India-Bangladesh: UNCLOS and the Sea Boundary Dispute
14 Jul, 2014 · 4557
Harun ur Rashid says that the judgment could usher in a new era of cooperation between maritime neighbours in the Bay of Bengal
Bangladesh went to the Permanent Court of Arbitration (PCA) at The Hague on 08 October 2009 seeking judgment under the dispute clause of the UN Convention on the Law of the Sea (UNCLOS). The submission of documents and oral hearings from both India and Bangladesh was concluded in December 2013 and the Court officially conveyed the result to both parties on 7 July 2014.
The judgment is final and cannot be appealed against. Among the five arbitrators only the Indian arbitrator delivered a dissenting judgment. India accepted the judgment and reportedly said that the judgment would further enhance goodwill between the two countries by putting an end to a long standing issue. It went in favour of Bangladesh because Bangladesh has been awarded 19,467 sq km of the total 25,602 sq km sea area (76 per cent), leaving 6,135 sq km (24 per cent) to India. The judgment also allows Bangladesh a 200-mile exclusive economic zone, the continental shelf beyond the 200-mile economic zone and access to the open sea, thus preventing it from turning into a ‘sea-locked country’. Bangladesh’s awarded area reportedly includes 10 off-shore blocs in the west which were in dispute with India; 10 per cent of the six blocs went to India. It is noted that the disputed maritime area of 25,602 sq km in the Bay of Bengal with Bangladesh constitutes probably only about 3-5 per cent of the maritime area of India’s vast coastline, stretching east from the Bay of Bengal, the Indian Ocean and to the Arabian Sea in the west. For Bangladesh, the area in the west with India is 100 per cent because there is no other maritime area available for Bangladesh to its west and it is vital for Bangladesh in the Bay of Bengal to have this area under its jurisdiction.
The first session on Indo-Bangladesh sea boundary talks took place in 1974 in Dhaka at the official level. Later, several meetings took place at the level of Foreign Secretaries. When the Foreign Secretaries could not resolve the differences because of the methods of delimiting the boundary between the two sides, it was elevated to the Foreign Ministers’ level in 1975 but remained inconclusive. It was reported that at the Commonwealth Summit in Jamaica in May 1975, Bangladesh President Sheikh Mujibur Rahman proposed arbitration to resolve the issue to Prime Minister Indira Gandhi but India rejected it. Although the sea boundary talks were renewed in 1978, 1982, 2008 (under the caretaker government), and in March 2009 under the Hasina government, it could not be resolved because of the differences over boundary delimitations. When the Hasina government found that the talks had stalled, it had no option but to look out for the involvement of a third party to resolve the dispute. Finally the Hasina government decided to lodge the dispute with the Court of Arbitration under Article 287 (the dispute machinery clause) of UNCLOS. India had ratified the UN Convention in 1995 and Bangladesh in 2001, and are both therefore bound by the provisions of the UNCLOS.
The judgment stands out for several following reasons. First, both Bangladesh and India have settled the maritime boundary through the legal mechanism under the UNCLOS, which demonstrates that the two countries are committed to the peaceful settlement of disputes. It is not a complete victory for Bangladesh because India has won on some issues. It is however a victory for fairness and justice. The judgment is a win for international law which both countries have always respected. Second, the judgment substantially contributes to the development of maritime international law. There was an apprehension among some jurists that judgment by the Court of Arbitration under UNCLOS would lead to the fragmentation of maritime law, but this has been found to be unfounded. Rather, the judgment reflects the great advantages of consistency and transparency by adhering to judicial precedents.
Third, the peaceful and amicable settlement of the maritime dispute between Bangladesh and India could be an example in the international arena at a time when in many parts of the world maritime disputes are emerging as major flash points. For example, in the South China Sea, disputed maritime boundaries between China and its neighbours, Vietnam, Indonesia and the Philippines, and in the East China Sea, between South Korea and Japan and Japan and China, are causing grave tension. Finally, the judgment may assist Bangladesh to concretise the Japanese proposal for a Bay of Bengal Industrial Growth Belt (BIG-B) initiative with India and Myanmar for Japanese trade and investment. It can usher in a new era of cooperation between maritime neighbours in the Bay of Bengal.