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Making Maritime Boundaries in the Bay of Bengal
Published online by Cambridge University Press: 20 October 2022
Abstract
This essay explores the making of maritime boundaries in the Bay of Bengal in the northern Indian Ocean, emphasizing the role of visualizations in establishing states' jurisdictional claims to unstable coasts and ephemeral islands. These include colonial-era revenue surveys of the Sunderbans, sketches of land formation in the Godavari delta appended to case papers in litigations, nautical charts and inspection reports of the seabed in the Gulf of Mannar, maps drawn at the time of partitioning the subcontinent in South Asia and satellite imagery of the Bay's littoral. These visualizations are the everyday materials that delineate sea space in law, as judges, lawyers and states navigate fluidity and fixity, accuracy and equity in international law.
- Type
- Forum: The Everyday Materials of Colonial Legal Spaces
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- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the American Society for Legal History
References
1 Maritime boundary disputes may be settled through bilateral negotiation, adjudication at the International Court of Justice, or third party arbitration at fora like the Permanent Court of Arbitration. The submissions in the Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India before the Permanent Court of Arbitration are available at https://pca-cpa.org/en/cases/18/. The governments of Bangladesh and Myanmar participated in dispute settlement before the International Tribunal for the Law of the Sea at Hamburg in a dispute over maritime boundary delimitation concerning the northern Bay just prior to the Hague arbitration. The issues were similar in both cases. https://www.itlos.org/en/main/cases/list-of-cases/case-no-16/ (accessed September 17, 2022).
2 Ranganathan, Surabhi, “Ocean floor grab: International law and the making of an extractive imaginary,” European Journal of International Law 30 (2019): 573–600CrossRefGoogle Scholar.
3 Navigational charts, seafaring pilots, and manuals for the coasting trade between the kingdoms on the Bay's littoral likely existed in both oral and documentary form prior to European attempts. Maps attributed to European seafaring nations significantly draw on Arab, Chinese, Javanese, and Malay navigational and trading expertise. See Gerald Tibbetts, “The Role of Charts in Islamic Navigation in the Indian Ocean,” in The History of Cartography, Vol. II, Book 1, ed. J. B. Harley and David Woodward (Chicago: University of Chicago Press, 1992); Samira Sheikh, “A Gujarati Map and Pilot Book of the Indian Ocean, c.1750,” Imago Mundi 61 (2009): 67–83. For an account of how dhow captains submitted petitions describing their own oceanic imaginations to France and Great Britain in the Muscat Dhows case (1905) before the Permanent Court of Arbitration, see Fahad Ahmad Bishara, “'No Country but the Ocean': Reading International Law from the Deck of an Indian Ocean Dhow, ca. 1900,” Comparative Studies in Society and History 60 (2018): 338–66.
4 Sujit Sivasundaram, Waves Across the South: A New History of Revolution and Empire (Chicago: University of Chicago Press, 2021); and Sumathi Ramaswamy, “The Work of Vision in the Age of European Empires,” in Empires of Vision: A Reader, ed. Martin Jay and Sumathi Ramaswamy (Durham and London: Duke University Press, 2014).
5 Kate Miles, “Insulae Moluccae: Map of the Spice Islands, 1594,” in International Law's Objects (Oxford: Oxford University Press, 2018), 247–58.
6 See Tamar Herzog, Frontiers of Possession: Spain and Portugal in Europe and the Americas (Cambridge, MA: Harvard University Press, 2015), 17–20.
7 This argument was made—perhaps most influentially—by Antony Anghie in Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2007) and in the context of the law of the sea, by Ram Prakash Anand, The Origin and Development of the Law of the Sea: History of International Law Revisited (The Hague: Martinus Nijhoff Publishers, 1983).
8 Anand, The Origin and Development of the Law of the Sea.
9 Ananda Bhattacharyya, ed., Frederick Eden Pargiter: A Revenue History of the Sundarbans from 1765 to 1870 (London: Routledge, 2019).
