Bangladesh vs Myanmar : The Maritime Arbitration – Conclusion

I wrote the article on Bangladesh-Myanmar maritime arbitration while it was in progress. The verdict is out in March and because of busy schedules, I was not been able to put up a decent informative article to follow up on the same. However, since I’m writing a couple of months later, I’ll focus less on the verdict itself, but more on the implications and reactions.

When I wrote about this arbitration, I was in confidence that Bangladesh will get something better than what was on offer by Myanmar’s negotiation on EEZ. But at the same time, I thought Bangladesh would get favorable verdict in continental shelf as well. I was right on the first one, where Bangladesh got better than equidistant but to my surprise, the continental shelf was also split into half. On the territorial waters front, Bangladesh didn’t have a strong claim and they didn’t win it. So, overall it was a mixed verdict for Bangladesh though more of victory and less of defeat.

Image courtesy a news article -

Bangladesh Myanmar settlement map

Why is this a Bangladesh victory?

The decision on EEZ was the most crucial one since that’s where potential of economic recovery of gas and oil resources are. So any shift of maritime boundary should be seen as a big win. The territorial waters are important but only a small part of the dispute. The continental shelf area is far away from the mainlands and more important as a fishing resource than gas-blocks.

The allegations against this common idea are centered around the fact that no major gas blocks from Myanmar are changing hands. One blogger from Myanmar also used the same argument (picture – see the red line for verdict, another source) to explain the same his countrymen. Indian media was also happy to note that Indian stake at Myanmar blocks are intact. To answer this, I would say Myanmar didn’t allocate blocks aggressively to the disputed areas and kept some buffer space in case the verdict didn’t go for them.  So an adjusted line was also out of their allocated blocks.

The second is more important one. A lot of people in Bangladesh argued that Bangladesh lost a proposed area as per their 1974 law named “The Territorial & Maritime Zones Act”. I mentioned it before also that 1974 law didn’t have any basis. It was declared unilaterally based on a floating baseline concept that never made into final UNCLOS in 1982. When the arbitration is fought on a law based in 1982, the local declaration of 1974 doesn’t add much of value. Unfortunately a string of misleading articles has been published in support of this view and I wrote against these claims long back. Bangladesh, understandably, did not argue anything on “floating baseline” in the arbitration and reduced their claim beforehand in order to get a favorable verdict. This strategic move definitely paid off. As I warned in the article before, the opposition will not be convinced of that approach so easily. That’s why most of these arguments are primarily motivated by political calculations.

A third team argued that the delimitation didn’t happen as per “equitable” rules, rather they happened on adjusted equidistant method. However, this allegation is attributed to lack of knowledge only. Equitable allocation often is synonymous with adjusting equidistant allocation with relevant circumstances. The only pitfall here is the adjustment didn’t happen to the extent Bangladesh wanted.

The extent of this victory

There are news sources quoting Bangladesh ministers (Dipu Moni) on getting more than what Bangladesh has asked for. This is not true. ITLOS verdict drew a line in Bay of Bengal to partition the rights of Bangladesh and Myanmar. However, the claims of Indian mainlands and archipelago will have its own claim and the area will be adjusted downwards. From the verdict (pg 141-143, para 499) we see

“The Tribunal notes that its adjusted delimitation line (see paragraphs 337-340) allocates approximately 111,631 square kilometres of the relevant area to Bangladesh”

However, it noted earlier that the relevant area was does not have anything to do with claims.

“The fact that a third party may claim the same maritime area does not prevent its inclusion in the relevant maritime area for purposes of the dis-proportionality test. This in no way affects the rights of third parties.”

And para 462 notes -

“The Tribunal therefore decides that the adjusted equidistance line delimiting both the exclusive economic zone and the continental shelf within 200 nm between the Parties as referred to in paragraphs 337-340 continues in the same direction beyond the 200 nm limit of Bangladesh until it reaches the area where the rights of third States may be affected.”

That means the claims made by the minister is exaggerated and based on wrong assumptions. I found one more scholarly article is quoting the same.

Interestingly, part of news media in Bangladesh assumed that Bangladesh has won as per 1974 claim and published articles/pictures based on those.

Avoiding the effect of St Martin Island on EEZ

While calculating EEZ, it seems that the effect of St Martin Island was not taken into consideration. This means India’s near-equidistant demarcation with Myanmar, Indonesia and Thailand makes sense. For the sea-boundary with those three countries, Indian claim was based on Andaman and Nicobar Islands. These islands would have got same or similar status of that of St Martin, had there been any real arbitration. Of course, someone can also argue that islands of Myanmar and Thailand were also given full effect while drawing the lines.

