Photo: Reuters

There is an old saying, “What happens in Vegas, stays in Vegas”. Unfortunately, the same is not true for the United States of America. In the globalized world we live in today, what happens in the U.S. affects the entire world at large. This is truer for the forthcoming U.S. Presidential election, scheduled for 6 November 2012, than is generally acknowledged. The undeniable fact is that what happens in the ensuing U.S. election will have global consequences, both economically and politically.

Economically, we only need to look back four years ago to 2008 when the burst of the U.S. property bubble and the related collapse of the U.S. banking and financial sectors led to the global recession that continues to wreak havoc in the rest of the world today. The failure of the U.S. to rein in the excesses of Wall Street in New York directly resulted in numerous global banks collapsing, millions losing their jobs around the world, and economies in far flung places such as Europe tethering on the brink of collapse. These global issues also impact individual national economies of smaller developing countries such as Bangladesh. It has been argued that the rise in the international commodity prices in 2008 was one of the key factors that led to the plummeting support and eventual collapse of the military backed government and the revival of democracy in Bangladesh.

Politically, the U.S. electorate is given a stark choice between two candidates with very different political ideologies. Since coming into office President Barack Obama has tried to shy away from the unilateralism of his predecessor, President George W. Bush. He has tried to work in a more inclusive manner by building alliances at home and abroad. In the realm of foreign policy, he has ended the war in Iraq and has announced a deadline for the withdrawal of troops from Afghanistan. His crowning achievement has been the elimination of the al-Qaeda chief Osama Bin Laden and the decapitation of the al-Qaeda network through the drone attacks on terrorist bases in Pakistan and Afghanistan.

Governor Mitt Romney, on the other hand, thinks that President Obama has been too soft and not adequately used America’s “big stick”, presumably referring to the use of military force. The alarming news for developing nations is that Governor Romney, if elected President, would attach conditions to foreign aid provided by the U.S. and link it to U.S. interests such as business development and trade policies. He has said he would support Israel more strongly and oppose Iran more forcefully. As revealed from a recent hidden video recording of his private comments in a fundraising event Governor Romney is not very sympathetic to the plight of the Palestinian people and would probably not seriously pursue peace in the Middle East.

Despite the far-reaching impact the U.S. has on the rest of the world, the focus of the American electorate is not on these important global issues. Only 4 percent of Americans polled believe that “foreign affairs,” which includes wars, terrorism, immigration, and other subjects, is the most important issue facing the U.S. The primary issue that will shape the election is the U.S. economy – concerns about jobs, taxation, and health insurance payment obligations.

The 2012 election is in essence a clash of beliefs. The Republicans believe that the root of all problems is big government. They want individuals and businesses to be left alone instead of being taxed. Governor Romney has been caught, in the now famous video footage from the fundraising event, describing 47 per cent of the U.S. citizens as “dependent upon government, who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing” as an entitlement. Governor Romney has revealed himself as not being a great supporter of redistribution of wealth from the rich to the poor. The Democrats, in contrast, believe that the government can be a force for good which protects the people in need and helps them to get on their feet. The Democrats want to raise taxes for America’s richest so that they pay a fairer share of the tax burden.

The election is also about the different personalities, backgrounds, and worldviews of the two contenders. Governor Romney is a former CEO of a highly profitable company, Bain Capital, and has led a life of relative privilege and ease. His father, George Romney, was a rich and successful CEO of another huge company, American Motors. President Obama, on the other hand, comes from a more modest background. After graduating from Columbia University in New York, Obama worked for three years as a community organizer in poor neighborhoods in Chicago. He then attended Harvard Law School, becoming the first African-American president of the Harvard Law Review. He subsequently worked as a civil rights attorney in Chicago and taught constitutional law before becoming a Senator in 2004 and running for the office of the President in 2008.

When President Obama took office he faced an economy is free fall. In a move which now viewed as politically naïve President Obama initially sought to work with the Republicans in the Capitol Hill in a bipartisan manner. However, despite the united opposition from the Republican Party President Obama managed to pass an economic stimulus package. He has overhauled the U.S. health care system and his health care reforms were recently upheld by the U.S. Supreme Court as being constitutional. He has rescued the U.S. auto industry from collapse and imposed greater regulations on the U.S. banking system to prevent recurrence of the events that led to the financial crisis of 2008.

