Discuss the major problems of Delimitation of Bangladesh’s maritime boundaries with india & Myanmar

1. 1.            INTRODUCTION:

The sea areas of Bangladesh are apparently rich in spanning fish stocks and mineral resources, including hydrocarbons. But a long-standing dispute[1] over maritime boundary delimitation[2] with India and Myanmar remains a major awkward block in exploration of these resources. The overlapping claims of these three countries over the maritime zones [3]in the Bay of Bengal need to be settled for peaceful exploration of natural resources. While India and Myanmar want to delimit the maritime boundary on the basis of the equidistance principle, Bangladesh demands that delimitation should be based on the equitable method. The special geographical circumstances of the coastal zones of these countries warrant that any delimitation, whether agreed or determined by a third party, must result in an equitable solution. Any decisions of the international courts and tribunals[4], state practice, and the Law of the Sea Convention clearly show that there has been a shift from the equidistance principle to the equitable principle of delimitation and strongly indicate that the equitable principle is the preferred method of delimitation.

Now, the most important maritime security issue for Bangladesh is to delimit its maritime boundaries in order to take advantage of its offshore resources[5], including gas and oil. Nevertheless, Bangladesh has faced a number of difficulties with neighboring countries over the separation of maritime boundaries, including overlapping claims with India and Myanmar. If negotiations to resolve these arguments become fruitless, Bangladesh needed to make proper preparations to submit and win its claims through international legal regimes.[6]

The discoveries of gas by India and Myanmar in 2005-6 make delimitation of Exclusive Economic Zones (EEZ) and continental shelf (CS) boundaries were significant. However, Bangladesh had a number of difficulties in separating its maritime borders:

• Due to the characteristics of its coastline[7]; Bangladesh’s claims are founded upon depth-based baselines[8]. Selecting eight imaginary base points following the 10-fathom line[9], it has declared straight baselines.
• Exceptional characteristics of Bangladesh’s coast area create difficulties for separation. Bangladesh’s forceful estuary[10] and the repeated process of sedimentation, for example- there is no stable low water line.
• Both geographical and geomorphic nature of the coasts in the Bay of Bengal, states in the region sometimes influence upon each others’ EEZs.
  • In argument of India and Myanmar; Bangladesh should be resolved according to the equidistant principle. Bangladesh, however, argues that the equity principle should applied between neighboring states,

Bangladeshi Government should consider the maritime issue as an important aspect of national security and economic affluence[11]. And that should promote technical developments for the maximum use of marine resources. To benefit from the economic opportunities provided by the United Nations Convention on the Law of the Sea (UNCLOS), Bangladesh must separate its maritime boundary.

1. 1.According to UNCLOS[12] the government of Bangladesh should:[13]

• To guard its territorial sea, acquire marine patrol aircraft.
• To monitor and protect coastline islands, the EEZ[14] and the CS[15], it should provide the navy with sufficient sophisticated equipment. And conduct joint naval exercises with major powers.
• Incorporating the UNCLOS in order to establish a stronger claim in international legal regimes.
•  To ensure they are consistent with the UNCLOS, 1982 it may have to redraw its 1974 baselines.
• To maintain stability in the consult process experts working on UNCLOS and maritime issues. Synchronization among the multiple organizations that working on maritime issues is also crucial.
• Negotiate with Myanmar and India is essential since neither country favours third party involvement on this issue. Consideration to the alliance relationship and establish strong claims at the negotiations is a must.
• Strengthen its claims and gain international support.
• Considering joint management of resources, both renewable and non-renewable, this could benefit Bangladesh, India and Myanmar. Though, this will require friendly relations and rounds of negotiations.

