The formulation of a maritime law, as a part of Bangladesh’s legislation is an important and urgent task for safeguarding Bangladesh’s right in ocean shipping and foreign trade.
Abstract:
Bangladesh faces the Bay of Bengal, and the importance of its access to the open ocean can be appreciated if one considers the handicaps of landlocked countries, such as Nepal and Afghanistan. Accordingly, from the early years of its birth, it took great initiative and interest to participate in the UN Sea Law Conference As a peace loving country, Bangladesh has always proudly upheld the core value of its foreign policy: ‘Friendship to all and malice to none.’ All the governments have scrupulously maintained this motto when dealing with every issue, and have endeavored to solve disputes through discussions and not by means of armed force Bangladesh has unfortunately failed to stop India and Myanmar encroaching upon its maritime territory. The seismic survey of Bangladesh’s territorial sea line has now become crucial as a UN set deadline for lodging maritime claims is to expire in next one year exposing Bangladesh to risks of losing a vast territory in the Bay of Bengal. Bangladesh signed by the UN Convention on the Law of the Sea called in 2001 and under the law we are obligated to lodge our claim on the maritime boundary by 2011 .But Bangladesh could not make any major headway in lodging its claims through seismic and other studies despite the fact the country could lose an area in the sea which is larger than the mainland Bangladesh. Experts said, Bangladesh needs to start the seismic survey immediately to claim its legitimate sea territory. Under the convention Bangladesh was required to submit necessary documents to the UN to validate its claim of territorial water, Exclusive Economic Zone up to 200 nautical miles and continental shelf up to 350 nm from the baseline.
Introduction
The oceans which cover about 71 percent of earth surfaces provide the human race with food, serve as an important way for transportation and world commerce, and have immense sources of usable energy and other nonliving resources. Earlier traditional use of marine spaces was mainly focused on fisheries, transportation and communication. But because of increased pressure of growing population, particularly in coastal areas, and invention of contemporary sophisticate technology for extracting marine resources the oceans turned into most valuable possession to the coastal states. For several hundred years the customary international law of the sea was dominated by the concept of the freedom of the seas. At one time the oceans of the world, or great segments thereof, were claimed by a limited number state for their exclusive use, but later, due to increased concern for the more general interest of the whole community of states the larger expanses of the sea were freed ultimately for relatively unhampered use of all states. However, the coastal states have never surrendered their claim for exclusive authority over sea areas adjacent to their land territory.
By the end of 18th century it was widely accepted that coastal states had sovereignty over their territorial sea. After the end of Second World War coastal states maritime claims increased to a great extent. In response to those increasing maritime claims the United Nations (UN) convened thrice to codify the rules of customary international law applicable to the seas, and finally in 1982 it succeeded to adopt a convention on the law of the sea. This convention clearly defined four maritime boundaries over which the coastal states would enjoy different degrees of authority. All these developments are closely connected with determination of baselines as it is the first step towards determining the maritime boundaries.
Brief Political History of Bangladesh
Bangladesh officially came into existence in 1971, after a war of independence of nine months. Though it is a modern state, her history can be traced back to about 1000 BC. Due to scarcity of authentic sources, it is difficult to reconstruct the history of Bengal in the pre-Muslim period. For this period very scanty references in the Vedic, Epic and Puranic literature as well as on the available archaeological evidence are the main sources.
Bangladesh under British Rule (1757-1947):
The discovery of sea-lanes to the eastern waters brought the western maritime people into direct contact with Bengal. It was predominantly an exporting country from ancient times; but curiously, its export trade was, for cultural reasons mainly, conducted by mostly foreigners. Being encouraged by the Mughal government the Portuguese4[1], the Dutch, the French, the English and others came by sea to participate in the Bengal export trade. In the competition among themselves in lifting Bengal goods for foreign markets, the English East India Company had a decided advantage over all others. While all other companies were required to pay 2.5 percent or more customs duties to government, the English were exempted from paying any duty at all. The rise of British India in the 19th century was only the blown up form of the company’s Bengal kingdom. The expansion led to the absorption of Bengal into the imperial milieu.
