Introduction

37 years ago our four national leaders, Syed Nazrul Islam, Tajuddin Ahmed, M Mansur Ali and AHM Qamaruzzaman were brutally murdered within the confines of the Dhaka Central Jail, marking the events of November 3, 1975, as one of the darkest blots in the history of Bangladesh.

In this article, by taking resort to accessible and reliable sources, I shall attempt an academic reconstruction of the factual chain of events that led to the murder of our four leaders and also shed light on the significance of the underlying ‘politics’ that resulted in this gruesome act. My argument throughout is simple: The conspiratorial exercise to erase muktijuddher chetona (the guiding spirit of the Liberation War of 1971) from the heart of Bangladesh was planted during the war and within the shortest time possible, the vanguards of muktijuddher chetona were eliminated one by one – the assassination of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman, the Jail Killings, the murders of Brigadier Khaled Musharraf, Major ATM Haider and Colonel Huda, the judicial murders of Colonel Taher and summary executions of many sepoys were all part of the conspiratorial exercise of the anti-Liberation forces. This article argues that the ironic and unfortunate adoption of a ‘Pakistan-like’ statecraft, spanning throughout the civil and military structures, to run the affairs of liberated Bangladesh, did not in any way strengthen muktijuddher chetona and allowed the anti-Liberation forces to strike back at ease on August 15, 1975 and thereafter. These conspiracies are still continuing till today – including the recent attacks on the Buddhist temples of Ramu and Ukhiya.

I believe that in order to truly appreciate the chain of events of Bangladesh’s immediate post independence era, an anatomy of the Liberation War of 1971 is imperative. While the purpose of this article is not to do that extensively, it highlights certain dimensions of the Liberation War which I feel future researchers need to take into consideration when qualitatively evaluating ‘1971’. I argue that some of the identified enemies of 1971 were left unaccounted for and absorbed into the state machinery after independence. Bangabandhu’s confinement inside the Pakistani prison prevented him upon his return from comprehending that the Liberation War had virtually transformed the masses. And, since Bangladesh had emerged through a people’s war, the need of the time was to initiate the rebuilding of all state institutions from scratch in adherence to muktijuddher chetona – the driving force of the war.

A brief anatomy of 1971 and Bangabandhu’s return –

Our first point of reference is an event from early April 1971 – the late freedom fighter Colonel Shafayet Jamil (subsequently, a key personality of the November 3 coup of 1975) while on his way to Brahmanbaria met Taheruddin Thakur at a place near the Sylhet highway. Thakur was a previous acquaintance of Shafayet’s from their college days and it was Shafayet who spontaneously got down from his jeep to inform him of their revolt against the Pakistan Army on March 27 and seek directives from the Awami League leadership. To Shafayet’s utter disbelief, Thakur who had been elected an MNA in 1970 retorted, “I don’t know anything. I have nothing to do with you. Who told you to revolt? We didn’t ask you to do so … you people in uniform always complicate the situation” (Jamil, 2009, p. 37). Upon hearing this, Shafayet Jamil left without continuing the conversation. It is unsurprising that Taheruddin Thakur reacted the way he did. Colonel Taher would briefly refer to MNAs and MPs of the likes of Thakur in his prophetic letter of resignation addressed to Bangabandhu in September, 1972 on how they desired provincial autonomy rather than all out freedom. These were the same men who hailed Bangabandhu upon his return to Bangladesh in 1972 but switched allegiance in lightening-like speed to join the Mushtaq government after the Sheikh’s assassination in August 1975.

After the formation of the Mujibnagar government in mid-April 1971, Thakur would be appointed as a member of a Special Cell of the newly formed Foreign Ministry and the infamous Mahbub Alam Chashi would be appointed Foreign Secretary (Mukul, 1985). Both Thakur and Chashi would operate under the leadership of none other than Khandakar Mushtaq Ahmed, the Minister of Foreign Affairs of the Mujibnagar government. During the Liberation War of 1971, the evil nexus led by Mushtaq through American diplomatic channels attempted to strike a compromise with the Pakistani Military junta and uphold the unity of Pakistan by forming a Confederation (Lifschultz, 1979; Miah, 1993). As the saying goes, old habits die hard – Mushtaq-Chashi-Thakur also formed the trio of principle civilian conspirators of the assassination of Bangabandhu Sheikh Mujib on August 15, 1975. Lifschultz writes, “That morning, 15 August 1975, as Mustaque arrived at the Dacca studios of Bangladesh Radio to make his first broadcast to a tense capital city, he was accompanied by two, crucially important aides, Mahbub Alam Chashi and Taheruddin Thakur” (1979, p. 101).

It is worth noting that in the autumn of 1971 Prime Minister Tajuddin Ahmed, upon discovering Mustaq’s ‘Confederation conspiracy’ had him decisively sidelined for the remaining days of the war. Furthermore, Mushtaq was denied the right to represent Bangladesh at the U.N. General Assembly in New York and was subsequently removed from the post of Foreign Minister immediately following independence and assigned a minor portfolio (op. cit.). Similarly, Chashi had already been removed from service in November, 1971 (Hossain, 2012).

