M. Sanjeeb Hossain

Surfing of the ‘sovereign’ seas

March 29, 2012

2012_india_ocean_139148768Perhaps the greatest ‘pleasant’ surprise to me arrived last Saturday (March 17, 2012) when the bdnews24.com headline read “India favours bilateral end to sea dispute[1]. I admit, for a brief moment there, I must have had a cheeky grin on my face. As someone who feels indebted to the Indian people and its 1971 Government for their glorious role in our Liberation War and also as someone who is now feeling deeply disenchanted by the way the Indian BSF is treating our people (among other things), to me this particular news headline coming just three days after the ITLOS (International Tribunal for the Law of the Sea) verdict, was like a ray of light amongst the dark clouds. I told myself, “Oh, so now you want to talk, eh?” However, I was a tad bit nervous at the same time. How would the Bangladesh Government react to this Indian proposal? Would we succumb to diplomatic pressure or would we be smart and assertive? The answer I was hoping for arrived two days later when the personality of the hour Dr. Dipu Moni declared that the Bangladesh Government was welcome to open bilateral talks with India but these talks would run simultaneously with the on-going Permanent Court of Arbitration (hereinafter PCA) case between the two nations.[2] Therefore, the message from Bangladesh to India was unequivocal and simple: we would not be withdrawing from the PCA. Having consolidated 111,000 sq-km of area in the Bay of Bengal, Dipu Moni’s voice marked the strength of newly found sovereignty.

So how did we get to this point? Was the voyage an easy one? The following appreciation of history shall show that the journey culminating to the ITLOS verdict on March 14, 2012 was not easy at all. The two nations had in fact been negotiating for nearly four decades before the final breaking of the deadlock by the ITLOS.

Bangladesh and Myanmar – a historic relationship

Bangladesh and Myanmar share a common history under the British Empire. While Bangladesh was part of the British Empire until 15 August 1947, Myanmar remained as a province of British India until 1937 and attained complete independence on 4 January 1948. Even from the geographical point of view, Bangladesh and Myanmar share a substantial common boundary that spans across 271 kilometers.[3] This historic and geographical proximity has resulted in the relations of these two nations to have been rooted from ancient times forging friendly ties so much so that its people-to-people contact have sustained irrespective of state policies. Therefore, even before the expansion of the British Empire into South Asian territory, Bangladesh and Myanmar had to their credit centuries of interaction between each other allowing for well-established trade routes and free movement of peoples between the two adjacent regions.[4] It was after the conclusion of the Anglo-Burmese War in 1826 that left Arakan as the first territory of the former Burmese (Myanmar) Kingdom to come under the control of the British.[5] This opened the doorway for close economic and social interaction between the Chittagong division of Bengal in British India and the Arakan region of Burma. With people from Chittagong crossing over to the Arakan to assist during the sowing and harvesting season in exchange of a share of the eventual crop, a symbiotic relationship was in the making.[6] It is worth noting that Myanmar in 1972 was one of the earliest countries (7th in order of chronology) to grant official recognition to Bangladesh after the surrender of the occupying Pakistan Army on December 16, 1971.[7] Yet, ironically even in the weeks preceding independence Myanmar had allowed Pakistan military and civilian personnel to fly to Kunming, China via Rangoon.[8] Furthermore, Myanmar also allowed Pakistan to fly out and camp its civil and military aircrafts at Rangoon so that they would not fall into Indian or Bangladeshi hands.[9] Nonetheless, when Bangladesh emerged as an independent State, Myanmar maintained a professional attitude and did not waste time in recognizing the new Bangladeshi State. The then Bangabandhu government acknowledged the prompt and much needed diplomatic recognition and sent K. M. Kaiser its most experienced and senior diplomat as its first Ambassador to Myanmar.[10] K. M. Kaiser was widely believed to have close links with the Chinese leadership including Chairman Mao Tse-Tung and Chou en Lai which developed while he served as Pakistan’s Ambassador to China prior to joining the newly formed Bangladesh Foreign Service.[11]

Therefore, Bangladesh from the very beginning of its existence was proactive in displaying the importance it attached towards its ties with neighbouring Myanmar.

The International Tribunal for the Law of the Sea is hearing its first-ever maritime delimitation case, the Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal.

The International Tribunal for the Law of the Sea is hearing its first-ever maritime delimitation case, the Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal.

