Table of Content
Introduction 3-4
Maritime Boundary of Bangladesh
Bangladeshi Law for Maritime Zones 5-6
India and Myanmar’s Claim at the UN 6-8
Potential Consequences for Bangladesh 9-10
Bibliography 11
Introduction:
The world’s oceans and seas provide the resource base and ecosystems upon which a significant percentage of humankind relies for sustenance and livelihood options. Our oceans and coasts also provide the foundation for vital economic sectors such as trade, tourism and energy. They contain tremendous resources, both living and mineral, which will become of increasing economic importance to all States, developed or developing. For example, an estimated 20% of humanity’s protein supply is derived from marine resources and approximately 90% of the world’s total fish catch comes from the seas[1]. Shipping accounts for more than 90% of world trade and by the year 2013, the volume of goods transported by sea will have doubled[2]. Around 20% of potentially exploitable hydrocarbons are beneath marine waters[3]. Moreover, while most reserves are explored, an advance in technology is making it possible to bring even seabed resources into production. In short, few resources have as broad an impact on our economy and communities as our oceans. As the backbone of international commerce, oceans and seas are vital to homeland security, transportation, trade, environmental and scientific research, historical and cultural heritage. Based on the foregoing, countries in different parts of the world have actively passed laws related to the seas over the last two centuries. This, in turn, has led to the adoption of international conventions in an attempt to guarantee the freedom of the high seas to all states; due to these conventions and customary international law, no State today can claim control over international waters. Conversely, all nations are free to carry out lawful activities in these waters, including navigation, fishing, marine exploration and research for scientific reasons. The last international convention to be adopted on this subject, after 9 years of negotiations, was the United Nations Convention on the Law of the Sea (UNCLOS). It is a constitution for the oceans and has clearly become a success story for the United Nations and the international community. On the first day on which it was opened for signature, 119 countries signed the Convention, which was a record at the time.
As of April 2006, the Convention had 149 parties and another 23 States had indicated their intention to give their consent to be bound by the Convention[4]. There are two subsequent agreements relating to the convention, that is the agreement relating to the implementation of Part Xl of the Convention[5] and the United Nations Agreement for the Implementation of the Provisions of the Convention relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks[6]. One of the most important novel legal regimes set out in UNCLOS was the exclusive economic zone (EEZ), popularly known as the 200-nautical mile zone[7]. This is a part of the sea adjacent to and beyond the territorial sea. The EEZ extends to a maximum distance of 200 nautical miles from the baseline from which the territorial sea is measured[8]. Part V together with other relevant provisions of the of the UNCLOS set out the rules governing the rights, duties and jurisdiction of the coastal State as well as other States in the EEZ. During the Third United Nations Conference on the Law of the Sea (UNCLOS III), which began in December 1973 and ended with the adoption of the 1982 Convention, there was a struggle between developed northern States and African and Latin American States. The struggle was about defining the intrinsic nature of the EEZ: was it to be in essence a territorial sea or part of the high seas subject to certain rights of the coastal State and other States? The final text of UNCLOS defines the EEZ as a zone subject to the specific legal regime established in part V as a separate functional zone sui generis having three fundamental elements: rights and duties of the coastal State; rights and duties of other States and activities compatible with the previous two categories[9]. The EEZ has undoubtedly become a part of the general international law. A clear majority of coastal States claimed an EEZ before entry into force of UNCLOS[10]. The volume of claims coupled with the absence of protests has led most to conclude that the EEZ became part of customary international law. The International Court of Justice (ICJ) in the Libya-Malta case (1985) declared that “the institution of the exclusive economic zone, with its rule on entitlement by reason of distance, is shown by the practice of States to have become a part of customary law.” The ICJ came to such a conclusion.
Maritime Boundary of Bangladesh:
Bangladesh with its population 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. We still do not know how much recourse is stored beneath ocean. 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. The oceans are without doubt the most important resources on the planet and only maritime states can boast of their fortune, having economic, political, strategic and social advantages over other states in reaping benefit from those resources while their interests are manifest in a variety of activities including shipping of goods, fishing, hydrocarbon and mineral extraction, naval mission and scientific research. Bangladesh is, too, bestowed with the same geographic endowment with 720-kilometre coastline. However, questions remain whether the country has been successful in valorizing the magnitude of its maritime interests so as to establish its rights as a maritime state in the Bay of Bengal and pursuing a process conducive to fruitful resolution of the wrangles with its neighbors.