Unfortunately when it came to identifying ones true friends and rebuilding Bangladesh on the lines of a uniform policy adherent to the spirit of 1971, the Bangabandhu government faltered. The late Wajed Miah, eminent scientist and son-in-law to Sheikh Mujib offered his recollection of a meeting on January 10, 1972, the day Bangabandhu returned from Pakistani captivity. He wrote: “Afterwards Bangabandhu sat in an important discussion with Sheikh Fazlul Huq Moni, Sirajul Alam Khan, Tofael Ahmed and Abdur Razzak in the dressing room located in between my bedroom and that which belonged to my mother-in-law. I was present as well. The student leaders briefed Bangabandhu on the roles and activities of the Ministers of the Provisional Government at Kolkata as well as leaders of the Awami League, NAP (Muzzafar), NAP (Bhashani), Communist Party during the Liberation War. They informed Bangabadhu of the ideologies and roles of the Sector Commanders entrusted with different areas of the Mukti Bahini. At the very end they offered their opinions as to what steps Bangabadhu should take at that moment in time” (Miah, 1993, p. 121-122). I feel that the information relayed to Sheikh Mujibur Rahman during this meeting is of prime importance because this was the first briefing Bangabandhu received regarding ‘1971’. It is worth noting that Bangabandhu’s decision to gain a first-hand report on the Liberation War from the above-named was correct because they were instrumental in pushing for all-out independence of Bangladesh during the weeks preceding Operation Searchlight on March 25, 1971. These men under the leadership of Bangabandhu Sheikh Mujib had formed the historic nucleus fighting for independent Bangladesh in the early 1960s. During the Liberation War they went onto form the Bangladesh Liberation Force (BLF), popularly known as Mujib Bahini. Although the contents of the briefing are yet to be disclosed, it is known for sure that the relationship between Sheikh Moni and Tajuddin from the days of the war was unfortunately a sour one. There is reason to suspect that the seeds of the distancing between Bangabandhu and Tajuddin were planted during the meeting mentioned above.

Contradictions in independent Bangladesh –

In the weeks that followed, Mushtaq was granted a new life line after being incorporated into the new Bangabandhu cabinet. Although Bangabandhu would declare in his historic speech of 10^th January 1972 that the guiding principles of the newly independent nation would be socialism, democracy and secularism, the new government would be quick to forget Mushtaq’s role in 1971 or the fact that in 1955 he had left the Awami League in protest (only to rejoin the party later on) after Sheikh Mujib called for removing the word ‘Muslim’ from ‘East Pakistan Awami League’ (Miah, 1993). While socialism would find a place as one of the guiding principles of the Bangladesh Constitution of 1972, after independence, Chashi an advocate of capitalist land reform was appointed Vice-Chairman of the Bangladesh Academy for Rural Development, a post he still held at the time of Bangabandhu’s assassination (Lifschultz, 1979). Therefore, what war ravaged Bangladesh witnessed was the application of a contradictory policy where pro-’71 and anti-’71 forces bearing opposing political ideologies were placed together as equals and asked to work for the implementation of muktijuddher chetona. Although, this was the same government that identified 53 bureaucrats as ‘collaborators’ and had them removed from duty very early on in 1972 (Hannan, 1997), there were other glaring instances where anti-Liberation personalities were appointed into important positions.  One such instance is reflected in the recollections of freedom fighter Major Nasir Uddin (another key personality of the November 3 coup of 1975). In March 1972 Major Nasir was directed by General Osmany to organize the presence of tanks at the first Military Parade of the Bangladesh Army. Describing the events upon his arrival at the local transit camp of Dhaka, Nasir writes, “What surprised me was seeing Captain Hakim as the camps commander. Hakim was not only serving as the head of the Bangladesh Transit Camp but was also the chief of the Military Police force. This is the same Captain Hakim who had fought against us during the nine months of our Liberation War. The shells he fired had resulted in the deaths of hundreds and hundreds of refugees and freedom fighters. After shaking hands with him I became engulfed in extreme grief and shame. I went to the bathroom to wash my hands. My inner soul wanted to revolt. I felt like protesting at the top of my voice. What was the point of this independence where friend and foe were merged together without drawing any line in between” (Uddin, 1997, p. 33).

The late Major Shafayet Jamil faced a similar situation after independence in 1972. On his arrival at the headquarters of the Bangladesh Army, Shafayet met Lt. Colonel Feroze Salauddin and found him to be a close aide to Osmany. The deep irony of the matter was that Colonel Salauddin served as Pakistan Army’s principle Razakar recruiting officer up until the very end of the Liberation War. Major Shafayet wrote: “As a war injured freedom fighter I felt overwhelmed in disgust when I saw him at the headquarters. I did not even feel like looking at this Lt. Colonel who had once licked the boots of the Pakistan Army. A few days after I returned to Sylhet I got a telephone call from Osmany. He demanded an explanation as to why I did not salute Colonel Salauddin. Osmany threatened to court martial me for my offence. I was unmoved and replied, ‘if that is your wish then please do so’. For whatever reason, Osmany could not see through to his threat” (Jamil, 2009, p. 95). Colonel Salauddin would have a bright military career in independent Bangladesh! He served as Military Secretary to Bangladesh’s first and second Presidents, Justice Abu Sayeed Chowdhury and Mahmudullah respectively (Talukdar, 2005). Colonel Salauddin would also be part of President Bangabandhu Sheikh Mujibur Rahman’s staff in 1975 (op. cit.). He would also be President Ziaur Rahman’s first Military Secretary (op. cit.). During Ershad’s military dictatorship Salauddin would be appointed High Commissioner of Singapore for the period of 1983 to 1986. What an irony!