1. 2.                  Indo-Bangladeshi Maritime Dispute

Primarily the Indo-Bangladeshi maritime dispute focuses on variations in the principles by which the maritime boundary is to be demarcated, as well as sovereignty over a small island. Whereas India has consistently privileged the ‘equidistant’/’median-line[16] ‘principle for the separation of maritime boundaries, Bangladesh favors’ the application of the ‘equitable’ principle alone. In effect, the consideration of a 10-fathom baseline for the measurement of its 200 nm EEZ would serve to moderate the negative effect of its concave coast[17], thus enclosing hundreds of square miles of continental shelf within its internal waters by drawing straight baselines beside the farthest seaward[18] extent of a underwater sedimentary delta[19]. In addition, by the application of the ‘median line’ principle between India- Bangladesh and between Myanmar – Bangladesh, it is seen that Bangladesh will get self-locked, so being unable to claim the full extent of its EEZ or continental shelf.

1. 3.                     Claim Of India & Bangladesh on South Talpatty

Both India and Bangladesh prolong to claim an island covering an area of 2 sq. miles, lying in the estuary of the Haribhanga and Raimongal rivers in the Bay of Bengal. This island emerged in 1970 in the wake of acute volcanic activity in the area, its known as New Moore or Purbasha in India, and South Talpatty in Bangladesh. It lays 2 nms off India’s coast and 5 nms off the Ganges delta from the coast of Bangladesh.

India claims: the island on the basis that the flow of the Haribhanga river is to the east of the island, and the island lies on the natural prolongation[20] of Indian territory.

 Bangladesh claims:  that the river flows to the west of the island, as a result of which it is not possible to distinguish the natural prolongation of Indian territory.

In May 1981 there was a short fight in the area; over its possession —three Bangladeshi gunboats threatened an Indian survey ship. This ended with the dispatch of an Indian frigate, the INS Andaman, to the island.

Argument over the island has more to do with the extent of the maritime zone to be potentially acquired in the oil rich Ganges-Brahmaputra delta of the Bay of Bengal.

ü      If India is given sovereignty over the island, it can claim an additional 16,000 sq. meters of continental shelf.

ü      If Bangladesh is given sovereignty over the island, it will get a minor area of the continental shelf.28

Several rounds of talks on the Indo-Bangladeshi maritime dispute have taken place since 1974. Even during the regime of Prime Minister I.K. Gujral (1997-98) and the implementation of the so-called “Gujral doctrine”, this complex and contentious issue could not be resolved.

1. 4.                     9 year of negotiation on UNCLOS III

International negotiations on UNCLOS III were being conducted (1973-1982), India began to delimiting its maritime borders among states on its opposite coasts. That led to a sequence of maritime boundary agreements in the 1970s and 1980s, which finally conclude in the bilateral agreement[21] with Thailand and the trilateral agreement[22] with both Thailand and Myanmar in 1993.

However, a trilateral maritime agreement with Myanmar and Bangladesh was still required, which could only take place after the delimitation of India’s maritime boundary with Bangladesh.

Meanwhile, the delimitation of the Indo-Bangladeshi maritime boundary filled with technical problems, with considerable economic consequences for both countries. The possible Indian indulgence in this respect, the actual maritime boundary could be somewhat adjusted in certain areas to favor India.

 In the meantime, the joint advancement of the area between India and Bangladesh could take place. Not only would the Indo-Bangladesh maritime boundary then be settled once and for all, but an agreement marking the trijunction point with Myanmar and Bangladesh could also be put into place. This could serve as an vital example to the countries of South-east and East Asia, where maritime disputes are a major source of probable conflict.

5.Bangladesh Myanmar Maritime Boundary verdict

The ITLOS is an independent judicial body, established by the United Nations Convention on the Law of the Sea. Its verdict is crucial not only for determining the country’s sea boundary, but also for ensuring legitimate right over sea resources, a senior official of the Ministry of Foreign Affairs (MoFA) .

Under the provisions of Article 76 of the UN Convention on the Law of the Sea 1982- Bangladesh filed a lawsuit[23] on December 14, 2010 with the ITLOS after Myanmar sent a flotilla to explore petroleum within its extended territorial water. The area, for which the country submitted the data, ranges from 390 to 460 maritime miles southwards from its coastline.[24]

The state-run Petrobangla planned to offer at least two to three deep water gas-blocks in the forthcoming bidding round with the planned eight shallow water gas-blocks, if the country gets legitimate right over the deep water blocks following the verdict of the international tribunal.

