Judgment of the ITLOS

Khurshed Alam

The present government has attached utmost importance to the maritime affairs of the country; therefore, it has taken substantive, practical and time-bound initiatives to resolve maritime boundary disputes with the neighbouring coastal states as well as to ensure legal entitlements of the people of Bangladesh to the apportionment of maritime area and exploitation of maritime resources therein.

Bangladesh took a calculated risk of going to court and handed over the letter of arbitration in October 2009, and then case was transferred to the ITLOS. Finally the verdict was announced by the ITLOS on March 14.

Salient features of the judgment of the International Tribunal for the Law of the Sea:

Territorial Sea:
Bangladesh placed two alternative proposals for delimitation of 12 nautical miles (nm) territorial sea. The Tribunal disagreed with Bangladesh that the 1974/2008 Agreed Minutes between Bangladesh and Myanmar constituted a binding international agreement. It, however, agreed with Bangladesh that "St. Martin's Island is a significant maritime feature" entitled to a full 12nm territorial sea. It, therefore, rejected Myanmar's argument that the island should be limited to a territorial sea of as little as 6nm. The territorial sea boundary adopted by the Tribunal consists of an equidistance line between St. Martin's Island and the Myanmar mainland, almost exactly identical to the 1974 agreed boundary as argued by Bangladesh.

Exclusive Economic Zone/ Continental Shelf within 200M:
The Tribunal rejected Myanmar's argument that the strict equidistance line was equitable even though it prevented Bangladesh from reaching out to 200nm. The Tribunal agreed with Bangladesh that the concave shape of its coast was a relevant circumstance necessitating an adjustment to the equidistance line. The Tribunal, therefore, substantially adjusted the equidistance line in order to alleviate the effects of the concavity on Bangladesh and enable it to reach 200 nm across a large area and opening of Bangladesh to the Continental Shelf beyond 200nm. The Tribunal arrived at almost exactly the same result as that proposed by Bangladesh; i.e., a 215 degree line. The result is fully consistent with the "equitable solution" international law requires. For over 30 years, Myanmar had insisted on an unadjusted equidistance line that cut Bangladesh off well short of its 200 M limit rather cut off at 130nm only. Bangladesh now has access to a full 200 M across a broad area. It also has broad access to its rights in the outer continental shelf beyond 200 M.

Continental Shelf beyond 200M:
The Tribunal rejected Myanmar's argument that it should decline jurisdiction over the issue of the delimitation in the outer continental shelf. The Tribunal also rejected Myanmar's argument that Bangladesh has no rights in the outer continental shelf because the delimitation should stop it from ever getting there. In delimitating the outer continental shelf, the Tribunal decided that the concavity of Bangladesh's coast continued to be relevant. Any cut-off of Bangladesh should be minimised. Accordingly, the Tribunal decided to extend the same 215 degree line it adopted within 200 M into the area beyond 200 M. The Tribunal did not specify the end-point of the 215 degree line but rather put an arrow on the end of it, saying it should continue in the same direction until it reaches the area where the interests of a third state (namely, India) are affected.

Never once either in negotiations -- or even before the Tribunal -- did Myanmar recognise Bangladesh's rights beyond 200 M. It insisted that Bangladesh should be kept out of the area altogether. Now, as a result of the Judgment, Bangladesh will enjoy sovereign rights over a sizable portion of outer continental shelf. The Tribunal's decision to accept jurisdiction is a path-breaking one. In so doing, it became the first international tribunal to delimit in the outer continental shelf.

Although the Tribunal did not specify the end point of the boundary, the result is clear. The Bangladesh-Myanmar boundary continues along the 215 degree line until it meets the location of the future boundary between Bangladesh and India, which will be decided by the arbitral tribunal. When the India judgment is delivered, Bangladesh's maritime boundaries will be fully and finally delimited.

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The writer is Additional Secretary, Ministry of Foreign Affairs.

This article was first published on March 20, 2012 in The Daily Star.