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The Award and its Implications

Bay of Bengal Delimitation

Arpita Goswami (arpita.goswami7@gmail.com) is an Assistant Editor to China Oceans Law Review, and is a Graduate Assistant at the South China Sea Institute, Xiamen University, P.R. China. The views expressed here are personal and have no connection whatsoever with the above mentioned organisations.

The award of the Tribunal in the Bay of Bengal Arbitration Case has largely gone in favour of Bangladesh. Unless India acts prudently to study the actual implications of the award it could affect India’s fishermen and deep-sea exploration activities adversely. 

On 7 July, 2014, the Tribunal for the Bay of Bengal Maritime Boundary Arbitration Case (Bangladesh/India) at the Permanent Court of Arbitration, the Hague, pronounced its award (Permanent Court of Arbitration: 2014) which is final and binding on both the parties. The case was instituted by Bangladesh in October 2009, after 11 rounds of negotiations between the parties over five decades proved to be indecisive, and often marred by local politics. The final award delimits an area of approximately 4,06,833 sq. km in the Bay of Bengal area, of which it allocates approximately 106,613 sq. km of the relevant area to Bangladesh and the other 3,00,220 sq. km to India. The ratio of allocated areas is approximately 1:2.81. This ratio, in the view of the tribunal is proportional. Passages below take a quick look into the background of the case, the details of the award and then some comments on its implications on Indian interests.

Background

The Indian Independence Act, 1947 of the United Kingdom, partitioned from India the state of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947, and was chaired by Sir Cyril Radcliffe. On 13 August 1947, the report was submitted describing the boundary, and is known as “Radcliffe Award”.

On 26 March 1971, Bangladesh declared independence from Pakistan and succeeded to the territory of East Pakistan and its boundaries. The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. This delimitation exercise involves delimiting the boundary river, identifying the terminal point of the land boundary, to delimit the territorial sea, the Exclusive Economic Zone (EEZ), the continental shelf within and beyond 200 nautical miles (nm).

The Award

The five member tribunal comprised of one nominee each from India and Bangladesh. The Indian nominee, Dr P S Rao reserved a concurring and dissenting opinion. Both India and Bangladesh accepted the compulsory jurisdiction of the tribunal under the relevant provision of the 1982 United Nations Convention on Law of the Sea. None of the parties had made any declaration which would reserve this case as an exception to the compulsory settlement of disputes entailing binding procedure.

The tribunal held the riverine boundary to be found in the middle channel of the Haribhanga river. It concurred with Bangladesh that the application of Radcliffe Award has to be done according to the physical realities at the time of the Award, i.e. 1947. However, to do so, it rejected the cartographic evidence presented by Bangladesh and instead relied on the true copy of the map annexed in the Radcliffe Award presented by India, which was found to be closer to the date of award, and detailed enough to lead to justify its use.

The territorial sea between the two states was delimited in accordance with the “equidistance rule”, which involves the formation of a boundary equidistant from the coast line of both the states. The tribunal rejected Bangladesh’s arguments for a different method citing special circumstances such as climatic changes, concavity of the coasts and instability of its coastline. The other maritime zones of EEZ and continental shelf within 200 nm were also delimited on the same principle of equidistance rule.

However, while delimiting the continental shelf beyond 200 nm on the same equidistance principle, the tribunal found that the concavity of Bangladesh’s coast is having a cut off effect on its usage of the continental shelf beyond 200 nm. Thus, it decided to adjust the equidistance line so as to produce an equitable result, which will help Bangladesh to extend its maritime boundary as far as international law permits. Thereby, the boundary was adjusted both beyond and within 200 nm. Interestingly the adjusted boundary coincided with the boundary proposed by Bangladesh, making Dr. PS Rao lodging a strong disagreement, calling the adjustment unjustifiable and running contrary to the majority of Tribunal’s own reasoning

This adjustment of the boundary lead to formation of a “Grey Area”, where the shelf rights, including the seabed and subsoil belong to Bangladesh, but the rights on superjacent waters belong to India.

