Resolving the Indo-Bangladesh Maritime Dispute: the Argument of Bangladesh and the Tribunal’s Decision on MethodologyApplicability of the angle-bisector method Bangladesh argues for the application of the angle bisector method. Relying on Nicaragua v. Honduras, Bangladesh recalls that the angle-bisector method begins with rendering the Parties’ relevant coasts as straight lines depicting their general direction, and moves to bisect the angle formed by the intersection of these straight lines to yield the direction of the delimitation line.
In Bangladesh’s view, this method focuses on macro-geographical rather than micro- geographical features, and produces results that correspond to the dominant geographic circumstances since it relies on straight-line coastal façades rather than actual coastlines.
Bangladesh notes that the angle-bisector method has been used on several occasions by international courts and tribunals. In the Gulf of Maine case, a chamber of the International Court of Justice, in opting for the angle-bisector approach, noted the inappropriateness of making minor geographical features the basis for the determination of the dividing line.231 In that judgment, different bisectors were used to delimit separate segments of the maritime boundary. Bangladesh emphasizes that the decision does not suggest that it was impossible to locate base points.
More recently, faced with an unstable coast characterized by a very active morpho-dynamism in Nicaragua v. Honduras, the International Court of Justice deployed the angle-bisector approach by drawing two straight-line coastal fronts and bisecting the angle formed by their intersection.234 Bangladesh stresses the Court’s finding that an angle-bisector is a viable method in circumstances where equidistance is “not possible or appropriate”.In Bangladesh’s view, the test applied in Nicaragua v. Honduras is not one requiring impossibility, but one of impossibility or inappropriateness, either of which will suffice.236 To support its argument, Bangladesh quotes the Court’s observation in Nicaragua v. Colombia that “it will not be appropriate in every case to begin with a provisional equidistance line”, as well as the statement by the International Tribunal for the Law of the Sea in Bangladesh/Myanmar that the angle-bisector method has been applied by courts and tribunals “where recourse to [equidistance] has not been possible or appropriate”.
Bangladesh also cites the decision of the arbitral tribunal in Guinea/Guinea-Bissau, which employed the angle-bisector method (Delimitation of the maritime boundary between Guinea and Guinea-Bissau, Award of 14 February 1985, RIAA, Vol. XIX p. 149). Bangladesh maintains that the arbitral tribunal intended to produce a delimitation line “suitable for equitable integration into the existing delimitations of the West African region” as well as future
delimitations.240 The arbitral tribunal, in rejecting the equidistance method due to coastal concavity, noted that the equidistance method may result in “the middle country being enclaved by the other two and thus prevented from extending its maritime territory as far seaward as international law permits”.241 The tribunal drew a single straight line across the coastal fronts of the five States in the region to approximate the maritime façade of the coast of the whole West Africa, and drew a perpendicular (a 180º angle-bisector) to this straight line façade.242 Apart from concavity, Bangladesh adds that Guinea/Guinea-Bissau also shares other similarities to the geography of this case, such as the presence of mangrove swamps, river deltas, coastal islands that join together at low tide, and a continental shelf “which bears the traces of successive coast lines”.
In Bangladesh’s view, all of the reasons that have previously favoured the adoption of the angle-bisector method are present in its dispute with India. Like the highly irregular coast in the Gulf of Maine, the Bengal Delta coast is deeply indented with offshore islands and low-tide elevations.244 The risk of enclaving Bangladesh through equidistance lines resembles the situation in Guinea/Guinea-Bissau, where the coast in the region is concave in shape. Finally, active morpho-dynamism of the Bengal Delta recalls the shifting coastline in Nicaragua v. Honduras.
Indeed, Bangladesh argues, Nicaragua v. Honduras and the present case present multiple similarities. In both cases, there are unstable coastlines and difficulties in identifying agreed base points.247 Both also feature concavity that renders the equidistance line more inappropriate the further the boundary extends from the coastline.248 Even the Parties’ present dispute regarding the Radcliffe Award recalls the difficulties in Nicaragua v. Honduras concerning the arbitral award addressing sovereignty over the islets formed near the mouth of the River Coco.
Bangladesh concludes that the angle-bisector method produces a more equitable solution in those cases where it has been employed because it produces a more effective reflection of the coastal relationships and a result that constitutes a better expression of the principle of equal
division of the areas in dispute. Bangladesh adds that the angle-bisector method is more consistent with the non-encroachment principle and prevents, as far as possible, any cut-off of the seaward projection of the coast of the States concerned.
