Maritime Boundary with India: Arbitration or Bilateral Negotiations

Maritime Boundary with India: Arbitration or Bilateral Negotiations

Now that the maritime boundary has been settled peacefully with Myanmar through International Tribunal for Law of the Sea (ITLOS), Bangladesh has to resolve the maritime boundary with India, the process has already started in the Arbitral Tribunal since 2009.

During bilateral negotiations starting from 1974, India from the west proposed to squeeze Bangladesh maritime area to a point that took away a large chunk of Bangladesh’s maritime economic zones by drawing the boundary line on the basis of equidistance method without geographical and geo-morphological considerations. The equidistance method is application of mechanical geometric calculations in maritime boundary applicable in the case of opposite states.

Bangladesh rejected India’s position and instead proposed equable principles for fairness and justice given the Bangladesh’s geographical position as an adjacent /lateral state with India as distinct from opposite states, such as India and Sri Lanka.

Sometime in April in 1975 at the Jamaica Commonwealth Heads of meeting, Bangladesh was understood to have proposed arbitration on the sea boundary to India but India rejected it insisting on bilateral negotiations.

Bangladesh commenced bilateral talks in 1974 with India and after several rounds of negotiations including the last one in 1982, it remained inconclusive because both sides did not budge from their preferred method (equidistance or equitable principles) of application in drawing the maritime boundary.

It is worthwhile to mention that Bangladesh ratified the 1982 UN Convention on the Law of the Sea (UNCLOS) in 2001, while India did it in 1995 and Myanmar in 1996. Accordingly all three countries are bound by the provisions of the UNCLOS.

The Sheikh Hasina government revived the boundary case in 2009 and after several rounds of talks with Myanmar and India, and took a bold but risky decision to submit to the dispute settlement machinery under the 1982 Convention Law of the Sea.

India did not agree as Myanmar did to submit the case to ITLOS but agreed to refer the case to the Arbitral Tribunal (commonly known as Permanent Court of Arbitration) at The Hague. Both mechanisms are allowed under the Convention of the Law of the Sea for dispute settlement on maritime boundary.

On 8th October 2009, Bangladesh initiated arbitration proceedings against India. In February, 2010, the President of the Tribunal appointed three arbitrators- Prof.Tullio Treves of Italy, Prof. I.A. Shearer of Australia and Prof. Rudigar Wolfrum of Germany. The President of the Arbitration is Professor Wolfrum.

Besides the three arbitrators, Bangladesh has nominated former ITLOS Judge Thomas Mensah from Ghana and India’s nominee is Dr. Pemmaraju Sreenivasa Rao, former Legal Adviser of the Ministry of External affairs

Bangladesh legal team consists of Professor James Craford, Cambridge University, Professor Philppe Sands of London University, Professor Alan Boyle of Edinburgh University, maritime expert lawyers Paul Reichler, Lawrence Martin from US, and Professor Payam Akhavan of McGill University, Canada.

India’s legal team comprises Mr. R.K.P. Shankardass, former Legal Adviser of the Ministry of External Affairs, Professor Alan Pellet of Paris University, Sir Michael Wood, former Legal Adviser to British Foreign Office and Professor W. Michael Reisman of Yale Law School

In May 2010 India and Bangladesh agreed to attend a meeting to fix a time table of submission of their pleadings and rejoinders. Bangladesh lodged its statement of claim in the scheduled time (by May ) in 2011 and India will respond by May 2012.

On 14th March, in a landmark judgment, the ITLOS has accepted Bangladesh’s argument that equitable principles will apply in drawing the maritime boundary with Myanmar.

On 19th March, it is reported that Foreign Minister Dr. Dipu Moni ruled out any possibility of withdrawing Bangladesh’s maritime boundary case against India, but said bilateral negotiations could take place alongside the arbitration on the basis of the principles set by the International Tribunal for the Law of the Sea (ITLOS).

“There is no scope to withdraw the case because we went for arbitration since we did not get any solution through discussions with India,” she said replying to a question at a press conference at the foreign ministry.

The door for discussions is open if they (India) want that but the discussions are to be based on the ITLOS principles ensuring Bangladesh’s legitimate rights alongside pursuing the case, Dr. Dipu Moni said.

Talking to journalists after the hour-long talks with the Foreign Minister Dr. Dipu Moni, the Indian High Commissioner expressed India’s strong willingness to discuss and resolve bilaterally the maritime boundary issue with Bangladesh.

It is noted that in the joint communiqué of 2010 following the visit of Bangladesh Prime Minister, Paragraph 21 states that “both Prime Ministers agreed on the need to amicably demarcate the maritime boundary between India and Bangladesh. They noted the initiation of proceedings under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) and, in this context, welcomed the visit of a delegation from Bangladesh to India”.

In my view, bilateral discussions with India could be held on the basis of principles set by ITLOS as stated by the Bangladesh Foreign Minister and within a time-bound limit. 38 years have passed and Bangladesh cannot afford to lose any more time as the Arbitral Tribunal is expected to deliver its ruling in 2014.

Given the days of energy short fall and rising prices of oil and gas, exploration of maritime areas in the Bay of Bengal has become more urgent for Bangladesh than it was in the past. The most remarkable off-shore technology that has progressed in the 15 years is the three -fold increase in the maximum operational depth of off-shore rigs which has opened up good prospects for exploration of oil and gas in the Bay of Bengal.

By Barrister Harun ur Rashid
Former Bangladesh Ambassador to the UN, Geneva,

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