Divvying up the Bay of Bengal

ASHWITA AMBAST

July 28, 2014 

The recent Indo-Bangladesh Maritime Delimitation award contributes substantially to international law. But will it lead to greater cooperation in South Asia or revive tensions?

Asia is a hotbed of maritime disputes and The Bay of Bengal is no exception. On July 7 this year, a panel of five jurists of the Permanent Court of Arbitration delivered the long-awaited award concerning the maritime delimitation of Bangladesh and India. Bangladesh/India cements the boundary of the four maritime zones that the U.N. Convention on the Law of Sea (UNCLOS) entitles states to: the territorial sea, the exclusive economic zone (EEZ), the ‘inner’ continental shelf extending up to 200 nautical miles from the coasts of the states as well as the ‘outer’ continental shelf extending beyond 200 nautical miles from the coasts of the states. The award is undoubtedly historic but raises more questions than delivers answers.

To quickly recapitulate, under the UNCLOS, the territorial sea of adjoining coasts (like those of India and Bangladesh) must be delimited using an equidistance line drawn from each coast. However, no guidelines are provided for the delimitation of the continental shelf or EEZ. The only caveat provided by treaty is that the delimitation conforms to ‘equity’. Prior delimitation awards have generated a three-step analysis for dividing the continental shelf and EEZ. The first step is the establishment of a provisional equidistance line between the states, the second, consideration of relevant circumstances for the adjustment of this line and, finally, an ex post facto correction of any disproportionality in the final result.

The Bangladesh/India tribunal contributes to greater certainty in EEZ and inner continental shelf delimitation by explicitly stating that the three-step test now constitutes international law.

Unfortunately, while reiterating emerging norms, the Tribunal also perpetuates their attendant disadvantages by entangling itself in the redundant rhetoric of ‘equity’. The three-step test emerged from equitable considerations in the UNCLOS. Questions have already been raised about the value of the ‘disproportionality’ stage in the three-step test as it appears to be merely a synonym for equity. It is alleged that discretion to correct for ‘disproportionality’ adds unnecessary subjectivity to a test already predicated on personal discretion. Bangladesh/India complicates this further by subjecting the ‘relevant circumstances’ to equity considerations as well. The court is overtly cautious and is enlarging the scope for arbitral discretion in maritime delimitation.

Outer continental shelf rights

The UNCLOS provides for the extension of the continental shelf beyond 200 nautical miles where a natural prolongation of the continental shelf exists. The UNCLOS states that all outer continental shelf claims must be submitted to the Commission on the Limits of the Continental Shelf (CLCS) that is created by the UNCLOS itself whose recommendations are “final and binding.” The Bangladesh/India tribunal acknowledges that claims forwarded by India and Bangladesh are pending before the CLCS but states that it has the authority to delimit these territories anyway. If the UNCLOS suggests that outer continental shelf rights can only arise from CLCS approval, can the Tribunal suo moto create a boundary where no right exists? It is unlikely that a Tribunal would have the necessary expertise to make this determination. Moreover, such a jurisdictional conflict might cast doubt on the finality of the award if the CLCS was to make recommendations contrary to the order. Perhaps it is these issues that caused the Nicaragua/Honduras tribunal in 2007 to steer clear of outer continental shelf delimitation. In the words of that tribunal: “Any claim of continental shelf beyond 200 miles must be in accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf established thereunder”.

The Tribunal extends the three-step test discussed above to the delimitation of the outer continental shelf as well. In doing so, as a lesson for future arbitrations, the Tribunal makes efforts to first, prevent “excessive negative consequences” and second, distribute maritime entitlements in a “reasonable and mutually balanced” fashion. The difference between these considerations, that were specifically pointed out by the Tribunal, and concerns of ‘equity’ that are constantly reiterated remain obscure. However, Bangladesh/India hereby obliterates any vacuum in outer continental shelf delimitation by laying out a recommended methodology for its treatment.

Also, the Bangladesh/India award creates a “grey area”. This area is where India’s 200 nautical mile EEZ and inner continental shelf overlaps with the outer continental shelf of Bangladesh, resulting in dual claims over a single zone. While India has claims over the subsoil as well as the water column above it, Bangladesh’s claim is limited to the former. The Tribunal acknowledges the existence of overlapping obligations. Remarking that this is not unknown in the realm of maritime delimitation, the Tribunal hopes for “the creation of a cooperative arrangement,” confident that this will “ensure that each is able to exercise its rights and perform duties within this area.” In determining Bangladesh’s maritime entitlements, the Tribunal settled on a series of reference spots on land called ‘basepoints’ from which the four maritime zones would be measured. Bangladesh’s early claim was that its constantly changing coastline militates against the use of standard methods for its treatment. The Tribunal’s response to Bangladesh is a reiteration of the established position in international law, that the future of a coastline is irrelevant.

The future

It is widely reported that the final award is a victory for Bangladesh and less so for India. However, the Indian government has stated that it will accept the award as binding. What the ‘grey zone’ portends makes for interesting speculation. Could this be a gateway to greater cooperation in South Asia, which fits in neatly with recent efforts to strengthen the role of SAARC or will ‘grey zone’ negotiations revive tensions? Bangladesh/India is a crucial landmark in the determination of the geographic and political contours of South Asia but it is only a beginning to the resolution of a long-standing problem.

(Ashwita Ambast is a graduate from the Yale Law School)