In February 2008, the Petrobangla offered a total of 28 offshore gas-blocks, of which eight were in shallow depth and 20 in deep water. But a lukewarm respond was received due to negative propaganda[25] over the maritime boundary by India and Myanmar.

• Wood Mackenzie[26] ; a UK-based consultant firm —   revealed that Myanmar influenced half a dozen of Bangladesh’s offshore gas-blocks, during the offshore bidding round. And the companies that were awarded the disputed offshore blocks in the Bay include the (CNPC)[27], (ONGC)[28], and (SKDI)[29],

Seven Bangladeshi deep-water blocks have been completely or partially licensed by Myanmar to the international oil and gas exploration companies.

In November 2008, a stand-off between Bangladesh and Myanmar blazed with the start of hydrocarbon exploration by South Korean Daewoo International at offshore Block AD-7, which overlaps part of Bangladesh’s deep-water Block DS-08-13.

• Wood Mackenzie stated- the Chinese CNPC was awarded the Block AD-8 by Myanmar that covered the Bangladeshi deep-sea offshore blocks — DS-08-18 and part of DS-08-17 and DS-08-13[30]

Bangladesh in its final submissions, requested the Tribunal to adjudge and declare that the maritime boundary between Bangladesh and Myanmar in the territorial sea will be the line, first agreed between the countries in 1974 and reaffirmed[31] in 2008.

On September 8-24, 2011 the International Tribunal for the Law of the Sea (ITLOS) delivered its judgment over the dispute regarding delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal. Judge José Luis Jesus, who is presiding over the Tribunal,[32] read the judgment at its main courtroom in Hamburg, Germany.

 6.Bangladesh wins Maritime rights over Myanmar

 The foreign minister presided over an eminent legal team as the agent of Bangladesh in the proceedings, including deputy agent Rear Admiral (retd) Md Khurshed Alam, attorneys James Crawford, Philippe Sands and Alan Boyle of the United Kingdom, Paul Reichler and Lawrence Martin of the United States, and Payam Akhavan of Canada.

On the other hand Myanmar was represented by its agent Attorney General Tun Shin. Its counsels included Alain Pellet and Mathias Forteau of France, Sir Michael Wood of the United Kingdom and Coalter Lathrop of the United States.

Bangladesh won the landmark verdict at the International Tribunal for the Law of the Sea, which sustained its claim to 200-nautical-mile[33] exclusive economic and territorial rights in the Bay of Bengal rejecting the claims of Myanmar. It gave more than what Bangladesh had asked for.  The verdict of the tribunal gave Bangladesh an extensive share of the outer continental shelf beyond 200 miles, which would open ways for offshore oil and gas exploration in the Bay. It also awarded Bangladesh a full 12-mile territorial sea around St Martin’s Island, overruling Myanmar’s argument that the island be cut in half and shared. This judgment is final and cannot be appealed against.

The tribunal, based in Hamburg, Germany, was established by the United Nations Convention on the Law of the Sea to adjudicate[34] disputes between states concerning issues covered by the convention, including the delimitation of maritime boundaries.

The verdict concludes the case initiated by Bangladesh against Myanmar on October 8, 2009, to resolve a longstanding dispute over the maritime boundary, that judges passed voting 21 to 1.

Bangladesh’s objection to Myanmar’s claim was lodged[35] with the tribunal and its objection to the Indian claim was filed with the UN’s Permanent Court of Arbitration based in The Hague, the Netherlands. The arbitration with India is expected to be settled in 2014.

Bangladesh favors a principle based on “equity[36]” while India and Myanmar favors “equidistance[37]” system to get larger maritime areas.

According to United Nations Convention on the Law of the Sea, any such dispute should be resolved on the basis of equity, and in the light of relevant circumstances. Experts said, it makes Bangladesh’s demand for equity-based demarcation justified.

Last year Conoco Philips Bangladesh; the oil company conditionally signed a production sharing contract of leaving out the disputed areas. But now the judgment would allow the oil company to explore oil and gas for Bangladesh in deep-sea areas previously marked disputed.

