Verdict on the maritime boundary with Myanmar: A victory for fairness and justice

by Barrister Harun ur Rashid | March 17, 2012 10:32 pm

The151-page judgment by the International Tribunal of the Law of the Sea (ITLOS), on 14th March on the delineation of maritime boundary in the Bay of Bengal is a victory for fairness and justice. The judgment is final and cannot be appealed against.

The tribunal, based in Hamburg, Germany, was established by the United Nations Convention on the Law of the Sea to adjudicate disputes between states concerning issues covered by the convention, including the delimitation of maritime boundaries.

President of the Tribunal Jose Luis Jesus of Cape Verde read out the judgment in the courtroom. The 23-member panel of judges of the tribunal delivered its final judgment after following a series of procedures and long oral hearings between September 8 and September 24, 2011, when both the countries presented their arguments for their claims.

As the Agent of Bangladesh in the proceedings, the Bangladesh Foreign Minister Dr. Dipu Moni presided over an eminent legal team, including: the Deputy Agent, Rear Admiral (Ret) Mohammed. Khurshed Alam, as well as legal experts, James Crawford, Philippe Sands and Alan Boyle of the United Kingdom, Paul Reichler and Lawrence Martin of the United States, and Payam Akhavan of Canada.

Myanmar was represented by its Agent, Attorney General Tun Shin. Its counsel included Alain Pellet and Mathias Forteau of France; Sir Michael Wood of the United Kingdom; and Coalter Lathrop of the United States.

In the delimitation of the boundary in the Bay of Bengal, Bangladesh has consistently argued since 1974 that the principle based on “equity” would be applicable while India and Myanmar favoured “equidistance” method to draw the boundary between adjacent/lateral states.

Under international law as codified in the 1982 UN Convention on the Law of the Sea , (UNCLOS), the principle of “equity” takes into account a country’s population, economic status and needs, GDP growth, and other human issues, while the “equidistance” method marks the boundary through mechanical geometric calculations without any geographical considerations of states.

The “equidistance” method, if applicable, could cut-off Bangladesh’s sea boundary from both east and west to a truncated economic zone not extending beyond 130 nautical miles (not 200 nautical miles) and would deny Bangladesh not only to claim an additional 260 nautical miles of continental shelf (sea bed) beyond the 200 mile economic zone but also access to the open ocean, turning Bangladesh into a “sea-locked country”.

The verdict ruled in favour of Bangladesh and accordingly

• gave Bangladesh a full 12-mile territorial sea around St Martin’s Island, overruling Myanmar’s argument that it should be cut in half,
• gave Bangladesh’s full access to 200 nautical miles economic zone,
• substantial share of the continental shelf beyond 200 nautical miles and
• gave Bangladesh access to the open ocean.

The technical officials from both countries will now sit together and implement the verdict by drawing boundary lines through geographical co-ordinates (longitude and latitude).

Bangladesh Foreign Minister Dipu Moni said: “It is a victory for both States because it finally resolves – peacefully and according to international law – a problem that had hampered the economic development of both States for more than three decades. We salute Myanmar for its willingness to resolve this matter by legal means and for its acceptance of the tribunal’s judgment.”

The judgment was the first by any court or tribunal to delimit the maritime area beyond 200 miles, known as the “outer continental shelf (sea bed)”, and is certain to establish an important precedent in that regard in the delimitation of maritime boundary between adjacent /lateral states as distinct from opposite states.

It is noted that Bangladesh, India and Myanmar ratified the 1982 UN Convention on the Law of the Sea (UNCLOS). Bangladesh ratified the UNCLOS in 2001, India in 1995 and Myanmar in 1996. Accordingly they have accepted the laws and rules of UNCLOS including the dispute settlement mechanism.

Given the impasse of bilateral negotiations over more than two decades, Bangladesh had no other alternative but to refer the matter before the Tribunal on 14 December 2009 to which both Bangladesh and Myanmar accepted the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS).

In this connection, I must commend the efforts of the Sheikh Hasina government to revive the maritime boundary issue and the Foreign Minister to rejuvenate the UNCLOS cell in the Foreign Office by appointing Rear Admiral (Retired) M. Khurshid Alam as the head of the cell.

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 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.

The verdict gave Bangladesh 1.11 lakh (one hundred thousand and eleven) square miles in the Bay of Bengal. The legal certainty afforded by this ruling will ensure that Bangladesh will be able to explore and exploit the living and non-living resources of the sea to the maximum benefit of the country. The judgment will now allow foreign companies to explore oil and gas for Bangladesh in deep-sea areas previously disputed by Myanmar.
The right to open sea is a natural asset to Bangladesh as a maritime country as it opens the major sea- lanes of international shipping through the Bay of Bengal. It is great logistical, commercial and geo-political importance to Bangladesh.

Since the prickly issue of maritime boundary is resolved peacefully, the ruling will promote further understanding and cooperation between Bangladesh and Myanmar which opened a new vista of relations following the visit of Bangladesh Prime Minister to Myanmar in December last.

On a personal note, I am very pleased to note that the bilateral negotiations in which I for the first time presented our case to Myanmar’s delegation in 1974 under the leadership of the then Bangladesh Ambassador to Myanmar late K. M. Kaiser has come to a fruitful conclusion.

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

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