The International Tribunal for the Law of the Seas (ITLOS) in Hamburg, Germany, gave its judgment on the maritime boundary dispute between Bangladesh and Myanmar (Case 16), on March 14, 2012. The judgment was according to Article 287 of the United Nations Conference on the Law of the Sea of 1982 (UNCLOS III), which states that member states can settle their disputes through any of the following means:
(a) The International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) The International Court of Justice;
(c) An arbitral tribunal constituted in accordance with Annex VII;
(d) A special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
The judgment given according to Article 287(a) was binding to both the conflicting parties. The tribunal's judgment settled disputes with Myanmar; but with India the matter is yet to be settled. India's claim overlaps some of our shallow and deep sea blocks within and beyond 200 nautical miles (nm) from our baselines. Bangladesh's objection to Indian claim was filed with the UN's Permanent Court of Arbitration based in The Hague, Netherlands as per Article 287(c). The arbitration with India is expected to be settled in 2014; but to obtain a just solution to the disputes Bangladesh faces very tough days ahead.
Law of the Sea
The present day Law of the Sea is the outcome of United Nations Conference on the Law of the Sea of 1958 (UNCLOS I), UNCLOS II of 1960 and UNCLOS III of 1982. According to the UNCLOS III, Articles 3 and 15, every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nm, measured from baselines in the line of low water tide along the seashore of a state. As per Article 17, ships of all states, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. Article 33 gives authority of a state on certain other matters to further 12 nm called Contiguous Zone. Article 55 allows an Exclusive Economic Zone, an area beyond and adjacent to the territorial sea, where the coastal state has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources. As per Article 57, this exclusive economic zone shall not extend beyond 200 nm from the baselines. UNCLOS III of 1982 in Article 76 gives rights to the coastal states to own some more areas beyond the exclusive economic zone, called the Continental Shelf.
The Bangladesh coast from its boundary with India on Hariabhanga estuary to Kutubdia consists of many rising islands of mud. This is because about 1,400 million metric tons of silt is being carried down annually by the Bangladeshi rivers from their upper catchments, of which the major amount is deposited into the sea. As there is no definite shoreline, Bangladesh drew its boundary limits with India by following the silt flow line from Hariabhanga estuary to the Swatch of no Ground, and then another line along the 180 degree azimuth southward. India wants to continue the silt flow line southward from Hariabhanga, which cuts across the exploration blocks of Bangladesh in the shallow and deep seas. It may be mentioned that maritime cartographer V.L. Forbes drew the maritime boundary of Bangladesh with India by one straight line from Hariabhanga estuary along 180 degree azimuth southward.
The Tribunal for Bangladesh and Myanmar drew (para 202, 204) baselines for both the countries. For Bangladesh, one line was from Mandarbaria Island (east of Hariabhanga estuary) to the Kutubdia Island and the other from Kutubdia to Naf River (land boundary terminus with Myanmar). Figure 1 shows the baselines and the sketch map of the relevant area under dispute drawn by the tribunal. The western boundary of the relevant area is drawn by a straight line from the Mandarbaria point towards south along 180 degree azimuth. The relevant area is estimated 283,471 sq km on the sea, of which Bangladesh was awarded 111,631 sq km and Myanmar 171,832 sq km areas.
Exclusive economic zone and continental shelf:
Bangladesh argued in ITLOS Case 16 that (para 213), on account of the specific configuration of its coast in the northern part of the Bay of Bengal, and of the double concavity characterising it, the Tribunal should apply angle-bisector method in delimiting the maritime boundary between Bangladesh and Myanmar. Bangladesh claimed (para 217) its exclusive economic zone (EEZ) and the continental shelf (CS) by a delimitation line through the angle-bisector method, specifically through 215 degree azimuth line from 12 nm south of the St Martins Island. The tribunal, limiting to12 nm Territorial Sea around St Martins Island (para 337), shifted the end of Bangladesh baseline at the outfall of Naf River. The tribunal however decided to deflect the equidistance line (para 340) for delimitation of the continental shelf, in view of the geographic circumstances of the case (para 329), to 215 degree azimuth to the southwest. The tribunal's final judgment (paragraphs 500-505) states that the delimitation line along 215 degree azimuth shall continue until it reaches the area where the rights of third states may be affected.
Delimitation of maritime boundary with India:
Comparing Figures 1 and 2 we can see that, though the Tribunal awarded 111,631 sq km area to Bangladesh, some part of it is claimed by India. How can we tackle this situation? Claiming on the basis of angle-bisector method, i.e., bisecting the angle formed by Indian coastline from Hariabhanga to Debi Point and Bangladesh coastline from Hariabhanga to Naf River, we shall arrive on the same line of India's claim. So to arrive at an equitable solution, we must argue on the basis of natural prolongation (Article 76 of UNCLOS III).
To arrive at an equitable solution to the maritime boundary disputes with India and to get entry to the high seas from our own waters, we have to produce a correct bathymetric map of the Bengal depositional system. Not only that, we should argue that India has no right anywhere to the east of Swatch of No Ground, as sediment from Indian territory does not reach there. If we miss this line, any solution, either on a compromise with the Indian claim or keeping the boundary line drawn by ITLOS, shall lead us to a sea lock position somewhere within or beyond 200 nm of our continental shelf. But however, use of the superjacent waters of one country by another country for some specific purposes, i.e., navigation and over-flight, laying of submarine cables and pipelines, etc., remain allowed as per articles 56, 58, 78 and 79, and in some other provisions of the UNCLOS III. As per ITLOS judgment, use of the “Grey Area” inside Bangladesh sea is similarly provided to Myanmar by its observations made in para 475. These provisions do not allow extraction or use of the resources by Myanmar or any other country [Art 79(4)] either under the bed or in the superjacent waters of the “Grey Area.”
The writer is Chairman, Institute of Water & Environment.