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. India submits that the leading authority for the modern law on maritime delimitation is the Black Sea judgment and challenges the relevance of Guinea/Guinea-Bissau on the basis that it was a special case and has not subsequently been followed. India contests Bangladesh’s interpretation of Gulf of Maine, arguing that the Court’s main reason for choosing the angle- bisector method was that an equidistance line would be controlled by base points located on features over which sovereignty was disputed.
India objects to the heavy reliance that Bangladesh would have the Tribunal place on the International Court of Justice’s decision in Nicaragua v. Honduras, which in India’s view, Bangladesh takes “out of context”. According to India, the principal reason for the Court’s decision to apply an angle bisector was that the geographic configuration of the needle-shaped Cape Gracias a Dios rendered the identification of base points impossible. According to India,
if any two base points were to have been used for the purposes of generating a provisional equidistance line, the Court would have had to select two points along opposite sides of the needle-like Cape. Even if two such base points could have been forced upon the geography of the Cape, they would have formed the base for a completely arbitrary equidistance line.
The changing geography of the Cape, or its morpho-dynamism, were in India’s view only secondary considerations for the Court: “it was not the mere presence of deltaic coasts that thwarted the drawing of an equidistance line; the accretion of sediment along the delta merely made evident the arbitrariness of using ‘two sides of a needle’ as base points.”256 In any event, India notes, the degree of accretion and advance of the coast were unlike anything to be seen in the mouth of the Raimangal Estuary. India points out that, in sharp contrast to the present case, both Nicaragua and Honduras recognized the significance of the advancing coastline. Moreover, neither advocated for the use of equidistance.
According to India, “[t]he decisive factor, at this step of the delimitation process, is not whether the relevant coasts of the Parties are stable or not throughout their whole length, but whether base points appropriate for drawing an equidistance line can be determined on these coasts.” Abandoning the high threshold of “impossibility” set by the Court as a criterion for departing from the equidistance/relevant circumstances method would, India argues, “put in question the difficult and long, but most fortunate, decisive trend towards more objectivity and more predictability of the law of maritime delimitation”, and “open[] the door to full subjectivity”.
Turning to other jurisprudence, India observes that in Nicaragua v. Colombia the International Court of Justice rejected Nicaragua’s argument in favour of a departure from equidistance, stating that, unlike Nicaragua v. Honduras, “this is not a case in which the construction of such a line is not feasible” (Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, paragraph 195).261 In India’s view, the circumstances of the present case more closely resemble those of Nicaragua v. Colombia. There, as here, the coastline involved a long stretch of the mainland and a set of islands, and no morpho-dynamism that would preclude the selection of base points is in evidence.
In sum, India concludes that Bangladesh is attempting to reawaken outdated jurisprudence, the angle-bisector having been applied only once in the 13 cases decided after Libya/Malta, which was rendered almost 30 years ago. According to India, under modern jurisprudence, and in the absence of any compelling reason, a provisional equidistance line must be drawn first. Relevant circumstances—if any—play a role only during the second phase of the three-stage methodology.
The Tribunal’s Decision on Methodology The Parties disagree on the centrality of the equidistance/relevant circumstances method in the delimitation process and on the circumstances that would call for an alternative method in the form of an angle-bisector. In this respect they draw different conclusions from the judgments and awards issued by international courts and tribunals in other delimitation cases. The Parties further disagree on whether, if the equidistance/relevant circumstances method is used, the provisional equidistance line will require adjustment.
In the view of the Tribunal two different, although interrelated, issues must be addressed. The first is whether a presumption exists in favour of the equidistance/relevant circumstances method for the delimitation of the exclusive economic zone and the continental shelf within 200 nm. The second is the application of this method in this particular case. The Tribunal will address each of these issues in turn.