Another similar incident unfolded when it came to the appointment of the first Adjutant General of the Bangladesh Army. General Osmany had initially thought of appointing Colonel Masud as AG and Colonel Taher (Sector Commander of Sector No. 11) as his deputy. However when Taher returned to an independent Bangladesh in April 1972 following treatment of his blown-off leg and learned that he would have to serve under Masud who had directly collaborated with the Pakistan Army during 1971, he strongly protested (MA Hossain, 2012). Fortunately, due to Taher’s protests and insistence, the decision to appoint Colonel Masud did not see the light of day and Taher himself was appointed the first Adjutant General of the Bangladesh Army.

Other controversial decisions of Osmany included the appointment of Lt. Col. KM Rahman as head of the Army’s supply unit, Air Commodore Aminul Islam as Chief of the DGFI and Lt. Al Farid and Lt. Modabber into the police forces (Uddin, 1997). All the above named had collaborated directly with the Pakistan Army during 1971 (op. cit.). A.M.S. Safdar, as the leading intelligence officer of the Ayub regime in East Pakistan who would literally ‘carry the prosecutor’s briefcase into the court every day’ during the Agartala Trial, would be appointed to the President’s Vigilance Team, a police security unit dealing with corruption, intelligence and domestic order (Lifschultz, 1979, p. 125). In continuance of what Lifschultz classified as ‘monumental misnomers’, Abdur Rahim – former Director of Pakistan’s Razakar forces, would be appointed Secretary to the President (op. cit.).

It is evident from the above incidents that Osmany is to be greatly blamed for the rehabilitation of anti-Liberation officers into the newly independent Bangladesh establishment. It is suggested that these and other appointments were a consequence of Osmany’s colonial and so-called ‘professional’ style of deciding who would be the men to hold key positions in independent Bangladesh. It goes without saying that such decisions were severely antagonistic to the spirit of 1971. Osmany’s problematic and erroneous thought process can be identified from the very outset of the Liberation War. Taher identified the conventional military ideas of officers like Osmany as ‘a hindrance in the natural growth of guerilla warfare’ (Lifschultz, 1979, p. 81). Taher recalled: “The existing military leadership of the Liberation War was scanty. Whatever adequately trained solders or officers we had were concentrated in regular force units. Independent units of freedom fighters were deprived of obtaining necessary military skills and leadership. This was due to the fact that the commanders of the Liberation Forces had no concept whatsoever of a Liberation struggle. Their only concern was to raise regular main force brigades to consolidate their own power [here, Taher is speaking in reference to the formation of the K, S and Z Forces]. They said an army of 20 divisions would be raised in due course. Meanwhile, the natural growth of a national people’s war was obstructed. The freedom fighters were carrying out acts of heroism inside the country, but there was no one to inspire them. An effective farsighted leadership could have spontaneously developed inside the country, had there been no external interference. Had the two brigades of trained troops, one at Agartala under Khaled Mussaraf and the other at Meghalaya under Major Zia, been correctly deployed, we could have raised 20 divisions of peasant fighters within seven or eight months within the country. My ideas deeply annoyed Colonel Osmany. For him it was a very easy life. He had a safe shelter to sleep in and a great deal of time to move around inspecting sector headquarters. But it was a parody of a Liberation War. The leadership was simply insane. There is a great distinction between people’s war and conventional war. This was not understood by Colonel Osmany.  It is not correct to attempt to raise a regular force at an early stage of guerrilla struggle. At an appropriate time, a guerrilla force will be converted into a regular force” (Lifschultz, 1979, p. 81). Taher’s analysis is important because his service distinctions while in the Pakistan Army surpassed those of any other Bengali officer at that time. His thoughts on this issue deserve the attention of future researchers looking into the growth of guerilla warfare. It can be concluded on the note that had Osmany reformed and molded the Bangladesh Army in light of muktijuddher chetona, it would not have become a haven of conspiracy and events like August 15 would probably not have seen the light of day.  One of the greatest tragedies is that while Bangabandhu placed great faith on General Osmany, Osmany would not return the favor and quickly take up the position of Mustaq’s Defence Advisor after August 15, 1975.

In newly independent Bangladesh Taher’s service as an officer of the Bangladesh Army did not last long. His initiation of disciplinary proceedings against the likes of Brigadier Mir Shawkat Ali and others concerning their illegal acquisition of property during 1971 or his proposals and attempts of creating a self-sufficient people’s army that would work with the masses in rebuilding Bangladesh (as opposed to a conventional army inheriting colonial and anti-people traditions being a burden on a growing nations budget) were not at all seen in a positive light by those in power (Lifschultz, 1979). It is to be noted that Colonel Taher, Colonel Ziauddin and Major Jalil, all left-leaning army officers who had valiantly fought in 1971, were all for ideological reasons forced to severe ties with the Bangladesh Army by the end of 1972. Their departure is important and ironic because it was Taher and Ziauddin who foiled the first coup attempts against the Bangabandhu government. In his historic letter of resignation addressed to Bangabandhu dated September 22, 1972, Taher wrote, “[...] The prime minister wanted sincerely that I should go abroad for my treatment. When I was preparing to go abroad, I came to know that some officers of the army along with a member of the cabinet was trying to stage a coup de’etat taking the opportunity of the absence of the Prime Minister from the country. (The Chief of the Army Staff has appraised the Prime Minister already about the conspiracy). I then thought I should postpone my tour till the return of the Prime Minister. Far from taking any action against the conspirators, the Chief of the Army Staff [Major-General KM Shafiullah] has told me to relinquish the command of 44th brigade and take the responsibility of D.D.P. [Director Defence Purchase] instead. I feel that the conspiracy is still going on and many others are associated with that. This type of usurpation of power goes, in general, against the hopes and aspirations of the people and it must be stopped. If no action is taken against the persons associated with the conspiracy, then the goodwill of the army will be sullied and in that case it is not possible on my part to work in the army. I took part in the liberation struggle not as an officer of the Pakistan army but as a freedom fighter. I think that is very prestigious for me. The interest of the people is supreme to me. I want to go back to the people after leaving the army. I shall tell the people, who were with me during liberation struggle, what ominous things are approaching them” (Mukta, 1996, p. 35-36); Similarly, Colonel Ziauddin as Commander of the 46^th Brigade also quelled a mutiny of Air Force sepoys in 1972 (Uddin, 1997).