As regards oil and gas exploration, Bangladesh itself has a long history. The first exploration well was drilled in 1910 and exploration activities assumed full pace in the 1950s under Dutch, British and American companies. It was in 1955 that the first commercial gas discovery was made.[12] Till to date, only 75 exploration wells and 73 appraisal development wells have been drilled in the 250,000 square kilometres of territory in Bangladeshi blocks, which goes to show that the drilling density (1-in-3 success ratio, i.e. a 33% success rate) is still low, but nonetheless encouraging.[13]

It was by the end of 1973 that K. M. Kaiser initiated a breakthrough in negotiating the maritime boundary between the two countries. By 1974, Bangladesh and Myanmar signed the Agreed Minutes Between the Bangladesh Delegation and the Burmese Delegation Regarding the Delimitation of the Maritime Boundary Between the Two Countries which discussed the maritime boundary in the territorial sea. However, this agreement was not subsequently ratified.[14]

In that same year, the Bangladesh Parliament enacted the Territorial Waters and Maritime Zones Act which defined Bangladesh’s maritime boundaries with Myanmar and India in the territorial sea, the Exclusive Economic Zone (hereinafter, EEZ) and the continental shelf. Sections 3[15], 4[16], 5[17], and 7[18] set out the provisions for territorial waters, contiguous zone, economic zone, conservation zone and the continental shelf, respectively. In simple terms, the boundaries were made up of two parallel lines extending southward on the meridians of longitude from baselines corresponding to Bangladesh’s coastline up to the outer limits of the continental shelf.[19] Although the enactment of this remarkable displayed the level of seriousness the then Mujib government attached to delimiting maritime boundaries in the Bay of Bengal, the fact remained that it had enacted a law based partly on an agreement that was not subsequently ratified by the agreeing nations (i.e. Bangladesh and Myanmar). Therefore, the inherent strength of the Territorial Waters and Maritime Zones Act 1974, although a bold expression of ‘sovereignty’ by a newly formed State, was nonetheless not very strong after all.

Unsurprisingly, in the very same year of the enacting of the Bangladeshi law, Myanmar claimed a maritime boundary on the basis of an equidistance line which Bangladesh rejected on grounds of lack of equitability. It is worth taking note here that we see for the first time the line of argument taken by both countries with regard to maritime boundary delimitation. While Myanmar had insisted from the very outset (i.e. the mid 1970s) for delimiting on the equidistance principle, Bangladesh opposed it because it was not an equitable arrangement.

In 1979, as part of bilateral negotiations with Myanmar, Bangladesh proposed a more equitable line of delimitation in the EEZ and the continental shelf. This time also, no formal agreement was reached.[20] The deadlock continued. In November 1985 the Bangladesh Foreign Minister paid an official visit to Myanmar with the goal of resuming negotiations regarding maritime boundary delimitation. This time, although it was the Myanmar Foreign Minister who presented a written proposal to his Bangladeshi counterpart, the end result was the same, i.e. no substantive progress was made. Two further rounds of talks at the technical level between Dhaka and Rangoon also failed to produce an agreement. Despite apparent failures in reaching a conclusive agreement with Bangladesh, Myanmar was nonetheless successful on concluding negotiations with India on maritime boundary issues surrounding the Andaman Island and Coco Islands areas.[21] Military dictator-cum-President of Bangladesh, General Hussain Mohammad Ershad’s visit to Myanmar in 1988 also failed to produce any breakthrough in the boundary delimitation talks. Nonetheless, Myanmar treated Bangladesh’s 1979 maritime boundary proposal as the ‘Friendship Line’ and applied its conduct accordingly until 2005.[22] It was in 2005 that this position changed on the part of Myanmar when it offered several concession blocks for oil and gas exploration in an area that was in between the equidistance line defined by themselves and the ‘‘Friendship Line’’ proposed by Bangladesh.[23]

ftp_bang-myanmarBilateral talks between the two nations resumed in November 2007 after nearly a two decade hiatus.[24] However, the ongoing stalemate continued because neither country refused to move away from their respective desired method of delimitation. While Bangladesh advocated the maritime boundary delimitation on the basis of the principle of equality, Myanmar insisted on the principle of equidistance. During Myanmar’s Vice Senior General, Maung Aye’s trip to Bangladesh during October 2008 a promise was made on behalf of Myanmar that it would refrain from engaging in exploration claims in areas over which overlapping claims had been made. Yet soon after the completion of this trip, four survey ships subcontracted by Daewoo escorted by two Myanmar Navy ships entered an area 93 kilometres south west of Bangladesh’s St. Martin’s Island, which was part of one of the areas claimed by Bangladesh and marked as deep-sea blocks 8-13.[25] Quite naturally, the offended Bangladesh responded by sending three of its own naval vessels to stop Myanmar from continuing its exploration activities threatening to defend its sovereignty with ‘‘all possible measures’’.[26] In the weeklong standoff that followed, Myanmar threatened Bangladesh of committing trespass by sending in its ships beyond Myanmar’s territory. It was eventually Daewoo that withdrew its ships to undisputed waters. Yet, the Myanmar government rather obstinately stated that the Daewoo ships had left because all its necessary work had been completed and that it could return to that area again for future work purposes if required.[27] Although, the Bangladesh government portrayed this as an act of Myanmar violating the provisions of the 1974 Act, this remained a weak argument because there was nothing that would bind Myanmar to the provisions of the 1974 Act. However, that having been said, it was indeed inappropriate of Myanmar to conduct exploration activities in territories in the Bay of Bengal that were disputed. The fact remains that the coasts of India, Bangladesh and Myanmar follow a curve resulting in territories that overlap with each other and the internationally agreed practice is that neighbouring should only engage in exploration activities in such disputed areas after having informed and discussed the matter with each other.[28]

