SPEAKING FREELY Maritime ruling lifts Delhi-Dhaka prospects
By Rupak Bhattacharjee
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The Arbitration Tribunal for delimitation of maritime boundary between Bangladesh and India, established under Annex VII of the United Nations Convention of Law of the Sea (UNCLOS), announced its verdict on July 7, 2014. In a landmark judgment, the Hague-based Permanent Court of Arbitration (PCA) has
awarded Bangladesh an area of 19,467 square kilometers, four-fifths of the total area of 25,602 sq km disputed maritime boundary in the Bay of Bengal with India.
The tribunal’s award clearly delineated the course of maritime boundary line between the two South Asian neighbors in the territorial sea, Exclusive Economic Zone (EEZ) and continental shelf within and beyond 200 nautical miles (nm). A group of international legal experts observes, "The award provides much needed clarity on the maritime entitlements of both Bangladesh and India."
Earlier, on March 14, 2012, International Tribunal for the Law of the Sea (ITLOS) awarded Bangladesh about 70,000 out of 80,000 sq km disputed maritime boundary with Myanmar.
After the two historic verdicts, Bangladesh’s maritime boundary has been extended by 118,813 sq km comprising 12 nm of territorial sea and an EEZ extending up to 200 nm into the high seas. In addition, the PCA ruling acknowledged Bangladesh’s sovereign rights of undersea resources in the continental shelf extending as far as 345 nm in the high seas, taking Chittagong coast as the base line.
The PCA delivered the verdict following five years of arguments and counter-arguments, spot visit by judges and examination of survey reports. The PCA concluded hearing on December 18, 2013. The five-member panel announced the ruling based on the opinions of majority members. Under the UNCLOS, the judgment is final and not appealable and it is "binding" on both the countries.
Key issues of maritime discord
The maritime dispute between the nations originated from the partition of the sub-continent in 1947. The maritime boundary demarcated by the Radcliffe Commission in 1947, was the bone of contention. The Bangladesh side argued during the tribunal proceedings that the Radcliffe Map was only a "general reference map", it showed a "line of attribution, not line of delimitation". India on the other hand defended the map saying it was a "professionally prepared government map" issued by the Bengal Drawing Office in 1944.
The major issues of India-Bangladesh maritime disputes include: location of land boundary terminus; delimitation of territorial sea; delimitation of EEZ and legal continental shelf. India insisted on the delimitation of the boundary on "equidistance" method which implies that a country’s maritime boundaries should conform to a median line equidistant from the shores of neighboring nations.
However, Bangladesh was in favor of "equitable" solution taking into consideration all relevant aspects. Dhaka argued that equidistance method could not be applied because of the concave shape of its coastlines and instability of its coast caused by periodic cyclones, soil erosion and other factors.
The dispute over the demarcation of maritime boundary between the two nations first surfaced following Mujib government’s promulgation of the Bangladesh Territorial Waters and Maritime Zones Act, 1974. Bangladesh government’s declaration of 12 nm of territorial sea and 200 nm of EEZ was not accepted by India which had always followed the application of equidistance principle while demarcating maritime boundaries with its neighbours.
Possession over New Moore or South Talapatti (as called in Bangladesh) constituted another important component of their maritime disputes. It is a tiny island situated near the mouth of the Hariabhanga river.
Both New Delhi and Dhaka had claimed their sovereignty over the island ever since it came into existence following a cyclone in 1970. The uninhabited island disappeared in the sea after another cyclone in 1985. The disputed island was originally located in the coastal, shallow Bay of Bengal, about 3.5 km from the mouth of the Hariabhanga river. It serves as the land boundary terminus between the two countries and flows between Satkhira district of Bangladesh and South 24 Pargana district of Bengal.
The nations could not find a mutually acceptable solution of the lingering problem despite engaging in eight rounds of bilateral negotiations between 1974 and 2009. On October 8, 2009, Bangladesh referred the case to the ITLOS under Article 287 and Annex VII of UNCLOS, 1982. The case was subsequently moved to the PCA in May 2011.
Gains of Bangladesh vis-a-vis India
The two issues of dispute had been the location of the land boundary terminus and determination of the course of maritime boundary in the territorial sea. According to the Radcliffe Map, the land boundary terminus of India begins from the Hariabhanga river while that of Bangladesh starts from the Roymongal river.
But after the verdict, the sea areas of India shall be 117 nm from Ballasore coast and that of Bangladesh shall be 169 nm from Cox’s Bazar coast in the Bay of Bengal. New Moore or South Talapatti island which had been claiming by both the nations since the early 1980’s, is now under India’s sea territory.
The Awami League government is happy that the tribunal’s ruling has awarded Bangladesh more than 19,000 sq km in the Bay. Reports indicate that one of the points that went in favor of Bangladesh was its appeal under "special circumstances" due to the concave nature of its coastline - a position that was upheld in the final ruling.
A few Indian analysts argue that no doubt, Bangladesh has gained over 19,000 sq km in the EEZ but little of its claim in the continental shelf has been admitted. While India’s rights over extended continental shelf has been protected to a large extent, Bangladesh has acquired an outlet in the continental shelf - a demand persistently raised by Dhaka.