The Tribunal notes that articles 74 and 83 of the Convention, which govern the delimitation of the exclusive economic zone and the continental shelf respectively, do not refer to a specific method of delimitation. The reference in article 15 to the median line as method of delimitation cannot be read into articles 74 and 83 of the Convention
Since articles 74 and 83 of the Convention do not provide for a particular method of delimitation, the appropriate delimitation method—if the States concerned cannot agree—is left to be determined through the mechanisms for the peaceful settlement of disputes. In addressing this question, international courts and tribunals are guided by a paramount objective, namely, that the method chosen be designed so as to lead to an equitable result and that, at the end of the process, an equitable result be achieved. In this connection, the Tribunal recalls the principles stated by the International Tribunal for the Law of the Sea in its judgment in Bangladesh/Myanmar (Judgment of 14 March 2012, paragraph 235). This Tribunal wishes to add that transparency and the predictability of the delimitation process as a whole are additional objectives to be achieved in the process. The ensuing—and still developing—international case law constitutes, in the view of the Tribunal, an acquis judiciaire, a source of international law under article 38(1)(d) of the Statute of the International Court of Justice, and should be read into articles 74 and 83 of the Convention.
The Tribunal will now discuss the two methods advocated by the Parties, namely the equidistance/relevant circumstances method and the angle-bisector method for the delimitation of the exclusive economic zone/continental shelf within 200 nm.
The Tribunal recalls that the first stage of the equidistance/relevant circumstances method involves the identification of a provisional equidistance line “using methods that are geometrically objective and also appropriate for the geography of the area in which the delimitation is to take place” (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, I.C.J. Reports 2009, p. 61 at p. 101, paragraph 116 referring also to the Continental Shelf case (Libyan Arab Jamahiriya/Malta), Judgment 3 June 1985, I.C.J Reports 1985, p. 13, paragraph 60 et seq.). The second stage calls for the consideration of relevant circumstances that may call for the adjustment of the provisional equidistance line in order to achieve an equitable result. The third stage consists of an ex post facto check of non- disproportionality of the result reached at the second stage.
Relying on the judgment of the International Court of Justice in the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea ((Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 659), Bangladesh notes that the angle-bisector method starts with rendering the Parties’ relevant coasts as straight lines depicting their general direction. The angle formed by the intersection of these straight lines is then bisected to yield the direction of the delimitation line.
The International Court of Justice noted in the Nicaragua v. Honduras that the angle-bisector method is meant to generalize irregular coastal features through a linear approximation of the relevant coasts. The Tribunal notes that the equidistance/relevant circumstances and angle- bisector methods are both based upon geometric techniques. In the view of the Tribunal, the advantage of the equidistance/relevant circumstances method lies in the fact that it clearly separates the steps to be taken and is thus more transparent. The identification of a provisional equidistance line is based on geometrically objective criteria, while at the same time account is taken of the geography of the area through the selection of appropriate base points. By contrast, depicting the relevant coasts as straight lines under the angle-bisector method involves subjective considerations. As the present case demonstrates, there may be more than one way of depicting the relevant coast with straight lines.
In the second stage of the equidistance/relevant circumstances method, the provisional equidistance line may be adjusted to reflect the particularities of the case. International jurisprudence gives some guidance on the considerations relevant in this process. The Tribunal is aware that the decision whether to adjust a provisional equidistance line, as well as the decisions on how much and in which direction the line should be adjusted, requires an assessment by the Tribunal of the facts and the probable impact of the provisional equidistance line. While such an assessment is largely a matter of appreciation, the Tribunal is of the view that, by separating the first and second stages in the application of the equidistance/relevant circumstances method, a high degree of transparency can be achieved. Transparency is, of course, also dependent on the reasoning given for any particular decision. However, the Tribunal considers that, even if clearly reasoned, a decision based on the angle-bisector method does not possess the same structure or the same degree of transparency.
For these reasons, the Tribunal considers that equidistance/relevant circumstances method is preferable unless, as the International Court of Justice stated in Nicaragua v. Honduras, there are “factors which make the application of the equidistance method inappropriate” (Judgment,
I.C.J. Reports 2007, p. 659 at p. 741, paragraph 272).
This is not the case here. Bangladesh was able to identify base points on its coast, as well as on the coast of India. The argument of Bangladesh that the “coastal configuration renders the identification of equidistance base points impractical or unreliable” is not sustainable. Nor does the Tribunal find the depiction of the coastal façade proposed by Bangladesh to be convincing as it does not reflect the geography of the northern part of the Bay of Bengal. For this reason also, the Tribunal considers it appropriate to apply the equidistance/relevant circumstances method in this case.
Source:
http://www.pca-cpa.org/showpage.asp?pag_id=1376