Even as a province, Bengal lost its pre-eminence in that unlike Madras and Bombay provinces, Bengal was not endowed with an autonomous Governor-in-Council. Of the measures taken by the administration of Lord Curzon (1899-1905), the most tumultuous was the partition of Bengal (1905). There are, of course, critics of Divide and Rule theory.
Bangladesh Period (As a maritime country)
Bangladesh can be termed as a ‘maritime country’ with 24,824km2 of internal sea and 138,945km2 of Exclusive Economic Zone (EEZ), to tilling 163,749km2, which is 1.1 times larger than the land territory. Located near the eastern approaches of the Malacca Straits, Baselines are the lines from which the outer limits of all other maritime zones are measured. Though delineation of baselines is a unilateral act, it has international aspects too, as it has significant impact on delimitation of maritime zones. Straight baseline issue first gets its international recognition in the Anglo-Norwegian Fisheries Case 1951, where the International Court of Justice through its verdict approves the validity of adopting straight baseline system along certain coasts Bangladesh commands an important geo-strategic position in the region. It also possesses the only sea port that is near to the landlocked Indian ‘Seven Sisters’. On the landward side, Bangladesh is mainly surrounded by India (on three sides) except for a small border of about 271km with Myanmar on the southeast. The Bay of Bengal lies on the south with a coastline of over 700km. the coastline includes Bangladesh’s sovereign possessions of St Martin’s and South Talpatti Islands. Apart from the claimed sea area, a successful continental shelf claim may add an additional 200,000km2 to Bangladesh’s EEZ.
There has always been a call from concerned quarters to ‘modernize our navy and make it a three dimensional force’. With limited resources, this has never been an easy task. ‘The Draft Forces Goal 2020 for BN’ in 2005/06 envisaged the Bangladesh Navy (BN) with submarines, helicopters, maritime patrol aircraft’s and so forth; however, materialization remains a difficult proposition. Nonetheless, in line with its stated vision, BN has recently initiated a mammoth modernization and reform plan.
The maritime strategy
Although Bangladesh does not possess a written ‘National Maritime Policy’, the perceived Maritime Strategy aims to safeguard the maritime sovereignty and maintain peace and stability in the region. Due to its sea dependency, Bangladesh’s maritime strategy revolves around asserting territorial integrity and maximizing the use of its sea area to the fullest advantage for sustained development of the country. On the other hand, maritime security is orchestrated in the overall security paradigm of Bangladesh, where the maritime sector is a vital component of national economic and military power.
As 90% of GNP depends on sea trade and commerce and almost 100% of Bangladesh’s energy requirement in terms of fuel arrives by sea from the Middle East,[2] thoughtful exploitation of maritime resources is very important as far as national interest is concerned. The two Sea Lines of Communication (SLOCs) connected with two sea ports at Chittagong and Mongla provide access to the oceans and act as vital trade links. Thereby any sort of disruption to these SLOCs, whether in war or peace, will have a disastrous effect and may cripple the economy.
In the meantime, the Bay of Bengal has become a centre of attention of regional and extra regional powers due to the discovery of a substantial amount of natural gas off the Indian and Myanmar coasts and the possibility of more discoveries in the EEZ of Bangladesh. India and China are competing with each other for a share of the gas from Myanmar for their future energy security. In addition to this, the modernization drive of the neighboring navies and increasing influence of extra-regional powers including China and the USA in the maritime scenario are posing greater challenges for Bangladesh than ever before. Considering these factors, the fundamental maritime interests of Bangladesh may be considered as:
I. Political – maintenance of maritime sovereignty and territorial integrity;
II. Economic – exploration, exploitation and protection of seabed minerals, living and non-living resources from EEZ and continental shelf;
III. Security – security related interests are protection against seaborne conventional and unconventional threats, and awareness of nuclear threats.