In 1972, Taher and Ziauddin, as Commanders of the 44^th and 46^th Brigades together controlled roughly 90% of the troops of Bangladesh (Lifschultz, 1979). Major Nasir writes: “Almost every week Colonel Ziauddin would gather his brigade officers and have lengthy discussions about the socio-political situation of the country. During those conversations Ziauddin would speak of things his brigade officers had never heard before. As a result within the shortest period of time, officers of the cantonment were seen to be enriched with socialist thoughts. That was where Ziauddin succeeded as their commander” (Uddin, 1997, p. 38). Taher was a step ahead of Ziauddin. As Commander of the 44^th Brigade at Comilla, Taher plunged into implementing socialist ideals into the operations of his brigade. In his historic testimony before the Special Martial Law Tribunal in 1976 Taher described his Comilla experience: “On assuming command of Comilla Brigade, I asked my officers to return everything they had illegally acquired during and after the Liberation War. My officers complied with my orders and I had a set of officers whose consciences were completely clear. This is what I regarded as leadership. I always sought to appeal to what was good in men. I detested and avoided taking advantage of the weakness of an individual or of our nation. [...] My effort at the Comilla Brigade to raise and organize an Army on the lines of a ‘People’s army’ is well-known among different sectors of the Army. I constantly tried to develop a strong army based on those who had fought for freedom. Our organizing principle was that of a ‘productive army’ where officers and men worked as do peasants and workers. We ploughed our own fields, grew our own food, and went to the villages to join in production. This was the path to self-reliance. It is with happiness that I recall that within a very short time my officers in the Comilla Brigade understood these principles and turned our unit into a productive force” (Lifschultz, 1979, p. 85-86).

It is sad that Taher and Ziauddin, the very first men to have resisted two conspiracies against the Bangabandhu government in 1972, men who had upheld and implemented the socialist ideals in the newly formed Bangladesh Army, were among the first to have been cornered and looked upon with suspicion by the then regime.  Ironically, while Taher and Ziauddin departed from the Bangladesh Army, officers of the likes of Zia, Farooq, Rashid etc. remained within the ranks, despite possession of information on the part of the Bangabandhu government that Zia was involved in conspiracy. This is discussed in detail later on in the article.

While the government rejected Taher’s idea of building an anti-colonial and self-sufficient people’s army in alliance with the spirit of 1971, it also gave birth to another contradiction at the very outset of independence. After victory was achieved, the estimated 1,45,000 freedom fighters who had taken part in the Liberation War were suddenly asked to surrender their arms and return to the lives they led prior to March 26, 1971 (Uddin, 1997). Scanty number freedom fighters were inducted into the newly formed Rakkhi Bahini. This created new confusions because it was perceived as a challenge to the regular Army. Therefore, a large section of freedom fighters were dissatisfied who believed they would have a role to play in the nation’s rebuilding process. One such option could have been the absorption of freedom fighters into the Bangladesh Army or the civil administration. Yet ironically, while on the one hand freedom fighters were sidelined, the estimated 1,100 officers and 25,000 soldiers who were repatriated from Pakistan to Bangladesh in 1973 were taken into the Bangladesh Army with arms wide open giving birth to yet another contradiction (op. cit.). Among the repatriates would be personalities who actively opposed the Bangladesh’s struggle for liberation. Major Nasir recalls: “Many of the repatriated officers assisted the Pakistan Army and during the Liberation War took up arms against the Bengalis of East Pakistan. While being confined in the military camps many of these persons offered their full cooperation to the Pakistanis. They even went to the extent of spreading propaganda against Bangladesh inside those camps” (Uddin, 1997, p. 88-89). History records that these repatriates would not hesitate to quickly switch camps after Bangabandhu’s assassination. In fact General Zia would largely depend on them in order to consolidate his power within the Army after November 7, 1975. The same Zia who once referred to the repatriates as “Johnny-Come-Lately” nationalists (Lifschultz, 1979, p. 56) would tilt more and more towards them. Moudud writes, “In the difficult situation after independence, Zia had to strike a balance with the repatriated officers to strengthen his own position within the army. The officers who had not taken part in the War, had found a new ally in Zia after the killing of Mujib and removal of Moshtaque. They needed eachother in order to survive both as a class and a force in the civil-military structure of the country. When it came to the sentencing of Taher, the repatriated officers wanted him hanged – out of forty-sex senior army officers summoned by Zia to discuss the issue, all were in favour of this ultimate and final form of punishment” (Ahmed, 1995, p. 29-30).

