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 –
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.
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.
1. International Maritime Boundaries, Volumes 2-3
3. The verdict
4. Prothom Alo report
6. China’s invented history 🙂 link