Friday, 10 July 2020

Abid Bahar

The International Tribunal for the Law of the Sea on Wednesday 14th March issued its "judgment in the Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar."  The dispute concerned the delimitation of the territorial seas, exclusive economic zones and continental shelves of these two states in the Bay of Bengal.

Dipu Moni, the Bangladeshi foreign minister, told reporters.“This is a great day for Bangladesh."Hasina claims, she won a battle in the sea. Some Burmese believe ",...the International Tribunal on the Laws of the Sea (ITOLS) in Hamburg, Germany was biased. Myanmar was pariah nation at the given moment and it was a way to punish Myanmar. If the dispute was addressed today the outcome would be different." Other Burmese observers report, "Bangla may have won their disputed deep sea block 11 but Myanmar will still retain Bangla's drawn up gas-field blocks 18, 22, 23, 27 and 28.(1) 

"So who won the case?  There have already been claims of “victory” in the case.  However, in the context of maritime boundary delimitation disputes, this is probably not an appropriate question to ask.  Throughout its judgment, the Tribunal stressed that the goal of maritime boundary delimitation (beyond the territorial sea) was an “equitable solution.” (2)

"This is perhaps clearest in relation to the single maritime boundary drawn for the exclusive economic zone and continental shelf within 200 nautical miles.  Bangladesh had argued that the Tribunal should use the angle-bisector method in drawing the boundary, as the equidistant line would, in its opinion, lead to inequitable result.  This argument was rejected by the Tribunal which accepted that the equidistant/relevant circumstances method was appropriate in this case, as had been argued by Myanmar.  Yet, the Tribunal did not fully accept all of the arguments of Myanmar put forward by Myanmar on this point.  The Tribunal stressed that it was not bound by the base points suggested by Myanmar in its proposed equidistant line and the Tribunal added its own base point to lead to a more equitable provisional equidistant line.  Moreover, the Tribunal also rejected the argument of Myanmar that there were no relevant circumstances.  Bangladesh had identified several possible relevant circumstances.  The Tribunal  accepted that it was necessary to adjust the equidistant line to take into account the concavity of the coast.  But it did denied the relevance of the other circumstances, put forward by Bangladesh, including the position of St. Martins Island (subject to the sovereignty of Bangladesh) which was given no effect in the delimitation. (Para. 319 of the Judgment)  The adjustment of the line is largely done at the discretion of the Tribunal, with the Tribunal itself noting that “there are no magic formulas.” (Para. 327 of the Judgment)  Arguably, the final delimitation line for this part of the boundary gives something to both parties.(3)

"The equitable nature of the solution is also apparent in relation to the settlement of the boundary beyond 200 nautical miles.  On this point, Myanmar had argued that the Tribunal should not exercise its jurisdiction, but the Tribunal was clear that it had the right to decide on the delimitation, regardless of whether the extension of the outer continental shelf had been approved by the Commission on the Outer Limits of the Continental Shelf.  The tribunal also rejected Myanmar’s argument that Bangladesh has no continental shelf beyond 200 nautical miles.  At the same time, the tribunal rejected the argument of Bangladesh that there was no natural prolongation from the coast of Myanmar because of the geological discontinuity where the Indian tectonic plate meets the Burma tectonic plate about 50 nautical miles from the coast of Myanmar.  In an important clarification of the law, the Tribunal held that natural prolongation refers to the extension of the continental margin and there was therefore no need for geological continuity. (See Para. 437 of Judgment; see also Para. 460) Nor did the Tribunal accept that the geographic origin of the sedimentary rocks had any relevance for the delimitation of the outer continental shelf.  (Para. 447 of the Judgment)  In the end, the Tribunal simply extends the adjusted equidistant line that it had already drawn for the exclusive economic zone and continental shelf within 200 nautical miles.  Again, this solution can be seen as giving something to both parties, but it certainly does not give either of them everything they had asked for.(4)
"Reflecting the thaw in the relationship, Dipu Moni was quoted in the Financial Express as saying, “It is a victory for both of the states. Because it finally resolves—peacefully and according to international law—a problem that had hampered their economic development for more than three decades. We salute Myanmar for its willingness to resolve this matter by legal means and for its acceptance of the tribunal's judgment.(5)

Again, who won and who lost?  How come Bangladesh got more than it demanded?  It is clear from the above that both the two developing countries errored in making their claims, Myanmar demanded more than it deserved and Bangladesh led by Dipu Moni demanded less than it deserved which the ITOLS had to fix and deliver its equitable judgment. We are delighted that the ITOLS was led by a superior team of experts who delivered to the parties not what they wanted but what they deserved.

Under the circumstances, instead of congratulating Dipu Moni or Hasina, we are rather disappointed to see the poor home work done by the team led by the latter. It appears from the above that under Dipu Moni's well known messy foreign relation's management this is another case of ineffectiveness in not being able to present all the necessary and scientific information for Bangladesh's legitimate claims. Such poor homework necessitated the ITOLS to fix both Myanmar and Bangladesh claims and provide their due which was in Bangladesh's case beyond what it demanded.

Under the circumstances of Myanmar bullying Bangladesh with Indian collaboration with war ships, Bangladesh had no alternative but to refer the case to the UN. So we congratulate the UN body of experts to help solve this vital issue of concern in Burma-Bangladesh relations.
India-Bangladesh Maritime Dispute 

No doubt, "the judgment will also be an important point of reference in the on-going dispute between Bangladesh and India concerning their maritime boundaries on the other side of the Bay of Bengal.  The tribunal dealt with the delimitation of the maritime boundary in three different parts: the territorial sea; the exclusive economic zone and continental shelf within 200 nautical miles; and the continental shelf beyond 200 nautical miles.(6)

We strongly recommend Bangladesh Foreign Ministry not make the same mistake in making claims with India. This time with Myanmar it was luck favored that ITOLS.was knowledgeable and fair for Bangladesh to get more than it demanded. With Hasina's India love Bangladeshis are apprehensive and like to see Dipu M. does the right thing for Bangladesh.

Bangladeshis are nervously waiting to see that Bangladesh would have similar neutral judgment from the ITOLS in India-Bangladesh sea boundary demarcation. Not surprisingly, India fearing its hegemony going foiled, lately tried its Chaniakya trick and proposed to resolve this bilaterally. Thanks to Dipu Moni for rejecting the offer. Of course, the case is already at the UN. It seems that Dipu Moni is learning from Indian deception but at a snail's pace.

To create obstacles for Bangladesh's progress, in another front, on March 5 this year, India imposed a ban on cotton export. "India slapped the ban for the first time this year. It is to note that Bangladesh ranks third after China and India in garment export.Temporary bans were earlier imposed several times during the last two years. President of Bangladesh Textile Mills Association (BTMA) Jahangir Alamin said such bans are taking place regularly over the last few years, taking a toll on the Bangladeshi industries. (7)


(3)    Ibid
(4)    Ibid
(5)    ”