Bangladesh vs Myanmar : The Maritime Arbitration
[Read the latest article on this topic.]
I went through six documents from Bangladesh and Myanmar at the ITLOS website to find out how the court cases are proceeding. There are four documents from Bangladesh – Memorial, Reply and two verbatim records of lawyers. There are a couple of documents from Myanmar – a Counter-memorial and a Rejoinder. Apart from the verbatim records, the other four documents are lengthy – so I had no choice but to glance them through and read the introduction, summary and conclusions only.
Before I go in details of how the arguments are made, I would like to mention a couple of important points. The first one is the fact that both Bangladesh and Myanmar has shifted from their traditional points of bargain in order to enhance their chances of winning the arbitration. This makes sense in the context of arbitration but I am skeptic about acceptance of this tactics in
domestic politics of these countries – especially in Bangladesh. In case of Myanmar, the traditional line of claim has been the thin blue line, which is at around 243 degree azimuth. The bold line is at approx 230 azimuth, that approximates the new equidistant line claimed by them. Bangladesh’s traditional claim has been close to 180 degree azimuth line – depicted by bold red line, but the claim at the court has been made in favor of an angular bisector at 215 degree. My drawings are not perfect and I could not get any single image showing both claims properly in all those docs. So, the maps are not accurate. Bangladesh even went a step further and acknowledged that their earlier claims were based on 10 fathom territorial water claim in accordance to their 1974 law, but that has not been accepted in 1982 UNCLOS (Page 31-33). Hence, they are shifting from their claims made early. However a few ramifications from shift of stance are still evident -
1) Even though Bangladesh Govt changed their stance, they never discussed it in public or even in front of media. The Bangladesh media is still publishing articles in favor of 1974 law that wrongly shows the Bangladesh claim to be a vertical line in map. One latest example of such article can be found here. Earlier, I tried to refute claims of another article sometimes back.
2) Even if Bangladesh wins the arbitration, they have to give up claims on significant amount of EEZ as perceived earlier. One of the consequences would be a few gas blocks, as published in maps, may have to be sacrificed. Based on my eye estimation and assuming this map is correct, I believe the blocks 23,27,28 will not exist even after Bangladesh wins the arbitration. Subsequently, Bangladesh may have to amend its laws and/or constitution to reflect it.
3) The dispute became less significant as the area under dispute has gone lower than estimated earlier ( as perceived by Bangladesh media).
Now the second point – South Talpatty Island. This is for the first time (probably) Bangladesh has officially acknowledged that this island does not exist. Sounds bad? It’s actually worse. From the document (page 15, Bangladesh Memorial), it is evident that Bangladesh has this information back in 1989-90, but this island has been mentioned in domestic politics almost a million times in next 20 years. In last 20 years, both BNP and AL Govt did not try to establish the facts in front of common people. The media widely reported the case of disappearance of the same island when a Bengali researcher from Kolkata, Sugata Hazra reported it as a part of his analysis of Global Warming.
The court proceedings are meanwhile going on. After all document exchanges, the court will have verbal arguments. One can read daily minutes and/or live streaming of the sessions at ITLOS website.
The case is basically divided in three general categories. The first part deals with Territorial waters – that’s within 12 NM of coastal boundary. The second part deals with next 200 NM (nautical miles) – that’s the EEZ boundary. The third one is beyond these two, that is called Continental Shelf.
One Territorial waters, Bangladesh is citing 1974 minutes of meeting to argue in favor of them. Myanmar is counter-arguing that the minutes of meeting doesn’t have any legal validity and they have a different map for territorial waters.
On EEZ, the issue has been so far divided in the issue of equidistant vs equity. The Bangladesh team proposed an angular bisector method to resolve Bangladesh’s issue of concavity and access to international waters. Myanmar insists that the equidistant line itself provides equitable results and court can not “refashion nature”. The Bangladesh argument looks stronger on paper on this so far. However, they have to justify the angular bisector at the first place. The concavity arguments from Bangladesh is reasonable, but they still fail to quantify the magnitude of loss due to concavity. The ratio of coastal length and EEZ area is still may not be quite bad to trigger an adjustment.
The last part, on continental shelf, Bangladesh wrote a lengthy piece on Bengal fan to prove how the Bay of Bengal can be geographically considered as a natural prolongation of Bangladesh mainland. Myanmar pinned their arguments on geometric features and other examples where the court has awarded continental shelf beyond the plate boundary. At the same time, Myanmar also argues that the court does not have jurisdiction over continental shelf (which is probably true), but they don’t point out why it should not affect other judgements (such as one on EEZs).
Overall, both parties placed their arguments quite vigorously. Even though Bangladesh arguments look better on paper, I should remind the reader that Bangladesh is a plaintiff in this lawsuit, i.e. the burden of proof is on Bangladesh’s shoulder. Unless they can convince the jury of something else, Myanmar might win it.
There are a couple of takeaways for the other case Bangladesh is fighting – with India. First is that the claim from Bangladesh will be less in that case too, i.e. the overlapping aka disputed area would be even less. The second is that in case Bangladesh wins this case against Myanmar, they will lose their arguments that they don’t have access to international waters or they are disadvantaged by concavity. An award in favor of Bangladesh would remove both constraints.