Boundary Agreement, 1974 and Protocol of 2011 to the Land Boundary Agreement. This gave effect to the LBA, which entered into force on the same day.

A ratification long in the making

Notably, the LBA had been almost entirely implemented before ratification by both States, except for a few outstanding issues, one of which was the exchange of territorial enclaves. An enclave is a portion of State territory that is completely surrounded by the territory of another State. Following the amendment to the Indian Constitution, the LBA will enable the exchange of a large number of land territory enclaves held by India and Bangladesh, respectively. The exchange under the LBA encompasses 162 enclaves and is envisaged as a gradual process taking place over the course of several months, with a projected completion in June 2016.
The land swap will simplify the international borders of the two States. India and Bangladesh have a common land boundary of more than 4,000 km. The great length of border shared by these States and historic border disputes have in the past sparked tension between the two States and border skirmishes between the security forces of both States have been frequent.

The LBA was concluded on 16 May 1974 in an attempt to resolve outstanding territorial disputes between India and Bangladesh. Bangladesh ratified the agreement in 1974. India, however, has previously declined to ratify the agreement on the grounds that it would entail the relinquishment of territory. In India, some have opposed the ratification of the LBA on the grounds that it would violate Indian sovereignty since it entails the cession of Indian territory.

The implementation of the LBA has been underway before its formal ratification. For instance, under the scheme of the LBA, Bangladesh handed over the Berubari enclave to India already in 1974.
In 2011, the LBA was amended by way of a Protocol between India and Bangladesh. The Protocol, which is an integrated part of the LBA, establishes inter alia certain boundaries and completes the demarcation stipulated in the LBA. Article 2(ii) of the Protocol provides for the exchange of 111 Indian enclaves in Bangladesh and 51 Bangladesh enclaves in India.

The enclave exchange

The enclaves in the current exchange are located deep inside the territories of each State. The Indian enclaves in Bangladesh are located in four districts: Panchard, Lalmonirhat, Kurigram and Nilphamari. All of Bangladesh’s enclaves in India lie in West Bengal’s Kochbehar district.

Article 1(12) of the LBA envisaged the expeditious exchange of Bangladeshi enclaves within India and Indian enclaves within Bangladesh. The enclaves formally changed hands on 31 July 2015. As a result of the exchange, the enclaves dissolve and cease to exist. The territory that was previously enclaved is incorporated into the territory of the country in which the enclave lies. It is reported that the practical implementation of the LBA, including the conferral of the new citizenship on residents in the enclaves, will be a gradual process that should be completed by June 2016.

Article 3 of the LBA stipulates that, when areas are transferred, residents in such areas have the right of staying on where they are, as nationals of the State to which the areas are transferred. Under the agreement, residents in enclaves may thus choose, either, to remain in the territory of the respective enclave (and be treated as nationals of the State in which it is located and transferred to) or to relocate to the other State.

Both governments have pledged to facilitate the orderly, safe and secure passage of residents in the enclaves and their movable property. Furthermore, the two States have outlined the modalities of a process to safeguard rights over immovable property.

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Concluding comments

The enclave exchange will clarify the India-Bangladesh border and should help resolve associated disputes that have been ongoing for more than four decades. In this sense, it is a major accomplishment of the two States involved, representing a practical resolution of the territorial problems otherwise posed by the enclaves.

As mentioned above, the scheme of the LBA confers on the inhabitants of enclaves the right of staying on where they are as nationals of the State to which the areas are transferred, vesting them with the same legal rights as other nationals of that State. For several decades, the inhabitants of the enclaves have not been able to enjoy full access to basic facilities such as electricity, schools and health services. Moreover, police forces have had restricted access to the enclaves and property rights have been weakly enforced. The implementation of the LBA should therefore improve the life conditions for residents in the enclaves.
The LBA may also promote economic stability, cooperation and prosperity in the region. For example, India’s Foreign Secretary, Subrahmanyam Jaishankar, has already stated that the private sector in India is keener to invest in Bangladesh due to the improved political situation. More tangibly, in parallel with implementation of the LBA, India has reportedly invested USD 4.5 billion in Bangladesh’s power sector and extended a USD 2 billion line of credit to Bangladesh.