by Barrister Harun ur Rashid | July 9, 2014 4:44 am
The Permanent Court of Arbitration (PCA) at The Hague officially conveyed the result to both parties on 7th July 2014. Bangladesh went to the Court in October 8 2009 and the submission of documents and oral hearings from both sides were concluded in December 2013.
The judgment is final and cannot be appealed against. India accepted the judgment and reportedly said that the judgment would further enhance goodwill between the two countries by putting an end of a long standing issue.
It is noted that the disputed maritime area of 25,602 square kilometers in the Bay of Bengal with Bangladesh is only about 3% to 5 % of India’s vast maritime area in the Bay of Bengal , Indian Ocean and Arabian Sea while for Bangladesh the area in the west with India is 100% because there is no other maritime area available for Bangladesh to its west and it is vital for Bangladesh to have this area under its jurisdiction
Gains of Bangladesh:
Bangladesh Foreign Minister reportedly has announced on 8th July that Bangladesh has been awarded 19,467 square kilometres of the total 25,602 sq km sea area leaving 6,135 square kilometres to India.
It is noted that area of dispute with India in the Bay of Bengal is much smaller than that between Bangladesh and Myanmar which was 2,83,463 square kilometers.
The judgment allows Bangladesh 200-mile exclusive economic zone, continental shelf beyond the 200-miles economic zone and to have an access for Bangladesh to the open sea, not turning it into a “sea-locked country.” Bangladesh’s awarded area reportedly includes 10 off-shore blocs in the west which were in dispute with India.
Most importantly Bangladesh has access to the open sea which is strategically and commercial important for Bangladesh.
Brief history:
Although Bangladesh and India sea boundary talks started in 1974, renewed in 1978, 1982, and 2008 (under the care-taker government) it could not be resolved because of the differences over methods of delimiting the boundary between the two sides
When bilateral talks on the maritime boundary with India were stalled and going nowhere, Bangladesh had no option but to look out for another avenue to resolve the dispute. The Hasina government decided to lodge the dispute with the Court of Arbitration on October 8, 2009.
The government must be credited for two bold moves for lodgment of the dispute to the Court of Arbitration: First it was a decision to drag India to the Court of Arbitration which was based on the detection by the Bangladesh legal team of a loophole created by India leaving the dispute machinery open while ratifying the UN Convention of the Law of The Sea (UNCLOS). Second, it was a risky decision by the Hasina government at the time because the judgment might not be in favour of Bangladesh.
Bangladesh submitted its statement of claim by May 2011 to the Court of Arbitration. India submitted its counter-memorial by July 2012. Rejoinder by Bangladesh was lodged on 31st January and India’s reply was submitted by 31 July 2013. Oral hearings from both sides were heard by the Arbitration Court in December 2013 (9th -18th December )
Who are Arbitrators?
The Court of Arbitration consists of three jurists as Arbitrators– Tullio Treves of Italy, I.A. Shearer of Australia and Rudigar Wolfrum of Germany and one each nominated by Bangladesh and India. Bangladesh nominated former Judge Thomas Mensah from Ghana and India nominated Dr. P. Sreenivasa Rao, former Legal Adviser of the External Affairs Ministry.
Five arbitrators comprise the Court presided over by Rudigar Wolfrum of Germany. In July 2013 Treves resigned and a French Jurist Jean-Pierre Cot was appointed in his place in consultation with both parties.
Lawyers of both sides:
On behalf of India lawyers ,RKP Shankardass, Alain Pellet, Michael Reisman and Sir Michael Wood argued, while for Bangladesh Lawrence Martin, Philippe Sands, Payam Akhavan, Paul Reichler, Alan Boyle and James Crawford.
Maritime International Law:
UNCLOS provides a general guidelines of delimitation under Articles 15 (territorial sea) 74, (delimitation of EEZ) and 83 (delimitation of continental shelf). The interpretation and application of maritime law of delimitation have been expounded by the International Court of Justice and Tribunals.
The most significant precedent in the case of Bangladesh-India maritime dispute is arguably the judgment delivered by the International Tribunal for the Law of the Sea (ITLOS) on March 14th 2012 in the Bangladesh-Myanmar Maritime Delimitation Case.
The ITLOS judgment accepted Meghna estuary as part of relevant coast. It upheld Bangladesh cannot be a “sea-locked” state by cutting –off its boundary line from Myanmar side in the Bay of Bengal. It recognised Bangladesh’s 12-mile territorial sea, 200 mile exclusive economic zone, and the rights of Bangladesh to the outer continental shelf beyond the economic zone (another 260 miles). Bangladesh has total rights over the undersea natural resources within the continental shelf as many nations have asserted mineral and land rights to their continental shelves.
Significance of the judgment:
The most important fact is that the judgment of the Court of Arbitration together with the ITLOS judgment in 2012 has resulted in a clear-cut maritime boundary which will allow Bangladesh, India and Myanmar unhindered exploration of living resources (fishing and other living marine species) and non-living (oil, gas and minerals) resources in the Bay of Bengal.
Bangladesh will have now not only 19,467 sq.kilo in the west but also 1,11,631 sq.kilo in the east (ITLOS judgment) in the Bay of Bengal for exploration and exploitation of its resources. One of the sources of food as well as oil and gas could be found from marine resources. As land resources deplete more attention falls on the marine resources.
Another fact stands out is that Bangladesh and its neighbouring states –India and Myanmar–have peacefully settled the maritime boundary through the legal mechanism under the UNCLOS and it demonstrates all three countries have been committed to have peaceful settlement…
The judgment may assist Bangladesh concretise the Japanese proposal for a Bay of Bengal Industrial Growth Belt (BIG-B) initiative to his Bangladesh counterpart Sheikh Hasina in Tokyo in May with India and Myanmar for Japanese trade and investment. It ushers in a new era of cooperation with the neighbours in maritime area.
Conclusion:
Finally, the Hasina government deserves commendation for its reference to the UNCLOS dispute machinery against India and Myanmar at the same time because both Myanmar and India left the dispute machinery open to other neighbouring states either by overlook or neglect and did not make reservations to the machinery while ratifying the UNCLOS). Had they made reservations to the dispute machinery, Bangladesh could not have lodged the dispute to the Court of Arbitration against India and to ITLOS against Myanmar. And the sea boundary dispute would not have been resolved.
Our admiration goes to the Secretary (a retired Rear Admiral) of the maritime affairs of the foreign office in handling the case with great efficiency and dedication. On personal note, I find great satisfaction that the bilateral negotiations in which I, representing the foreign office, argued for the first time to India and Myanmar in 1974 has been resolved in Bangladesh’s favour…
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