The Bay of Bengal Maritime Arbitration Case: Part II

Delimitation of EEZ and Continental Shelf

In order to delimit the areas beyond the territorial sea, the Tribunal first determined the relevant coastlines of the Parties and subsequently the relevant area. Its task was “…to identify the coast that generate(s) projections which overlap with the projection from the coast of the other Party.” The Tribunal found that India’s relevant coastline stretched further south west to Sandy Point as opposed to Devi Point as India had claimed. It also found that the projections from the northern tip of the Andaman Islands (India) qualified for the identification of the relevant area. It delimited the relevant area accordingly.

In his dissenting opinion, Dr. P.S. Rao, criticized the identification of the coastline stretching to Sandy Point and the relevant area, by pointing out that the international jurisprudence demands that the construction of the relevant area be “… as strict as possible to denote the disputed area as closely as possible…”. He also disagreed on identification of projections from the Andaman Islands, as its coastal front is neither opposite nor adjacent to the coast of Bangladesh.

Preference was given to the Equidistance/Special Circumstance method for delimitation of delimitation of the EEZ and continental shelf within 200nm, over the angle bisector method proposed by Bangladesh, for the reasons of transparency and the fact that Bangladesh’s arguments for angle bisector line weren’t found to be convincing. The Tribunal reasoned that the instability of Bangladesh’s coast doesn’t render it special circumstance as it was possible to identify the base points, nor can future possibility of climate change be taken to adjust provisional equidistance line.

Delimitation of Continental Shelf Beyond 200NM

The Parties and the Tribunal both agreed on the point that there is a single continental shelf , and that there is no difference between the continental shelf within 200nm and the so called ‘outer continental shelf’. The Tribunal recognizing that both the Parties have entitlements in continental shelf beyond 200 nm, decided to delimit the continental shelf beyond 200nm using the equidistance/relevant circumstances method as it has used for delimiting the shelf within 200nm.

The Tribunal accepted Bangaldesh’s argument that the concavity of Bangladesh’s coast indeed produces cut off effect. It ruled that the provisional equidistant line was not equitable as it prevents Bangladesh from extending its maritime boundary as far as International Law permits, thus defeating the principle of equitable use of the sea area. Thereby rendering it a special circumstance, the Tribunal proposed adjustment of the equidistant line within and beyond 200nm.

The final adjustment of the equidistant line gave out more area to Bangladesh. This adjustment was criticized by Dr. P.S. Rao, as in his opinion the Delimitation Point from which the adjustment was affected was well before the point where a significant cut off occurs. This adjustment is not sufficiently justified. Also, the fact that the adjusted line concurs with the bisector line proposed by Bangladesh is arbitrary and run against the majority’s own rejection of the bisector line.

Proportionality Test

The Tribunal found that the relevant area to be delimited so identified by the Tribunal compromised of 406,833 sq. km, and the final delimitation lines allocate apporx. 106,613 sq. km of the relevant area to Bangladesh and approx. 300,220 sq. km to India. The ratio of allocated areas is approximately 1:2.81. This ratio, in the view of the tribunal does not produce any significant disproportion.

Grey Area

The Tribunal’s delimitation lines resulted in a grey area, which lies 200nm from the coast of Bangladesh, but within 200nm of coast of India, but the equidistant line is drawn such that it falls on the east (Bangladesh’s side) of the Tribunal.  The Tribunal reasons that, the boundary identified by the Tribunal delimits only the parties’ sovereign rights to explore the continental shelf and to exploit the living resources of sedentary species and mineral resources as set out in article 77 of the UNCLOS. It held that within this grey area the boundary does not limit India’s sovereign rights to the EEZ in superjacent waters.

Dr. P.S. Rao criticized the formation of the Grey Area in his dissenting opinion as a matter of law and policy, reasoning that the adjustment allowed for a “grey are” in a ‘not-insignificant expanse” of the Bay of Bengal. The only other case in which such Grey Area has been created was by the ITLOS in the Bangladesh/Myanmar Case (2012).

 

Conclusion

Consideration of equity, so well pronounced in the international jurisprudence rules the considerations of the Award. The Award is final and binding on both the parties and cannot be appealed.

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