Finally, the tribunal found that the ratio of maritime area allocated between Bangladesh and India is approximately 1:2.81. This ratio, in the view of the tribunal does not produce any significant disproportion in the allocation.

The Judicial Creation of “Grey Area”

Consideration of equity, so well pronounced in the international jurisprudence prevails in the award. The award is final and binding on both the parties and cannot be appealed.

The award is clearly in favour of Bangladesh, and India lost out about a considerable amount of area due to the adjustment of the equidistant line. India’s nominee to the tribunal disagreed with the manner of the adjustment, pointing out that adjustment should have been limited to areas beyond 200 nm and not within 200 nm, as there is no adverse effect on Bangladesh’s rights in the latter part of the area. This adjustment means that the Indian fishermen will now lose on the fishing, exploration and exploitation rights over a large tract of maritime area in Bay of Bengal.

Another, worrying development is the formation of “grey area”. This Area allows the states to exercise mutually exclusive rights of exploitation of sedentary living resources and mineral resources on the shelf, seabed and subsoil and of exploitation of living resources in superjacent waters. Legally, these rights exist on different planes, but geographically, these rights exist in the same space. It is analogous to a situation where you cannot touch the trunk and the branches of a tree, but the leaves you can pluck. It is easy to conceptualise, but very hard to put in practice. This “grey area”, unless managed properly, will generate confusion and disputes regarding the applicable substantial, rational, material and procedural jurisdiction of India and Bangladesh over persons, property and resources. Common fishermen from India and Bangladesh would fill each other’s jails, and governments on both sides will accuse and counter-accuse each other on methods of exercising their own sets of rights.  Leaving such a “grey area”, in a significant expanse of the ocean, is a recipe for trouble and further disputes.

Such a jurisdically proclaimed “grey area” exists at only one other place on the planet, that is between Myanmar and Bangladesh, which in turn overlaps with the ”grey area” between Bangladesh and India. Leaving such areas of uncertainity which can breed potential disputes doesn’t exactly match up to the purpose of settling the dispute. (Or is it a way for the tribunal to ensure future inflow of cases?)

Speaking from strategic point of view, a vast area of continental shelf belonging to a neighbour and lying in your vicinity doesn’t sound like good news. The apprehension is two-fold. First, Bangladesh may not possess indigenous capacity to explore and exploit the shelf resources. Most likely, it will invite foreign cooperation to drill the oil and other resources in its continental shelf (including the “grey area”). This may create an opportunity for adverse foreign powers to spy on India, and collect a wide range of information under the garb of exploration and marine scientific research, which is legally allowed by the relevant laws on usage of sea. Second, as neat as a delimitation line sounds, delimiting a continental shelf physically is quite a daunting task. The resources lodged under the seabed are spread around, they do not line up obediently to the man made demarcations. A well-known effect of such a situation is “suction effect”, wherein the oil (or any other resource with some amount of fluidity) drilling exercise from one geographic location sucks out the oil from a connected location which might belong to another State. In a small congested area as that of Bay of Bengal, one can imagine the consequences which may entail.

In the wake of this award, the Indian government needs to take actions on various levels. It should immediately undertake a study of the award and its implications through a panel of lawyers, scientists and ocean experts, naval representatives and representatives from its state oil exploration corporations. Also, it should endeavour to make fool proof policy with Bangladesh and Myanmar over the use of the “grey area”, so that the future usage does not end up in further disputes and quarrels. An advisory should be issued to the coastal states of West Bengal and Odisha to raise awareness among their fishermen over the change of situation, so that arbitrary and wrongful arrests could be avoided.

References

Permanent Court of Arbitration (2014): “Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India”, 7 July, available at file:///C:/New%20folder/PCA%20Press%20Release%20--%20Tribunal%20Issues%20Award%20in%20Bangladesh-India%20Maritime%20Boundary%20Arbitration.pdf, accessed on 21 July, 2014. 

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