10 Karin Mickelson, “The Maps of International Law: Perceptions of Nature in the Classification of Territory,” Leiden Journal of International Law 27 (2014): 621–39 (noting that the delimitation of maritime zones presents a limiting case for international law doctrines of terra nullius, res communis and the “common heritage of mankind”).
11 Debjani Bhattacharyya, Empire and Ecology in the Bengal Delta: The Making of Calcutta (Cambridge: Cambridge University Press, 2018); Iftekhar Iqbal, The Bengal Delta: Ecology, State and Social Change, 1840–1943 (London and New York: Palgrave Macmillan, 2010); and Arupjyoti Saikia, The Unquiet River: A Biography of the Brahmaputra (Oxford: Oxford University Press, 2019). See also Nitin Sinha, “Fluvial Landscape and the State: Property and the Gangetic Diaras in Colonial India, 1790s-1890s,” Environment and History 20 (2014): 209–37; and Erica Mukherjee, “The Impermanent Settlement: Bengal's Riparian Landscape, 1793–1846,” South Asian Studies 36 (2020): 20–31. Kuntala Lahiri-Dutt and Gopa Samanta show, even today, that the choruas (char-dwellers) resist being classed as citizens of one country or the other, resisting attempts at a fixed national identity. Kuntala Lahiri-Dutt and Gopa Samanta, Dancing with the River: People and Life on the Chars of South Asia (New Haven: Yale University Press, 2013).
12 Antonia Moon, “Landscape in Law,” https://blogs.bl.uk/untoldlives/2021/09/landscape-in-law.html (accessed September 17, 2022).
13 Lal Mohun Doss, The Law of Riparian Rights, Alluvion and Fishery. With Introductory Lectures on the Rights of Littoral States over the Open Sea, Territorial Waters, Bays and the Rights of the Crown and the Littoral Proprietors Respectively over the Fore-Shore of the Sea (Calcutta: Thacker, Spink and Co, 1889).
14 Ibid., 19.
15 Ibid., 191–92.
16 Ibid., 8.
17 Bhattacharya, Empire and Ecology in the Bengal Delta, 45–76; and S. Prashant Kumar, “The Instrumental Brahmin and the ‘Half-Caste’ Computer: Astronomy and Colonial Rule in Madras, 1791–1835,” History of Science (2022). https://doi.org/10.1177/00732753221090435 (accessed September 17, 2022).
18 8 Bom. 63 (September 20, 1871), also available in The Handbook of Criminal Cases Reprinted Verbatim in the Bombay High Court Reports, Vols. I to XII (Calcutta: DE Cranenburgh, 1889), 328–45.
19 On fishing rights, territory, and international law in the context of claims to sovereignty between the princely state of Cochin and British India, see Devika Shankar, “A Slippery Sovereignty: International Law and the Development of British Cochin,” Comparative Studies in Society and History 64 (2022): 820–44.
20 There is a wealth of scholarship on customary fishing rights in colonial India's coastal communities. On the leveraging of legal language by fishers on India's southeastern coast, see Ajantha Subramanian, Shorelines: Space and Rights in South India (Stanford: Stanford University Press, 2009).
21 William Wilson Hunter, The Imperial Gazetteer of India, Volume 12, 1885, 169.
22 For a discussion of the three nautical mile limit, see Anand, The Origin and Development of the Law of the Sea, 138–40.
23 Mr. Thomas’ Draft Fisheries Bill, Proceedings of the Revenue and Agricultural Department, January 1889, National Archives of India.
24 Tamara Fernando, “Of Mollusks and Men: Pearling Labour and Environments in the northern Indian Ocean 1880–1925” (unpublished PhD diss., University of Cambridge, 2022).
25 Thomas, Draft Fisheries Bill.
26 Annakumaru Pillai v. Muthupayal (1904) 14 MLJ 248 (MLJ = Madras Law Journal); on fishes and the principle of ferrae naturae in British Indian jurisprudence, see The Calcutta Weekly Notes, 1905, 110–11.
27 James Hornell, Report of the Government of Madras on the Indian Pearl Fisheries in the Gulf of Mannar (Madras: Superintendent, Government Press, 1905), 43–44. See also Appendix C in the Hornell report discussing the inferior rights of the Raja of Ramnad to the English East India Company, “the Lord of the Sea and the Bays.”
