Sea
boundary of Bangladesh: A legal view
Barrister
Harun ur Rashid
Bangladesh
with its popula-tion of about 140 million in a land territory of 55,598
thousand square miles (147,570 sq.km) needs to explore and exploit the
living and non-living resources of the adjacent sea. The full extent
of marine resources is yet unknown to us. Considering that humans have
smashed the atom, climbed the Mount Everest and landed on the Moon,
our ignorance about the resources of the sea is a breath-taking gap
in science.
Besides the traditional non-living resources of sea, such as oil or
gas, we could be amazed at the life forms that could live in deep sea
on the continental shelf (ocean floor). Continental Shelf could become
in future one of the sources of food for our massive population.
Some experts consider that mineral deposits are greater in sea than
those in land. The sea-bed covers 71% of the world's area and it contains
approximately 293 chemical elements. As the resources of the land gradually
diminish, there would be scramble for resources on the sea-bed.
UN
Law of the Sea Convention
The 1982 UN Convention on the Law of the Sea came into force in 1994
and Bangladesh ratified in 2001. Under the UN Convention, Bangladesh's
maritime areas, besides inland waters, are as follows:
Territorial Sea
Contiguous Zone
Exclusive Economic Zone
Continental Shelf
In 1974 Bangladesh passed a law, "The Territorial & Maritime
Zones Act (Act no. XXV). This law has allowed the government to declare
its extent of maritime zones through gazette notification.
Bangladesh claimed 200 miles of Exclusive Economic Zone under the 1974
notification of April 16 of Section 5 of the Act and could claim 350
miles of Continental shelf under the UN Convention.
In this context, it is important that Bangladesh needs to settle sea
boundary agreement with both India and Myanmar (Burma). Negotiations
with both countries commenced in 1974 and there were series of meetings
with the representatives of both countries in the intervening years.
If I recall correctly, the last negotiations were held with India in
1982 and with Myanmar in 1986.
However, negotiations remained inconclusive both with India and Myanmar.
The negotiations were held before the UN Convention on the Law of the
Sea came into force. The Convention will have an impact not only on
the extent of the claim of the areas in the Bay of Bengal but also on
the applicable legal principles in delimiting sea boundary.
Bangladesh's
coastal characteristics
Bangladesh is an adjacent country to its neighbours as distinct from
opposite country
( geographically India and Sri Lanka are opposite to each other while
Bangladesh is not). This distinction is very significant and has considerable
ramifications in delimitation of the sea boundary with India and Burma
Another fact is that Bangladesh is a geographically disadvantaged country
because its 720-km coastal line is concave in shape (not convex) and
highly indented. Bangladesh has to ensure that its frontal opening to
the sea does not become blocked in the competing claims from India in
the West and Myanmar in the East. Bangladesh must have an open wide
front to the high seas in the Bay of Bengal.
Bangladesh is a deltaic country and three of the biggest rivers of South
Asia flow through this country. As a result, its waters of the estuary
are unstable. Furthermore monsoon rains carry silt through rivers of
Bangladesh from upper catchment areas. The silt gives formation of innumerable
coastal new small islets almost every year replacing earlier ones. The
waters are in a constant flux.
There exists an underground river or canyon, known as the Swatch of
No Ground, within the territorial waters of Bangladesh in the western
sector. The canyon is believed to be 12 miles long, 1 and half a mile
width and remains active and very deep. It is further believed that
much of the silt carried by Bangladesh rivers is passed on through this
canyon to the sea bed of Bay of Bengal as far as Sri Lanka.
Legal
principles involved in sea boundary
One has to acknowledge that jurisdiction on the sea emanates from the
sovereignty over its land domain. If there is no land territory bordering
the sea, no jurisdiction could be claimed on the sea. I would argue
that the shape of the land domain has a direct bearing on its jurisdiction
on the sea.
If one takes an aerial view of Bangladesh, its physical contours would
look roughly rectangular in shape. There is an inherent connection between
the shape of the land domain and its claim on the boundary on the sea.
Following this principle, Bangladesh's boundary on the sea would be
rectangular in shape.
The boundary on the territorial waters is to be governed by Article
15 of the UN Convention and the equidistant method can only be departed
by reason of "historic title or special circumstances" on
the seas.
However delimitation of Exclusive Economic Zone (EEZ) and Continental
Shelf of adjacent countries will be guided by the principles of equity
in terms of Articles 73 and 84 of the Convention. These Articles of
the Convention emphasise that any agreement arrived at must achieve
"an equitable solution". Principle of equity is ingrained
in notions of fairness in the context of shape of the coastal land.
This equitable principle found recognition by the World Court in North
Sea Continental Shelf Cases (1969:ICJ:general list : nos 51 &52).
The geographical location of countries is very important in drawing
a sea boundary. This means whether a country is opposite or adjacent
to the other country. For example, Sri Lanka is opposite to India while
Bangladesh is adjacent to it or to Myanmar.
The "equidistance method" that is applicable between the opposite
countries in respect of delimitation of EEZ and Continental Shelf cannot
be invoked to draw the sea boundary between adjacent countries as it
disregards the physical features of coastal areas and does not achieve
"an equitable solution" as mandated by the UN Convention.
If this method is applied, the boundary between adjacent countries will
be unfair, distorted and inequitable. Therefore, sea boundary of Bangladesh
with its adjacent neighbours requires to be drawn in terms of the provisions
of the UN Convention so as to achieve "an equitable solution."
The territorial sea would cover 12 nautical miles from Bangladesh baseline,
the EEZ another 188 miles ( total 12+188=200 miles) and finally the
Continental Shelf would cover another 150 miles from the end of EEZ
jurisdiction ( total 200+150=350 miles).
I would suggest that sea boundary could be drawn by stages -first on
the territorial sea, followed by EEZ and thereafter the Continental
shelf. Each has a jurisdiction of different length.
Strategy
pending the outcome of negotiations
Pending the conclusion of sea boundary agreements with India and Myanmar,
one strategy for consideration is to examine the possibility of sharing
resources of the alleged overlapping or disputed areas on the sea. Many
countries have been able to conclude such interim agreements of sharing
maritime resources. For instance, Thailand and Malaysia agreed in 1979
and in 1990 to jointly exploit sea resources of the continental shelf
pending a final agreement. In 1989 Indonesia and Australia concluded
an interim agreement to share resources of the Timor Sea.
The advantage of such interim agreement of sharing resources is two
fold: first sea resources do not remain unexploited and second, neighbouring
countries share the resources (living and non-living) for benefit of
their people. Such agreement puts neighbouring countries in "win-win"
situation prior to arriving at a final agreement.
Barrister
Harun ur Rashid is former Bangladesh Ambassador to the UN in Geneva.
