Vol. 5 Num 698 Wed. May 17, 2006  

Bottom Line
Undemarcated Sea-boundary

Is India taking advantage?

It is common knowledge that India is hungry for energy and its search for oil and gas is in high gear. It is understandable that India will explore the areas within its territory including maritime zones for oil and gas. However, it must not in any way encroach on a neighbour's territory.

Under the 1982 UN Law of the Sea Convention, a state is entitled to claim 200 nautical miles within its jurisdiction. The first 12 miles are known as territorial sea and the next adjoining 188 miles as its Economic Zone. The sea-bed (continental shelf) of a state can go further --(350-miles) depending on the geo-physical characteristics of the sea bed.

India reportedly floated its sixth licensing round under the New Exploration Licensing Policy, 24 marine blocks for exploration in the Bay of Bengal. It is further reported that India is about to explore two marine blocks for oil and gas close to the Sunderbans of Bangladesh in the Bay of Bengal. The published block acreage of the Indian government, earmarked as Blocks D-22 and 23 in the Bay of Bengal, appears to overlap with Bangladesh's area.

In 1974, when Bangladesh allocated a few off-shore blocks of the Bay of Bengal to a foreign oil company, India vigorously objected and sent a letter to the foreign company, without any communication to Bangladesh, that the company would be at its risk because the sea-boundary between the two countries remained unsettled. As a result, the foreign company withdrew, to the disappointment of Bangladesh. Bangladesh felt let down by India.

It is noted that in 1974, among all the countries in South Asia, Bangladesh is the first country that had declared its jurisdictions in July on territorial waters, economic zones, and continental shelf through legislation in parliament, known as the Territorial and Maritime Zones Act 1974.

The economic zone under the law is extended to 200 nautical miles from its baselines and the continental shelf goes to a distance of 350 miles. The baseline from which the territorial sea, and economic zone is measured has been described in geographical coordinates (longitudes and latitudes) through a gazetted public notification of the government so that other nations could know the exact claim of Bangladesh.

If the reported news of India's intended exploration in the Bay of Bengal is correct, India will be laying its hands on the blocks of marine areas that are claimed by Bangladesh in 1974. By all canons of international law and legal precedents, coupled with domestic law on the subject, it is strongly argued that the areas in question fall within the Bangladesh territory.

As far as international law is concerned, Articles 76 and 82 of the 1982 UN Convention on the Law of the Seas lay down the methods of delimitation of sea boundary between adjacent states (distinct from opposite states, such as Sri Lanka and India). First the states shall settle the boundary through negotiations. If negotiations fail, the principle of equity will apply, implying that justice and fairness must be the hallmark of settlement.

Since the areas in the Bay of Bengal have yet to be delimited, legally and politically, India's reported action is contrary to the spirit of good neighbourliness and mutual respect.

Bangladesh and India commenced negotiations on delimitation of maritime boundary in 1974 (the writer was involved with the negotiations). The sea-boundary line could not be settled because India's proposed line that was contrary to international law as decided by the World Court in 1969 on the North Sea Continental Shelf Case. The proposed boundary would leave little maritime area for Bangladesh in the Bay of Bengal, turning Bangladesh into a "sea-locked country."

Several meetings took place between 1974 and 1982 on the subject, but India reportedly remained firm in its position that was not only contrary to international law but also ignored the geo-morphological features, including the indented nature of coastal belt of Bangladesh and concavity of its coasts.

Bangladesh's case is straightforward and simple Looking at the map of Bangladesh, its land domain is rectangular in shape and since the Bay of Bengal is located on the south of the land territory of Bangladesh, it gives Bangladesh the right to claim marine areas in rectangular orientation extending 200 nautical miles to the south in the Bay of Bengal from the extremities of its land territory.

Another fact is that the delimitation of sea boundary between two lateral or adjacent states, such as Bangladesh and India, is different from that of opposite states such as India and Sri Lanka or Australia and Indonesia.

Geographical position plays an important part in delimitation of sea boundary and equitable principles come into play in the case of adjacent states. The method of delimitation (equidistant method) between two opposite states does not apply between adjacent states because it grossly distorts the boundary, contrary to the principles of fairness and justice (equity).

India's claim of South Talpatty Island complicated the negotiations on sea boundary.

This dispute, in turn, has raised an important question as to the exact boundary line on the Hariabhanga river that separates Bangladesh and India in the west.

The 1947 Radcliffe Award of Indo-Pakistan boundary did not adequately address the issue because the international boundary of the river remains undemarcated up to the point of the river meeting the estuary on the sea.

Bangladesh, at one stage during negotiations, proposed a joint Bangladesh-India marine survey on the Hariabhanga river to come up with a report on the exact position of deep water navigable channel of the river so as to demarcate the river boundary and also to ascertain the existence of another low-tide elevation (India calls it Purbasha Island).

Unless the border river is demarcated, the main channel of the river cannot be determined and as a result, ownership of South Talpatty and the sea boundary in turn cannot be resolved. The precise issue is as to whether the main channel runs east or west of the island. Some experts have questioned whether South Talpatty can be called an island because it does not remain above water during high tide. They argue it is a low-tide elevation.

However we may describe it, India remained silent to proposed survey although it agreed in principle in 1979. Later, Bangladesh provided to India data including satellite imageries of the flow of the river. Since 1974, regrettably India has not accorded any priority to implement Bangladesh's proposal to resolve the issue.

The Bangladesh government published a White Paper on South Talpatty and submitted to the Parliament on May 16, 1981. The Paper convincingly argues the merits of Bangladesh's case.

With the increase of population in Bangladesh (242 million by 2050, according to the UN), Bangladesh will gradually turn its attention to rich marine resources for food and other needs of its people. It is reported by scientists that resources on sea are much more fruitful than those on land. As our land-resources deplete, it will be necessary for Bangladesh to depend increasingly on sea resources.

The marine areas adjoining in the Bay of Bengal need to be resolved and demarcated in order to avoid unnecessary tension between the two neighbouring countries. It is hoped that both countries may commence negotiations as soon as practicable on the important subject; until then, it would be prudent for India not to explore oil and gas in the maritime areas that are claimed by Bangladesh.

Barrister Harun ur Rashid is a former Bangladesh Ambassador to the UN, Geneva.