The sovereignty of a coastal state, as accorded by the United Nations Law of the Sea Convention 1982, Article 2(1), extends beyond its land territory and internal waters to an adjacent belt of Sea, which is typically referred as Territorial Sea, defined up to a limit of 12 nautical miles, subject to be measured from baseline, the low water line of a low -tide elevation. Under the convention, as per Article 55, the littoral countries are entitled to enjoy 200 nautical miles exclusive Economic Zone (EEZ), from the base line from which the territorial sea is measured. Beyond that, if the area of the continental shelf is more than the area of the economic zone, the coastal state can establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured [Article 76(1, 4)]. Thus, the whole area over which a maritime state should have jurisdiction in the sea include12 nm territorial sea plus 188 nm of economic zone plus150nm of continental shelf=350 nautical miles. The coastal state enjoys three-dimensional jurisdiction on the territorial sea, full sovereignty on surface water, air and seabed, apart from the “innocent passage” of ships. The jurisdiction on the EEZ that includes sea bed is resources-oriented. This delegates rights to the coastal state over all the living and non-living resources in the economic zone, with sovereign rights to manage and conserve the resources within this area. The jurisdiction on the continental shelf is also resources-oriented.
Bangladeshi Law for Maritime Zones
In Pursuant to Article 143(3) of the Constitution, Bangladesh enacted laws, Territorial Waters &
Maritime zones Act on 14 February, 1974[11], with regard to the law of the sea in the Bay of Bengal while ratifying 1982 Convention on the Law of the Sea (UNCLOS-III) in 2001.The coastal marine areas of Bangladesh in the Bay of Bengal are divided into three zones under the (UNCLOS-III): territorial waters of 12 nautical miles, another 200nm of EEZ and 350 nm of sea bed, continental shelf from Bangladesh baseline. For the unique deltaic characteristics of its coast, Bangladesh determined the baseline in 1974 with a length of 222 nm which is 8 points fixed at 10 fathoms (60ft) extending to 10-30 miles from the coastline. However, the total sea area of Bangladesh in accordance with the UNCLOS-III is approximately 2, 07,000 square kilometers, 1.4 times greater than its total land area.
India and Myanmar’s Claim at the UN:
Myanmar and India filed their claims to the Commission on the Limits of the Continental Shelf (CLCS) respectively on 16 December, and 11 May of last year. In submission of documents Myanmar stated that “the area of continental shelf that is the subject of this submission is not subject to any dispute between Myanmar and other states” and… “Delimitation negotiations between Myanmar and Bangladesh are ongoing and consistent with article 76, paragraph 10…”[12] .On the other hand, India stated that “delimitation of maritime zones of India’s adjacent or opposite countries shall not extend beyond the line every point of which is equidistant from the nearest point from which the breadth of the territorial waters of India and such state are measured unless there is any provisional agreement about maritime demarcation between India and other state”[13]. Their claims in fact encompassed undersea basins that fall within Bangladesh’s EEZ. India’s claim in the Bay of Bengal constitutes about three per cent of its total economic zone and continental shelf while for Bangladesh its entire economic zone is at stake. It has been reported that, the claimed sea areas of Myanmar include 29,000 sq. nautical miles of Bangladesh and another 22,000 sq. nautical miles are claimed by India. The ‘diplomatic protest notes’[14] to the United Nations against the claims of Myanmar and India have been issued recently over the extended ‘continental shelf’ in the Bay of Bengal. Bangladesh would have to lodge its claims to the UNCLCS over 150 nautical miles (277km) or more area of the extended continental shelf in the Bay of Bengal by July 27, 2011.