President Obama has thus far run an effective campaign. While Governor Romney has relied primarily on billionaire donors and lobbyists, the Obama campaign has requested its individual supporters to donate small amounts, staring from $5 each. A story about a struggling mother of two who has decided to forego a $15 pizza dinner for her family to support President Obama has gone viral and is encouraging further support in the form of small donations for President Obama. The Obama campaign has in recent months, surprised many by managing to raise more funds than the Romney campaign, which was initially thought to have the financial advantage.

Despite the current poor state of the U.S. economy, slow growth, and high unemployment rates President Obama still continues to lead in the polls. If re-elected, President Obama would become the first president since President Franklin Delano Roosevelt to be elected with an unemployment rate above 8 percent. Obama is leading the race because people have not forgotten that it is the Republicans who got them in this mess in the first place. It was the Republican mantra of deregulation that encouraged the greed of Wall Street and eventually led to the collapse of the U.S. economy and the most severe economic downturn since the Great Depression of 1930s.

While many people are disheartened and not as enthusiastic about Obama as they were in 2008, in the end they may well decide to go and vote for him. Governor Romney is right in his assessment that the poor and unemployed people at the bottom of the ladder, i.e. the “47%”, are probably not going to be voting for him. The challenge for President Obama is to get all these people motivated enough to go to the polling stations on election date and cast their votes for Obama.

As the recently concluded first Presidential debate has shown there exists a deep ideological divide between the two candidates on issues such as taxation, healthcare, and the role of government. Governor Romney has tried to cash in on the poor state of the economy and the high unemployment rates and according to most pundits won the first round of the debates. Two more rounds to go. Having trailed in all the recent national, polls Romney needed the victory more to try and change the trajectory of the election.

However, unless some unexpected catastrophe occurs during the final stretch of the election, the American people still appear to be ready to give President Obama a second term in office, albeit by a narrow margin, to prove that the call “yes, we can” of 2008 was not just a hollow promise.

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Moin Ghani, a lawyer from Bangladesh, is currently working as Foreign Counsel at Foley Hoag LLP, a law firm based in Washington D.C.

An exclusive economic zone is a sea zone over which a coastal state has sovereign rights for the use and exploration of marine resources, including oil and gas. This zone generally stretches from the seaward edge of the state’s 12 nautical mile territorial sea out to 200 nautical miles from its coast. Beyond the exclusive economic zone, a state may lay claim to an “outer continental shelf” extending more than 350 nautical miles from its coastline if it can demonstrate the existence of certain geological conditions. Outer continental shelf areas can contain natural resources like oil and gas. With the advent of technology it has now become possible for states to explore the outer continental shelf areas beyond 200 nautical miles, which is why rights over this area are important.

History of the dispute

Following negotiations between Bangladesh and Myanmar, in 1974, the two countries reached an understanding regarding the delimitation of their respective territorial seas to a distance of 12 nautical miles from their coastlines. As per the terms of the 1974 Agreed Minutes, signed by delegations of the two countries, Bangladesh permitted Myanmar’s vessels free and unimpeded navigation through Bangladesh’s waters around St. Martin’s Island to and from the Naaf River.

However, despite extensive negotiations for over three decades, since 1974, the two neighbours had been unable to agree on the delimitation of the boundary in the exclusive economic zone and the continental shelf.

Upon resuming office in early 2008 the Awami League Government engaged in further negotiations with the Government of Myanmar. However, from 2008 onwards Myanmar started denying the existence of any formal agreement between the parties regarding maritime delimitation.

Having failed to resolve the issues bilaterally the Bangladesh Government took the bold decision on 13 December 2009 to initiate arbitration pursuant to the United Nations Convention on the Law of the Sea (“UNCLOS”) to secure the full and satisfactory delimitation of Bangladesh’s maritime boundaries with Myanmar in the territorial sea, the exclusive economic zone and the continental shelf in accordance with international law.

Myanmar’s position had always been that the delimitation of the territorial sea on the one hand and the exclusive economic zone and continental shelf on the other hand, had to be settled together. There were also conflicting and overlapping claims to the outer continental shelf beyond 200 nautical miles, with each state claiming that the outer shelf is the natural prolongation of its own landmass, and the other state has no rights to the outer continental shelf.

