Throwback Thursday: The Indo-Bangladesh Enclaves

Editor’s note: For quite a while now, social media enthusiasts have been using the hashtag #tbt (or, in long-form, “Throwback Thursday”) as a way to reminisce about the past. Last year, Lawfare decided to get in on the action---by each week turning back in time to a specific event, and briefly explaining how it relates to today’s security and/or legal environment. The weekly feature took a brief holiday hiatus, having last appeared on Lawfare in December; this evening, #tbt resumes with a look at the Indo-Bangladesh enclaves.  When we think of the Partition of India, we usually focus on the perilous border drawn down the Punjab---which divided what would become India from what was at the time West Pakistan, and which sparked much of the violence between the two nuclear powers. But there is another border story on the opposite side of India, where the Indian state of West Bengal was split from what is now Bangladesh. The border between Bangladesh and the Indian state of West Bengal is a nightmare to trace on a map, and even more of one for people caught up in some it its most messy divisions. If a resident of Dahala Khagrabari, India wishes to reach her nation’s capital in Delhi, she must cross four international borders: first over into Bangladesh, then into India, back into Bangladesh again, and then, finally, into India proper. This convoluted journey is not the fault of some serpentine road or winding train track, however; the unfortunate traveler is forced through so many borders because she resides in the world’s only third-order enclave—that is, a state within a state within a state within a state. The border separating India and Bangladesh is dotted with 162 of these enclaves, of which Dahala Khagrabari is merely the most extreme example. Caught up in a ridiculous geo-political game that advances no one’s interests, the enclaves are chunks of ungoverned territory, physically divorced from their homeland and beyond the reach of government services. The problem is serious: as many as 50,000 people reside in such places. Moreover, the enclave problem complicates ties between India and Bangladesh, and poses obstacles for development and security. With the new Modi government in India promising to address the issue and US President Barack Obama traveling to India next week, this edition of Lawfare’s Throwback Thursday delves into the origins of these geographic anomalies, the failed attempts to address them, their current status, and their possible future. History Enclaves have existed from time to time in all corners of the world. But today, only about 250 remain, most of them in South Asia. In his excellent survey, Willem van Schendel notes that “in their complexity, number, political significance, and social eccentricity, they have no parallel in the world.” They are the result of an unhappy confluence of pre-colonial state formation, two patterns of colonial rule, and a process of uneven decolonization. The enclaves were born out of years of border skirmishes between the Mughal Empire and the independent state of Cooch Behar. Two treaties in 1711 and 1713 ended this conflict, but also codified a border made jagged and discontiguous by years of retreats, advances, and counter-advances. In the end, landlords of Cooch Behar maintained possession of their lands in an area contemporaneously dominated by the Mughal state, while at the same time, Mughal landholders held estates in Cooch Behar. As much an administrative as a geographical oddity, these small territories paid taxes to one state but were surrounded by another. Van Schendel writes that “sovereignty was expressed not so much in terms of territorial contiguity as in terms of jurisdiction and tax flows.” When the British Empire gained control of Cooch Behar, these extraterritorial pockets posed few administrative difficulties, simply because both sides of the border were then controlled by the British Empire. Unlike the Mughal Empire, which the British dismantled following the uprising of 1857, Cooch Behar was allowed to maintain political control over its territories and enclaves till the end of colonial rule, existing as one of the 565 princely states. When the British withdrew in 1947, Cooch Behar lay wedged between East Pakistan and India. Two years later, the Maharaja of Cooch Behar merged his state with India. The enclaves Cooch Behar maintained in East Pakistan became Indian territory surrounded by Pakistan, whereas those surrounded by India were soon merged with the district in which they were located. Conversely, the Mughal outliers in Cooch Behar had become part of British India and then part of Pakistan, but now found themselves surrounded by India. In the years after the bloodletting of partition, the relationship between India and Pakistan proved too fraught for any resolution on the issue of borders. So the enclaves persisted. At first, a citizen of India needed no travel documents to visit East Pakistan, and vice versa, but in 1952 the two governments instituted a system of passport controls, effectively locking the residents of the enclaves up. Residents were given no legal recourse, as the process of getting a passport necessitated illegally entering two countries: first, the country of which you were not a citizen, and then second, the country of which you were, but had no documents to prove so. In 1958, the countries attempted to make some forward strides. The 1958 Indo-Pakistan Agreement became a sensitive political issue in