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Maritime boundary with India: Arbitration or bilateral negotiations
***The Bangladesh foreign minister was right when she said that bilateral discussions with India could be held on the basis of principles set by ITLOS. 38 years have passed and Bangladesh cannot afford to lose any more time in bilateral discussion.***
NOW that the maritime boundary has been settled amicably with Myanmar through International Tribunal for Law of the Sea (ITLOS), Bangladesh has to resolve the maritime
boundary with India. The process started in the Arbitral Tribunal in 2009.
During bilateral negotiations starting from 1974, India proposed to squeeze Bangladesh maritime area from the west to a point that took away a large chunk of Bangladesh's maritime economic zones by drawing the boundary line on the basis of equidistance method without geographical and geo-morphological considerations. The equidistance method is application of mechanical geometric calculations in maritime boundary applicable in the case of states opposite to each other.
Bangladesh rejected India's position and instead proposed equable principles for fairness and justice given Bangladesh's geographical position as an adjacent /lateral state with India.
Sometime in April 1975, at the Jamaica meeting of Commonwealth heads, Bangladesh was understood to have proposed arbitration on the sea boundary to India but India rejected and insisted on bilateral negotiations.
Both India and Myanmar, during bilateral talks, insisted on application of equidistance method while Bangladesh has, since 1974, consistently advocated the equitable principles (fairness and justice) in drawing the maritime boundary primarily for three reasons among others; (a) Bangladesh is adjacent to both India and Myanmar as distinct from opposite (India and Sri Lanka), (b) the concavity of the coast of Bangladesh and (c) legal precedent set by
the International Court of Justice in the 1969 North Sea Continental Shelf Case between Germany, the Netherlands and Denmark.
Bangladesh commenced bilateral talks in 1974 with India and after several rounds of negotiations, including the last one in 1982, it remained inconclusive because neither side budged from its preferred method (equidistance or equitable principles) of application in drawing the maritime boundary.
During the last 38 years, India was eager to see how Bangladesh settled the boundary with Myanmar through bilateral negotiation. At the same time, Myanmar also wanted to know under what principles Bangladesh resolved the boundary with India. Accordingly, bilateral negotiations with both countries stalled. None agreed to apply the equitable principles as proposed by Bangladesh, though there are ample legal precedents to support the Bangladesh position.
It is worthwhile to mention that Bangladesh ratified the 1982 UN Convention on the Law of the Sea (UNCLOS) in 2001, while India ratified it in 1995 and Myanmar in 1996. Accordingly all three countries are bound by the provisions of the UNCLOS.
The Sheikh Hasina government revived the boundary case in 2009 after several rounds of talks with Myanmar and India,
and took a bold but risky decision to submit to the dispute settlement machinery under the 1982 Convention Law of the Sea.
India did not agree, while Myanmar did, to submit the case to ITLOS but agreed to refer the case to the Arbitral Tribunal. Both
mechanisms are allowed under the Convention of the Law of the Sea for dispute settlement on maritime boundary.
On October 8,2009, Bangladesh initiated arbitration proceedings against India. In February, 2010, the President of the Tribunal appointed three arbitrators — Tullio Treves of Italy, LA. Shearer of Australia and Rudigar Wolfrum of Germany. (Tullio Treves and Ivan Anthony Shearer are ITLOS judges.)
In May 2010, India and Bangladesh agreed to attend a meeting to fix a time table of submission of their pleadings and rejoinders. Bangladesh lodged its statement of claim in the scheduled time (by May) in 2011 and India will respond by May 2012.
On March 14, in a landmarkjudgment, the ITLOS accepted Bangladesh's argument that equitable principles would be applied in drawing the maritime boundary with Myanmar.
It is reported that, on March 19, Foreign Minister Dr. Dipu Moni ruled out any possibility of withdrawing Bangladesh's maritime boundary case against India, but said bilateral negotiations could take place alongside the arbitration on the basis of the principles set by the International Tribunal for the Law of the Sea (ITLOS).
"There is no scope to withdraw the case because we went for arbitration since we did
not get any solution through discussions with India," she said replying to a question at a press conference at the foreign ministry.
"The door for discussions is open if they (India) want that but the discussions are to be based on the ITLOS principles ensuring Bangladesh’s legitimate rights alongside pursuing the case," Dr. Dipu Moni said.
Talking to journalists after the hour-long talk with Foreign Minister Dr. Dipu Moni, the Indian High Commissioner expressed India's strong willingness to discuss and bilaterally resolve the maritime boundary issue with Bangladesh.
It is noted that in the joint communique of 2010, following the visit of the Bangladesh prime minister to India, Paragraph 21 states that "both prime ministers agreed on the need to amicably demarcate the maritime boundary between India and Bangladesh. They noted the initiation of proceedings under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) and, in this context, welcomed the visit of a delegation from Bangladesh to India."
In my view, the Bangladesh foreign minister was right when she said that bilateral discussions with India could be held on the basis of principles set by ITLOS. 38 years have passed and Bangladesh cannot afford to lose any more time in bilateral discussion. The Arbitral Tribunal is expected to deliver its ruling in 2014.
Given the energy shortfall and rising prices of oil and gas, exploration of maritime areas in the Bay of Bengal has become more urgent for Bangladesh than it was in the past. The most remarkable off-shore technology that has progressed in the 15 years is the three-fold increase in the maximum operational depth of off-shore rigs, which has opened up good prospects for exploration of oil and gas in the Bay of Bengal.
The writer is a former Bangladesh Ambassador to the UN, Geneva.