There were contradictions in the implementation process of the newly formed economic policies. In 1973, Dr. Anisur Rahman of the Bangladesh Planning Commission wrote, “On the morrow of the liberation, the Government [...] had announced its intention not to accept aid from any country which had been hostile to its liberation struggle, no matter what this policy would cost the nation. This was a very exciting decision. [...] The radicals in the government did attempt a policy coup. The radical aid policy was followed by one thousand taka ceiling on salaries which for a time stunned the high salaried class. But the right-wing regrouped fast and the ‘counter-revolution’ was swift and decisive. Powerful right-wing pressure soon changed the aid policy and the door was thrown open to any donor who would now pose as a friend irrespective of past conduct; the salary ceiling was raised to two thousand taka plus a car to be run and maintained at the public expense. All other pronouncements about austerity and egalitarianism were reduced to empty slogans. By now, the country has firmly entered into a course of heavy indebtedness, particularly to the very country [USA] which had wanted the destruction of Bangladesh as a nation [...]” (Lifschultz, 1979, p. 40). Bangabandhu’s Finance and Planning Minister Tajuddin Ahmed also acknowledged the faulty economic policies of the government. On October 13, 1974 upon his arrival to Dhaka following a 37-day foreign trip, Tajuddin Ahmed stated, “The economic condition of Bangladesh has plunged into an abyss because of flawed economic policies” (Miah, 1993, p. 192). It goes without saying that the right-wing forces Dr. Anisur Rahman spoke of were led by Khondokar Mushtaq and his clan. The resurgence of the right-wing under the Bangabandhu government was easy because among other things the civil administration of the newly independent Bangladesh was kept practically unchanged from the days of Pakistan. It is worth noting that Fidel Castro had advised Bangabandhu against appointing bureaucrats from the Pakistani administration into his own. He said, “Appoint the leadings figures from the community of lawyers, journalists, employees of business enterprises, scientists, doctors, engineers, economists, academics etc. into the key positions of your government’s civil administration. They will acquire the right knowledge and experience after making mistake after mistake – but they will never conspire. Entrust your freedom fighters with more responsibilities and trust them completely. Otherwise, you will fall.” (op. cit., p. 158-159). The right-wing reacted sharply when Tajuddin Ahmed was being self-critical of the economic policies of the day. Roughly a week following his statement, Khondokar Mushtaq told the late Wajed Miah, “Being a member of the cabinet, Tajuddin Ahmed has no right to publicly comment against or criticize the policies of the government. Thus he has to resign from Bangabandhu’s cabinet. Mr. Tajuddin Ahmed will be compelled to resign, if he does not do so on his own initiative” (op. cit., p. 193). October 26, 1974 marked yet another sad day in the history of Bangladesh – Tajuddin Ahmed resigned from the cabinet as per the wishes of his leader Bangabandhu Sheikh Mujibur Rahman. What is even more ironic is that Tajuddin was also deprived of a place in the cabinet that was reconstituted on January 26, 1975 or in the Executive or Central Committee of BAKSAL (Miah, 1993). It is almost needless to state at this point that the right-winger Khondokar Mushtaq Ahmed was incorporated in all those bodies. Even a layman would be able to note such a contradiction. It may be argued that Bangabandhu had in an effort to improving ties with the US government removed Tajuddin from his cabinet. This move signified not only an attempt to appease America but also signaled a slight shift away from the Indo-Soviet Axis that Tajuddin represented. While there could have been reasons in 1974 for Bangabandhu to pose as a non-aligned nationalist through these decisions, his subsequent decision to form BAKSAL seemed to be in complete inconsistency with his earlier actions. While the left-leaning Tajuddin should have been Sheikh Mujib’s natural choice in implementing the ideals of BAKSAL, he was completely left out of it.

The ‘killer’ majors –

It is pertinent at this point to inquire about the status of personalities of the likes of Farooq, Rashid and Zia during this period of time. An appraisal of declassified telegrams accessed from the US National Archives reveals crucial information in pin-pointing when the disgruntled Majors began to conspire against the Bangabandhu government. A telegram dated July 11, 1973 (Confidential Dacca 3156) documents an unscheduled visit by Major Rashid and Major Farooq to the Economic and Commercial Section of the US Embassy. The purpose of their visit was to request information on availabilities and prices of artillery pieces. Upon his arrival the Majors informed the US Embassy that an Armament’s Procurement Committee had been constituted under the Chairmanship of Brigadier Ziaur Rahman, the then Deputy Chief of Staff. The US official writing the telegram interestingly recalls that Major Farooq had visited the US Embassy in 1972 with similar requests. This brings us to ask the following questions: Is it rational to pass off the abovementioned visits as mere coincidences? Can it really be that Rashid and Farooq were members of the Armament’s Procurement Committee under Zia’s Chairmanship by mere chance and that their multiple visits to the US Embassy in 1972 and 1973 inquiring about the availability and prices of artillery pieces had absolutely nothing to do with the conspiracy to topple Bangabandhu? The answers to both these questions are in the negative. This is because it is now known that men of the likes of Zia, Farooq and Rashid went back a long way and the conspiratorial position of Zia was not unknown to the Bangabandhu government. On one such occasion, the freedom fighter Colonel Shawkat Ali (a co accused in the Agartala Trial) overheard Bangabandhu saying, “Zia is a freedom fighter, he is still immature. Since the situation of the country is not well, he gets dissatisfied with me at times and tries to conspire” (Ali, 2012, p. 69).

