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     Volume 8 Issue 94 | November 13, 2009 |

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Current Affairs

Troubled Waters

Syed Zain Al-mahmood

The issue of maritime boundaries was forced into the public consciousness when Myanmar's Junta hired the Korean company Daewoo to drill for oil and gas in the Bay of Bengal on November 5, 2008. The Korean oil company deployed a drilling rig in disputed waters under the watchful eye of three Burmese warships. A tense standoff ensued, with Bangladesh scrambling five warships of its own. The rig was finally withdrawn after intense diplomatic parleys involving Bangladesh, Myanmar and South Korea.

The Adviser in charge of the foreign ministry Iftekhar Ahmed Chowdhury told reporters at the time that Myanmar was removing the exploration equipment following strong diplomatic protests. "We hope that they will not conduct any further exploration in this area until we can demarcate our maritime boundary through talks," said Chowdhury.

But the tension then shifted from sea to land when the Myanmar army started planting landmines along the border, and began a troop buildup. The Bangladesh army responded by digging bunkers, and warning civilians to stay away from the border area. The confrontation ended after hectic talks, but tensions continue to simmer.

Bangladeshi analysts see the actions of Mynmar's Junta as an act of provocation at a time when the neighbours are trying to resolve their differences over the issue of demarcation of maritime boundaries. The dispute is not a new one. Bangladesh has been trying to resolve its maritime boundary disputes with Myanmar through bilateral discussions for decades. So far, such talks have failed to bear fruit with both countries sticking to their guns. Similar thorny disputes exist with Bangladesh's giant neighbour India.

The dispute over who controls the oceans dates back to the days when the Egyptians first plied the Mediterranean in papyrus rafts. The oceans of the world have long been viewed as a wide-open free space -- a vast frontier associated with adventure and mystery, containing unlimited resources to be exploited. In the seventeenth century, nations formalised this viewpoint into the Freedom of the Seas doctrine. This doctrine limited any nation's rights to the ocean to a narrow belt, traditionally 4.8 kilometres (3 miles), surrounding its coastline and declared the rest of the seas to be free for use by all nations and belonging to no one. This doctrine reflected the view that the seas were such a vast resource that all nations could use them as they liked.

By the twentieth century, the dramatic growth in use of the oceans directly challenged this doctrine. The ocean's resources were increasingly exploited for economic benefit, and nations began to lay claims over offshore resources. Fishing fleets, transport ships, oil companies, and navies all depended on the seas for their operations. There were also concerns over environmental degradation. Clearly a new law was needed to demarcate and regulate the seas.

The Law of the Sea (LOS) is a comprehensive treaty covering territorial sea limits, navigational rights, the legal status of the ocean's resources, economic jurisdictions, protection of the marine environment, marine research, and other facets of ocean management. In short, the Convention is an unprecedented attempt by the international community to regulate all aspects of the resources of the sea and uses of the ocean, and thus bring a stable order to mankind's very source of life.

"Possibly the most significant legal instrument of this century" is how the United Nations Secretary-General described the treaty after its signing. The Convention came into force on 16 November 1994, one year after Guyana became the 60th State to adhere to it.

The treaty established legal principles governing ocean space, its uses and resources. The Law of the Sea treaty also set up a binding procedure for settling disputes between nations and established the International Tribunal for the Law of the Sea. Nations could now take other nations to court over perceived violations of international convention.

The UN Convention on the Law of the Sea is at the heart of Bangladesh's claim. Bangladesh's efforts to assert its rights over the coastal waters moved up a gear recently when, following 35 years of fruitless negotiations, Bangladesh served arbitration notice on India and Myanmar. Washington-based law firm Foley Hoag LLP has been retained by the government in two just-filed arbitration actions over maritime borders in the resource-rich Bay of Bengal.

In separate proceedings against each of its two neighbours, Bangladesh has referred to binding arbitration under the UNCLOS in order to fix its maritime boundaries. Paul Reichler, who leads the Foley Hoag team representing Bangladesh, says foreign oil companies holding exploration licenses from Bangladesh, including ConocoPhillips and UK-based Tullow Oil plc, have been intimidated by warships from Myanmar within waters Bangladesh claims as its own.

“The exaggerated claims of Myanmar and India, and aggressive actions by Myanmar in particular, have effectively prevented Bangladesh from exploiting potentially huge deposits of oil and natural gas located off its coast,” said Reichler in a press release.

Neither Myanmar nor India has yet responded to the arbitration notifications, which were filed by Bangladesh on October 8. They each have 30 days under the applicable rules to appoint an arbitrator. Arbitrations of this type can typically take up to three to four years from the initial notification to the final decision.

According to Commodore (Retd) Md. Khurshed Alam, an expert on maritime affairs, both India and Myanmar unilaterally ignored Bangladesh's claim of maritime boundary and EEZ announced in 1974, while Bangladesh failed to do anything worthwhile to press its claim.

Dhaka has consistently argued for equity as the basis of the demarcation while Yangon insists that equidistance should be the guiding principle. Equidistance is a method of drawing the boundary where every point is equidistant from the territorial base line. The two counries have basically stuck to the same position since 1974.

According to Commodore (Retd) Alam, the Law of the Seas is important for drawing a base line from which maritime zones can be measured. Unstable coast line like that of Bangladesh can have a straight base line but that must start at some point on land finishing at another point on land.

According to analysts, the concept of maritime zones is an important one. The territorial sea extends 12 nautical miles (1 NM = 1.85 Km) towards the sea from the base line. Up to this line a country will have full sovereignty like it has on the landmass. Then there are 200 miles of exclusive economic zone (EEZ). All the living and non-living resources of the sea belong to the coastal country and it can explore exploit and conserve them as it sees fit. After the exclusive economic zone (EEZ), lies the continental shelf, which can stretch up to 350 nautical miles from baseline.

According to the UN Convention on the Law of the Sea, Bangladesh must lay claim to its boundaries by July 27, 2011; India by June 29, 2009; and Burma by May 21, 2009. Commodore (Retd) Alam warns that Bangladesh cannot even get 200 miles of EEZ if India insists on equidistance and Myanmar is also allowed to draw the equidistance line.

Meanwhile, analysts have kept a cautious eye on the stance of China, a country that exerts enormous influence over the Myanmar Junta. In a significant development, major Chinese oil companies have been bidding for contracts in Bangladesh's offshore oil and gas blocks, and many experts see this as an example of China hedging its bets in this dispute.

The Law of the Sea calls on signatories to resolve any dispute in a peaceful manner. Bangladesh, India and Myanmar have all signed up to UNCLOS. Although Myanmar's show of force in deploying warships and troops throws significant doubt on that commitment, Bangladesh remains on course for an orderly and equitable resolution.

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