Some of the opponents in Bangladesh claimed that Bangladesh has lost its partial rights on the same island based on this verdict. That’s again an exaggeration as Bangladesh retained territorial waters surrounding the same island.

Impact on the other Bay of Bengal Case

Bangladesh and India are fighting to fix the rest of the boundary. Unfortunately, due to lack of public domain documents on that case, I won’t write on it. Still, there are few points I can think of  -

1) Bangladesh won’t be able to argue anymore that they don’t have the access to  international waters. That was their crux of argument in ITLOS. Now, they got it by the virtue of this verdict.

2) Bangladesh will be able to argue for similar regime for delimitation, i.e. an angular bisector at the river Haribhanga, that separates India from Bangladesh. However, learning from the court exercise, Bangladesh may also claim an adjusted equidistant line. The adjustment will be claimed showing lower economic status of Bangladesh (LDC country) and higher population density.

3) India will argue for an equidistant line. The proposed adjustment of Bangladesh will be resisted by India citing high-population, limited access of North-East India to sea and concavity of Orissa coast. India may also claim that Orissa and Bihar are India’s poorest states and they depend on the portion of EEZ in contention.

4) The court will probably draw an equidistant line and will make decision (based on strength of arguments) whether to adjust the line.

5) The amount of EEZ in dispute will be much less than that of Myanmar-Bangladesh dispute. The settlement area (area lost or gained) will probably be even less.

6) If Bangladesh doesn’t get satisfactory result from this dispute and if Awami League is running Bangladesh at that time, there will be a claim of treachery from the opposition.

7) The case will also decide on continental shelf delimitation. Now that we know of it in details, I believe the same line drawn for delimiting EEZ, will most likely be extended to delimit the continental shelf also.

Elsewhere

When China and Philippines are facing same or similar issue on sea limit delimitation, Bangladesh and Myanmar settled it in the court. Unlike India, China has said “No” to any court settlement and is pursuing hard-handed solutions to its neighbors and claims it has no obligation to go to the court. The difference of approach is significant since in the new world order, China has been seen as a semi-pole in what we call a Uni-polar world. To know more about the dispute, one can refer to this wiki entry, though the English wikipedia is largely banned in China. Apart from Philippines, Vietnam, Malaysia, Taiwan and Brunei are part of the same dispute.

References

1. International Maritime Boundaries, Volumes 2-3

2. View from Myanmar newspaper – link  and summary

3. The verdict

4. Prothom Alo report

5. Read an old article (second one) and understand what Bangladesh used to claim.

6. China’s invented history link

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

Bangladesh and Myanmar’s Past and Present claims

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.

Territorial waters dispute

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.

Continental Shelf Dispute at CCLS

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.

Dispute in Bay of Bengal

I wrote previous articles (The Maritime Boundary and India-Bangladesh Maritime dispute in Bay of Bengal) on maritime boundary between India, Bangladesh and Myanmar. I also emphasized on getting the dispute in to the International Court of Justice. At last, a step towards the right direction has been taken by the Bangladesh Govt. Instead of waiting and tolerating the status quo, they’ve started rolling the balls. They sent legal notice to India and Myanmar to take them to court.

I would be eagerly following the developments around this case. India and Myanmar argued on equidistant principle to resolve the dispute. Bangladesh pointed to equity and wanted to bend the equidistant line due to concave nature of their coastline. There are previous instances of court cases in favour of both arguments.

The outcome, whatever it is, won’t be a zero sum solution. It could go either way, i.e. Bangladesh may or may not get the desired maritime area. I could think of  various different possibilities. Bangladesh may win it against Myanmar, but may not against India if population is considered a major factor in delimitation of maritime boundary. The equidistant line could be bent, but not as much as Bangladesh wants – could be another possible solution. Or, the best result for Bangladesh would be to get what they want.

Interestingly, in either of these cases, it may seem that someone “will lose” at least something. Looking closer, currently none exploits the resources of this disputed zone. So, none will at least materially lose anything. But, politically, if the game is played, it would always have a great impact on politics of Bangladesh and Myanmar – may be to some extent in West Bengal too. The outcome would be published in around 2014-2015, when a new Govt in Bangladesh would be in power. If it goes against Bangladesh, it could create political turmoil. In Myanmar, a potential crack between the Junta and the Chinese could arise out of this if China doesn’t see Myanmar through this case.

Whatever the outcome be, I want the proxy wars in Bay of Bengal to stop and everyone should respect the verdict of the court. I am still hopeful that court arbitration would prove to be a better tool for dispute resolution, compared to small scale warfare.

More Articles to Read : Foreign Policy, Diplomacy and National Consensus

Reaction of India : India hopes arbitration would help solve maritime disputes

Reaction of Myanmar : Yangon unhappy over Dhaka’s bid for UN arbitration