Myanmar had insisted that the maritime boundary should be delimited on the basis of “equidistance”. Bangladesh had always wanted a solution to the issue based on “equitable principles/relevant circumstances rule”. If the “equidistance principle” was used to draw the maritime boundary this would have resulted in the drawing of a median line equidistant from the shores of Bangladesh and Myanmar. However, given the unique concavity of the Bangladesh coastline an equidistant line would have deprived Bangladesh a substantial portion of the seas. Thus Bangladesh wanted the maritime boundary to be drawn using the “equitable principles” rule under which a provisionally drawn equidistance line is adjusted (or abandoned) in consideration of the “special” or “relevant” circumstances. The unique concavity of the Bangladesh coastline would be one of these “relevant” or “special” circumstances.

Concavity of Bangladesh coastline

The land territory of Bangladesh is located at the northern limit of the Bay of Bengal in a broad and deep concavity between Myanmar in the east and India in the west. Because Bangladesh is tucked between Myanmar and India in the concavity described by the Bay of Bengal’s north coast, Myanmar’s proposed equidistance line would have converged a short distance in front of the Bangladesh coast with the equidistance line India had claimed as its maritime boundary with Bangladesh. Together, these two lines would have created a “cut-off” effect that would have deprived Bangladesh of the overwhelming majority of its maritime entitlement. The combined effect of the equidistance lines claimed by Myanmar and India was that the two lines quickly met and truncated Bangladesh’s maritime entitlement at a distance of just 137 nautical miles from the Bangladesh coast, leaving it with a narrow wedge of maritime space. Notwithstanding Bangladesh’s substantial 421 km coastline, the equidistance lines claimed by its neighbours would have prevented it from reaching even its 200 nautical mile limit, much less its natural prolongation in the outer continental shelf beyond 200 nautical miles.

Delimitation of the territorial sea

Article 15 of UNCLOS which deals with the delimitation of the territorial sea states that where the coasts of two states are opposite or adjacent to each other (as is the case of Bangladesh and Myanmar), neither of the two states is entitled to extend its territorial sea beyond the equidistant median line (i.e. in compliance with the equidistance principle). The equidistance principle 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 that abandons the equidistance principle.

Whether St. Martin’s Island constitutes a special circumstance

Myanmar argued the St. Martin’s Island was a “special circumstance” which should not be given full effect for the territorial sea delimitation since this would lead to distortion of the general configuration of the coastline of the two states. Thus, Myanmar wanted St. Martin’s Island to generate a territorial sea of just 6 nautical miles, rather than the 12 nautical miles to which Bangladesh is entitled under Article 15 of UNCLOS. It also argued that the island could not be described as a “coastal island” because it lay in front of the coast of Myanmar, and not that of Bangladesh, to which it belongs.

Bangladesh argued that St. Martin’s Island should be given full effect because international law demanded it. In prior cases, international tribunals had awarded islands a territorial sea of less than 12 nautical miles only when they were barren and uninhabitable. By contrast, Bangladesh stressed that St. Martin’s Island, in addition to being an important base for naval operations of Bangladesh Navy, had an area of eight square kilometres and a permanent population of about 7,000 people.

The Tribunal agreed with Bangladesh’s claims and gave full effect to St. Martin’s Island in delimiting the territorial sea. It noted that while St. Martin’s Island lay in front of Myanmar’s mainland coast, it was  located almost as close to Bangladesh’s mainland coast as to the coast of Myanmar and it is situated within the 12 nautical mile territorial sea limit from Bangladesh’s mainland coast.

The Tribunal recognized that Bangladesh had the right to a 12 nautical mile territorial sea around St. Martin’s Island in the area where such territorial sea no longer overlaps with Myanmar’s territorial sea. It noted that a conclusion to the contrary 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.

Delimitation within 200 nautical miles

The tribunal first noted that in drawing the maritime delimitation the goal of achieving an equitable result was of the paramount consideration. It thus adopted the “equidistance/relevant circumstances” method preferred by Bangladesh. The tribunal observed that the coast of Bangladesh was manifestly concave and since the equidistance line produces a “cut-off” effect on the maritime entitlement of Bangladesh an adjustment of the provisional equidistance line was necessary to reach an equitable result. It adjusted the provisional equidistance line to reach an equitable solution taking into account the relevant circumstances notably the concavity of the Bangladesh coastline.

Delimitation of the outer continental shelf beyond 200 nautical miles

Regarding the outer continental shelf areas, states can potentially lay claim to areas more than 200 nautical miles from their coastlines if they can prove that the seafloor in that area possesses one of two characteristics (i) a certain thickness of sedimentary rocks, or (ii) the existence of certain morphological/topographic features. If a coastal state can demonstrate the existence of one of these two characteristics, it must make a submission to the Commission on the Limits of the Continental Shelf (CLCS), which is charged with determining the outer limits of the area the state can claim according to a complex technical formula. Thus given the complexity of determining the outer limits of the continental shelves, some extending to beyond 200 nautical miles, UNCLOS established CLCS to make recommendations to coastal states to establish the outer limited of continental shelves beyond 200 nautical miles. UNCLOS also established ITLOS to adjudicate disputes between States concerning issues covered UNCLOS, including the delimitation of maritime boundaries.