28 Mani, ibid.; International Law Reports: Volume 90 (Cambridge University Press, 1992), 221–222.
29 Muthupayal, ibid.
30 James Hornell, Report of the Government of Madras on the Indian Pearl Fisheries in the Gulf of Mannar (Madras: Superintendent, Government Press, 1905).
31 (1916) UKPC 58 (July 7, 1916).
32 See, for example, Sri Balsu Ramalakshmamma v. The Collector of Godeveri District (1899) UKPC 23 (March 24, 1899).
33 For a discussion of the Raja Chelikani Rama Rao case relative to the Mississippi Delta, see V.S. Mani, “India's Maritime Zones and International Law: A Preliminary Inquiry,” Journal of the Indian Law Institute 21 (July–September 1979): 336–81.
34 For the British Indian government's engineering interventions in the Godavari delta, see Sunil Amrith, Unruly Waters: How Mountain Rivers and Monsoons Have Shaped South Asia's History (New York: Basic Books, 2018).
35 Like the diplomatic negotiations with Bangladesh in the 1970s, the negotiations between India and Sri Lanka also took place in the shadow of the maritime boundary delimitation between India and Pakistan about the Rann of Kutch, a salty marshland adjoining the Thar desert. See R.P. Anand, “The Kutch Award,” India Quarterly 24 (1968): 183–212.
36 Surabhi Ranganathan, “Decolonization and International Law: Putting the Ocean on the Map,” Journal of the History of International Law 23 (2020): 161–83. For a discussion of land–sea regimes rather than distinct land and sea regimes, see Nathan Perl-Rosenthal and Lauren Benton, “Land-Sea Regimes in World History,” in A World at Sea: Maritime Practices and Global History, ed. Lauren Benton and Nathan Perl-Rosenthal (Philadelphia: University of Pennsylvania Press, 2020), 186–92; Renisa Mawani, Oceans of Law (Durham, NC: Duke University Press, 2018).
37 Article 7 (1), United Nations Convention on the Law of the Sea.
38 Burkina Faso/Mali (1986, International Court of Justice). See Vasuki Nesiah, “Placing International Law: White Spaces on a Map,” Leiden Journal of International Law 16 (2003): 1–35, for a discussion of the ambiguous role of cartographic evidence as reflecting the tension between self-determination and decolonization in international law.
39 See Suzanne Lalonde, Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (Montreal and Kingston: McGill-Queen's University Press, 2002), 17. On maps and decolonization, see Raymond Craib, “Cartography and Decolonization,” Decolonizing the Map: Cartography from Colony to Nation (Chicago: University of Chicago Press, 2017). For a discussion of the perceived universality of the uti posseditis principle with reference to South Asia, see Mohammad Shahabuddin, “Postcolonial Boundaries, International Law, and the Making of the Rohingya Crisis in Myanmar,” Asian Journal of International Law 9 (2019): 334–58.
40 Joya Chatterji, The Spoils of Partition: Bengal and India 1947–1967 (Cambridge: Cambridge University Press, 2011); Lucy P. Chester, Borders and Conflict in South Asia: The Radcliffe Boundary Commission and the Partition of Punjab (Manchester: Manchester University Press, 2017); Willem van Schendel, A History of Bangladesh (Cambridge: Cambridge University Press, 2009). See also Hannah Fitzpatrick, “The Space of the Courtroom and the Role of Geographical Evidence in the Punjab Boundary Commission Hearings, July 1947,” South Asia: Journal of South Asian Studies 42 (2019): 188–207.
41 Joya Chatterji, “The Fashioning of a Frontier: The Radcliffe Line and Bengal's Border Landscape, 1947–52,” Modern Asian Studies 33 (1999): 185–242.
42 William Thomas Worster, “The Frailties of Maps as Evidence in International Law,” Journal of International Dispute Settlement 9 (2018): 570–89.