Figure: by Engr. M. Inamul Haque, Strategic Issues page, The Daily Star, November 14, 2009
The coincidence of claims of Bangladesh’s Western and Eastern neighbor regarding maritime demarcation, even with Indian claims that “…Myanmar’s submission for an extended continental shelf is without prejudice to the question of delimitation of the continental shelf between India and Myanmar…”[15], a protest submitted to UNCLCS by India, awards them strategic advantage that stems from the shared analogous interest on the issue; the documents submitted to UNCLCS debunk such proposition. The ‘National Centre for Antarctic and Ocean Research (NCAOR), India’ extended hands of cooperation in quality control for both bathymetry and geophysical surveys and ‘National Geophysical Research Institute (NGRI), India’ – collaborated in Seismic Data Processing and interpretation of acquired geophysical data in preparation of submission of Myanmar with Myanmar Scientists[16]. With abundant resources available to support their moves and the rapid submission of claims, both countries have already got an upper hand. Such circumstance requires a pragmatic, intelligent and timely endeavor from Bangladesh to sustain and establish its rights in the Bay of Bengal.
Potential Consequences for Bangladesh
As already mentioned, according to the UNCLOS-III, the total sea area of Bangladesh is approximately 2, 07,000 square kilometers, 1.4 times greater than its total land area. If Myanmar and India’s claims are established, it has been reported that, the claim of Myanmar will likely to grab 29,000 sq. nautical miles of Bangladesh and another 22,000 sq. nautical miles will be seized by India.[17] Such a postulation carries a significant and profound implication for a weak and least- developed state like Bangladesh:
1. Bangladesh is a resource-deficit country with a small land territory, replete with bourgeoning population, disproportionate to its land resources. The only resource prospect remains for this country is in the Bay of Bengal. But the failure in wining the case and retaining its maritime boundary will jeopardize the destiny of more than 162 million people.[18] The vital fact about the continental shelves and the EEZ is that they are rich in oil and gas resources and most importantly, precious Poly-metallic nodules, which lie on the seabed at 4,000 to 6,000 meters deep and quite often, are host to abundant stock of mineral resources, fish, and renewable energies.
2. Having been choked up from three sides, Bangladesh gets hold only of a bit of strip in the Bay of Bengal for the passage to the rest of the world. By harnessing and advancing trade and investment, definitely, this sea line of communication (SLOC) pays enormous contribution to its struggling economy. However, the encroachment of its maritime borders will certainly leave it zone-locked and perforce, it will be denied its recognition as a maritime state.
3. The politics in this uncertain world appears with different façades in different historical junctures. Today’s ally is foe of tomorrow and vice versa. For that reason, the maritime areas and passages of Bangladesh bear both war and peace-time significance. A zone locked Bangladesh will likely to be petrified and vulnerable should a crisis erupt.
4. It is not only her economic future but also her sovereignty that are being challenged. To survive as a sovereign state, an assertive mode for the state is crucial. Bangladesh will lose its ‘position of strength’ in relation to bargaining with regional and global powers and among international community.
5. As predicted by climate scientists, an imminent climate disaster will likely pose human catastrophe in Bangladesh that will displace millions of people across the country. To adapt to such a situation, the maritime areas of Bangladesh in the Bay of Bengal carry a potential in terms of deposition of land through the process of sediment gathering somewhere across Bangladesh coast and in terms of resources available to feed this huge human turnout.
Conclusion:
Clearly, a more pragmatic discussion on what Bangladesh should have done and what it should focus upon immediately deserves consideration. The move of Bangladesh to deal with maritime issues from the very inception has been insufficient to back its stand with available data with persistent insistence and engagement. Almost 35 years passed since it enacted ‘Territorial Waters & Maritime zones Act’ on 14 February, 1974, to define its maritime areas, but there has not yet been any maritime survey to demarcate its sea boundary and to check whether its current boundaries with India and Myanmar are accurate. While the Government of India has established an Indian Maritime University under an Act of Parliament, namely, the Indian Maritime University Act 2008 with existing seven maritime academic institutions[19] , the overall state of Bangladesh still remains fumbling. It has, unlike its neighbors, no hydrographic and oceanographic study centre and vessels to contribute in research of maritime border. Any pretext, likely to be premised on the lack of resources of the country, conveys little relevance in this regard.
Bibliography:
1. Advisory Committee on Protection of the Sea (ACOPS), Tripoli Declaration on Ocean Security, page
4, adopted at the First Conference of the Ocean Security Initiative (OSI), Tripoli, Great Jamahiriya, 23-
25 July 2005, http://www.acops.org/Tripoli%20Declaration%20240705%20final%20final.doc
2. See Status of Multilateral Treaties Deposited with the Secretary-General, http://untreaty.un.org.
3. December 2001. Andrew Serdy, “How Long Has the United Nations Fish Stocks Agreement Been in Force?” (2003) 34 Ocean Development and International Law 29-39 for a different view on the date of entry into force
4. Article 58 UNCLOS
5. See Nandan, Rosenne & Grandy (Eds), United Nations Convention on The Law of the Sea 1982: A
Commentary, volume II, Dordrecht, Nijhoff (1993), pages 491-501. See also Churchill and Lowe, The
Law of the Sea (1999), page 165.
