After failing to resolve the dispute over maritime boundary with India and Myanmar for the last 34 years, Bangladesh has already moved to the international court and arbitrations to establish her legitimate rights over the Bay of Bengal’s marine resources.
As part of the legal battle, Bangladesh submitted its case concerning delimitation of the maritime boundary with Myanmar at the International Tribunal for Law of the Sea (ITLOS) in Hamburg and argued for equitable solution of the long running dispute.
On September 8, Foreign Minister Dipu Moni as the case agent strongly presented Bangladesh’s views on equitable sharing of the Exclusive Economic Zone (EEZ) and Continental Shelf in the Bay of Bengal against Myanmar’s preferred method of equidistance.
In her opening statement at the 22-member bench headed by Jose Luis Jesus of Cape Verde, Dipu Moni said since 1974, Bangladesh and Myanmar have engaged in extensive negotiations concerning their maritime boundary in the Bay of Bengal. Over the course of 34 years, the two countries have conducted 13 rounds of talks and achieved some notable early success.
In 1974, she said the two countries reached agreement concerning the maritime boundary in the territorial sea and that agreement was fully applied and respected by both states over more than three decades. As a result of the agreement, there has never been any problem regarding the right of passage of ships of Myanmar through Bangladesh’s territorial sea around St Martin’s Island.
Dipu Moni told the tribunal that Myanmar is steadfast in its insistence that the boundary must be determined by reference to the equidistance method. But Bangladesh believes that equidistance does not yield an equitable solution given the geographic realities in the northern Bay of Bengal.
Referring to the concavity of the Bay of Bengal’s north coast, she said this concavity combined with the location of the country’s land boundaries with Myanmar to the east and India to the west, makes the equidistance method wholly unsuited to producing an equitable solution.
“Despite a coast of several hundred kilometers, equidistance would leave us with just a small, wedge-shaped area of maritime space, all of it less than 200 nautical miles from our coast. It would deprive us of any access to the outer continental shelf,” she told the tribunal. The foreign minister also argued that the institution of these proceedings is not in any way a hostile act. It is intended to resolve a long-standing dispute in an equitable manner that serves the interests of both countries.
Paul Reichter of Foley Hoag, member of the Bars of the United States Supreme Court, presented an overview of the most critical facts of geographic and geologic circumstances that frame the coast in favour of Bangladesh.
Dr James Crawford, Professor of International Law, University of Cambridge, cited facts and various maritime boundary cases, particularly the case between Germany, Netherlands and Denmark in the North Sea and argued Bangladesh’s stance for equitable method for resolving the dispute. Bangladeshi counsels Prof Alan Boyle from the University of Edinburgh and Prof Philippe Sands of University College London focused on the 1974 territorial boundary deal signed by Bangladesh and Myanmar.
They told the tribunal that the 1974 agreement was reconfirmed with minor changes in 1979. In the 1974 agreement, there was a mention of “unimpeded access of Burmese vessels to and from the Naaf River” was replaced with an “innocent passage” to and from the Naaf River on the basis of reciprocity.
However, Myanmar argued that there was no agreement signed in 1974 and as such they do not agree with the agreed minutes of 1974. Myanmar suggested giving only six miles territorial sea to the St. Martin’s Island instead of 12 miles territorial sea agreed by Myanmar in 1974 agreement updated and reconfirmed in 2008. For delimitation of territorial sea, Bangladesh put two sets of alternative arguments. The first argument requests the tribunal to delimit the territorial sea on the basis of 1974 ‘’agreed minutes’’.
According to the agreed minutes, the territorial sea boundary between Bangladesh and Myanmar was drawn from the land terminus point at Naaf River by joining seven points equidistant from the coasts of Myanmar and Bangladesh (St Martin). According to the agreement Myanmar demanded unimpeded navigation through Naaf River which Bangladesh has provided for more than three decades.
However, changing its position during the proceedings at ITLOS Myanmar proposed a new delimitation line totally ignoring the St Martin Island. Prof Alan Boyle, in his submission, pointed out various rules of international law and precedence of international courts and tribunals to prove that the 1974 agreed minutes is an agreement from which Myanmar cannot revert now.
