Hamburg (Germany) based International Tribunal for Law of the Sea (ITLOS) gave its verdict on Bangladesh-Myanmar maritime boundary dispute in March. It went in favour of Sheikh Hasina government. Under the rules of global arbitration, there can be no appeal against the tribunal verdict and the decree becomes effective immediately. The ITLOS established legal rights of Bangladesh vis-à-vis Myanmar in the Bay of Bengal,
This has come as a big shot in the arm for Hasina government, and it sees no reason to enter into bilateral negotiations with Delhi. Is this a snub to India? Yes, in a sense because after the ITLOS verdict, she has declared that if returned to power in 2014, she would get a favourable ITLOS decree in dispute with India.
Hasina’s optimism is based on the fact that Bangladesh, Myanmar and India share the waters of Bay of Bengal. Since not much distance separates them in terms of nautical miles, the bench marks set in the Bangladesh-Myanmar dispute will also be relevant in respect of Bangladesh-India stand off.
At the core of the dispute is who will gain uninterrupted economic use of sea bed resources. Linked to the issue are environmental issues and maritime security concerns besides traditional fishing rights of the coastal people. ITLOS came into the picture at the behest of Bangladesh on delimitation of its maritime boundaries through and beyond the continental shelf extending 200 nautical miles into the gas and mineral rich Bay of Bengal.
This is a complex issue. No early decision is expected as hearings will continue through 2013 and even early part of 2014.
While disposing of B’desh-Myanmar dispute, the ITLOS used two established concepts- ‘equidistance’ approach and ‘proportionality’ approach. The first bench mark was used from the start of the delimitation boundary to the point beyond which the territorial seas of Bangladesh and Myanmar no longer overlap. Beyond that ‘proportionality’ approach was adopted for arbitration purpose.
New Delhi has reason to believe that these twin approaches will make the verdict go in its favour. Because, as experts point out, under the first approach, the breadth of the territorial sea of each of the two states is measured in such a way that every point is equidistant from the nearest points of the coastal baselines. Like wise, under the proportionality approach, maritime delimitation factors the ratio between the water and continental shelf areas attributed to each party, and the length of their respective coastlines.”
India has a vast coast line. So it stands benefit from either of the two or both approaches. India’s case is primarily based on equidistance approach which Bangladesh had rejected during bilateral negotiations. Its argument is that Bangladesh deserves a special dispensation not only because it is a small littoral state vis-a-vis India but also because its coast is not a straight line but a concave. Bangladesh advanced similar arguments against Myanmar.
But ITLOS didn’t go along with Dhaka’s views. It opted for a middle path and adopted the equidistance/ special circumstances rule, and this is what makes the scales to tilt in favour of Indian in the final analysis. This optimism stems from what may be called a set back to Bangladesh at the tribunal. Dhaka holds the view that it should be given a greater share of the maritime area since its rivers deposit greater sediments in the Bay of Bengal. The Tribunal rejected the contention as not relevant to the delimitation of the exclusive economic zone and the continental shelf within 200 nm.
It also set out the criteria for determining the boundary of seabed. “The location and direction of the single maritime boundary applicable both to the seabed and subsoil and to the waters within the 200 nm limit are to be determined on the basis of geography of the coasts of the parties in relation to each other and not on the geology or geomorphology of the seabed of the delimitation area.”
Looking beyond the maritime boundary issue, the defence experts of the three countries India, Bangladesh and Myanmar have to put their thinking heads together for maritime security, which is a multi-disciplinary subject. In the 21st century, maritime security is not limited to piracy, maritime terrorism and illegal weapons trade. It encompasses human trafficking, maritime pollution, sea lines of communication, trade, and exploration for oil and gas besides natural disasters, and rescue and search operations.
These are the areas where instead of conflict there is mutuality of interest. And it is a call for cooperation and coordination for mutual advantage especially because amongst the three, India alone is more or less comfortably placed in matters of securing its sea borne interests
