http://www.tribuneindia.com/2014/20140717/edit.htm#6
Finally, the solution to a vexatious dispute
Pinak Ranjan Chakravarty
A DISPUTE that had defied solution since Partition ended on July 7, 2014 when the Arbitration Tribunal on the India-Bangladesh Maritime Delimitation delivered its ruling. The court had concluded its hearings on December 18, 2013. The Arbitration Tribunal for the Delimitation of Maritime Boundary between Bangladesh and India was established under Annexure VII of the UN Convention of Law of the Sea (UNCLOS) and was set up under the Permanent Court of Arbitration (PCA) at The Hague, Netherlands. The Award of the Tribunal is binding on all parties. There is no provision for appeal. The rules of procedures, however, permit a party to seek any interpretation of the verdict within 30 days of receiving the verdict and the interpretation would be made available within 45 days.
International arbitration
Bangladesh took a sudden high level political decision to go for international arbitration in 2009, after 40 years of wrangling and disagreement between the two sides. The positions of the two sides had become entrenched and negotiations had reached a dead end. Bangladesh’s decision to seek international arbitration had surprised India. As High Commissioner to Bangladesh during 2009, the author was summoned by Foreign Minister Dipu Moni who sprung the decision in this hurriedly arranged meeting. She insisted on speaking to Indian External Affairs Minister S.M. Krishna and the author had to call on his mobile and arrange the conversation. Dipu Moni kept pacing up and down the meeting room, clearly tense and nervous and wanted to convey the Bangladesh government’s decision personally to the Indian External Affairs Minister. The Sheikh Hasina government had assumed power after a period of political turmoil in Bangladesh and the Indian government, in a spirit of friendship and accommodation, accepted Bangladesh’s decision and agreed to international arbitration.
Final award
It is note-worthy that the total area under question is about 3,66,854 sq km. India had claimed that this area should be divided in the ratio of 1: 3.44 in favour of India while Bangladesh had claimed that it should divided in the ratio of 1: 1.52.
The award has finally split the area in question into 1 : 2.81 in favour of India which is clearly closer to India’s claim.
A confusing aspect of the award is the concept of grey areas, wherein India enjoys rights over the water column and Bangladesh over the seabed and subsoil.
This will merit closer examination and will require considerable cooperation between India and Bangladesh.
After the decision
Bangladesh in 2010 decided to go for international arbitration in line with the provisions of United Nations Convention on the Law of the Sea (UNCLOS) as the ongoing discussions with India and Myanmar could not yield the expected results.
The verdict of the Permanent Court of Arbitration (PCA) came two years after Bangladesh won a nearly identical maritime dispute with Myanmar at the German-based International Tribunal for the Law of the Sea (ITLOS).
Dhaka kept options open for solving the disputes bilaterally though it sought the resolution in the international tribunal as the negotiations in the past several decades yielded no result.
The arbitral tribunal award “cannot be appealed (and) is binding on both states.” It brought to an end in the arbitral process that was launched by Bangladesh in respect of Myanmar and India under the UNCLOS in 2009.
In the same year, Bangladesh had also taken recourse to international arbitration in its dispute with Myanmar over the maritime delimitation dispute. That case was, however, shifted to the International Tribunal for the Law of the Sea (ITLOS) at Myanmar’s request. In 2012, Bangladesh was awarded over 110,000 sq-km area, including the disputed 25,000 square km in the Bay of Bengal, in this arbitration award.
Domestic political compulsion was the primary reason for the Sheikh Hasina-led Bangladesh government to opt for international arbitration. Any bilateral agreement would have been bitterly criticised as a sellout in the highly divisive and polarised domestic politics of Bangladesh. The reaction of the opposition Bangladesh Nationalist Party, led by arch-rival and bête noire Khaleda Zia, to the award in the India-Bangladesh case underscores this compulsion. The BNP has called the current award a defeat for Bangladesh because the full extent of Bangladesh’s claim was not accommodated. This is a typical glass-half-empty reaction of the BNP.
The technical and legal aspects of the dispute and the arbitration award recognised India’s claims that the Land Boundary Terminus is situated to the East of New Moore Island and the equidistance principal, as proposed by India, has been accepted for the demarcation. The angle bisector method proposed by Bangladesh has been rejected.
Adjusting the equidistance line
The award, however, accepted Bangladesh’s claim and the equidistance line has been adjusted to take into account the cut-off effect on Bangladesh due to the concavity of its coastline.
In such disputes contesting parties make claims and final awards are usually compromises that are a mixture of give and take. Thus, India has retained its claim on New Moore Island (South Talpatti), a critical factor, as it gives India access to the Haribhanga River (border between India and Bangladesh) in southern West Bengal and India’s rights in the extended Continental Shelf have been, by and large, protected. Both India and Bangladesh have received less than they asked for in their maximalist claim lines, both in the EEZ and the Continental Shelf.
