Bangladesh and India on December 18 completed their arguments at the Permanent Court of Arbitration at The Hague on the dispute of the maritime boundary between the two countries.
It is reported that Judge Rüdiger Wolfrum of Germany presided over the tribunal, while judges Jean-Pierre Cot from France, Bangladesh nominee Thomas A Mensah from Ghana, and Indian nominee Pemmaraju Sreenivasa were its members.
Lawyers RKP Shankardass, Alain Pellet, Michael Reisman, and Sir Michael Wood argued on behalf of India, while Lawrence Martin, Philippe Sands, Payam Akhavan, Paul Reichler, Alan Boyle, and James Crawford spoke for Bangladesh.
On the opening day, Bangladesh Foreign Minister AH Mahmood Ali and Indian Attorney General Goolam E Vahanvati made opening statements on behalf of their respective countries. Former Foreign Minister Dipu Moni also made introductory remarks as the agent of Bangladesh.
At the Tribunal, Bangladesh lodged its statement of claim by May 2011, while India submitted its counter-memorial by July 2012. (Originally, India was to submit it in May but took two month’s time to examine the ITLOS verdict of March 2012 between Bangladesh and Myanmar.) The rejoinder by Bangladesh was submitted on January 31 and India’s reply was submitted by July 31 this year.
Note that bilateral talks with India started in 1974, and the negotiations continued for almost four decades. However, delimitation of the sea boundary could not be resolved through these bilateral negotiations because the two nations differed on what methods should be applied to delimit the boundary.
One may recall that in 1974, Bangladesh was the first South Asian country to enact a maritime law – the Territorial and Maritime Zones Act – to claim maritime areas in the Bay of Bengal. Under its law, as well as in the 1982 UN Convention on the Law of the Sea (UNLOS), Bangladesh has claimed the territorial sea of 12 nautical miles, 188 nautical miles of the Exclusive Economic Zone (EEZ), and another 260 nautical miles of seabed known as the outer continental shelf. (One nautical mile = 2000 yards while one land mile = 1760 yards.)
Bangladesh is a coastal state with a highly indented coastline of islands and islets. The configuration of the coastal line is concave, similar to the shape of a semi-circular arch. It also faces the concave nature of the Bay of Bengal. Therefore, one can easily say that Bangladesh faces double concavity in the configuration of its coast.
In the negotiations, while Bangladesh insisted on applying the equitable method, India was firm about the equidistance method in drawing the boundary. The equidistant line is mostly applicable to opposite states (India-Sri Lanka). Furthermore, it can be argued that the equidistant method cannot be applied in the case of Bangladesh and India because it distorts the boundary due to the double concavity of the Bangladeshi coast.
Distorting means the claimed sea areas of Bangladesh under UNCLOS are cut-off by the boundary line of its neighbours from the west and east, denying Bangladesh a 12-mile territorial sea, 200-mile exclusive economic zone, and outer continental shelf beyond the 200 miles of the seabed. In short, Bangladesh becomes a “sea-locked state.”
India ratified the UN Convention on the Law of the Sea of 1982 (UNLOS) in 1995, while Bangladesh ratified it in 2001 and are bound by rules of dispute settlement as envisaged by UNCLOS.
Since the sea boundary could not be resolved bilaterally, the Bangladesh government, on October 8, 2009, initiated arbitration proceedings against India before the Court of Arbitration in The Hague.
UNCLOS provides general guidelines of delimitation of territorial sea under Articles 15, delimitation of EEZ under Article 74, and delimitation of continental shelf under Article 83. The interpretation and application of maritime law of delimitation have been expounded by the International Court of Justice and Tribunals.
On the maritime dispute on the North Sea among Denmark, Germany and the Netherlands, in 1969 the ICJ in its landmark judgment rejected the equidistance method and declared that: “Delimitation is to be effected by agreement, taking into account all the relevant circumstances … including general configuration of the coast of the parties, physical and geological nature.”
The most significant precedent in the case of the Bangladesh-India maritime dispute is arguably the judgment delivered by the International Tribunal for the Law of the Sea (ITLOS) on March 14, 2012 in the Bangladesh-Myanmar Maritime Delimitation Case.
The ITLOS judgment accepted the Meghna estuary as part of relevant coastline, upheld that Bangladesh cannot be a “sea-locked” state by cutting off its boundary, recognised Bangladesh’s 12-mile territorial sea, 200-mile exclusive economic zone, and the rights of Bangladesh to the outer continental shelf (the exact area is to be decided by the UN Commission on the Limits of the Continental Shelf under Article 76).
Taking into account the judgment of the ITLOS in March 2012, Bangladesh hopes that the Court of Arbitration will deliver its judgment in its favour. In the meantime, let us wait for the verdict.
Finally, in our conventional way of thinking, when we think of resources, we imagine only the resources of the land, ignoring marine resources of the country. Bangladesh is not only a riverine country, but also a maritime nation that opens to the south toward the Indian Ocean through the Bay of Bengal. It was the ocean route that, in the past, led many foreigners to come to Bengal (now a greater part of Bangladesh), and Chittagong port was the conduit for interaction between Bengalis and foreigners, including European colonisers.