India, where oppositional parties characterized it as an “unconstitutional act” and a legal challenge was fought up to the Supreme Court, stalling any exchange for years. By the time the Indian Supreme Court decided to dismiss the appeal, India and Pakistan were on the brink of the 1965 war; icy relations until the breakup of Pakistan in 1971 obstructed the exchange of the enclaves after that. East Pakistan’s successful secession (with Indian help) from Pakistan to form Bangladesh in 1971 created an opportunity to address the enclaves. In 1974, this opportunity became the Land Boundary Agreement, signed by Indian Prime Minister Indira Gandhi and Bangladeshi Prime Minister Sheikh Mujibir Rahman. Under the agreement, both nations again agreed to swap enclaves; and India, which stood to lose more land, renounced all claims to restitution. While the Bangladeshi parliament ratified the agreement, the Indian parliament rejected it. The Bharatiya Janata Party (BJP), a Hindu nationalist party, railed against the weakness of ceding territory to Bangladesh, a largely Muslim country. Indo-Bangladesh relations hardened over subsequent decades, precluding any new enclave deal. After a 1975 military coup, Bangladesh moved to assert its Muslim identity, eventually declaring itself an Islamic state in 1988. This move away from Bangladesh’s secular roots alienated the largely Hindu India, and relations deteriorated to the point that both nations began providing support for violent, destabilizing insurgents in the other’s homeland. India began supporting the Shinti Bahini guerrillas in the Chittagong Hill Tracts (now home of the Chittagong Port), as Bangladesh began to serve as a conduit for arms and a home base for insurgents acting in Northeast India. Bangladesh allowed leaders from militant groups such as the United Liberation Front of Assam, the Muslim Liberation Tigers of Assam, the Independent Liberation Army of Assam, and the People United Liberation Front to operate from its territory. The relationship between the two countries further deteriorated as both hardened their stances on key bilateral issues---such as Indian connectivity to its northeastern states and the sharing of common river waters. The 1990s and 2000s saw consistent democratization in Bangladesh, however, and relations improved. In 2009, the senior leaders of the United Liberation Front of Assam (ULFA), an armed separatist group in the northeast that had taken shelter in Bangladesh, were arrested and extradited to India. The arrest signaled a sign of credibility in the new relationship arrangement. Positive progress on the security front continued when Dhaka took action against multiple other insurgent groups, including handing over two members Lashkar-e-Taiba who had been operating from inside Bangladesh. In 2011, Indian Prime Minister Manmohan Singh and Bangladeshi Prime Minister Sheikh Hasina signed a new border deal based in large part on the 1974 framework. Under the agreement, India would transfer 111 enclaves and would receive 51 in return, effectively giving up 15 square miles of land, an area just slightly larger than the District of Columbia. The agreement lacked any timeline for implementation and again, domestic Indian politics prevented Indian ratification of the agreement. BJP’s nationalistic opposition to giving land to a Muslim nation, along with sustained criticism from Mamata Banerjee, West Bengal’s Chief Minister, left the bill stuck in committee for years. Broader Security, Trade, and Diplomatic Implications The deadlock has been costly. The lack of any resolution to the enclaves issue has raised serious security, trade and diplomatic problems, both for India and its neighbors. This is evident in at least four different respects. First, the enclaves present a dramatic human security problem. The utter lack of government services in the enclaves--many of them lack electricity, health care, and schools--has left residents poor, uneducated, and essentially stateless. More than 75 percent of the residents of the Bangladeshi enclaves have spent time in prisons for invalid travel. Residents of Indian enclaves in Bangladesh also have been arrested in similar numbers. On the flip side, unless they leave their enclaves, these populations by definition exist beyond the reach of law enforcement. This combination of poverty and statelessness, along with the absence of legal authority, leaves the enclaves ripe for radicalization.  And indeed, in the past they have become safe havens for violent criminals and even terrorists, who fled to the enclaves in order to escape police. Second, the enclaves prevent both India and Bangladesh from securing their borders. The enclaves dramatically increase the length of the border that must be patrolled. This in turn allows significant flows of illicit goods between the two countries. Throughout the enclaves, smuggling is rampant; some estimates value illegal trade between India and Bangladesh at nearly the same level as official trade between the two nations. For example, India has banned the export of cattle, yet between 20,000 to 25,000 cattle cross the border every day. Much of that smuggling happens away from the enclaves, to be sure; nevertheless, the enclaves very existence makes interdiction that much more difficult, and thus precludes the two states from effectively slowing illicit trade. At the same time, the constant transit between the enclaves and their respective parent states has lead to violence along the border---especially after India adopted