Reviewing the views
Delimiting sea boundary by applying equitable principles
S. M. Masum Billah
Delimitation of sea boundary is a perennial problem between Bangladesh and her neighbours like India and Myanmar. The abundance of sea resources and growing importance of sea economy has become the apple of discord between these countries. As of now, it seems that Bangladesh has laid too much emphasis on the sea dispute resolution with her neighbours rather than halting it years after years. Given the circumstances, in layman's understanding it is said that India wants to settle the boundary dispute by applying 'equidistance method' while Bangladesh is leaning towards 'equitable solution' as she would have to surrender a great area of sea regime, if equidistance method is applied. The demarcation of conventional sea areas i.e., territorial sea, contiguous zone, exclusive economic zone and the continental shelf depends upon the baseline from which the breadth of sea is measured. The depth method of delineating the baseline as adopted by Bangladesh based on its sea peculiarity is not expressly covered by Article 7 (2) of United Nations Law of the Sea Convention 1982 (UNCLOS III). India seemingly has taken the advantage of this gap in law and has insisted on equidistance method of delimitation of maritime boundary. The negotiation talks over the years being unfruitful and India's reservation for some other alternative forum's jurisdiction (like ICJ or ITLOS etc.) has paved the way for Bangladesh to pursue her neighbours to opt for an arbitral tribunal under the LOS Convention. Sometimes, the arbitral tribunal of such nature is coined as 'compulsory' which seems to be a misnomer considering the consensual nature of the procedure and the whole aspiration of international law of the sea. Even to my view, recent Bangladesh's notification to India and Myanmar to resolve maritime disputes by arbitration may be an array of rediscovering the positions of these countries as per the principle of good neighbourliness. However, from a doubted aspiration this write up focuses on some aspects of maritime delimitation with reference to examples from the international case law and sheds light into the Bangladesh-India-Myanmar situation.
Any scope for depth-method?
Article 7 (2) of the UNCLOS concedes an exception from a normal baseline (low water mark) where the sea coast is highly unstable because of the presence of delta and other natural conditions. The depth method (from 10 fathom depth of the sea) adopted by Bangladesh conforms to the expression, 'other natural conditions'. The adoption of a straight base-line has also been established in the famous Anglo-Norwegian Fisheries Case, 1951. International law also does not prohibit delimitation of sea area by taking into account the 'local requirements'. Bangladesh's depth method is neither 'normal' nor 'straight' but somewhat an isomer of straight baseline method not prohibited by international law, if not expressly mentioned in Article 7 (2). The geographical and topographical peculiarities of the coast of the bay can be accommodated within the ringing tune of the Article 7 and whole dispute settlement mechanism of UNCLOS III under its Chapter XV. It is to be noted that equity has been a thematic touchstone of the LOS Convention starting from its preamble to other Articles throughout the convention.
Equitable considerations in maritime case law
In the North Sea Continental Shelf Cases of 1969, the International Court of Justice held that the equidistance principle, codified in the 1958 Geneva Convention on the Continental Shelf to which Germany was not yet a party, did not represent customary law. The court went on to say that equitable principles, including all relevant circumstances, should be used by the parties in their settlement. Factors to be considered by the parties were: (1) configuration of coasts (e.g. Germany's concave coast) including any special features, (2) physical and geological structure and natural resources of the continental shelf, and (3) reasonable proportionality between extent of continental shelf and length of the parties' coasts (the proportionality principle), considering actual or potential effects of other continental shelf (5) delimitations between adjacent States in the same region. Subsequent to the ICJ's decision fulfilling the parties' request for the applicable principles of international law, Germany, the Netherlands, and Denmark drew an equidistant line then adjusted it taking the aforementioned equitable considerations into account, despite the ICJ's decision to exclude equidistance as an applicable principle of international law for resolution of the dispute. One thing to be observed the parties resort to equidistance method but adjusted it with equitable considerations. This can be an implication for Bangladesh-India-Myanmar. If the proposed arbitration is contested a transitional arrangement may be made by negotiation.
In the Anglo-French Continental Shelf Arbitration of 1977, a maritime boundary was established between the United Kingdom and France both of which were parties to the 1958 Geneva Convention on the Continental Shelf. The arbiters first drew a provisional equidistance line (as equidistance was specifically mentioned in the aforementioned applicable treaty), then took into account the equitable considerations of: (1) France's strategic defense interests as UK's Channel Islands were much closer to France than to the UK, (2) population and the political/economic importance of the Channel Islands, and (3) the proportionality principle. The result was an equidistant median line between the mainland of two nations' and a twelve nautical mile enclave around the Channel Islands. In this case, in spite of specific mention of equidistance method, equitable considerations have not been ignored at all.