Positive reactions of New Delhi and Dhaka
Both the countries are state parties to the UNCLOS that provides for the delimitation of maritime boundaries. During the Indian External Affairs Minister’s visit to Dhaka in June, a Ministry of External Affairs (MEA) statement said that both the countries would act in accordance with the verdict since the question of delimitation of maritime boundary went to the international court voluntarily.
After the announcement of the verdict, MEA said, "We respect the verdict of the tribunal and are in the process of studying the award and its full implications ... ". New Delhi’s positive response reflected the new government’s emphasis on forging closer regional ties.
The MEA said in a statement, "We believe that the settlement of the maritime boundary will further enhance mutual understanding and goodwill between India and Bangladesh by bringing to closer a long pending issue. This paves the way for the economic development of this part of the Bay of Bengal, which will be beneficial to both countries."
Reacting to the historic verdict, Bangladesh Foreign Minister A H Mahmood Ali said, "It is a victory for both the states, it is a victory of friendship and a win-win situation for the peoples of Bangladesh and India because it is finally resolved peacefully and according to international law".
Bangladesh minister also thanked the Indian government for its intent to resolve the long-standing maritime dispute in a peaceful way and to accept the court verdict. He said, " ... We commend India for its willingness to resolve this matter peacefully by legal means and for its acceptance of the tribunal’s judgment".
Implications of the PCA award
The PCA ruling has been broadly accepted as positive development for further consolidation of friendly ties between India and Bangladesh. The strategic analysts of two countries have also welcomed the peaceful resolution of maritime disputes given the geo-strategic/political significance of greater Indian Ocean and South Asian sub-region.
Moreover, the award has far reaching security and economic implications not only for India and Bangladesh but for the entire Bay of Bengal region. Some former Indian diplomats are of the opinion that that the award could provide impetus for the Modi government to ratify the Land Boundary Agreement and reach an understanding on sharing the waters of the Teesta river with Bangladesh.
The verdict could contribute towards building strategic partnership among the nations sharing borders in the Bay of Bengal. It assumes strategic significance against the backdrop of China’s close ties with Bangladesh and its growing interests and activities in the Bay of Bengal region for which New Delhi is seriously concerned. The settlement of maritime disputes between India and Bangladesh through legal means may have a restraining influence on the expansionist designs of China.
The award has huge economic importance for a small country like Bangladesh with high density of population and limited resource base. It has cleared the obstacle for Bangladesh to open up its waters for foreign firms to explore and exploit hydrocarbons in the resource-rich Bay of Bengal. For so long, Dhaka’s maritime dispute with New Delhi is believed to have deterred a number of international petroleum companies to invest in the sea-blocks earlier offered by it. The verdict has confirmed Bangladesh’s right to exploit the potentially rich waters in the Bay of Bengal.
The UNCLOS gives a nation 12 nm of territorial control and ensure sovereign rights to explore, exploit and manage natural resources with 200 nm of EEZ. The Sheikh Hasina government is about to take measures for proper utilization of resources in the sea areas obtained through the ruling. Reports suggest that the Foreign Ministry is organizing an international workshop titled "Blue Economy" from September 1 in this direction.
The economic prospects of the Bay of Bengal has increased manifold after Myanmar and India discovered huge natural gas deposits beneath the sea. India is satisfied with the ruling and considers it as a diplomatic victory for various reasons. Among other gains, the verdict has recognized India’s sovereignty over New Moore island and received nearly 6,000 sq km of the contested zone including the area where once the island had existed.
In 2006, India discovered 100 trillion cubic feet of natural gas in a creek which is situated about 50 km south of the mouth of the Hariabhanga river within the disputed zone. Now India’s policy makers should chalk out a long-term strategy for the economic development of the Bay of Bengal region.
To realize its goals, New Delhi may forge bilateral or multilateral partnerships under the framework of sub-regional grouping like BIMSTEC. It remains to seen how the new Indian government responds to this opportunity offered by the recent award.
The PCA ruling is also good news for millions of fishermen in both the countries as the amicable settlement of the dispute has opened up vast swathe of open sea which was not available to them in the last four decades. Moreover, both the countries could enhance cooperation in the conservation of the rich bio-diversity of the Sunderbans.
By clearly delineating the maritime boundary between the two neighbors, the verdict could help boosting coastal and maritime security. Prior to the verdict, both the nations could not undertake cooperative measures due to the persisting problem of maritime dispute. The verdict has now cleared the hurdles of strengthening security in the maritime front.
Furthermore, clear demarcation of maritime boundary would help preventing cases of transgression by fishermen of both countries. The PCA award is really a "win-win" situation for both the countries, as described by the Bangladesh foreign minister, if they follow it up with concrete actions.
Speaking Freely is an Asia Times Online feature that allows guest writers to have their say. Please click here if you are interested in contributing. Articles submitted for this section allow our readers to express their opinions and do not necessarily meet the same editorial standards of Asia Times Online's regular contributors.
Dr Rupak Bhattacharjee is an independent analyst and can be contacted at email@example.com.