The foreign minister asserted –

 “Today’s ruling constitutes the equitable solution that Bangladesh has long desired, but was unable to obtain during the 38 years of diplomatic stalemate preceding the lawsuit”

 “But it is a victory for both states…because it finally resolves, peacefully and according to international law, a problem that had hampered the economic development of both states for more than three [almost four] decades. We salute Myanmar for its willingness to resolve this matter by legal means and for its acceptance of the tribunal’s judgment”

This verdict would ensure that “we will be able to maximize the benefit of this important resource for the people of Bangladesh while at the same time ensuring long-term sustainability”

The foreign minister said energy-starved Bangladesh’s exploration for petroleum and natural gas in the Bay, which had been delayed by conflicting boundary claims, could now proceed.

 “The case was resolved, from beginning to end, in a little over two years. This is unprecedented in judicial efficiency in a maritime boundary case.”

It may be mentioned that in February 2008 the army-backed caretaker regime invited bids for offshore exploration after dividing its sea territory in the Bay into 28 blocks.

But both India and Myanmar raised objections in all most all the blocks bordering “their maritime boundaries” that prevented Bangladesh from exploring for oil-gas.

1. 7.                     Refueled Claims of Myanmar on maritime boundary

ü      Myanmar wanted its maritime boundary with Bangladesh cut directly across the Bangladesh coastline, severely shorten Bangladesh’s maritime jurisdiction to a narrow block of sea not extending beyond 130 miles.

ü      Myanmar also claimed that the tribunal lacked jurisdiction to award continental shelf rights beyond 200 miles from either state’s coast.

The tribunal rejected both these arguments.

UN Court: “Both sides won something and lost something” on Bangladesh Myanmar dispute

At the International Tribunal for the Law of the Sea in the northern German city of Hamburg, presiding judge Jose Luis Jesus set out a new maritime line widely seen as a compromise between the two rival cases.

Both countries should retain sovereignty over their respective continental shelves and, while ruling in favor of Myanmar’s method of measuring the border, handed more sea area to Bangladesh.

The 23 judges from all over the world arrived at the decision unanimously although some offered dissenting opinions on some parts of the judgment.

Ruediger Wolfrum, the German judge said on panel ; “Both sides won something and lost something,” [38]

Bangladesh’s Foreign Minister Dipu Moni also acknowledged it was a “victory for both sides[39],”, although she said Dhaka could now begin to exploit the area for gas and oil.

In 2008 when Bangladesh accused Myanmar of exploring for gas in disputed waters, brought the two countries close to military conflict

Myanmar has discovered huge reserves of natural gas in the Bay of Bengal and has made clear it intended to explore further in an area also claimed by Bangladesh.

Myanmar sent military vessels to support drilling for gas by South Korean company Daewoo some 50 kilometres (30 miles) south of Bangladesh’s Saint Martin island.

Now both sides have agreed to stand by the ruling and there is no possibility of appeal. And Dhaka hopes to resolve a similar maritime border dispute with India in 2014.

9. Map of oil-gas blocks in bay to be redrawn

According to the United Nations Convention on the Law of the Sea-1982, each country will get 200 nautical miles as its exclusive economic zone beyond its territorial waters.

The government is going to initiate move to redraw the present map of the oil-and-gas blocks in the Bay of Bengal following the landmark judgment given by the International Tribunal for the Law of the Sea in favor of Bangladesh, officials say.

In 2005, Bangladesh unveiled its maritime map containing 28 offshore blocks in the Bay of Bengal for oil and gas exploration. Eastern-neighbour Myanmar claimed 17 of the offshore blocks while western-neighbour India also made counter-claim to Bangladesh’s other 10 blocks in the bay.

According to the ITLOS verdict; Bangladesh will have to leave some of the 17 blocks claimed by Myanmar. Foreign Ministry officials say; the officials cannot identify the blocks Bangladesh must leave to Myanmar as Dhaka has not received certified copy of the judgment right at the moment.

Petrobangla sources say they have already started work on international bidding for oil companies to explore hydrocarbons in Bangladesh’s eastern blocks bordering Myanmar.