Similarly, there are two confirmed instances where Farooq expressed his desire to topple the Bangabandhu government. The first instance is disclosed in a declassified telegram (Secret Dacca 2158) where Farooq on May 13, 1974 called in unannounced at the home of US Embassy official William F. Gresham. Farooq informed Grasham that the Army was very dissatisfied with the Bangladesh government and that he had come “at the instance of the highest ranking Bangladesh Army Officer” to ascertain what the attitude of the US government would be toward any takeover of the Bangladesh government. Farooq also inquired as to whether the US government would be able to see to it that there would be no foreign interference following the takeover. In response Gresham told Farooq that the US government would not in any way intervene in the affairs of Bangladesh and that it recognized the present government. It is of extreme importance to determine which Army Officer Farooq was referring to. During that time, the Chief of Staff, the Deputy Chief of Staff and Chief of General Staff of the Bangladesh Army were KM Shafiullah, Ziaur Rahman and Khaled Mosharraf respectively. Of the abovementioned names, we can now confirm through documented sources that Zia and Khaled were fully aware of Farooq’s desire to topple Bangabandhu prior to the dark night of August 15. In Bangladesh – A Legacy of Blood, Mascarenhas documents Farooq’s meeting with Ziaur Rahman on March 20, 1975 where he sought Zia’s support and leadership in overthrowing the Bangabandhu government. Zia’s tacit reply was, “I am sorry I would not like to get involved in anything like this. If you want to do something you junior officers should do it yourself. Leave me out of it” (Mascarenhas, 1986, p. 54). Please note, that this was the same Zia who would tell Bangabandhu in a private meeting, “Sir, no bullet can hit you without hitting my chest first” (Ali, 2012, p. 69). What is revealed here is the double-faced nature of Ziaur Rahman. The non-committal Zia was also approached by representatives of Khondokar Mushtaq and asked for his support. Lifschultz aptly observes, “With full knowledge that a coup was in the offing, Zia remained silent and waited for his own moment” (1979, p. 103). Around about the same time, i.e. mid March 1975 Farooq was on the verge of leading a coup on his own. At 12 am he approached his former Lancer colleague Major Nasir for support only to be declined right away. Farooq’s plan was that he would not load the six tanks on to the train headed for Chittagong from Komolapur. Nasir made a quick telephone call to Brigadier Khaled Musharraf (leader of the November 3 coup of 1975) to inform him of the potently violent development. Subsequently Khaled spoke with Farooq for five minutes over the phone to subdue him. Nasir recalls his conversation with Khaled after he was done talking to Farooq. Khaled told him: “He [Farooq] is crazy. He is a mental patient. Now listen to me carefully. Go to the rail station. Be with him. Make sure tanks are loaded. If you see anything otherwise, let me know. I will send military police to sort him out” (Nasir, 1997, p. 59). Despite possession of direct evidence by Zia and Khaled that Farooq was up to something sinister, Farooq remained unscathed as a Major of the Bangladesh Army. It is now accepted knowledge that Zia consciously avoided informing Bangabandhu of Farooq’s intentions. Sashanka Banerjee (2012) confirms that Zia and Farooq went back a long way. What is tragic is that Khaled did not inform Bangabandhu either because of the general feeling of resentment Army Officers felt towards the Bangabandhu regime. This is precisely why that particular attempt of Farooq’s to topple Bangabandhu was kept under tight wraps under Khaled’s instructions (this was revealed by Major Nasir Uddin during a private discussion). Had the information been conveyed, Major Farooq would have faced nothing short of court martial and Bangabandhu would have probably survived the night of August 15, 1975.

It is in the above premise that Bangabandhu and most of his family members were brutally murdered. Bangladesh was thrown into the hands of the very forces that conspired in 1971 to frustrate our struggle for independence. Furthermore, with the demise of Bangabandhu the possible reunification of the BAKSAL and the JSD also lost its way. This may sound surprising to many historians but after the formation of BAKSAL in 1975 Sheikh Fazlul Huq Moni had secretly met with Sirajul Alam Khan at the residence of Ms. Jahanara, the Assistant Editor of Banglar Bani. Fakir Abdur Razzak, a close aide to Sheikh Moni recalls: “The main objective of these meetings was to bring JSD into the broad national unity that Bangabandhu had called upon. Later on I heard that Moni bhai had succeeded to convince Sirajul Alam Khan in principle, but Khan and his political colleagues had refrained at that point in time from being named  members of any BAKSAL committee” (Razzak, 2010, p. 43).