In the 1982 Continental Shelf Case (Tunisia-Libya), the ICJ held that the delimitation was to be effected in accordance with equitable principles, considering the following relevant circumstances: (1) the parties' coastal configurations, (2) islands off the Tunisian coast, (3) the land frontier between the parties, (4) conduct of parties in granting petroleum concessions, and (5) proportionality between length of coasts and extent of continental shelves, although this criteria had little impact on the final delimitation as the parties' coasts were of relatively equal lengths. Evidently, solely equitable doctrine was applied in this case.
In the 1984 Gulf of Maine Case, the International Court of Justice delimited the exclusive fishery zone and Continental Shelf between the United States of America and Canada, neither of which was a party to the Convention at the time, by drawing a provisional median line then adjusting it based on the length of the parties' respective coasts along the Gulf of Maine. The ICJ acknowledged that Georges Bank, one of the world's prime fishing areas, was the “real subject of the dispute” and observed that Canada's argument for considering economic need would only be relevant if the delimitation resulted in “serious economic repercussions”. Though the case was related with fishing rights, yet one significant ratio of the decision is that the resultant 'serious economic repercussions' can be a factor in resolving sea dispute. Bangladesh's population and future dependence of economy on sea resources certainly qualifies to this aspect.
In the 1985 Guinea-Guinea-Bissau Arbitration, the arbiters, in order “to achieve an equitable solution, taking into account relevant circumstances,” considered: (1) the need “to ensure that, as far as possible, each State controls the maritime territories opposite its coasts and in their vicinity,” and (2) the need to ensure that other actual or future maritime delimitations are given due regard (e.g. Guinea's risk of being enclaved by its neighbors' maritime zones if equidistant lines used, also a truth for Bangladesh). The arbiters unequivocally stated that “[t]he boundary is not to be delimited on the basis of equidistance.” The Convention was not in force between the parties at the time of arbitration, yet it entered into force between them only one year later. In our case all the three countries are signatory to the UNCLOS III, a relatively more obligatory situation.
In the 1993 Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), the ICJ drew a provisional median line, then adjusted it given the following equitable considerations: (1) proportionality of relevant coastlines, and (2) equitable division of the capelin fisheries. The consideration of equitable fisheries allocation builds upon the Gulf of Maine precedent concerning equitable division of natural resources.
In the 2002 Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria, (Both states were parties to the Convention), the ICJ held that territorial seas had already been delimited under prior, valid, international agreements between the States and between their colonial predecessors. The court went on to delimit the EEZ and Continental Shelf by applying Articles 74 and 83 of the UNCLOS III, while ensuring that neighboring third parties' rights were not adversely affected. Factors calling for the adjustment or shifting of equidistance line in order to achieve an 'equitable solution', as envisaged by Articles 74 and 83 were found to be present in this instant case.
The writer is Assistant Professor, Department of Law, Jagannath University, Dhaka.
It is apparent from the above case decisions that the practical approach towards delimitation of maritime boundary takes into accounts the factors like, configuration of the coast line, the presence of delta or island, the existence of continental shelf, the existence of fish-stocks, socio-economic and geo-physical impact etc. Given the geographical, geological and geomorphological characteristics of the sea, as Professor Habibur Rahman puts it, Bangladesh-India situation can not be taken to be a normal case. It falls within the ambit of 'special circumstances' to be dealt by considering the factors as discussed above. To reach an equitable solution the concavity-convexity of sea coast, geo-physical traits, socio-economic impact considerations must get preference in interpreting the relevant provisions of international law of the sea.
The preamble of the LOS Convention speaks about 'mutual understanding and co-operation' to ensure 'equitable and efficient utilization of sea resources' for the purpose of contributing towards 'justice, peace and progress of human kind' and to create an 'equitable international economic order'. Every state has an obligation to work for it. Even if Bangladesh-India-Myanmar vies with each other in the arbitration, the ultimate decision would have to be effected by the countries themselves. So has been the case with other countries. There is no alternative but to work taking the other friends into confidence.
The writer is Assistant Professor, Department of Law, Jagannath University, Dhaka.