Recently, Foreign Minister Dipu Moni informed our Parliament that the Permanent Court of Arbitration (PCA) based in the Hague, Netherlands, is expected to deliver its judgment on the maritime boundary dispute with India by the middle of next year. Oral hearing of the case by the five members of the PCA would start this December. Bangladesh in the meantime had submitted a ‘memorial’ in May 2011 which was countered by India with its own ‘memorial’ in January 2013.Then Bangladesh submitted the required papers to lay its claim to territorial waters, Exclusive Economic Zone up to 200 nautical miles and Continental Shelf up to 350 nautical miles from the baseline. PCA has fixed July 31 this year to hear India’s rejoinder on this issue. The expected oral hearings will then take place in December.
It may be recalled that India and Bangladesh had approached the Arbitration Court in 2009 to resolve the dispute over the maritime boundary between the two countries. It is therefore pertinent to examine the nature of the dispute, what the claims are of India and Bangladesh and what are the international principles usually applied to resolve such disputes.
The maritime boundary between India and Bangladesh is not delineated. Both the countries co-occupy 180 km of a maritime borderline. Hence, there have always been claims and counter-claims and overlapping claims. The issue came to a head after India discovered huge hydrocarbon deposits in the Bay of Bengal. India, it was reported, was keen to ‘box’ out Bangladesh from the Bay so as to be able to exploit these resources. But this could only be done if the maritime border was drawn by India at an acute angle from the coastal base line.
India’s came in late 1971, when a small island unexpectedly appeared 3.5 km from the mouth of Hariabhanga river, which served as the border river between the two countries in the south west part of Bangladesh. As per the Thalweg doctrine, when a river separates two nations, the middle of the deepest channel serves as the borderline. Because of this principle, the flow of the river Hariabhanga became a source of the maritime dispute.
Even in those early days of Bangladesh, a joint survey with India was suggested to determine the position of navigable main deep water channel of Hariabhanga. The critical point was that if the deep water ran west of the island, Bangladesh would have its rightful claim. However, if the flow was deepest on the eastern side of the river, then Bangladesh would be ‘boxed’ out of the Bay as India intended. India said no to the joint survey as it said that the island was already Indian territory. In fact, India went to the British Admiralty to officially put the island, to be called New Moore island, as its own on the admiralty chart. Bangladesh contested this and named the island South Talpatti.
In 1975, Indian Border Security Force (BSF) installed concrete pillars and a billboard with the Indian flag, thereby claiming it as ‘its territory.’ Bangladesh had to send its naval units to challenge this claim on the island. Then, in 2010, it was reported that just as suddenly as the island appeared, it also disappeared from the Bay. It had submerged into the sea. A crisis was averted but the problem of demarcating the maritime border between the two countries still remained.
Several issues need, therefore, to be determined when delimiting the maritime border between India and Bangladesh. First is the definition of territorial waters. Usually, this refers to a belt of coastal waters extending up to 12 nautical miles from the ‘baseline’ of a coastal state. The ‘baseline’ is a line connecting low water marks closest to its shore. The UN Convention of the Law of the Sea (UNCLOS) gives all coastal states full sovereignty within these territorial waters. India insists that Bangladesh comply with the same low water baseline concept. But Bangladesh is a delta and has a very uneven and unstable coastline, as numerous rivers empty into the Bay of Bengal. In 1974, Bangladesh refused to follow the concept and instead endorsed the system of a straight base line. Under Article 7 of UNCLOS, a straight base line is accepted where a region is characterised by islands or is deeply indented or is unstable.
The second determination is related to the direction the maritime borderline should be drawn to establish the maritime zones in the Bay of Bengal. India wants to delineate its 200 mile Exclusive Economic Zone (EEZ) by applying the ‘equidistance principle’ from its coastline. But this can be applied where the border of adjacent nations is located in a contiguous coastline. If this principle is used Bangladesh will then become a ‘zone locked’ country in the Bay of Bengal.
Bangladesh applies the ‘equitable principle’ based on a straight baseline. It emphasises equity to produce an equitable solution to overlapping boundary claims. A boundary based on equity will take into account all equitable variables, combine them and then balance the relative weight of each factor. The ‘equitable’ principle had been successfully applied by the ICJ when deciding the 1969 North Sea Continental Shelf where a situation similar to Bangladesh prevails. In 1983, the case of Guinea and Guinea-Bissau was also decided using this principle.
The matter of Continental Shelf up to 350 nautical miles is the next determination that has to be done by the PCA. On this matter, papers based on scientific survey will speak for themselves. But, in principle, equity must play its due role here too.
There is no doubt that both the countries have much at stake on fair maritime border delimitation. But it must be remembered that Bangladesh has, in percentage terms, a much bigger stake than India. The Bay of Bengal is our only sea and we are heavily dependent on its resources. India enjoys a much larger coastline in the Bay than Bangladesh. In addition, it has the Indian Ocean and the Arabian Sea.
If the maritime border delimitation is done to the satisfaction of stake holders there will be little reason why the two countries cannot cooperate and work together in the Bay for their mutual benefit. There are other issues that must also be addressed jointly by the two countries, like climate change, sedimentation, subsidence, as well as maritime security. Peaceful settlement of the maritime border issues will indeed open up huge opportunities to both the countries to work together and prosper.
The writer is a former Ambassador and a commentator on current affairs.