On November 16, 2008, bilateral talks which had begun earlier that year on March 30 were taken down to the technical committee-level between Bangladesh and Myanmar. Yet again two countries refused to compromise on their fundamental arguments for delimitation (i.e. principle of equity and equidistance). In the meantime, tensions along the border of the two nations began to increase. Ever since the Daewoo ships had backed off from waters that allegedly belonged to Bangladesh, Myanmar began unilaterally constructing a barbed wire fence along the 208 kilometre land boundary it shared with the neighbouring country.[29] The fiasco between the two nations appeared to take a turn for the worse when Myanmar amassed heavy tanks, artillery guns, 12 warships and a frigate along its border with Bangladesh in mid-October 2009.[30] While the Bangladesh Rifles (now renamed as the Bangladesh Border Guards) and the Bangladesh Armed Forces (hereinafter, BAF) termed this action has an expression of intent on the part of Myanmar to engage in a small-scale naval war, Bangladesh Foreign Minister Dipu Moni termed it as a mere routine exercise.[31] Fortunately, for both countries and South Asia as a whole, the assumption of the Bangladeshi military high-ups was wrong.

It was at this point that Bangladesh and Myanmar accepted the jurisdiction of ITLOS in November and December of 2009.[32] However, for a short while it appeared that the conflict surrounding maritime boundary disputes was about to be resolved by bilateral negotiations. In January 2010 Mijarul Quayes, Foreign Secretary to the Bangladesh government declared that at the fifth meeting of the technical committees of Bangladesh and Myanmar held in Chittagong on 8-9 January 2010, Myanmar had for the first time agreed on both the principles of equity and equidistance as means of delimiting the Bay of Bengal.[33] Quayes said, ‘‘This is a very positive development because Myanmar has recognised the principle of equity for the first time to demarcate maritime boundary’’.[34] The ray of light that was seen from the fifth meeting created a sense of optimism in the Bangladeshi camp that led the delegation to Myanmar for the sixth meeting on 17-18 March 2010.[35] However, at that meeting Myanmar brought a new proposal for drawing a line near the once followed ‘‘friendship line’’. This new proposal was perceived by the Bangladesh officials led by Additional Foreign Secretary Rear Admiral Md. Khurshed Alam (retd.) as a strategy to delay achieving a resolution through bilateral means.[36] Furthermore, although the Bangladeshis at that meeting agreed to consider Myanmar’s new proposal, they in fact realized that a legal settlement by the ITLOS was inevitable.

The case Bangladesh v. Myanmar was initiated before the ITLOS on December 14, 2009, by the notification of a special agreement between the two States, as reflected in their respective declarations made under Article 287[37] of the 1982 United Nations Convention on the Law of the Sea (hereinafter, UNLOS).[38] Subsequently, written pleadings were filed by both countries within the prescribed time-limits pursuant to Order 2010/1[39]of the President and Order 2010/2[40] of the Tribunal.[41] Bangladesh filed its Memorial on July 1, 2010 and Myanmar its Counter-Memorial on December 1, 2010 which was followed by a reply filed by Bangladesh on March 1, 2011 with Myanmar’s Rejoinder soon following on July 1, 2011.[42] President of ITLOS Judge José Luis Jesus read out the verdict, the first of its kind, on March 14, 2012. The four decade-old impasse between Bangladesh and Myanmar had finally come to end.

Bangladesh v. Myanmar in hindsight

Before taking a brief look at the contents of the verdict itself, I’d like to take this opportunity to clarify certain incorrect assumptions about the ITLOS verdict. The legal battle between Bangladesh and Myanmar wasn’t exactly a battle between good and evil. It was not as if one country was dead right while another country was completely wrong. Therefore, in order for us to truly appreciate the ITLOS verdict, we must first digest this basic reality – there was no single winner in Bangladesh v. Myanmar. Both countries had ‘won’ because the ITLOS had demarcated the applicable portion of the Bay of Bengal in an equitable manner acceptable to both contending nations.

20110921-dipumoni-300It is in this premise we look back at the ITLOS verdict passed on March 14, 2012. We shall see clearly that the verdict was by no means ‘one sided’. Arguments advocated by the nations were accepted or struck down on various issues. The following account briefly takes a look the issues adjudicated and what the ITLOS had to say about such issues.