 

1. 10.           The Delimitation of the single maritime boundary between Bangladesh and Myanmar

Delimitation follows very much the movement in recent cases. The ITLOS first divides the boundary line into three segments:

• The first will delimit the territorial seas of the parties
• The second their exclusive economic zones and their continental shelves up to 200 nm,
•  The third continental shelves beyond 200 nm.

In the case of the territorial sea, the applicable rule is formally different from that applying for the delimitation of the exclusive economic zone and the continental shelf. In the case of the continental shelf beyond 200 nm, the Tribunal has to first to address the contention by Myanmar that it does not have jurisdiction and that, even if it had, it should not exercise it. ITLOS then proceeds to delimit each segment on the basis of the applicable rules and principles. Finally, it evaluates the proportionality of the boundary thus reached in the light of the ratio between the relevant coasts of the two States and the ratio between the areas attributed to each.

1. 11.           The Delimitation of the single maritime boundary between Bangladesh and India

The method of delimitation (equidistant method) between two opposite states may not apply between adjacent states because it grossly distorts the boundary, contrary to the principle of fairness and justice (equity principle). Therefore, any attempt towards maritime border conflict resolution should take into account a few key factors. Prior to the demarcation of the sea boundary, the border of the Haribhanga river is required to be determined first. Ordinarily, in the case of a navigable river, under international law (Article 76 and 82 of the UNCLOS), the boundary line runs through the middle of the deepest navigable channel (Thalweg principle) unless agreed otherwise between the parties. Also, according to international law, the states shall settle the boundary through negotiations. If negotiations fail, the principle of equity will apply, implying that justice and fairness must be the hallmark of the settlement.

1. 12.           Conclusion

The International Tribunal for the Law of the Sea delivered its judgment in the dispute concerning delimitation of the maritime boundary in the Bay of Bengal. Although negotiations started for the delimitation of maritime boundaries since 1974, but the boundary had still to be settled by 2009, when Bangladesh initiated the actions. The argument was stimulated in 2008 when, following the discovery by Indian and Myanmar of gas deposits, Myanmar certified study in the contested area. In reply Bangladesh sent warships in the disputed area and conflict was luckily avoided following strong negotiations between the parties and the argument has now been solved peacefully by encompass recourse[40] to the dispute settlement provisions (Part XV) of the United Nations Convention on the Law of the Sea (UNCLOS).

More significantly, the merits of rules and methods used by courts have been tested several times in state practice. For example, this practice has confirmed the significance of the equidistance and has generally rejected methods such as the corridor method employed in the St Pierre and Miquelon case.

 BIBLIOGRAPHY

ü      Websites

• http://bipss.org.bd/maritimesecurity/index.php
• http://www.modernghana.com/news/242616/1/bangladesh-starts-reacting-to-maritime-dispute.html
• http://www.thedailystar.net/law/2009/10/02/event.htm
• https://ilcurry.wordpress.com/category/bangladesh/
• http://www.ejiltalk.org/
• http://horizonspeaks.wordpress.com/tag/bay-of-bengal/

 

ü     Books

• Roy-Chaudhury, Research Fellow, IDSA “Trends in the Delimitation of India’s Maritime Boundaries”
• Taleb S., 2009, ‘Maritime Security: The case for Bangladesh’, Issue Brief 4, Bangladesh Institute of Peace and Security Studies
• Shah Alam, M.; Al Faruque, Abdullah :The International Journal of Marine and Coastal Law, Volume 25, Number 3, 2010
• The Maritime Boundary Dispute Between Bangladesh and Myanmar: Motivations, Potential Solutions, Implications, Asia Policy, No. 10, 103 (July 2010)) by Jared Bissinger.
•  Rear Admiral O.P. Sharma, “Delimitation of Maritime Boundary and the question of Islands in Maritime International Law,” Sea Gull, Vol.4, No.13 (May-July 1998)
• The Gazette of India, Extraordinary Part II—Section 3, No. 397, December 9, 1981
• P.C. Sinha, “Issues in Maritime Boundary Demarcation in South Asia: A Case Study of Bangladesh,” Journal of Indian Ocean Studies, November1995.

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