6. UNCLOS entered into force on 16 November 1994, in accordance with article 308(1). As of 15
January 1993, 87 States had claimed an EEZ: United Nations, National Legislation on the Exclusive
Economic Zone, New York (1993).
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[1] Advisory Committee on Protection of the Sea (ACOPS), Tripoli Declaration on Ocean Security, page
4, adopted at the First Conference of the Ocean Security Initiative (OSI), Tripoli, Great Jamahiriya, 23-
25 July 2005, http://www.acops.org/Tripoli%20Declaration%20240705%20final%20final.doc.
[2] Ibid.
[3] Ibid.
[4] See Status of Multilateral Treaties Deposited with the Secretary-General, http://untreaty.un.org.
[5] As of April 2006, there were 123 State Parties to this Agreement.
[6] As of April 2006, there were 57 State parties to this Agreement which is officially in force as from 11
December 2001. But see Andrew Serdy, “How Long Has the United Nations Fish Stocks Agreement
Been in Force?” (2003) 34 Ocean Development and International Law 29-39 for a different view on
the date of entry into force
[7] The nautical mile is a unit of length used in sea navigation and equal to 1,852 metres. Thus, 200 N.M.
is equal to 370.4 kilometres. All distances in the UNCLOS are expressed in nautical miles.
[8] Article 58 UNCLOS
[9] See Nandan, Rosenne & Grandy (Eds), United Nations Convention on The Law of the Sea 1982: A
Commentary, volume II, Dordrecht, Nijhoff (1993), pages 491-501. See also Churchill and Lowe, The
Law of the Sea (1999), page 165.
[10] UNCLOS entered into force on 16 November 1994, in accordance with article 308(1). As of 15
January 1993, 87 States had claimed an EEZ: United Nations, National Legislation on the Exclusive
Economic Zone, New York (1993).
[11] The Territorial Waters and Maritime Zones Act, 1974. 1. THE. BANGLADESH CODE, volume XIX. Act
no.xxvi of 1974. < http://bdlaws.gov.bd/pdf/467___.pdf.>. Accessed on November 19, 2009
[12] Continental Shelf Submission of Union of Myanmar’, Executive Summary, December, 2008.<
http://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/mmr_es.pdf>. Accessed on November
20,2009
[13] ‘The Indian Continental Shelf’.
<http://www.un.org/Depts/los/clcs_new/submissions_files/ind48_09/ind2009executive_summary.pdf>.
Accessed on November 20, 2009.
[14] ‘Note Verbale’ (against Continental Shelf notification of India), The Permanent Mission of Peoples
Republic of Bangladesh to the United Nations.
<http://www.un.org/Depts/los/clcs_new/submissions_files/ind48_09/bgd_re_ind_clcs48_2009e.pdf>. Accessed
on November 20, 2009.
[15] ‘Note Verbale’, The Permanent Mission of India to the United Nations.
<http://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/clcs16_2008_ind_e.pdf>. Accessed on
December 9, 2009.
[16] ‘Continental Shelf Submission of Union of Myanmar’, Executive Summary, December, 2008. <
http://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/mmr_es.pdf>. Accessed on November
20,2009.
[17] Diplomatic Correspondent. “Dhkar Jatishonge Jawa pry Roddho kore Felechilo India.”Daily Naya Diganta.
October 10, , p-1, column-2\3.
http://www.dailynayadiganta.com/2009/10/10/fullnews.asp?News_ID=172063&sec=1. Accessed on October15,
2009
[18] Mamoon, Dr. SN. “Population boom.” The Daily Star. October 5, 2009..
http://www.thedailystar.net/newDesign/news-details.php?nid=108258. Accessed on December 26, 2009
[19] Indian Maritime University, the Beacon of knowledge. < http://www.nipm.tn.nic.in/aboutus.html.>.
Accessed on December 17, 2009