With regard to the issue of jurisdiction of the ITLOS, it was Bangladesh’s submission that ITLOS possessed jurisdiction over the entire disputed maritime area including the Continental Shelf area beyond 200 nautical miles.[43] Myanmar also accepted the jurisdiction of the ITLOS over the disputed maritime area, including the territorial sea, Exclusive Economic Zone (EEZ) and the continental shelf within 200 nautical miles. However, Myanmar further argued that in the case at hand the ITLOS did not have jurisdiction over the continental shelf beyond 200 nautical miles.[44] The Tribunal sided with Bangladesh and stated that it had jurisdiction over the continental shelf beyond 200 nm.[45]

Having dealt with the issue surrounding jurisdiction, the ITLOS subsequently dealt with the issue of delimiting the territorial sea. Embarking upon this issue, the Tribunal had to first determine the nature of the 1974 and 2008 agreements between Bangladesh and Myanmar, i.e. whether they were legally enforceable agreements or not.[46] Bangladesh requested that the Tribunal declare that the maritime boundary between Bangladesh and Myanmar in the territorial sea shall be the boundary agreed between themselves in 1974 which was reaffirmed in 2008.[47] On the other hand, Myanmar argued that the agreements of 1974 and 2008 were not agreements at all and thus could not be held to be legally binding.[48] The Tribunal held in favour of Myanmar with regard to this issue and found no grounds to support Bangladesh’s submission that the Agreed Minutes of 1974 amounted to a legally binding agreement between the two countries. The Tribunal reached the same conclusion regarding the 2008 Agreed and found that it merely reaffirmed what was recorded in the legally non-binding Agreed Minutes of 1974.[49]

Bangladesh also tried but nonetheless failed to convince the Tribunal that the conduct of the two nations over the years amounted to a de facto agreement along the lines of the 1974 Agreed Minutes regarding the delimitation of the territorial sea[50] and also that Myanmar is estopped from claiming that the Agreed Minutes of 1974 is anything other than valid and legally binding.[51] [52]

Having concluded that there was no legally binding agreement or a de facto agreement between the parties and also due to the absence of estoppel, the Tribunal at this point decided to delimit the territorial sea between the two nations on the basis of Article 15[53] of the United Nations Convention of the Law of the Sea (hereinafter, UNCLOS). In the process of doing so the ITLOS found no evidence of any ‘historic title’ over the territorial sea in favour of Bangladesh or Myanmar.[54]

Myanmar, however, had a specific claim regarding the St. Martin’s Island. She argued that the island was a ‘special circumstance’ under Article 15 and demanded a departure from the median line while delimiting the territorial sea.[55] It goes without saying that Bangladesh digressed with Myanmar’s claim and counter-argued that St. Martin’s Island be given ‘full effect’ because of its size, population and economic activities entitling it to a full 12 nm of territorial sea.[56] The Tribunal found in favour of Bangladesh thereby giving St. Martin’s Island ‘full effect’ and observing that it is a significant maritime feature by virtue of its size and population and also the extent of its economic and other activities.[57]

While determining the delimitation line of the territorial sea, the Tribunal followed the method of equidistance. Having given ‘full effect to the St. Martin’s Island, it decided that the placing of the delimitation line should follow the equidistance method up to the point beyond which the territorial seas of the Parties no longer overlapped.[58] In laymen’s terms, the Tribunal acknowledged Bangladesh’s right to a 12 nm territorial sea around St. Martin’s Island to the point where such territorial sea did not overlap with Myanmar’s territorial sea. The Tribunal observed that had it reached a different conclusion, it would result in giving more weight to the sovereign rights and jurisdiction of Myanmar in its exclusive economic zone and continental shelf than to the sovereignty of Bangladesh over its territorial sea.[59]

The delimiting of the territorial sea was followed by the issue of navigation by Myanmar in Bangladesh’s territorial sea around St. Martin’s Island to and from the River Naaf. In this context, Bangladesh agreed to accord Myanmar the right of passage and the Tribunal took notice of this.[60]

Prior to delimiting the Exclusive Economic Zone and the Continental Shelf, the Tribunal first determined the length of the coastlines of the two nations. In response to Bangladesh and Myanmar’s claim to 421 and 740 Kilometres of coastline, the Tribunal found that the lengths of Bangladesh and Myanmar’s coastlines were 413 and 587 Kilometres respectively.[61] [62] Therefore, having determined the relevant coasts of the contending nations and their approximate lengths, the ratio of coastal lengths was found to be approximately 1:1.42 in favour of Myanmar.[63]

The issue that came in next was determining which method of delimitation would be applied with respect to the EEZ and the Continental Shelf. I have already mentioned in the initial parts of this article that Bangladesh had always demanded delimitation on the basis of equity. Before the ITLOS her argument was such that although the equidistance method was more commonly used, but in the context of the ongoing case it would not produce an equitable result. Therefore, in place of the equidistance method that was being favoured by Myanmar, Bangladesh advocated for the angle-bisector method of delimitation on the grounds that it would produce a more equitable result.[64]