43 Urmila Phadnis, “Kachchathivu: Background and Issues,” Economic and Political Weeklv 3 (1968): 783, 785, 787–88.
44 Markus P.M. Vink, “Church and State in Seventeenth-Century Colonial Asia: Dutch-Parava Relations in Southeast India in a Comparative Perspective,” Journal of Early Modern History 4 (2000): 1–43 (discussing the shifting ecclesiastical and civil jurisdictional claims over the Paravas on the Coromandel coast).
45 Sujit Sivasundaram, Islanded: Britain, Sri Lanka, and the Bounds of an Indian Ocean Colony (Chicago: University of Chicago Press, 2013), 79–81.
46 See sketches in the annexures to W.C. Twynam, Report on the Ceylon Pearl Fisheries (Ceylon: Government Press, 1902). James Hornell, Report of the Government of Madras on the Indian Pearl Fisheries in the Gulf of Mannar (Ceylon: Government Press, 1905).
47 On the rail link between India and Ceylon, see Ceylon Sessional Papers No. 41, Papers Relating to Through Communication by Rail between Ceylon and Southern India (1907), National Archives of Sri Lanka. On pearl fisheries in the Gulf of Mannar generally, see Tamara Fernando, “Seeing Like the Sea: A Multispecies History of the Ceylon Pearl Fishery 1800–1925,” Past and Present 254 (2022): 127–60.
48 W.T. Jayasinghe, Kachchativu and the Maritime Boundary of Sri Lanka (Pannipitiya: Stamford Lake, 2003), 29–30, 45. On the abolition of the Ramnad zamindari and its implications for India's maritime boundaries, see AMVSSM and Company v. State of Madras CMP No. 4229 of 1951 (Madras High Court). For ongoing litigation, see M. Karunanidhi v. Union of India W.P. (Civil) No. 430 of 2013.
49 Memorial of Bangladesh, Volume I, Bay of Bengal Maritime Boundary Delimitation, 13–38. https://files.pca-cpa.org//pcadocs/bd-in/Bangladesh's%20Memorial%20Vol%20I.pdf (accessed September 17, 2022).
50 Memorial of Bangladesh, Chapter 2. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of February 20, 1969, International Court of Justice.
51 Jin-Hyun Paik, “The Origin of the Principle of Natural Prolongation: North Sea Continental Shelf Cases Revisited,” in Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea (Leiden and Boston: Brill Nijhoff, 2015), 583–94.
52 For the difference between an “island” and a “low-tide elevation,” see Hira Jayewardene, The Regime of Islands in International Law (Dordrecht: Martinus Nijhoff, 1990), 3–7. Maritime boundary negotiations (between Myanmar and India) and disputes elsewhere in the Bay (between Bangladesh and Myanmar, and between Singapore and Malaysia) also considered the status of “islands”/low tide elevations. On the role of islands in land reclamation projects and its implications for maritime boundary disputes, see Gaynor, Jennifer, “Liquid Territory, Shifting Sands: Property, Sovereignty, and Space in Southeast Asia's Tristate Maritime Boundary Zone,” in Blue Legalities: The Life and Laws of the Sea, ed. Braveran, Irus and Johnson, E. (Durham: Duke University Press, 2020), 107–27CrossRefGoogle Scholar.
53 Transcript of Hearing on Merits, Arguments of the People's Republic of Bangladesh, Professor Payam Akhavan, 96. https://pcacases.com/web/sendAttach/388 (accessed September 17, 2022).
54 Disappeared South Talpatti: What Next?” The Daily Star, April 24, 2010.
55 Snjólaug Árnadóttir, “Fluctuating Boundaries in a Changing Marine Environment,” Leiden Journal of International Law 34 (2021): 471–87.
56 On maps as “photographs of a territory,” see Burkina Faso/Mali, in ibid.
57 Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise, August 6, 2021, https://www.forumsec.org/2021/08/11/declaration-on-preserving-maritime-zones-in-the-face-of-climate-change-related-sea-level-rise/ (accessed September 17, 2022).
58 For a doctrinal legal approach to this question, see Julia Lisztwan, “Stability of Maritime Boundary Agreements,” The Yale Journal of International Law 37 (2012): 153.