Both Bangladesh and Myanmar have so far maintained the 1974 line in their practice and according to the relevant provision of UNCLOS (Article 15), the 1974 agreed minutes constitute an agreement for the delimitation of territorial sea between Bangladesh and Myanmar.
In case the first argument does not seem to be acceptable to the tribunal, Bangladesh proposes a second set of arguments for delimitation of the territorial sea.
Prof Philippe argued that under Article 15 of the UNCLOS, which is governing law in this case, the boundary in the territorial sea must be a median line that is equidistant between the coasts of the two States, and that it is thus the very median line boundary that Bangladesh and Myanmar adopted in their agreement of 1974.
Prof Philippe told the tribunal that under both the bilateral agreement and under UNCLOS, the boundary in the territorial sea must be the equidistant line, as Bangladesh has constantly claimed. The arguments specifically stressed the issue of St Martin’s Island, which Myanmar claims to have no right to maritime zones, but it is in fact fully entitled to 12 miles of territorial sea and other maritime zones.
During the proceedings that continued till September 24 Bangladesh also placed its arguments on the boundary in the Exclusive Economic Zone out to 200 miles and in the Outer Continental Shelf out to 390-460 miles.
Professor Philippe Sands, member of the Bar of England and Wales, Lawrence Martin Foley Hoag, member of the Bar of the United States Supreme Court and Paul Reichler also member of the Bar of United States Supreme Court presented their arguments in favour of Bangladesh’s claim substantiated by facts, case laws and previous judgments on maritime disputes in America, Africa, Caribbean and Europe.
Prof Sands presented rules and principles of international law applicable for the delimitation of EEZ and continental shelf.
He discussed relevant laws of UNCLOS, legislative history of the Convention of 1982 to stress the obligation of the tribunal for achieving equitable solution without giving priority to any specific method of delimitation, which is the equidistance method.
Prof Sands referred to two recent cases of international court—Nicaragua vs Honduras decided by ICJ and Guinea/Guinea Bissau Arbitration decided by Court of Arbitration, where alternative method, namely angle bi-sector method was used for achieving equitable solution. Prof Sands requested the tribunal to appreciate the geographical position of Bangladesh before applying the relevant laws and practices in this case.
Bangladesh’s case much stronger
Larry Martin mentioned various examples and reasoning as to why equidistance does not give equitable results to Bangladesh vis-à-vis India and Myanmar. He vividly illustrated to the judges the inequity that would result if equidistance is applied in the case between Bangladesh and Myanmar due to extreme concavity faced by Bangladesh. Martin justified his argument with case laws like North Sea and Guinea/Guinea Bissau Arbitration as well as the state practices like Senegal/Gambia, Dominica/France, France/Monaco, Malaysia/ Brunei showing that, concavity has always been given special consideration for discarding equidistance in maritime delimitation.
He argued that Bangladesh, having a long coastline which faces only the sea deserves something equitable, not a cut-off neighboring countries. Paul Reichler specifically mentioned about Myanmar’s approach of drawing provisional equidistance line ignoring St Martin’s Island, an integral feature of Bangladesh’s coast.
He cited rules and judicial precedents like Dubai/Sharjah case, Rumania/Ukrain case and Myanmar/ India (Andaman Nicobor) maritime delimitation agreement in favour of giving full effect to St. Martin’s Island. Reichler also elaborated Bangladesh’s un-rebutted and uncontested entitlement to outer continental shelf on geological and geomorphological ground which demands an alternative of equidistance method for delimitations of its EPZ and Continental Shelf within 200 NM.
The hearings stressed the exclusion of equidistance due to its distortionary effect in the present case and requested the tribunal to delimit the 200NM EEZ and Continental Shelf. According to Bangladesh counsels and lawyers Myanmar could not present any evidence or legal basis in favour its claim. Rather Maynmar is contradicting its previous positions. They expressed confidence about Bangladesh’s positive results in the maritime boundary case against Myanmar.
The tribunal is expected to make its judgment by April next year. If Bangladesh wins the case it will be able to explore oil and gas and marine resources in the vast area of the Bay of Bengal. |