International maritime court ruling on Myanmar may help India’s case vs Bangladesh

ADITYA KAUL

The recent verdict by the International Tribunal for Law (ITLOS) of the Sea bringing to an end the maritime dispute between Bangladesh and Myanmar, may help India’s case in its maritime border dispute with Bangladesh.

Germany based ITLOS in its judgment has struck down a number of arguments on both sides, but is largely seen to have gone in Bangladesh’s favour.

The Sheikh Hasina-led government has touted it as a major ‘victory’ for Bangladesh, and used it to score political points. After the verdict, she said, if elected back to power in the 2014 elections, she would get a similar verdict in the maritime dispute against India.Riding high on the verdict, reports from Bangladesh have quoted government officials as snubbing any suggestions of seeking resolution of the matter ‘bilaterally’ with India.

Bangladesh had dragged both Myanmar and India to different international tribunals in 2009, seeking delimitation of its maritime boundaries through and beyond the continental shelf extending 200 nautical miles into the gas and mineral rich Bay of Bengal.

India will present its counter-memorial to Bangladesh’s appeal before the UN permanent court of arbitration, The Hague, in July. The case is likely to be decided in the later part of 2014.

Government sources said the developments could actually ‘help’ India’s case. In its verdict, ITLOS has used the ‘equidistance’ approach up to start the delimitation boundary to the point beyond which the territorial seas of Bangladesh and Myanmar no longer overlap. Beyond that the tribunal used the ‘proportionality’ approach. In maritime law, this system is referred to as the ‘equidistance/special circumstances’ rule.

The equidistance line is an imaginary line “every point of which is equidistant from the nearest points of the coastal baselines from which the breadth of the territorial sea of each of the two states is measured.”According to the proportionality concept, maritime delimitation should be effected by taking into account “the ratio between the water and continental shelf areas attributed to each party, and the length of their respective coastlines.”

“The fact that the court started drawing the delimitation line using the equidistance approach would benefit India’s case as we have been arguing in favour of an equidistance approach. However, if it is considered necessary we would not object to the equidistance/special circumstances rule as well. Following the special rule will also give us a greater area as we have a much longer coastline as compared to Bangladesh,” said an official source.

Bangladesh had rejected the equidistance approach and had claimed they have a concave coast and that due consideration should be given to their coastal geography. The court has taken a middle path in arriving at the final delimitation line.

The tribunal has also struck down Bangladesh’s argument that since its rivers deposit greater sediments in the Bay of Bengal so it should be given a greater share of the maritime area. This is the same argument that Bangladesh has used in its case against India at the permanent court of arbitration as well.

In its judgment, the ITLOS said, “The Tribunal does not consider that the Bengal depositional system is relevant to the delimitation of the exclusive economic zone and the continental shelf within 200 nm. The location and direction of the single maritime boundary applicable both to the seabed and subsoil and to the superjacent waters within the 200 nm limit are to be determined on the basis of geography of the coasts of the parties in relation to each other and not on the geology or geomorphology of the seabed of the delimitation area.”

First published by Daily News & Analysis (DNA), New Delhi, India, March 21, 2012