Myanmar argued that since neither it nor Bangladesh had established the outer limit of the continental shelf based on recommendations from the CLCS, delimitation of that area by the Tribunal would be nothing more than a hypothetical exercise, as it did now know what the outer limits would be. It also argued that it would not be appropriate for ITLOS to exercise jurisdiction over the outer continental shelf since this would prejudice the rights of a third party, implying India, which also has claims in the outer continental shelf areas.

Bangladesh stressed the point that UNCLOS does not prevent the tribunal from exercising jurisdiction over areas beyond 200 nautical miles. Bangladesh also argued that potential claims of third party states cannot deprive ITLOS of its jurisdiction since third parties are not bound by the judgment of ITLOS and its rights are thus unaffected by the judgment. Bangladesh pointed out that there was no conflict between the roles of ITLOS and CLCS. It argued that their roles are complementary because the CLCS’s rules prevent it from issuing recommendations on the outer limits of the continental shelf when there is a dispute concerning delimitation. Thus the recommendation of the CLCS was not a prerequisite to the jurisdiction of ITLOS, as was being argued by Myanmar.

The tribunal agreed with Bangladesh and found it had jurisdiction to delimit the continental shelf in its entirety. It noted that its exercise of its jurisdiction to delimit the outer shelf did not encroach on the functions of the CLCS. The tribunal determined the direction of the maritime boundary without indication a precise terminus, specifying instead that the maritime boundary line continued until the rights of a third party are affected. After reaching the end of the exclusive economic zone the line continues at the same bearing into the outer continental shelf beyond 200 nautical miles. However, a precise end point was not determined in consideration of India’s pending claim. The exercise of jurisdiction by ITLOS to delimit the continental shelf beyond 200 nautical miles is the most significant legal aspect of the judgment. This was for the first time that a tribunal exercised jurisdiction to delimit a maritime boundary in the outer continental shelf.

Significant gains for Bangladesh in the Maritime Boundary Dispute with Myanmar

Shortly after the judgment the Foreign Minister of Bangladesh, Dipu Moni, hailed the gains achieved by Bangladesh through the resolution of the long-standing maritime dispute between Bangladesh and Myanmar. She stated that all of our strategic objectives were achieved. The Foreign Minister continued “Bangladesh’s full access to the high seas out to 200 nautical miles and beyond is now recognized and guaranteed, as are our undisputed rights to the fish in our waters and the natural resources beneath our seabed. Bangladesh claimed 107,000 square kilometres while it got 111,000 square kilometres area in the Bay of Bengal.”

Much credit goes to the Government of Bangladesh for handling this case with due diligence and giving it the focused attention it deserved. The Foreign Minister herself led the Bangladesh team from the front opening the submissions for Bangladesh. She was assisted by the equally capable and knowledgeable Rear Admiral (Retd) Md. Khurshed Alam. Bangladesh was ably represented by a “dream team” of international lawyers including Paul Reichler and Lawrence Martin of Foley Hoag LLP; Professor James Crawford of Cambridge University; Professor Philippe Sands of the University College London; Professor Alan Boyle of the University of Edinburgh; and Professor Payam Akhavan of McGill University.

The immediate impact of the judgment of 14 March 2012 is that Bangladesh will be able to carry out exploration for oil and gas in several offshore blocks that show enormous potential. In addition, the judgment is likely to set an important precedent for the pending dispute concerning delimitation of the maritime boundary between Bangladesh and India. Because of this judgment Bangladesh is now more likely to obtain a positive outcome in that case as well.

To sum up, the ITLOS judgment can be described as a total victory for Bangladesh. To make a cricket analogy, as a counsel for Bangladesh did for me, “all in all, I’d say Bangladesh defeated Myanmar by 200 runs, and scored a couple of centuries on the way!”

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Moin Ghani is a Hubert H. Humphrey Fellow at the American University in Washington D.C. and, as part of the Fulbright Program, is undertaking a professional affiliation at Foley Hoag LLP the law firm which represented Bangladesh in the Bangladesh/Myanmar maritime boundary dispute case.