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Bay of Bengal Maritime Boundary

  • D. H. Anderson (a1)

Extract

On July 7, 2014, an ad hoc arbitral tribunal (Tribunal) rendered its award on the dispute between Bangladesh and India concerning the delimitation of their entire maritime boundary in the northern part of the Bay of Bengal. The award established the course of the boundary line in the territorial sea, the exclusive economic zone (EEZ), and the continental shelf within and beyond 200 nautical miles, ending a dispute that had persisted between the neighbors for more than three decades.

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1 Bay of Bengal Maritime Boundary (Bangl. v. India) (UNCLOS Annex VII Arb. Trib. July 7, 2014) [hereinafter Award]. The basic documents, pleadings, transcripts, press releases, and other materials on the case are available on the website of the Permanent Court of Arbitration, http://www.pca-cpa.org, which acted as registry. See also Bangladesh-India, Rep. No. 6-23 (Add.1), International Maritime Boundaries Online (Coalter Lathrop ed., 2015), at http://referenceworks.brillonline.com (by subscription).

2 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 3, available at http://www.un.org/depts/los/.

3 Id., Annex VII, Art. 6(b).

4 See especially Maritime Delimitation in the Black Sea (Rom. v. Ukr.), 2009 ICJ Rep. 61 (Feb. 3).

5 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangl./Myan.), Case No. 16, Mar. 14, 2012, 12 ITLOS Rep. 4 (2012) (reported by D. H.|Anderson at 106 AJIL 817 (2012)). Judges Wolfrum, Mensah, and Cot were members of the ITLOS bench for this case.

6 By agreement between Bangladesh and Myanmar, cast in the form of two declarations made under Article 287 of the Convention, the dispute relating to the delimitation of their maritime boundary was transferred to the international Tribunal for the Law of the Sea on December 16, 2009, which gave judgment on March 14, 2012, while the case between Bangladesh and India remained pending.

7 Sir Cyril Radcliffe was chairman of the Bengal Boundary Commission, charged by the preindependence government of India withdrawing the boundaries between India and Pakistan.

8 The historical background is summarized in paragraphs 50–53 and accompanying notes of the Award.

9 WGS-84 denotes the 1984 revision of the World Geodetic System, a standard used in cartography.

10 This fact is not determinative since Article 5 of the Convention defines the normal baseline by reference to “large scale charts officially recognized by the coastal State.” Similar factors apply to low-tide elevations, many of which appear as such on charts but dry out and rarely become visible in the tidal cycle. The 2012 Report of the Committee on Baselines of the International Law Association included the following “General Conclusion”:

The Committee concludes that the legal normal baseline is the actual low-water line along the coast at the vertical datum, also known as the chart datum, indicated on charts officially recognized by the coastal State. The phrase “as marked on large-scale charts officially recognized by the coastal State” provides for coastal State discretion to choose the vertical datum at which that State measures and depicts its low-water line. The charted low-water line illustrates the legal normal baseline, and in most instances and for most purposes the charted low-water line provides a sufficiently accurate representation of the normal baseline. As a matter of evidence for proving the location of the normal baseline the charted line appears to enjoy a strong presumption of accuracy. However, where significant physical changes have occurred sot hat the chart does not provide an accurate representation of the actual low-water line at the chosen vertical datum, extrinsic evidence has been considered by international courts and tribunals in order to determine the location of the legal normal baseline.

Committee on Baselines, Baselines Under the International Law of the Sea, Part II, 75 ILA, Conference Report 385, 417 (2012).

11 Quoting Maritime Delimitation in the Black Sea, supra note 4, at 101, 105, paras. 117, 127.

12 E.g., France–United Kingdom (Jersey), Rep. No. 9-24, 4 International Maritime Boundaries 2979 (Jonathan I. Charney & Robert W. Smith eds., 2002) (by the present writer).

13 Guyana v. Suriname (Sept. 17, 2007), 30 R.I.A.A. 1, 90, para. 323, 47 ILM 164 (2008) (reported by Stephen Fietta at 102 AJIL 119 (2008)).

14 Maritime Delimitation in the Black Sea, supra note 4.

15 St. Martin’s Island, belonging to Bangladesh, was not used.

16 The inclusion of the andamans, lying to the southeast of the area shown on the map on page 148, was perhaps surprising.

17 These imaginary projections were illustrated on map 6 of the Award, showing thick arrows similar to those depicting troop movements in old newspapers. Previously, such arrows had been featured in parties’ pleadings.

18 At the 75th General Conference in Sofiain 2012, the International Law Association’s Committee on Baselines reviewed the law on sea level rise and coastal erosion. Later that year, the ILA established a new Committee onInternational Law and Sea Level Rise.

19 Point 3 is where Indian base point I-2 on Bhangaduni Island comes into effect, causing the line to deflect more toward the east.

20 This finding was followed by the statement that “the south facing coast of Bangladesh is given insufficient weight by the provisional equidistance line from Point Prov-3 to the south” (Award, para. 474), and the eventual decision to depart from the provisional equidistance line at point 3. Nevertheless, the geographical factors attending point 3 do not appear to be linked to concavity.

21 By way of comparison, the boundaries agreed by Germany with the Netherlands and with Denmark following the North Sea Continental Shelf cases produced a narrow corridor toward the center of the North Sea. See Denmark-Netherlands, Rep. No. 9-18, 3 International Maritime Boundaries, supra note 12, at 2497, 2504 map (Jonathan I. Charney & Lewis M. Alexander eds., 1998) (by the present writer). For a general review, see Alex G. Oudeelferink, The Delimitation of the Continental Shelf Between Denmark, Germany and the Netherlands (2013).

22 The two earlier cases were Barbados v. Trinidad and Tobago (UNCLOS Annex VII Arb. Trib. Apr. 11, 2006), at http://www.pca-cpa.org, and Guyana v. Suriname, supra note 13. See also supra note 6.

23 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Feb. 20).

24 Such visits are rare. An early precedent was the Grisbadarna case (Nor. v. Swed.), 11 R.I.A.A. 147 (1909), 4 AJIL 226 (1910). The value of a visit may depend upon the particular issues in a case. The members of ITLOS did not visit the Bay of Bengal before deciding the Bangladesh/Myanmar case.

25 The azimuth awarded by ITLOS had a tenuous link with the coast in that it began at a point due south of a headland on the coast of Bangladesh.See Anderson, supra note 5, at 823. The azimuth awarded by the adhoc arbitral tribunal in the case between Guinea and Guinea-Bissau was perpendicular to a straight line joining points on the coasts. Delimitation of the Maritime Boundary (Guinea/Guinea-Bissau), 77 ILR 636 (Arb. Trib. Feb. 14, 1985), 25 ILM 251 (1986); see also Guinea–Guinea-Bissau, Rep. No. 4-3, 1 International Maritime Boundaries, supra note 21, at 857.

26 See generally Pinto, M. C. W., Article 76 of the UN Convention on the Law of the Sea and the Bay of Bengal Exception, 3 Asian J. Int’l L. 215 (2013).

27 Award, Concurring and Dissenting Opinion of Dr. P. S. Rao, para. 36.

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Bay of Bengal Maritime Boundary

  • D. H. Anderson (a1)

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