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Wednesday, January 30, 2008
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Bangladesh & UN Convention on the Law of the Sea

THE United Nation Convention on the Law of the Sea (UNCLOS) of 1982 is a document, which has taken almost a decade for its completion. Unlike the past four UN Conventions on the Law of the Sea, this Convention is much broader in scope and governs use of the world's oceans, especially establishing ground rules for everything from navigation to deep-sea mining.

The Law of the Sea Convention protects its members' navigation rights to the oceans. It establishes limits for marine boundaries and rules for extracting resources among states and preserving the health of the seas. And it sets up a way to resolve disputes about these issues.

Furthermore, the steady melting of the sea ice in the Arctic and Antarctic -- caused largely by global warming -- has opened up new inaccessible parts of the world to shipping and potentially vast deposits of oil, natural gas, mineral resources. In this context, the importance of the UNCLOS has increased.

Although the first session of the UN Conference took place in 1973, its substantive session took place in July 1974 in Caracas in Venezuela. (The writer attended the conference as a representative of Bangladesh). The Conference was chaired first by the Sri Lankan Ambassador to the UN, Hamilton Shirley Amerasinghe.

Common heritage of mankind
One of the concepts that underpin the Convention is that the maritime area beyond the national jurisdiction is a "common heritage of mankind." Maltese Ambassador Avid Pardo first articulated this concept in 1967.

Malta is a small country in the Mediterranean, and the country felt that the sea-bed and ocean floor under the high seas should be considered "the common heritage of mankind," meaning that no country could own or utilise for its benefit the maritime area beyond its national jurisdiction.

By declaring this concept, Malta has emphasised that small countries without great technical expertise for exploration will derive benefits from the exploration and utilisation of the sea-bed of international areas.

The concept caught the imagination of most member countries of the UN. And when the UN Conference on the Law of the Sea began, almost all delegates of developing countries incorporated this concept in their policy statements.

Bangladesh faces the Bay of Bengal, and the importance of its access to the open ocean can be appreciated if one considers the handicaps of landlocked countries, such as Nepal and Afghanistan. Accordingly, from the early years of its birth, it took great initiative and interest to participate in the UN Sea Law Conference.

UNCLOS regime
Under the UN Sea Law Convention, three institutions, the International Seabed Authority (ISA), the International Tribunal for the Law of the Sea (ITLOS), and the Commission on the Limits of the Continental Shelf (CLCS) have been created.

The United Nations and the ISA recognise the desirability of achieving effective coordination of the activities of the Authority with those of the United Nations and the specialised agencies, and of avoiding unnecessary duplication of activities.

The ISA cooperates with the Security Council by providing to it, at its request, such information and assistance as may be required in the exercise of its responsibility for the maintenance or restoration of international peace and security. In case confidential information is provided, the Security Council shall preserve its confidential character.

The ISA, located in Jamaica, officially came into existence in 1994, but its first Secretary-General, Satya Nandan of Fiji, wasn't elected until March 1996.

The ISA didn't become fully operational until June 1996. It wasn't until 2000 that the Assembly of the Authority issued regulations on prospecting and exploration for poly-metallic nodules.

Currently, the ISA is financed by "assessed" contributions. This is the same scheme that the UN uses to finance itself. Certain countries are "assessed," or told they have to pay a certain amount. In addition to the three major institutions, various commissions for the ISA, including an "Economic Planning Commission" and a "Legal and Technical Commission" have been created.

Article 163 declares that members should have "appropriate qualifications," be competent, and "have no financial interest in any activity relating to exploration and exploitation in the area." It also declares that the members of the commissions should not disclose "any industrial secret" or "proprietary data" which are "transferred" to the ISA.

Time frame: 2011 for Bangladesh
The purpose of the above paragraphs is to highlight the institutional mechanism in scrutinising claims of maritime jurisdictions, in settling of disputes among nations, and establishment of equitable regime of exploration of high seas under UNCLOS.

Bangladesh ratified the UNCLOS in 2001. It is expected that by 2011 Bangladesh will have to declare its maritime claims, including its continental shelf, and communicate it to the UNCLOS institutions including CLCS.

Bangladesh law
During the '70s, Bangladesh was the first South Asian country to enact laws on maritime areas. In 1974, Bangladesh Parliament adopted a law known as the Territorial Waters and Maritime Zones Act, Act no. XXV, (as a Director General of the Foreign Office, the writer was involved, among others, in the preparation of the drafting of the law)

The law has allowed the government to declare its jurisdiction on maritime areas, including its baseline, from where the territorial waters are measured.

Besides internal waters, there are four maritime areas on which Bangladesh has claimed its jurisdiction. They are as follows

  • Territorial Sea
  • Contiguous Zone
  • Exclusive Economic Zone
  • Continental Shelf

Whatever remains beyond the national jurisdictions is a part of the high seas, and the sea-bed and ocean floor are to be regarded as the common heritage of mankind.

It is noted that Bangladesh law was adopted long before the UNCLOS came into existence.

Maritime zones of Bangladesh
Through the rivers of Bangladesh, about 2.4 tons of silt flows annually into the Bay of Bengal. The country's 720-kilometre coastline is heavily indented and dotted with small islands/islets. The water of the coastline is very unstable and non-navigable, except by country boats.

For Bangladesh, a normal baseline is not appropriate, and straight baseline is the one that suits it. The delineation of straight baseline is recognised in the UN Law of the Convention.

Bangladesh's baseline was notified through a gazette notification of April 16, 1974 issued by the Ministry of Foreign Affairs.

Under the law of 1974, Bangladesh claims 12 miles territorial sea and 200 miles economic exclusive zone from the baseline, and claims the continental shelf to the outer limits of the continental margin bordering on the ocean floor or abyssal floor.

It is noted that the definition of continental shelf has been given both in legal and geological terms. In geology, the continental margin includes continental slope and continental rise, but in legal terms the continental shelf includes both these geological structures.

The continental shelf of Bangladesh constitutes a gradual slope from the coast because of inflow of the billion tons of silt from its rivers and, accordingly, many experts claim the continental shelf of Bangladesh may easily extend to 350 miles, subject to the conditions of the UN Convention.

Delimitation of sea boundaries
It is noted that Bangladesh is an adjacent state to both of its neighbours and not an opposite state. Therefore, the method applicable in delimiting the maritime boundaries between opposite states is not relevant to the one between adjacent states to achieve an equitable settlement. Furthermore, the configuration of Bangladesh's coastline warrants the consideration of "special circumstances" in terms of the UN Convention.

It is understood that negotiations with India last took place in 1982, and with Myanmar in 1986. It is also important that the sea-boundaries of territorial sea, economic zone and continental shelf with our neighbours -- India and Myanmar -- need to be settled for exploration and exploitation of marine resources (living and non-living).

It is commendable the caretaker government reportedly has taken the initiative to resume negotiations with the neighbours.

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

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