The ITLOS, in this regard, agreed with Myanmar and opted to employ the equidistance method of delimitation.[65] Let’s not all get unnecessarily ‘worked up’ about the line taken by the Tribunal. Although, the Tribunal had opted for the method of equidistance, it would apply this method in an ‘equitable’ manner by means of a three-stage approach based on the judicial precedents of the most recent case law on the subject.[66] This three-stage process comprised of: 1) Constructing a provisional equidistance line, based on the geographical positions of the Parties’ coasts; 2) Determining whether there are any relevant circumstances requiring adjustment of the provisional equidistance line and in the presence of an relevant circumstances making an adjustment that produces an equitable result; 3) Checking whether the line, as adjusted, results in any significant disproportion between the ratio of the respective coastal lengths and the ratio of the relevant maritime areas allocated to each Party.[67]

After deciding the base points for both nations and drawing the provisional equidistance line, the Tribunal moved onto considering the presence of any relevant circumstances demanding the re-adjustment of the equidistance line that had been drawn that would then produce the needed equitable solution. Bangladesh pointed out three geographical and geological factors which she believed amounted to ‘relevant circumstances’, namely, 1) The concave shape of Bangladesh’s coastline; 2) The presence of St. Martin’s Island and 3) Bengal’s depositional system.[68] Myanmar denied the validity of all three Bangladeshi claims.[69] The Tribunal accepted the first relevant circumstance argued by Bangladesh and rejected the remaining two. It agreed that the concavity of the coastline of Bangladesh was a ‘relevant circumstance’ in the present case, because the provisional equidistance line as drawn produced a cut-off effect on that coast, requiring an adjustment of that line.[70] It was on the basis of these findings that the Tribunal delimited the EEZ and Continental Shelf within 200 nm.

With regard to delimitation of the Continental Shelf beyond 200 nm, Myanmar’s position was such that Bangladesh’s Continental Shelf cannot extend beyond 200 nm because the maritime area in which Bangladesh enjoyed sovereign rights with respect to natural resources of the Continental Shelf did not extend up to 200 nm.[71] The Tribunal disagreed with Myanmar’s contention because, in fact, the delimitation line of the EEZ and the Continental Shelf of Bangladesh did reach the 200 nm limit.[72] It held that both nations had entitlements to the Continental Shelf extending beyond 200 nm.[73]

With regard to the method of delimiting the Continental Shelf beyond 200 nm, Bangladesh favoured an equitable method on the ground that she had the most natural prolongation into the Bay of Bengal contrary to Myanmar who had little or no natural prolongation beyond 200 nm.[74] On the other hand, Myanmar stuck to its method of equidistance.[75] This time also, the Tribunal preferred the equidistance method.[76] However, the Tribunal found that the ‘relevant circumstance’, i.e. the concavity of Bangladesh coastline, which had an effect on the delimitation of continental shelf within 200 nm, had a continuing effect on the continental shelf beyond 200 nm.[77] It was therefore found that the adjusted equidistance line delimiting both the EEZ and the Continental Shelf within 200 nm continued in the same direction beyond the 200 nm limit of Bangladesh until it reached an area where the rights of third States may be affected.[78]

Due to the continuation of the delimitation line beyond 200 nm, a ‘gray area’ was chalked out, where the adjusted equidistance line used for delimitation of the Continental Shelf went beyond 200 nm off Bangladesh and continues until it reaches 200 nm off Myanmar.[79] The Tribunal observed that the resultant ‘grey area’ was as a consequence of delimitation and that any processes of delimitation may give rise to complex legal and practical problems, such as those involving trans-boundary resources. The Tribunal prescribed contending nations to enter into agreements or cooperative arrangements to deal with problems resulting from the delimitation, i.e. the ‘grey area’.[80]

The Tribunal finally found that the equitably adjusted delimitation line allocated approximately 111,631 square kilometres of the relevant area to Bangladesh and approximately 171,832 square kilometres to Myanmar, the ratio of the allocated areas approximately being 1:1.54 in favour of Myanmar.[81]

Conclusion

So where do we stand at the end of all this? Are we better off than we were in the past? I think it goes without saying that both nations are very much ‘better off’. We’ve finally been able to resolve a long standing dispute in a manner that shall remain as a resounding example of how states can deal with their disagreements in hearings before international courts, such as the ITLOS and can both come out as winners. With a clearly demarcated Bay of Bengal, i.e. to the extent applicable to Bangladesh and Myanmar, both can embark upon multifarious economic activities in waters that are now ‘resolved and no longer contested’. There has been some talk of losing certain blocks that the military-controlled caretaker government marked out prior to the Under Offshore Bidding Round which took place February 2008.[82] Which blocks we have lost or gained shall be unearthed when the Petro Bangla draws a new map based on the ITLOS verdict of March 14, 2014. What is important however is to realize that if we do lose certain blocks chalked out in 2008, they weren’t ours to begin with. The ITLOS through its verdict has used the method of equidistance keeping in mind that the final result must be one that is equitable to both parties. Only now can we legitimately make claims on what is ours.