Maritime security is enforced by maritime security agencies that mainly comprise the navy, coastguard, marine police, port authorities and other maritime agencies. In Bangladesh, the capabilities of marine police, port authorities and other maritime agencies are very limited. Only the navy has the reasonable capabilities to enforce maritime security in the total sea area of Bangladesh, while the Bangladesh Coast Guards’ capabilities are limited to coastal areas. ‘In fact, BN has become the main and leading force in safeguarding the country’s economic interests and exercising maritime control within the EEZ and the continental shelf due to lack of capabilities of other agencies involved in this field. Since inception, BN has steadily progressed to achieve its goal.
As the BN is the prime organization to implement the national maritime policy, its mission can be summarized as ‘to make effective use of the Bay of Bengal and adjoining sea areas in the interests of national development and to safeguard territorial sovereignty against external aggression in any form’. This maritime mission can also be cited as ‘to safeguard sovereignty over the internal waters and territorial sea, and sovereign rights over the Contiguous Zone, Exclusive Economic Zone (EEZ) and Continental Shelf of Bangladesh while supporting riverine and maritime economic activities including free flow of riverine and seaborne trade.
The tasks that BN may be expected to fulfill are:
a. Defense against seaborne invasion.
b. Protection of SLOCs from offshore interests.
Perceived secondary roles are:
a. Disaster relief
b. Aid to civil power
c. Constabulary and diplomatic roles
d. Maritime search and rescue
How to Ensure Maritime Security of Bangladesh:
The following three steps action might be inaugurated for Bangladesh maritime security at national level enhancing capability and regional level promoting regional mechanism as well as solving maritime demarcation bilaterally if possible; if not possible by the UNCLOS[3] provisions may be adopted for lasting and enduring maritime security for Bangladesh.
Aircraft options:
The choice of aircraft platform is the most important decision for two reasons:
I. The costs of aircraft and ships can be high and seem to rise exponentially for assets that have high endurance or operate at long distances.
II. Platforms need to be matched closely with the tasks to be undertaken. (Extra capacity comes at a high price.)
Now, let us take a look at the type of range that is needed in the rotary and fixed wing aircraft to perform maritime security tasks. It can be broken down into three broad categories.
I. Coastal – along the coastline and Territorial Sea where the need is usually for short duration coverage;
II. Mid-range – throughout much of the EEZ, an area accessible to medium-range commercial aircraft;
III. Long distance – further out, especially over the outer fringes of the EEZ and beyond, where usually there is a requirement for sustained operations.
These rotary and fixed wing aircrafts should also have the following combat capabilities:
a. Antisubmarine warfare (ASW),
b. Anti-surface warfare,
c. Standoff land attack,
d. Intelligence/surveillance/reconnaissance, and
e. Counterdrug missions
The modernization drive
With the rise of security concerns in the Indian Ocean, the importance of the Bay of Bengal has risen simultaneously. To assert its rightful role in the Bay, BN has embarked on a long due modernization initiative, which began with the adoption of the 10 year development plan in 2009. This plan thoroughly assessed the BN’s deficiencies and will address them in phases. Transnational threats and encroachment upon national interests at sea have made monitoring, enforcement and deterrence capabilities a must for Bangladesh’s maritime sovereignty.
Maritime surveillance: in the scheme of ocean management, maritime surveillance is paramount against both conventional and non-conventional threats. Lacking air surveillance capabilities, BN depended on around the clock surface ship deployments for the maritime policing role. However, recent establishment of the Aviation Wing may see a sweeping change in surveillance capability and pattern. The Aviation Wing will have both rotary and fixed wing air assets. BN has already acquired two Augusta Westland AW109E helicopters (on 14th June 2011) and has three surface platforms (BNS Bangabandhu, Dhaleswari and Bijoy) for operating these helicopters at sea. The Aviation Wing was inaugurated by the Prime Minister on 27th December 2011.
