The Bay of Bengal Maritime Arbitration Case: Part I

Introduction

On 7 July 2014, the Permanent Court of Arbitration, the Hague, passed the award in the Indo-Bangladesh Maritime Arbitration Case (The Bay of Bengal Maritime Boundary Arbitration). The case was initiated by Bangladesh against India in October 2009, pursuant to Art. 287 of the UNCLOS, after 11 rounds of negotiations between the parties over five decades proved to be indecisive, and often marred by local politics. Following pages give a summary of various issues and facts considered by the tribunal to reach the final award.

The Tribunal was composed of: Judge Rudiger Wolfrum (President), Judge Jean-Pierre Cot, Judge Thomas A. Mensah, Dr. P.S. Rao, and Prof. Ivan Shearer. Dr. P.S. Rao reserved a concurring and dissenting opinion.

Background

The Indian Independence Act, 1947 of the United Kingdom, partitioned from India the state of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947 chaired by Sir Cyril Radcliffe. On 13 August 1947, the report was submitted describing the boundary, and is known as “Radcliffe Award.”

Thereafter, in the light of disputes on the application of Radcliffe Award, an Indo-Pakistan Boundary Disputes Tribunal was set up, known as Bagge Tribunal. The Award of this Tribunal dealt with segments not relevant to this case.

On 26 March 1971, Bangladesh declared Independence from Pakistan and succeeded to the territory of East Pakistan and its boundaries.

The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. This delimitation exercise involves delimiting the boundary river, identifying the terminal point of the land boundary, to delimit the territorial sea, the EEZ, the continental shelf within and beyond 200nm.

Jurisdiction

The Parties were deemed to have accepted arbitration in accordance with Annex VII since there was no declaration made by either party under Art. 287(3) (Choice of Procedure), nor had any party made a declaration under Art. 298, thereby, not excluding the current dispute from compulsory dispute resolution mechanism entailing binding procedure. The Tribunal assumed the jurisdiction to ‘… adjudicate the present case, to identify land boundary terminus and   to delimit the territorial sea, the Exclusive Economic Zone and the continental shelf between the parties within and beyond 200nm in the areas where the claims of the parties overlap.

Determination of the Land Boundary Terminus

In order to determine the land boundary terminus, both the Parties relied on the Radcliffe Award of 1947, and the subsequent award of the Bagge Tribunal of 1950, which had been formed to address the disagreement in the application of the former. They relied on different interpretations of the Radcliffe Award on the two issues -: whether the ‘twinning of rivers’ was implied in the Award and whether the actual demarcation has to be based on the physical conditions contemporaneous to the Award or based upon geographical conditions prevailing as on the day of actual physical demarcation.

The Tribunal ruled that the ‘twinning of rivers’ was not implied, and the riverine boundary would run through the ‘mid-stream of the main channel of the Haribhanga river. It also noted that there was an intention of contemporaneity in application in the Radcliffe Award. Meaning thereby, that the location of the boundary line in Haribhanga River and the land boundary terminus would be determined according to the actual conditions at the time of the Award. For purpose of such application, the Tribunal rejected the cartographic evidence presented by Bangladesh, and instead relied on the true copy of map annexed in the Radcliffe Award presented by India, which was found to be closer to the date of Award, and detailed enough to lead to justify its use.

Delimitation of the Territorial Sea

Both the Parties had proposed base points and the equidistant lines delimiting the territorial sea as traced from those base points, and both had contentions against each other’s proposals. Bangladesh mainly argued against India’s base points, claiming that they were unstable, and at least three of them were located on low tide elevations. It also disputed against the sovereignty of New Moore Islands as asserted by India. While Bangladesh pleaded for angle bisector line, claiming that its unstable coastline along with its concavity fell into ‘special circumstance’ category, India held on to equidistance/relevant circumstances criteria to delimit the territorial sea, and defending its choice of base points on low tide elevations to be based on the relevant provisions of UNCLOS.

The Tribunal relying on the jurisprudence of the Black Sea Case, rejected India’s proposed base points, opting instead to go for the base pints on the Indian coastline. The Tribunal also rejected Bangladesh’s arguments of special circumstances – climatic, concavity and instability of coastline, etc., – thereby, also rejecting its proposal of angle-bisector lines.

 

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