To me Bangladesh is basking in the glory of ‘extended sovereignty’. How she puts to use her ‘extended sovereignty’ remains to be seen. Bangladesh should use the judicial precedent set by Bangladesh v. Myanmar before the ITLOS as a bargaining chip during bilateral negotiations with India. Meanwhile, it should continue its court battle with India before the PCA, the verdict of which is due in 2014. It should also give serious consideration to significantly empowering BAPEX so that it doesn’t have to rely on foreign companies and their not-so-equitable deals for energy exploration. The ball, therefore, still remains in Dipu Moni and the Bangladesh Government’s court. For the people of Bangladesh, you’ve ensured a newfound ‘sovereignty’. Let’s keep the ball rolling with our heads held high.

————————-

M. Sanjeeb Hossain is currently providing service as Researcher to the Chief Prosecutor at the International Crimes Tribunal, operating in Bangladesh. Sanjeeb is also a member of the International Crimes Strategy Forum’s (ICSF) core Legal Team.


Footnotes:

[1] ‘India favours bilateral end to sea dispute’ Bdnews24.com (08 March 2012) < http://www.bdnews24.com/details.php?cid=2&id=220510&hb=top > accessed 25 March 2012.

[2] ‘Dhaka won’t pull out of UN court: Dipu Moni’ Bdnews24.com (19 March 2012) < http://bdnews24.com/details.php?id=220627&cid=2 > accessed 25 March 2012.

[3] Myanmar Embassy – Tokyo, ‘Basic Facts About Myanmar’ (n.d.) <http://www.myanmar-embassy-tokyo.net/about.htm> accessed 25 March 2012.

[4] Kaiser Morshed, ‘Bangladesh–Burma relations’ in Zaw A, Arnott D, Chongkittavorn K, Liddell Z, Myint S, Aung T T, CHALLENGES TO DEMOCRATIZATON IN BURMA Perspectives on multilateral and bilateral responses (International Institute for Democracy and Electoral Assistance 2001) 57 < http://www.idea.int/asia_pacific/burma/upload/challenges_to_democratization_in_burma.pdf > accessed 25 March 2012.

[5] n 4.

[6] n 4.

[7] Harunur Rashid, ‘Bottom Line Of Bangladesh-Myanmar sea boundary’ The Daily Star (Dhaka, 8 June 2006) < http://www.thedailystar.net/2006/06/08/d60608020427.htm > accessed 25 March 2012.

[8] n 4.

[9] n 4.

[10] n 7.

[11] n 4.

[12] Asian Development Bank, ‘Bangladesh Gas Sector – Issues, Options and the Way Forward’ (2007) < http://www.adb.org/Documents/Reports/Bangladesh-Gas-Sector/BAN-Gas-Sector.pdf > accessed 25 March 2012.

[13] n 12.

[14] Government of Bangladesh, ‘Notification submitted by Bangladesh’ (13 December 2009) < http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/Notification_Bangladesh_14.12.09.pdf > accessed 25 March 2012.

[15] Section 3 reads as: ‘‘3. (1) The Government may, by notification in the official Gazette, declare the limits of the sea beyond the land territory and internal waters of Bangladesh which shall be the territorial waters of Bangladesh specifying in the notification the baseline-
(a) from which such limits shall be measured; and
(b) the waters on the landward side of which shall form part of the internal waters of Bangladesh.
(2) Where a single island, rock or a composite group thereof constituting the part of the territory of Bangladesh is situated seawards from the main coast or baseline, territorial waters shall extend to the limits declared by notification under sub-section (1) measured from the low waterline along the coast of such island, rock or composite group.
(3) The Sovereignty of the Republic extends to the territorial waters as well as to the air space over and the bed and subsoil of, such waters.
(4) No foreign ship shall, unless it enjoys the right of innocent passage, pass through the territorial waters.
(5) Foreign ship having the right of innocent passage through the territorial waters shall, while exercising such right, observe the laws and rules in force in Bangladesh.
(6) The Government may, by notification in the official Gazette, suspend, in the specified areas of the territorial waters, the innocent passage of any ship if it is of opinion that such suspension is necessary for the security of the Republic.
(7) No foreign warship shall pass through the territorial waters except with the previous permission of the Government.
(8) The Government may take such steps as may be necessary-
(a) to prevent the passage through the territorial waters of any foreign ship having no right of innocent passage;
(b) to prevent and punish the contravention of any law or rule in force in Bangladesh by any foreign ship exercising the right of innocent passage;

