Mohammad Rubaiyat RahmanOn July 7, the five members’ arbitral tribunal of the Permanent Court of Arbitration (PCA), constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), issued its award in respect of the delimitation of the maritime boundary between Bangladesh and India. The arbitral tribunal, by a majority of four votes to one, settled the issues regarding: location of the land boundary terminus; delimitation of the territorial sea and EEZ; and delimitation of continental shelf in and beyond 200 nautical miles (nm). The tribunal utilised a two-step method to construct equidistance line in the territorial sea between Bangladesh and India. A member of the tribunal, PS Rao, voted against the majority decision disagreeing upon “creation of grey area” and “adjustment of the provisional equidistance line.”
After the adjustment of the provisional equidistance line, the ratio of relevant areas of Bangladesh to India is equated to 1: 2.81. However, computing upon the tribunal’s delimitation line, the adjustment done to the provisional equidistance line has increased Bangladesh’s maritime area by 19,467sqkm. The PCA, an intergovernmental organisation, acts as Registry in this arbitration. On October 8, 2009, Bangladesh instituted arbitral proceedings and by December 2013, the hearing on the merits was held at the Peace Palace in Hague, headquarter of the PCA. The tribunal award is binding on both parties and there is no option for appeal.
Decision on land boundary terminusSince “land boundary terminus” is the point for delimiting the maritime boundaries, the Tribunal first determines the precise location of it between India and Bangladesh in the Bay of Bengal. Both parties have agreed that the delimitation of the territorial sea should start from the land boundary terminus. In the award, the tribunal determines the position of the land boundary terminus which is 21° 38′ 40.2″N, 89° 09′ 20.0″E by reference to the Radcliffe Map.
Decision on base point selection and territorial sea delimitationBase points are used to control the course of a line though the territorial sea, the exclusive economic zone, and the continental shelf within and beyond 200nm. For delimitation, the tribunal constructs the equidistance line in the territorial sea between Bangladesh and India. It adopts a two-step method to delimit. First, it identifies the base points relevant for the delimitation of the territorial sea and thereafter it identifies the median or equidistance line.
Tribunal draws the provisional median or equidistance line in the territorial sea (starting at the mid-point between B-1 and I-1), which is between the low waterline of Mandarbaria/Clump Island and the low waterline of Moore Island. Due to this, the South Talpatty island area (known as “New Moore Island” to India) falls within the ambit of Indian territorial water. Considering the issue of special circumstances, tribunal draws territorial sea boundary line which is a 12 nautical mile long geodetic line continuing from the land boundary terminus in a generally southerly direction to meet the median line.
Delimitation of EEZ and Continental ShelfExclusive Economic Zone (EEZ), which has customary status in international law, refers to an entity that combines three different resource regimes such as living resources; non-living resources, and other resources generating economic value out of the area.
Although both parties agree upon the construction of an “equidistance line” as the beginning step of the delimitation process; there is contention as to applicability of angle-bisector method and equidistance method for the delimitation of the EEZ and continental shelf within 200nm. Regarding angle-bisector method, Bangladesh contends that the “double concavity” of its coastline constitutes a relevant circumstance that justifies its favour of angle bisector method. The tribunal deems equidistance method as preferable contending that arguing that there is no factor present in the case that would make the application of the equidistance method inappropriate.
Delimitation of continental shelf beyond 200nmAfter the Bangladesh-Myanmar maritime delimitation case at ITLOS in 2012, for the second time an international tribunal has had an occasion to delimit continental shelf beyond 200nm. While delimiting the continental shelf beyond 200nm, the tribunal contends in the award that inaction by this tribunal would in practice leave the parties in a position in which they would likely be unable to benefit fully from their rights over the continental shelf.
Both the parties claim in the tribunal that they have entitlements to the continental shelf beyond 200nm. Here, tribunal also implements equidistance method to delimit the continental shelf beyond 200nm with consideration that the adjustment of the provisional equidistance line must not infringe upon the rights of third states.
Decision on “grey area”The tribunal also provides its decision regarding, provisional equidistance line; the disproportionality test of the delimitation process; and “grey area” which is situated beyond 200 nautical miles from Bangladesh coast but within 200 nautical miles from the coast of India. Here, the term “grey area” refers to an unresolved ocean governance arrangement of a single area where both contending parties have overlapping sovereign rights. Such “grey area” is used to arise because of the adjustment of the provisional boundary line by the tribunal. Tribunal contends that the resulting “grey area” is a practical consequence of the delimitation process. In the award, the tribunal advocates to create a cooperative arrangement in order to ensure the proper exercise of both parties’ respective rights in that “grey area.”
Provisions of Articles 74(1) and 83(1) of the UNCLOS refer that achieving “an equitable solution” is the main objective of any exercise on the delimitation of maritime boundary. Any long-standing disputes over maritime jurisdictional claims between two littoral countries of Bay of Bengal may jeopardise the long-term stability and prosperity. The award of the PCA tribunal evidently settles decades long dispute between two neighbours.
It is evident from the award of the arbitral tribunal that both Bangladesh and India requires more cooperation rather than competition due to the complex maritime significance of the Bay of Bengal. Economic development, marine environmental protection, and maritime safety and security are now considered to be interdependent and indivisible in the orb of ocean politics and ocean governance. The award of the tribunal should be deemed to begin enhanced cooperation between the two littoral states of the Bay of Bengal. Bangladesh should, without any delay, mull for hydrographic survey and exploration for non-living marine resources (eg, oil and gas) in the areas awarded to it by the arbitral tribunal to gain economic benefits for the welfare of its common people.
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