Sea Boundary between Bangladesh and India: Its Progress at the International Arbitration

Sea Boundary between Bangladesh and India: Its Progress at the International Arbitration

 
By- Barrister Harun ur Rashid  

   (Barrister Harun ur Rashid Former Bangladesh Ambassador to the UN, Geneva )

 

Bangladesh is not only a riverine country but also a maritime nation that opens to the south towards the Indian Ocean through the Bay of Bengal.

It was the ocean route that in the past led many foreigners to come to Bengal (now greater part of Bangladesh) and Chittagong port was the conduit for interaction between Bengalis and foreigners including European colonisers.

In our conventional thinking, when we think of resources, we imagine only the resources of the land, ignoring marine resources of the country.

Bangladesh is a coastal state with the Bay of Bengal in its south. The coastal length is about 720 kilometers along the highly indented coast-line with islands and islets. The configuration of the coastal line is of concave nature, similar to the shape of a semi-circle arch.  It faces the concave nature of the Bay of Bengal as well. Therefore one can easily say that Bangladesh faces double concavity in the configuration of its coast.

This has put Bangladesh in a disadvantageous position in comparison in drawing the sea boundary with both of its neighbours-India and Myanmar. Had the configuration of the coastal line been a convex type, the impact on the delimitation of sea boundary with neighbours would have been advantageous for Bangladesh. 

Increase in population coupled with positive indications of economic growth in the country has resulted in an increase demand for energy in Bangladesh. One of the sources of food as well as oil and gas could be found from marine resources. As land resources deplete more attention falls on the marine resources.

In 1974, Bangladesh was the first country in South Asia to enact a maritime law- the Territorial and Maritime Zones Act- to claim maritime areas in the Bay of Bengal. 

Under its law and as well as the 1982 UN Convention on the Law of the Sea (UNLOS), Bangladesh has claimed:

• the territorial waters of 12 nautical miles,
• another 188 nautical miles of Exclusive Economic Zone (EEZ) and
• 260 nautical miles of sea bed known as outer continental shelf  

     (One nautical mile= 2000 yards, while one land mile= 1760 yards) 

Bangladesh has full sovereignty over the territorial waters subject only to the right of “innocent passage” of the ships of a third country. If the passage is not considered as “innocent’, Bangladesh can prohibit the navigation of the vessel through its territorial waters.

The regime of the EEZ is to be differentiated from that of the territorial waters. Bangladesh has no sovereignty on the surface waters of EEZ but only exclusive jurisdiction on the marine resources (living & non-living) of the EEZ. The jurisdiction of Bangladesh on the continental shelf (seabed) is also resource-oriented only.

Bilateral Negotiation

Bilateral talks started in 1974 with India and the negotiations continued for almost four decades. However, the delimitation of sea boundary could not be resolved bilaterally through negotiations because of the differences as to the methods to be applied to delimit the sea boundary. While Bangladesh insisted on applying the equitable method, India was firm about the equidistance method in drawing the boundary. The equidistant line is mostly applicable to opposite states (India-Sri Lanka). 

It is argued that equidistant method cannot be applied in the case of Bangladesh and India because it distorts the boundary due to the double concavity of the coast. Distorting means that the claimed sea areas of  Bangladesh under the UNCLOS  is cut-off by the boundary line of the neighbours from west and east, denying Bangladesh 12 mile-territorial sea, 200- miles exclusive economic zone and  outer continental shelf beyond the 200-mile of sea-bed.  In short, Bangladesh becomes a “sea-locked state”.

UNCLOS Court of Arbitration:

India ratified the UN Convention on the Law of the Sea of 1982 (UNLOS) in 1995 and Bangladesh ratified it in 2001 and are bound by rules of dispute settlement as envisaged by UNCLOS.

India did not accept the jurisdiction of International Tribunal as Myanmar did and opted for Arbitration Tribunal (Permanent Court of Arbitration at The Hague). Both procedures are allowed under UNCLOS. Since the sea boundary could not be resolved bilaterally, on 8^th October 2009, Bangladesh government initiated arbitration proceedings against India before the Court of Arbitration in The Hague. 

The Court of Arbitration consists of three Arbitrators and one each nominated by Bangladesh and India. It means there are five arbitrators in the Court presided over by Rudigar Wolfrum of Germany. 

Bangladesh nominated former Judge Thomas Mensah from Ghana and India nominated P. Sreenivasa Rao, former Legal Adviser of the External Affairs Ministry.

In February, 2010, the President of the Tribunal appointed three arbitrators- Tullio Treves of Italy, I.A. Shearer of Australia and Rudigar Wolfrum of Germany. In July 2013 Treves resigned and a French Jurist Jean-Pierre Cot was appointed in his place in consultation with both parties.

In May 2010, the International Court of Arbitration called India and Bangladesh to attend a meeting to fix a time table of submission of their pleadings and rejoinders.  According to the agreed time table, both sides have followed the following procedures:

· Bangladesh  lodged its statement of claim by May 2011

· India submitted its counter-memorial by July 2012. (originally India was to submit in May but took two 
   month’s time to examine the ITLOS verdict of March 2012 between Bangladesh and Myanmar )

· Rejoinder by Bangladesh  on 31^st January and India’s reply to be submitted by 31 July 2013

· Oral hearings from both sides are to heard by the Arbitral Tribunal in January 2014

· The judgment of the arbitration will be delivered by June 2014.

UNCLOS provides a general guidelines of delimitation under Articles 15 (territorial sea) 74, (delimitation of EEZ) and 83 (delimitation of continental shelf). The interpretation and application of maritime law of delimitation have been expounded by the International Court of Justice and Tribunals.

On the maritime dispute on the North Sea among Denmark, Germany and the Netherlands, in 1969 the ICJ in its landmark judgment stated that: “Delimitation is to be effected by agreement taking into account all the relevant circumstances…including general configuration of the coast of the parties, physical and geological nature”

The most significant precedent in the case of Bangladesh-India maritime dispute is arguably the judgment delivered by the International Tribunal for the Law of the Sea (ITLOS) on March 14^th 2012 in the Bangladesh-Myanmar Maritime Delimitation Case.

The ITLOS judgment determined in favour of Bangladesh among others the following:

· It accepted Meghna estuary as part of relevant coast

· It upheld Bangladesh cannot be  a “sea-locked” state by cutting –off its boundary line

· It recognised Bangladesh’s 12-mile territorial sea

· It recognised Bangladesh’s 200 mile exclusive economic zone

· It recognised the rights of Bangladesh to the outer continental shelf (the exact area is to be decided by the  
  UN Commission on the Limits of the Continental Shelf under Article 76)

Taking account the judgment of the ITLOS of March 2012, Bangladesh hopes that the Arbitral Court at The Hague will deliver its judgment in its favour.

Link:http://www.priyoaustralia.com.au/articles/203212-sea-boundary-between-bangladesh-and-india-its-progress-at-the-international-arbitration.html