(c) to prevent the passage of any foreign warship without previous permission of the Government; and
(d) to prevent and punish any activity which is prejudicial to the security or interest of the Republic.
’’

[16] Section 4 reads as: ‘‘4. (1) The zone of the high seas contiguous to the territorial waters and extending seawards to a line six nautical miles measured from the outer limits of the territorial waters is hereby declared to be the contiguous zone of Bangladesh.
(2) The Government may exercise such powers and take such measures in or in respect of the contiguous zone as it may consider necessary to prevent and punish the contravention of, and attempt to contravene, any law or regulation in force in Bangladesh relating to-
(a) the security of the Republic;
(b) the immigration and sanitation; and
(c) customs and other fiscal matters.
’’

[17] Section 5 reads as: ‘‘5. (1) The Government may, by notification in the official Gazette, declare any zone of the high seas adjacent to the territorial waters to be the economic zone of Bangladesh specifying therein the limits of such zone.
(2) All natural resources within the economic zone, both living and non-living, on or under the seabed and subsoil or on the water surface or within the water column shall vest exclusively in the Republic.
(3) Nothing in sub-section (2) shall be deemed to affect fishing within the economic zone by a citizen of Bangladesh who uses for the purpose vessels which are not mechanically propelled.
’’

[18] Section 7 reads as: ‘‘7. (1) The continental shelf of Bangladesh comprises-
(a) the seabed and subsoil of the submarine areas adjacent to the coast of Bangladesh but beyond the limits of the territorial waters up to the outer limits of the continental margin bordering on the ocean basin or abyssal floor; and
(b) the seabed and subsoil of the analogous submarine areas adjacent to the coasts of any island, rock or any composite group thereof constituting part of the territory of Bangladesh.
(2) Subject to sub-section (1), the Government may, by notification in the official Gazette, specify the limits thereof.
(3) No person shall, except under and in accordance with the terms of, a licence or permission granted by Government explore or exploit any resources of the continental shelf or carry out any search or excavation or conduct any research within the limits of the continental shelf:Provided that no such licence or permission shall be necessary for fishing by a citizen of Bangladesh who uses for the purpose vessels which are not mechanically propelled.
’’

[19] n 14.

[20] n 14.

[21] Kaiser Morshed, ‘Bangladesh–Burma relations’ in Zaw A, Arnott D, Chongkittavorn K, Liddell Z, Myint S, Aung T T, CHALLENGES TO DEMOCRATIZATON IN BURMA Perspectives on multilateral and bilateral responses (International Institute for Democracy and Electoral Assistance 2001) 57 < http://www.idea.int/asia_pacific/burma/upload/challenges_to_democratization_in_burma.pdf > accessed 25 March 2012.

[22] n 14.

[23] n 14.

[24] Jared Bissinger, ‘The Maritime Boundary Dispute between Bangladesh and Myanmar: Motivations, Political Solutions and Implications’ [2010] Asia Policy 103,112 < http://www.nbr.org/publications/element.aspx?id=449 > accessed 25 March 2012.

[25] The Daily Star, ‘Maritime talks with Myanmar begins today’ (Dhaka, 16 November 2008) < http://www.thedailystar.net/newDesign/news-details.php?nid=63562 > accessed 25 March 2012.

[26] n 25.

[27] n 25.

[28] The Daily Star, ‘Maritime talks with Myanmar begins today’ (Dhaka, 16 November 2008) < http://www.thedailystar.net/newDesign/news-details.php?nid=63562 > accessed 25 March 2012.

[29] The Daily Star, ‘Tension along Myanmar border’ (Dhaka, 17 March 2009) < http://www.thedailystar.net/newDesign/news-details.php?nid=80057 > accessed 25 March 2012.

[30] M Abul Kalam Azad, Ahmede Hussain, ‘Myanmar brings in everything’ The Daily Star (Dhaka, 12 October 2009) <http://www.thedailystar.net/newDesign/news-details.php?nid=109365> accessed 25 March 2012.

[31] Editorial, ‘Tense Bangladesh Myanmar border Arrest worsening of the situation’ The Daily Star (Dhaka, 12 October 2009) < http://www.thedailystar.net/newDesign/news-details.php?nid=109276 > accessed 25 March 2012.

[32] bdnews24.com, ‘Verdict on Dhaka-Yangon dispute early 2012’ (Dhaka, 17 June 2011)   < http://bdnews24.com/details.php?id=198727&cid=2%3Eaccessed%2020%20March%202011 > accessed 25 March 2012.

[33] The Daily Star, ‘Fighting Int’l Terrorism Bangladesh, India to form joint committee Maritime border dispute with Myanmar to be solved, says foreign secretary’ (Dhaka, 24 January 2010) < http://www.thedailystar.net/newDesign/news-details.php?nid=123231 > accessed 25 March 2012.