Although Major-General Shafiullah was forced to leave Bangladesh on a diplomatic appointment after the assassination of Bangabandhu, his deputies Zia and Khaled were retained in the Bangladesh Army. Zia was promoted to Chief of Staff while Khaled retained his important position as Chief of General Staff. Interestingly both these men were aware of Farooq’s conspiratorial attitude towards Bangabandhu and none of them came to assist Sheikh Mujib at his greatest hour of need. The late Lt. Col. Hamid and Col. Shafayet Jamil have both confirmed in their respective books Zia’s reaction upon hearing about the death of Bangabandhu: “So what, President is dead? Vice-President is there. Get your troops ready. Uphold the Constitution” (Hamid, 1993, p. 36; Jamil, 2009, p. 103). Zia’s order to uphold the constitution was nothing more than an empty slogan. Hamid and Shafayet Jamil also document Khaled’s actions immediately following the Mushtaq-Farooq-Rashid coup. Shafayet Jamil wrote: “Afterwards Khaled Musharraf acting as per the directions from Bangabhaban spent the whole day giving orders to various civil-military bodies as well as units and sub-units. At that moment the whole objective of such an exercise was to consolidate the success of the coup and strengthen the position of the illegal Mushtaq government. These important steps in favor of the insurrectionists were implemented very successfully that day” (Jamil, 2009, p. 106). Hamid offers an important description of his meeting with Khaled Musharraf at the 46^th Brigade on the morning of August 15, 1975. While Shafayet placed all the blame on Khaled for consolidating the power and position of the killer Majors and Mushtaq, Colonel Hamid offers a slightly different picture. He wrote: “Everyone was celebrating. Colonel Shafayet Jamil was also there. There was a vibe of victory in his facial expressions. It was as if his brigade had achieved the impossible. He gave me a powerful handshake and said, ‘See Sir, the freedom fighters have done it before, and they have done it again’. I left Shafayet and entered Khaled’s room. His was very busy. He signaled that I sit down on the chair. Khaled was on the phone with the Rakkhi Bahini chief of Savar. He said, ‘Come on and surrender. Come here and see every one is here. It is all over’. Khaled was speaking to Colonel Sabeh Uddin of the Rakkhi Bahini. Khaled smiled and shook my hand. He said, ‘Hamid bhai, what’s the situation at the station’? I replied, ‘It seems the latest is happening here’. Khaled replied, ‘The situation is still uncertain. Anything can happen. Please prepare a station security plan at your earliest and discuss with me’. Another phone call came in. This time Khaled was on the line with the Air Force. He ordered that two fighter jets be flown over the Rakkhi Bahini at Savar as part of a ‘show of force’. At the same time he contacted the Flying Club and ordered Major Amsa Amin (now General) and Captain Munir to keep an eye on the Rakkhi Bahini at Savar with a plane from the club. Evidently Khaled was busy and I got up. He was controlling the whole situation from Shafayet’s office. I came out of the office to meet Major Farooq in a black battle dress. There was a sten gun strapped to his shoulder. A smile of satisfaction was slapped across his face” (Hamid, 1993, p. 47). The time has come to digest the harsh fact that Khaled was ‘soft’ towards the killer Majors and on the fateful morning of August 15, he had played a role that crucially went in their favor. This ‘softness’ of Khaled’s was evident during his own coup in the first week of November 1975 when he allowed the killers of Bangabandhu safe passage out of Bangladesh on a special jet destined for Bangkok (Lenin and Dasgpta, 2001). It was deeply unfortunate that prior to Khaled’s display of mercy, the killer Majors cast a death blow to the pro-Liberation camp of Bangladesh brutally murdering our four national leaders inside the Dhaka Central Jail in the early hours of November 3, 1975. As result the true followers of Bangabandhu who had not compromised with Mushtaq’s illegal regime and at that time could have led the resistance of pro-Liberation forces, were brutally liquidated. The Rakkhi Bahini Chief Brigadier Nuruzzaman’s attempt to ambush the killer Majors at Karwanbazaar for whatever reason did not see the light of day (Uddin, 1997). In the subsequent days, Taher would fail to capitalize on the initial success of the November 7 uprising and Zia would emerge as the leader of the right-wing forces of Bangladesh. The qualitative evaluation of the coups of November 3 and 7 are left for another day. Both events deserve attention in great detail which can not be given in this article.

Conclusion – in search of unity between democratic and progressive infused with muktijuddher chetona

On December 19, 1971, the veteran Indian politician Jayprakash Narayan wrote a historic letter to Tajuddin Ahmed, the then Prime Minister of Bangladesh. In it Narayan accorded some advice to Bangladesh which was based on the Indian experience. He wrote: “… The Indian system is outmoded, rule-bound and procedure-clogged and is more or less the same as the British had left behind when they quit India in 1947. It is my considered view that despite the competence and devotion of individual civil servants, the Indian administrative system sits like a curse on the chest of this country. [...] I, therefore, hope your Government will be able to devise a system which will be nearer to the people, in which responsibility will be clearly defined and which will move with great speed and deliver the goods. It should not be hierarchy-and-seniority bound, and once policy has been decided at the top, there should be decentralisation of execution. [...] Care should be taken again, to avoid the mistake made by India to build a new country through Government efforts alone and through funds and plans flowing from Dacca downwards. The attempt should be made to mobilise the energies of the entire people for national reconstruction as Gandhiji had planned to do. Men, women, and children; students and teachers; soldiers and volunteers of the Mukti Bahini must all be mobilised. The people’s initiative must be given every encouragement. Self-help and cooperative endeavour must be the nation’s clarion call” (Uddin, 1997, p. 166-167). This article has tried to show how Narayan’s advices were ignored in the post independence era.

A couple of years down the road, Taher in Muktijoddhara abar joyee hobey (Freedom Fighters shall be victorious again) wrote: “It is Bengal’s ill fate that instead of power being entrusted on those who logically deserved it following independence, it has been acquired by those who were in charge from the era prior to the revolution. The same old personnel continue to run the administration. They are seen in the arenas of business, education, culture as well. The military officer who stood beside the Pakistani soldiers in eliminating freedom fighters is today holding a position of high rank. The police officer who caught patriotic freedom fighters and handed them over to the Pakistanis is preoccupied today declaring bounties against freedom fighters names. Those bureaucrats who worked night and day to form Razakars forces is today in a position to display sympathy towards freedom fighters by giving them jobs. The teacher who failed to respond to the nations call in her hour of need is today engaged in the farce of educating our youth” (Mukta, 1996, p. 41-42).

