Maritime border: Contested coastlines

 

The recent July 7 verdict by the Permanent Court of Arbitration (PCA) based in The Hague, the Netherlands, has resulted in some media and Indian think tank comments supporting the accord as a “win-win” event for India and Bangladesh, while others have lamented the loss of EEZ (exclusive economic zone) equal to the size of Bengal. Some others have called it a “civilised example of maritime dispute settlement” and asked for similar solutions to the ongoing disputes in the South and East China Seas.

 

However, in the East China Sea both Japan and China are unwilling for international arbitration over the disputed Senkaku Islands. In the South China Sea, the Philippines on January 22, 2013, took up its case (for sovereignty over the disputed Spratly Islands and Scarborough Shoal) to the PCA, but on February 19, 2013, China formally refused to participate in the proceedings, thus leaving it to the PCA to work without any inputs from China. It will be interesting to see how this ongoing arbitration ends. This article, examines the pros and cons of July 7 India-Bangladesh arbitration award, and its implications for India.

 

As per United Nations Convention on the Law of the Sea 3, (UNCLOS 3) 1982, which came into force on November 16, 1994, nations have the following three options to address any dispute under UNCLOS:

 

 

India has a maritime boundary with seven nations (the Maldives, Sri Lanka, Burma, Thailand, Indonesia, Pakistan and Bangladesh). Since 1970, India has settled its maritime boundaries with five of these countries (except Pakistan and Bangladesh), by applying the basic “principle of equidistance” and there is no maritime boundary dispute with these five nations. 

 

Unfortunately, both Pakistan and Bangladesh did not agree to a resolution by the “principle of equidistance” during bilateral talks.

 

Bangladesh — which has a concave coastline — found that its proposed EEZ (calculated on the “shore baseline” concept) was severely limited. It therefore had proposed (and UNCLOS 3, accepted it vide Article 7(2) “Straight Baseline”) that in such cases, it could take a “floating straight baseline” on the 10 fathom (i.e. about 20 metre water depth line). This provision not only gave Bangladesh more territorial waters (about 40 nautical miles or nm, as against the permitted 12 nm from shore baseline), but it also subsequently interpreted this to claim a much larger EEZ, since 200 nm to seawards was now to be calculated from this “floating baseline”. 

 

In 2008, Bangladesh claimed a huge rectangular “oil block exploration area” deep into the Bay of Bengal, which overlapped the proposed Indian and Burma EEZ claims. On October 8, 2009, Bangladesh took its case against India to the PCA. Simultaneously, Bangladesh took its case against Burma to ITLOS. On March 14, 2012, Bangladesh won its case against Burma and ITLOS awarded it 111,000 sq. km of EEZ in the Bay of Bengal, as against its claim of 107,000 sq. km.

 

The five-member PCA tribunal visited Bangladesh on October 23-24, 2013 and India on October 24-25, 2013. During this period, the tribunal made a sea sortie of the disputed territorial waters and also an aerial sortie of the coastline, since the 200 nm seawards for the EEZ (and even beyond 200 nm, if the continental shelf extends beyond 200 nm) is measured from the appropriate “coastal baseline” as per UNCLOS.

 

The hearing of the case by the PCA commenced on December 13, 2013, at The Hague, and the final judgment was delivered on July 7, 2014. India was represented by two joint secretaries and one director from the ministry of external affairs, while Bangladesh was represented by its foreign ministser and a retired rear admiral, who had been re-employed by the Bangladesh MEA, as additional secretary. A summary of the 168-page judgment (binding on both nations) is as follows:

 

 

Its new International Maritime Boundary Line with India has a southern limit, which is 295 nm south of Bangladesh’s coastline and is 407 nm east of the Indian port of Kakinada in Andhra Pradesh. This new International Maritime Boundary Line between India and Bangladesh passes only 140 nm eastwards of India’s Paradip port and a possible future scenario of having Chinese oil exploration rigs in Bangladesh’s new EEZ will have their own political and security ramifications for India (Chinese supply and Coast Guard ships operating from Chittagong would be needed to provide logistics support and “oil rig protection” respectively). Alarm bells should be ringing loudly in the Prime Minister’s Office.

 

The PCA award is binding. However, both parties can within 30 days of July 7, 2014, ask for clarifications about interpretation only, and the PCA is obliged to respond within 45 days. 

 

India also should monitor as to how ongoing arbitration attempts unfold in the South and East China Seas. Apparently, Pakistan may not be able to go in for international maritime arbitration (over its IMBL and Sir Creek dispute with India) because of the 1968 Indo-Pak Rann of Kutch international tribunal award and also the 1972 Simla Accord.

 

Finally, India needs to revive its decade-old case for creating the post of a professional national maritime adviser (preferably a serving three-star naval officer), who can provide specialist single-window advice on complex maritime issues.