Surface capability: Due to its unique capabilities, surface forces are always the fundamental building block of any navy. Its staying power allows it to be utilized in a wide range of missions from a diplomatic to deterrence show of force purposes. The ongoing efforts are gradually addressing BN’s capability gap in this field. Already, two Castle class offshore patrol vessels (OPVs) have been acquired from the UK, and commissioned on 5th March 2011. These OPVs are now being deployed regularly in the Bay of Bengal. Surveillance and fire power augmentation of these OPVs are ongoing. Moreover, two new large patrol crafts (LPCs) are being constructed in Wuchang Shipyard, China, with a delivery deadline by the end of 2012.
In addition, BN is augmenting the capabilities of existing platforms. Operation of the OTOMAT missile system of BNS Bangabandhu is an upgrade of the missile system on existing missile boats squadron and the fitting of missile systems on non-missile ships are the major projects in this category. Inclusion of more surface platforms and augmentation of the existing ones will multiply BN’s offshore capabilities. BN has also acquired QW-2 shoulder launched surface-to-air missiles to improve these ships’ self-defense capability against air threats. BN also plans to build two new corvettes with all-round capabilities. Despite these achievements, replacement of old British frigates remains a concern for the navy; therefore, it is seeking to acquire two 053H2G class frigates from China and one ‘Secretary Class cutter’ from the US Coast Guard, preferably USCGC Rush (WHEC 723).
Defense industry: the most promising development has taken place in the defense industry sector. Matching the ongoing private sector shipbuilding boost, BN has taken steps to reduce its long-term dependence on foreign warship builders. Under a recently concluded deal, Khulna Shipyard has already started constructing five patrol crafts of 350 tons each to be delivered by 2014 in phases. A Chinese company will help the shipyard with construction and transfer technology under this contract. These patrol crafts will boost BN’s inshore maritime governance capability. Ananda Shipyard also bagged a deal to construct a tanker with an in-built refueling system. The ship is expected to be handed over to the navy in 2012, which will mitigate BN’s logistics limitation and enhance the staying power of surface forces at sea.
Oceanographic research: meeting a long time need, BN finally acquired an oceanographic survey ship, the BNS Anushandhan (Ex-HMS Roebuck). This ship, commissioned on 29th December 2010, is fitted with the latest equipment for carrying out surveys in the deep seas.
Submarines: during the passing out parade of midshipmen in December 2010, the Prime Minister Sheikh Hasina, who is also the Defense Minister of Bangladesh, stated the need and the government’s plan to include a submarine in the navy by 2019. The recent rush of submarine acquisition by most of the south and Southeast Asian nations highlights the platform’s importance in maintaining maritime sovereignty. BN is actively working through the procedures to meet the desired vision of a ‘three dimensional navy’ by 2019 and it is negotiating with China to procure two diesel-electric submarines.
To Solve Maritime Border Dispute:
a. The government of Bangladesh should consider the maritime issue as an important aspect of national security and economic prosperity. It should promote technical developments for the maximum utilization of marine resources. To enjoy the economic opportunities provided by the United Nations Convention on the Law of the Sea (UNCLOS), Bangladesh must demarcate its maritime boundary. To this end the government of Bangladesh should:
b. Acquire marine patrol aircraft to guard its territorial sea. It should provide the navy with sufficient sophisticated equipment to monitor and protect coastline islands, the EEZ and the CS. It should conduct joint naval exercises with major powers.
c. Enact domestic laws incorporating the UNCLOS in order to establish stronger claim ininternational legal regimes. It may have to redraw its 1974 baselines to ensure they are consistent with the UNCLOS, 1982.[4]
d. Coordinate experts working on UNCLOS and maritime issues in order to maintain continuity in the negotiating process. Coordination among the multiple organizations working on maritime issues is also vital.
e. Negotiate with Myanmar and India. This is vital since neither country favors third party intervention on this issue. It should consider the alliance relationship and prepare properly to establish strong claims at the negotiations.
f. Internationalize the issue in order to strengthen its claims and gain international support.