Bangladesh strayed away from the path of muktijuddher chetona from the very outset of independence. The Liberation War of 1971 was a war where the unified democratic and progressive forces infused with muktijuddher chetona fought a people’s war to give birth to a new country called Bangladesh, a country that would be very different from Pakistan. This article has tried to show that in the years that immediately followed independence, the unity that successfully led to the emergence of Bangladesh did not stay in tact. The broad democratic front comprising the five main political parties of Bangladesh [Awami League, NAP (Bhashani), NAP (Muzaffar), Communist Party of Bangladesh and the Bangladesh National Congress] formed on September 9, 1971 would be dissolved after independence when the question of forming the government under Bangabandhu arose. Had a revolutionary national government been formed under Bangabandhu, the emergence of the JSD would probably have been prevented. Thus, the ideological unity of the democratic and progressive forces within and beyond the Awami League was compromised due to a misplacement of faith. Men of the likes of Tajuddin, Taher and many others who should have been Bangabandhu’s natural allies were kept far away from him during the most crucial of times. Rather those persons, many of whose clothes had probably never been stained during the war emerged as Bangabandhu’s advisers.

In the days ahead, for the sake of guidance we ought to remember one thing. Our greatest achievement, i.e. the establishment of an independent State, came about through a broad populist unity between the democratic and progressive forces. We are on the brink of another achievement, the trial of the likes of Ghulam Azam – and this too is happening under the alliance of the 14-party which was forged in 2008. We feel that this is not a mere coincidence. The more this unity is strengthened, the greater the chances that Bangladesh will move ahead in a positive direction. The Awami League must learn from it’s mistakes from the era of 1972-’75 just as the ‘left’ should comprehend how its immediate shift to an oppositional position after Liberation was a premature step. We need to know our true foes – the defeated anti-liberation forces of 1971, which are still lurking around waiting for an opportunity to strike back. Also, we need to identify our true friends. We can not afford to distance ourselves from each other like we did in 1972 and in the years that followed. The unity of democratic and progressive forces infused with muktijuddher chetona was successful in 1971 and there is no doubt it shall be successful again if it takes lessons from the errors of the past.

—————————————–

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

Bibliography

1. AHMED, M. (1995) Democracy and the Challenge of Development – A Study of Politics and Military Interventions in Bangladesh. Dhaka: The University press Limited.
2. ALI, S. (2012) Banyalir Muktijuddha O Amar Kichu Kotha. Dhaka: Merit Fair Prokashon.
3. BANERJEE, S. S. (2011) India, Mujibur Rahman, Bangladesh Liberation & Pakistan (a political treatise). Narayangonj: Sanchita.
4. HAMID, M. A. (1993) Teenti Shena Obbhutthan O Kichu Na Bola Kotha. Dhaka: Mohona Prokashoni.
5. HANNAN, M. (2000) Bangladesher Chatro Andoloner Itihash. Dhaka: Agamee Prokashoni.
6. HOSSAIN, A. (2012) An Outline of the History of Bangladesh: Down to 1971 A. D. Dhaka: J. K. Press & Publication.
7. HOSSAIN, M. A. (2012) Mahan Muktijuddho O 7 November Obbduthaney Colonel Taher. Dhaka: Agamee Prakashani.
8. JAMIL, S. (2009) Ekatturer Muktijuddho: Roktakto Moddho August O Shorojontromoy November. Dhaka: Shahitto Prpkash.
9. LENIN, N. A. & GUPTA, A. D. (2001) Bangabandhu Hattyakanda: Protibader Pratham Bachhor. Dhaka: Golam Mustafa, Hakkani Publishers.
10. LIFSCHULTZ, L. (1979) Bangladesh: The Unfinished Revolution. London: Zed Press.
11. MASCARENHAS, A. (1989) Bangladesh: a legacy of blood. London: Hodder and Stoughton.
12. MIA, M. M. W. (1993) Bangabandhu Sheikh Mujibke Ghire Kichu Ghotona O Bangladesh. Dhaka: The University Press Limited.
13. TAHER, MA., Muktijoddhara abar joyee hobey. In: MUKTA, Z., eds. Itihash Amakey Mukti Debey. Dhaka: Pathok Shomabesh, pp. 38 – 42.
14. MUKUL, M. R. A. (2010) Ami Bijoy Dekhechi. Dhaka: Monirul Haque, Ananya.
15. RAZZAUQE, F. A. (2010) Sheikh Fazlul Haque Moni: Annaya Rajnitir Protikriti. Dhaka: Agamee Prakashani.
16. SHAHADUZZAMAN, (2009) Kracher Kornel. Dhaka: Mowla Brothers.
17. TALUKDAR, M. (1997) Bangabhabaney Panch Bachhar (Five Years in the Bangabhaban). Dhaka: The University Press Limited.
18. UDDIN, N. (1997) Gonotontrer Biponnodharay Bangladesher Shoshosro Bahini. Dhaka: Agamee Prakashani.

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 (7^th 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.

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]

Bilateral 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.

It 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.

[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.