40-year-old India-Bangladesh maritime dispute resolved through UN Tribunal

Overcoming a 40-year-old maritime border dispute? In the case of India and Bangladesh, it appears to be possible.

The Arbitration Tribunal on the India-Bangladesh Maritime Delimitation delivered its ruling on 7th July 2014. The Tribunal was set up under the Permanent Court of Arbitration in The Hague, in the matter of the Bay of Bengal Maritime Boundary Delimitation between India and Bangladesh.

India and Bangladesh have been engaged in long drawn-out and inconclusive negotiations on the delimitation of their maritime boundary since 1974, and had engaged in eight rounds of bilateral negotiations over the 1974-2009 period. In October 2009, Bangladesh served India with notice of arbitration proceedings under the United Nations Convention on the Law of the Sea for delimitation of the Maritime Boundary. Both India and Bangladesh are parties to the UN Convention on the Law of the Sea.

Since India and Bangladesh had not chosen a dispute settlement forum under the Convention, the case was decided by its default procedure and a 5-member Arbitration Tribunal was established under Annex VII of the Convention for Delimitation of the Maritime Boundary between the two nations. The maritime boundary so delimited covered the territorial sea, the exclusive economic zone (EEZ) and the continental shelf.

Bangladesh is a densely populated country but has limited natural resources. Although entitled to 12 nautical miles of territorial sea and 200 nautical miles of EEZ, Bangladesh’s proposed maritime boundaries overlapped with those of its neighbors and Bangladesh was faced with the possibility of being sandwiched between India and Myanmar. This explains its efforts to make the most of whatever resources it could stake a claim to.

In its memorial, which is a public document, Bangladesh’s effort was to ensure a decision on maritime delimitation that gave it the right to an extended continental shelf, that is, an area beyond 200 nautical miles. Bangladesh also argued for the use of the Angle Bisector method as being the most suitable method and arrived at a 180° perpendicular delimitation line.

In its attempt to get the most advantageous line, it argued that the equidistance method was not suitable for states such as Bangladesh with concave coastlines as its effect would be to pull the line of the boundary inwards in the direction of the concavity. Given the geographical location of Bangladesh between India and Myanmar, when two such delimitation lines are drawn on different points of a concave coast, they will inevitably meet at a relatively short distance off the coast resulting in a cut off for Bangladesh. This would restrict Bangladesh’s maritime zones to 180-190 nautical miles from its coastline and thus deny it its legitimate entitlement to an outer continental shelf.

Bangladesh also argued for a second deflection of its 180° line so as to claim a huge swathe of maritime territory in the outer continental shelf. Overall, Bangladesh claimed an area of about 32,000 sq km of extended continental shelf on this basis of this second deflection, citing its large coastal front, geology and geomorphology of the area and claiming that all the sediments in the Bay of Bengal which form the outer continental shelf flow from the rivers of Bangladesh. The logic advanced was that as the outer continental shelf was clearly an extension of the land mass of Bangladesh, the country enjoyed an inherent entitlement to the outer continental shelf.

In its counter memorial, India pressed for following the internationally recognized equidistance methodology for delimitation of the territorial sea, EEZ and continental shelf alike, emphasizing that this is the most equitable method for delimitation. India countered Bangladesh’s claim of coastal instability by pointing out that this can be regarded as a special circumstance only if it renders selection of appropriate base points impossible. It argued that Bangladesh’s proposed line is not a true depiction of the coastlines of the two countries.

A major bone of contention was New Moore Island, which has been claimed both by India and Bangladesh. India had made the case that the Radcliff Award fixes the boundary in this sector as the midstream of the main channel of the rivers Hariabhanga and Raimangal until it meets the Bay of Bengal. On this basis, India argued that the Land Boundary Terminus should lie to the east of New Moore Island. Bangladesh argued that the Terminus should lie to the west of the Island.

A reading of the 181-page award given by the Tribunal suggests that the Tribunal has admitted the justice of India’s argument but nevertheless proceeded to fix the delimitation line in a rather arbitrary fashion. To illustrate: the Tribunal acknowledges that the equidistance method is a more accurate method and rejects Bangladesh’s proposed angle bisector method. While the Tribunal has acknowledged in its award that the purpose of adjusting an equidistance line is not to refashion geography, or to compensate for the inequalities of nature and that there can be no question of distributive justice, it has adjusted the provisional equidistance line to a remarkable degree.

It has justified this as being necessary to ameliorate the negative impact on Bangladesh’s entitlements in the area within and beyond 200 nautical miles, without unduly impacting India’s entitlements. It has offered no explanation for the quantum of this adjustment. It is possibly this lack of transparency that has provoked one of the members of the Tribunal to place his dissent on record, pointing out that the adjustment to the provisional equidistance line has been made arbitrarily, that the identification of the relevant area based on which the adjustment has been made, is equally arbitrary and that the creation of a grey area is contrary to law and policies. It is the last that will need careful handling as it has created a dichotomy wherein India enjoys rights over the water column and Bangladesh over the seabed and subsoil in a small area of overlap.

All things considered, the award marks the settlement of the maritime boundary in accordance with international law. It is a binding award with no scope for further appeal by either party to the dispute. This is to be welcomed by all as this has long been a thorn in the India-Bangladesh relationship. For India, acknowledgement of its sovereignty over New Moore Island, with the concomitant access this provides to the Hariabhanga River, is a triumph.

In all other senses, the award has given something to both sides, though neither has got all that it had hoped for. While Bangladesh has ‘gained’ over 19,000 square kilometers in the EEZ, little of its claim in the continental shelf has been admitted.

While India’s rights over its extended continental shelf have been by and large protected, Bangladesh has gained an outlet to the extended continental shelf, one of its key demands. India can derive satisfaction from the fact that the award has split the area in question in the ratio of 1:2.81 in favor of India, which is significantly closer to India’s claim than to that of Bangladesh.

The computation of maritime area assigned to each country is the work of hydrographers. Of more consequence is the fact that this award allows both countries to go about their business of fishing and exploration and exploitation of marine resources in their respective territories. The award provides clarity and legal certainty on the exact location of the maritime boundary between the two nations, thus enhancing coastal and maritime security. This will help in preventing incidents of inadvertent crossing over of fishermen of both countries. Thankfully, this award will prevent future face off situations between the naval forces and coast guards on both sides, as has happened in the past over New Moore Island.

The Indian government has welcomed the judgment for having brought about a settlement which can make the Bay of Bengal a zone of peace and tranquility. As one has seen in the South China Sea where a crisis situation persists with claimants indulging in aggressive posturing, this is no mean achievement. Although the award may have fallen short of expectations of both countries, it should thus be seen as creating a win-win situation. It has rightly been greeted as such by the foreign ministries of both.

RAJEEV SHARMA is a New Delhi-based journalist, author and strategic analyst. He tweets @Kishkindha

[The article is published with the consent of the writer] [Feature Photo: AFP / Diptendu Dutta]