Conclusion
As a peace loving country, Bangladesh has always proudly upheld the core value of its foreign policy: ‘Friendship to all and malice to none.’ All the governments have scrupulously maintained this motto when dealing with every issue, and have endeavored to solve disputes through discussions and not by means of armed force. But no country in the world, whatever constraints it may have, can sit idle and ignore the core security issues. Bangladesh is no exception, and to this end, the country’s maritime territory is of paramount importance to its national interest and security.
Without a modern, strong navy, there is no shortcut to safeguarding sovereignty, resources at sea, territorial integrity or to withstand any sort of encroachment in the vast maritime arena.
References:
· Retrieved March 31, 2013 from ‘Jane’s Fighting Ship’, 2007-2008, the UK
· Retrieved March 31, 2013: In exclusive claimed areas the claimant state is competent to prescribe or to apply its authority to all persons or activities, irrespective of nationality of those persons.
· Retrieved March 31, 2013 from Rear Admiral Mohammad Khurshed Alam (C), ndc, psc, BN (Ret’d), Bangladesh’s Maritime Challenges in the 21st Century, Pathak Shamabesh Book, 2004, p 480
· (n.d.). Retrieved March 31, 2013 from
http://europa.eu/legislation_summaries/maritime_affairs_and_fisheries/maritime_affairs/pe0003_en.htm
· (n.d.). Retrieved March 31, 2013 from http://en.wikipedia.org/wiki/St._Martin%27s_Island
· (n.d.). Retrieved March 31, 2013 from http://www.globalsecurity.org/military/world/bangladesh/navy-modernization.htm
· (n.d.). Retrieved March 31, 2013 from http://www.defencemanagement.com
· Retrieved March 31, 2013 from <href=”#.UVVt8RfTwrI”>http://www.newagebd.com/detail.php?date=2012-11-25&nid=31341#.UVVt8RfTwrI
· (n.d.). Retrieved March 31, 2013 from http://www.academia.edu/1470427/Maritime_Security_of_Bangladesh
· Retrieved March 31, 2013: Rapid formulation and implementation of a SAARC Parliamentary Maritime Group. It will act as a watch-dog in strengthening SAARCs? institutional pillars necessary for enhancing good governance in the Indian Ocean and the Bay of Bengal
· Retrieved March 31, 2013 from Rear Admiral Mohammad Khurshed Alam (C), ndc, psc, BN (Ret’d), Bangladesh’s Maritime Challenges in the 21st Century, Pathak Shamabesh Book, 2004
· Retrieved March 31, 2013 from http://www.defencemanagement.com/article.asp?id=552&content_name=Maritime&article=1888
· Retrieved March 31, 2013 from N.d; http://www.defence.pk/forums/bangladesh-defence/66774-survey-ship-anushandhan-joins-naval-fleet.html
· Retrieved March 31, 2013 from N.d;http://www.newagebd.com/detail.php?date=2012-11-25&nid=31341#.UVVt8RfTwr
· Retrieved March 31, 2013: According to a Papal Bull of May 4, 1493, an early division of the oceans was agreed upon between Spain and Portugal; the Portuguese area was defined as lying between approximately 46°10´W of Greenwich and134°E of Greenwich. The rest was under control of Spain.
[1] Among the Europeans the Portuguese was the first to come to Bengal. The arrival of Vasco da Gama
at Calicut in August 1498 was followed by the arrival of the Portuguese in Bengal. This was the result of
Portuguese maneuver to bypass the Venetians and Arab merchants in quest of spices from Asia.
[2] See, (n.d.). Retrieved March 31, 2013, from Ibid, p 484
[3] Rapid formulation and implementation of a SAARC Parliamentary Maritime Group. It will act as a watch-
dog in strengthening SAARCs? institutional pillars necessary for enhancing good governance in the Indian Ocean and the Bay of Bengal,
[4] See, (n.d.). Retrieved March 31, 2013, from http://www.newagebd.com/detail.php?date=2012-11-25&nid=31341#.UVVt8RfTwrI