[34] The Daily Star, ‘Fighting Int’l Terrorism Bangladesh, India to form joint committee Maritime border dispute with Myanmar to be solved, says foreign secretary’ (Dhaka, 24 January 2010) < http://www.thedailystar.net/newDesign/news-details.php?nid=123231 > accessed 25 March 2012.

[35] The Daily Star, ‘Team off to Myanmar for sea boundary talks’ (Dhaka, 15 March 2010) < http://www.thedailystar.net/newDesign/latest_news.php?nid=22699 > accessed 25 March 2012.

[36] Rezaul Karim, ‘Maritime Dispute With India-Myanmar Dhaka readies for long legal battle Chances of amicable settlement slim’ The Daily Star (Dhaka, 22 June 2010) < http://www.thedailystar.net/newDesign/news-details.php?nid=143614 > accessed 25 March 2012.

[37] Article 287(1) of UNCLOS reads as: ‘‘When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:

(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;

(b) the International Court of Justice;

(c) an arbitral tribunal constituted in accordance with Annex VII;

(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.’’

[38] International Tribunal for the Law of the Sea, ‘Press Release – Dispute concerning delimitation of the concerned boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar)’ (26 August 2011) < http://www.itlos.org/fileadmin/itlos/documents/press_releases_english/pr_169_eng.pdf > accessed 25 March 2012.

[39] International Tribunal for the Law of the Sea, ‘Order 2010/1- Dispute concerning delimitation of the concerned boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar)’ (28 January 2010) < http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/Ord.2010-1.28.01.2010.E.pdf > accessed 25 March 2012.

[40] International Tribunal for the Law of the Sea, ‘Order 2010/2- Dispute concerning delimitation of the concerned boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar)’ (17 March 2010) <http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/Ord.2010-2.17.03.2010.E.pdf

> accessed 25 March 2012.

[41] International Tribunal for the Law of the Sea, ‘Press Release – Dispute concerning delimitation of the concerned boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar)’ (26 August 2011) < http://www.itlos.org/fileadmin/itlos/documents/press_releases_english/pr_169_eng.pdf > accessed 25 March 2012.

[42] n 41.

[43] Judgment – Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, para. 42 < http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/1-C16_Judgment_14_02_2012.pdf > accessed 25 March 2012.

[44] n 43, para 43.

[45] n 43, para. 363.

[46] n 43, para. 56.

[47] n 43, para. 64.

[48] n 43, para. 78.

[49] n 43, para. 98.

[50] n 43, para. 118.

[51] n 43, para. 123.

[52] n 43, para. 125.

[53] Article 15 of the UNCLOS reads as: “Delimitation of the territorial sea between States with opposite or adjacent coasts – Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.

[54] n 43, para. 130.

[55] n 43, para. 131.

[56] n 43, para. 145.

[57] n 43, paras. 151 &152.

[58] n 43, para. 164.

[59] n 43, para. 169.

[60] n 43, para. 173.

[61] n 43, para. 197.

[62] n 43, para 202.

[63] n 43, para. 205.

[64] n 43, para. 213.

[65] n 43, para 238.

[66] n 43, para. 240.

[67] n 43, para. 240.

[68] n 43, para. 276.

[69] n 43, para. 278.

[70] n 43, para. 297.

[71] n 43, para. 364.

[72] n 43, para. 365.

[73] n 43, para. 449.

[74] n 43, para. 457.

[75] n 43, para. 459.

[76] n 43, para. 460.

[77] n 43, para. 461.

[78] n 43, para. 462.

[79] n 43, para. 464.

[80] n 43, para. 472.

[81] n 43, para. 499.

[82] Government of the People’s Republic of Bangladesh, ‘Bangladesh Oil, Gas & Mineral Corporation (Petrobangla) Under Offshore Bidding Round-2008’ < http://www.petrobangla.org.bd/OFFSHORE%20BIDDING%20ROUND%202008.pdf > accessed 25 March 2012.

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3 Responses to “ Surfing of the ‘sovereign’ seas ”

  1. Matiur Rahman on March 30, 2012 at 9:41 pm

    Very well-researched,informative and nicely written.Many thanks to the author.

  2. sajjad on March 29, 2012 at 5:17 pm

    Extremely enlightening. Thanks for taking the pain of putting these together. One question on the ‘extended sovereignty’ remains: finding a solution to a long dispute between two states possibly needed assistance from the very agencies with whom the sovereignty is expected to be asserted! Can a national government assert such sovereignty without seeking a broader alliance within?
    But that is possibly a second stage question – thoroughly enjoyed reading the first.

  3. robin on March 29, 2012 at 12:01 pm

    Based on facts and figure, the article points out that the conflict has resolved in a civil manner. Of course credit goes to the team but should not be claimed by Bangabandhu or Zia’s dream. It is the duty of the people in power to maintain vigilance for national self. While we applaud now, we will monitor the situations with India.

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