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Maritime border delimitation

Recent incidents over exploratory moves by India and Myanmar in the Bay of Bengal and their claims over maritime zones of Bangladesh, which have been widely covered by our media, alerted the nation to the serious consequences of the lingering delimitation problems.

M. Shah Alam
IT was encouraging to hear Foreign Minister Dr. Dipu Moni speak about the resolution of the maritime border problems with India and Myanmar as one of the priorities of the new government. The government has formed high-powered expert committees on the maritime delimitation issue and on the sharing of waters of common rivers with India.
The gravity of the problem was brought to light by our media to bring pressure on the government to give due attention to it. Commodore (Retd.) Khurshed Alam, in his columns in The Daily Star, did a great job in making the people aware of the problem, and drawing the attention of the government to it.
Recent incidents over exploratory moves by India and Myanmar in the Bay of Bengal and their claims over maritime zones of Bangladesh, which have been widely covered by our media, alerted the nation to the serious consequences of the lingering delimitation problems.
Bangladesh showed interest in the preservation, exploration and exploitation of the sea resources, and was the first South Asian nation to enact a law for the purpose. Lt's an irony that while Bangladesh adopted her Territorial Waters and Maritime Zones Act in 1974, when the 3rd UN Conference on the Law of the Sea (Unclos) began to revise the traditional law of the sea, it could not make much impact on the outcome of the
conference which culminated in the adoption of the 1982 Convention on the Law of the Sea.
Bangladesh law differs from those of the 1982 Convention, so the delimitation problems with India and Myanmar were predictable. Even back in 1974, Bangladesh's move to conduct exploration in her maritime areas was frustrated by India's protests.
Bangladesh ratified the Convention only in 2001. Even after ratification, we didn't bring our domestic laws in line with the Convention. Most importantly, we failed to engage our neighbours in negotiations on delimitation issues.
The facts and laws reveal that we need to negotiate with them more than they need to negotiate with us. So, the responsibility for taking initiatives for negotiations and pursuing a course of vigorous diplomacy for the purpose lies more with us.
What is at stake
Ours is a land and resource hungry country. We need to expand our maritime zones and exploit the resources therein more than any other country. So the 1982 Convention came as a blessing to us. The Convention extended the Exclusive Economic Zone to 200 nautical miles, and also the limits of the continental shelf to 350 miles where such length is available. These extensions were made for exploitation of the living and non-living resources of the zones exclusively by the coastal states.
On the other hand, they have led to the
problems of delimitation of the maritime borders amongst neighbouring states. Extended claims often overlap. To resolve this, the Convention's first prescription is to go by the principle of equidistance, which means that median line would be the border between two neighbouring states where their maritime zones overlapped, bi case this fails to provide justice, the Convention prescribes the principle of equity.
It is now well established that applica tion of the principle of equidistance, which is more formal and mechanical in nature, does not always ensure justice. In such cases, the principle of equity would need to be resorted to.
Bangladesh's delimitation problems qualify for the application of equity. Bangladesh's mostly adjacent rather than opposite location of maritime borders with the neighbours; concave, unstable, and broken nature of her coastlines; her historical interest in the Bay of Bengal; and dependence of her coastal people on living and non-living resources of the sea provide Bangladesh with sufficient arguments to plead for equity.
Are we prepared to argue and advocate our case for equity? Can we prove materially and legally to India and Myanmar that the Bay of Bengal is a perfect case for the application of the principle of equity, and that otherwise it would be violation of both treaty and customary norms of international law?
To prove our case, we need to make geological and geo-morphological surveys of the zones; show the impracticability of the application of the principle of equidistance in the region; accumulate facts to prove our historical title to the areas we claim; prove the dependence of our coastal people on the sea resources; and gather relevant case references, which justify the application of the principle of equity, from international adjudication and arbitration,.
We need to adjust our law of drawing the baseline, from where the breadth of the maritime zones is to be measured, with that of the Convention. Our method of measuring the baseline from the straight lines drawn by joining some outer points at a depth of 60 feet has not been accepted by the Unclos Convention. We have to measure it from the straight line formed by joining the outer points at the low-water tide mark.
The most encouraging development has been the increase in people’s awareness of the sea issues. The foreign minister's concern about maritime border delimitation, and formation’of ari ekpert committee, is the reflection of the people's concern. This needs to be vigorously pursued further.
Dr M. Shah Alam is Professor, Faculty of Law, University of Chittagong