a “shoot-on-sight” policy to deter those who might cross illegally. From 2001 to 2012, the Indian Border Security Force killed 907 Bangladeshis. A 2001 border clash left 3 Bangladeshi and 16 Indian soldiers dead, leading India to file complaints of war crimes against Bangladesh. Third, the status quo is commercially harmful, to say the least. Successful resolution of India’s border disputes with Bangladesh could position India and its northeast as the gateway to Southeast Asia. If India is going to increase its control over its underdeveloped northeast, economic connectivity and enhanced integration with regional actors like Bangladesh, Bhutan, and China will be essential. And India will have a much greater chance of maintaining peace in its northeastern states, and of developing them economically, with Bangladesh’s continued cooperation. Indian analyst C. Raja Mohan has said that an agreement in this regard would “liberate” Indian interests in the region. There's more. Instability along the border regions of Bangladesh may not only deter Indian investment; it may also undermine Bangladesh’s prospects of becoming a regional hub. India cannot develop its restive northeast without a broader regional security approach; reducing the risk of militant violence likewise will be essential to driving foreign investment and trade growth in both countries. The Land Boundary Agreement is one of many initiatives critical to better economic and regional integration. Movement here could open the way for other significant agreements on trade and commerce, border markets, the sharing of the Teesta and other rivers, and a railway connecting Agartala and Akhaura. And all of this would pair nicely with Prime Minister Narendra Modi’s ambitious foreign policy, which stresses the benefits of greater economic ties. Finally, the enclaves act as a political wedge between India and Bangladesh. China, India’s regional rival, has used this diplomatic distance between the two countries to gain influence over Bangladesh. In the 1980s, for example, when Indo-Bangladesh relations were especially bad, China became Bangladesh’s strongest international ally and its chief supplier of arms. In that period, China issued Bangladesh dozens of fighter jets, and much of Bangladesh’s current military armament is of Chinese origin. Such patronage, combined with China’s close relationship to Pakistan, leaves India perceiving threats on its west, north, and east. Future Outlook Solving the enclave puzzle will depend greatly on Narendra Modi---his political direction, and the control he will wield over members of his own party. India’s newly elected prime minister has made curbing illegal immigration a top priority, repeatedly telling Bangladeshi illegal immigrants to keep their “bags packed” while on a tour of Assam in May 2014. The move created rancor in Bangladesh. Yet later, in November of that same year, Modi also expressed a willingness to trade land in order to secure India’s borders---thus suggesting perhaps a more accommodating stance than some of his earlier rhetoric did. While good news, this approach also could present political dangers for the prime minister, in that excessively aggressive rhetoric might limit Modi's options with respect to the enclave issue no matter what his intentions. Similar stuff has happened before. In 1998 elections, the BJP stoked opposition to bilateral relations, by raising the controversial issue of illegal Muslim immigration from Bangladesh. Luckily, at the moment, Modi seems to have enough political clout to weather future political opposition, or accusations of flip-flopping. Certainly recent events attest to his political strength: Modi already accepted a UN Permanent Court of Arbitration ruling that drew a new maritime border in the Bay of Bengal, ceding more than three-quarters of the disputed area to Bangladesh. That deal, like the Land Boundary Agreement, was another win-win for India and Bangladesh, setting up the Bay of Bengal for greater energy exploration. A constitutional amendment to ratify the agreement passed with “unanimous” approval through the Parliamentary Standing Committee for the External Affairs Ministry in November. And, in other positive news, Chief Minister Banerjee has recently changed her usual confrontational stance toward Bangladesh. Just a week ago she agreed to visit Bangladesh, and officials in her government have indicated that she may now support the Land Boundary Agreement. Finally, with local and state elections occurring in 2015 in the Northeast state of Assam, the BJP will look to prove its worth. Following its national election success in the state in 2014, tangible benefits in security and economic regional cooperation could help the party make its case. This is good news for both partners. India must lead the way in economically integrating South Asia, which remains the least integrated region in the world. A good first step would be the exchange of border possessions that neither country has effectively controlled, and an acceptance of the de facto situation on the ground. For a prosperous South Asia, both India and Bangladesh must realize the depth of their strategic necessity to one another, while continuing to develop peaceful mechanisms for resolving disputes. The Modi government's stance is cause for optimism in this regard. Perhaps South Block has finally realized that no matter what ruling party is in power in Dhaka, both countries have great incentive to deal with their grievances and build on progress to date.