It is note-worthy that the total area under question is about 3,66,854 sq km. India had claimed that this area should be divided in the ratio of 1: 3.44 in favour of India, while Bangladesh had claimed that it should divided in the ration of 1: 1.52. The award has finally split the area in question into 1 : 2.81 in favour of India, which is clearly closer to India’s claim. A confusing aspect of the award is the concept of grey areas, wherein India enjoys rights over the water column and Bangladesh over the seabed and subsoil. This will merit closer examination and will require considerable cooperation between India and Bangladesh.
The Indian nominee to the Tribunal, Dr PS Rao, gave a partially dissenting opinion to the award, pointing out that the adjustment made to the provisional equidistance line has been done arbitrarily, that the identification of the relevant area based on which the adjustment has been supposedly made is equally arbitrary and that it is contrary to law and practice. One Indian negotiator called the award irrational and the procedure adopted absurd.
The frustration of the Indian negotiator is understandable, in the background of India’s historical experience with international mediation and arbitration, beginning with the Kashmir issue, the overly generous terms to Pakistan in the Indus water Treaty and the boundary award in Kutch, Gujarat in which India lost some territory to Pakistan.
Western bias
In all these arbitrations and mediations, representatives of Western countries played a prominent role. In all cases, there remains a strong feeling that India has been given an unfair deal because it is the bigger neighbour and has borne the brunt of latent Western bias and prejudice, resulting from historical baggage.
In a mature and statesmanlike reaction, Bangladesh Foreign Minister A.H. Mahmood Ali welcomed the award and said, “According to the verdict, Bangladesh has finally won more than 1,18,813 square kilometres of waters comprising territorial sea, exclusive economic zone extending out to 200 nautical mile (NM) across sizable area”. Calling the award a victory of friendship for both sides since it finally resolves a long-pending dispute between the two countries. He added that the award would strengthen bilateral relations.
Earlier, during External Affairs Minister Sushma Swaraj’s recent visit to Dhaka, India had declared that it would accept the arbitration award since it was India’s sovereign decision to accept arbitration. Following the arbitration award, India has announced that it respected the verdict of the tribunal that awarded 19,467 sq km out of 25,000 sq km of the disputed area to Bangladesh in the Bay of Bengal and was studying its full implications. The spokesperson of the Indian External Affairs Ministry said, “We believe that the settlement of the maritime boundary will further enhance mutual understanding and goodwill between India and Bangladesh by bringing to closure a long pending issue. This paves the way for the economic development of this part of the Bay of Bengal, which will be beneficial to both countries." India’s approach to this issue bears the stamp of a thoughtful and far-sighted political handling by External Affairs Minister Sushma Swaraj.
Bangladesh should be happy with the award and has attempted to publicly portray the ruling as being in its favour. Clearly, Bangladesh is trying to contain any euphoric upsurge, though some quarters are indulging in triumphalism. In effect, the award falls short of both India's and Bangladesh's expectations. The moot point is that a long--standing dispute that was hampering the ability of both countries to move ahead on full exploration of the affected part of the Bay of Bengal and its resources has finally been put to rest.
Both India and Bangladesh should be looking to the future, rather than examining how many square kilometres of sea each side may or may not have gained. The real significance of the award lies in its finality, because it would provide clarity and legal certainty on the exact location of the maritime boundary between India and Bangladesh and promote coastal and maritime security. The areas where India and Bangladesh clearly enjoy sovereign rights would be clearly identified and India and Bangladesh would be able to undertake exploration and exploitation of the natural resources including fishing rights without doubt or interference.
Exploration for gas and oil can take place with either side protesting about ownership of the EEZ. The award also opens up avenues of India-Bangladesh cooperation without which Bangladesh may find it difficult to exploit resources that it expects from its EEZ. The Land Boundary Agreement remains the last item on the boundary-related issue between India and Bangladesh. This should also be brought to its logical conclusion by ensuring that the Parliament passes the Constitutional Amendment Bill. The slate will then be wiped clean on boundary-related issues between India and Bangladesh.
— The author is a former Secretary in the Ministry of External Affairs and former High Commissioner of India to Bangladesh.
Finally, the solution to a vexatious dispute
Pinak Ranjan Chakravarty
A DISPUTE that had defied solution since Partition ended on July 7, 2014 when the Arbitration Tribunal on the India-Bangladesh Maritime Delimitation delivered its ruling. The court had concluded its hearings on December 18, 2013. The Arbitration Tribunal for the Delimitation of Maritime Boundary between Bangladesh and India was established under Annexure VII of the UN Convention of Law of the Sea (UNCLOS) and was set up under the Permanent Court of Arbitration (PCA) at The Hague, Netherlands. The Award of the Tribunal is binding on all parties. There is no provision for appeal. The rules of procedures, however, permit a party to seek any interpretation of the verdict within 30 days of receiving the verdict and the interpretation would be made available within 45 days.
International arbitration
Bangladesh took a sudden high level political decision to go for international arbitration in 2009, after 40 years of wrangling and disagreement between the two sides. The positions of the two sides had become entrenched and negotiations had reached a dead end. Bangladesh’s decision to seek international arbitration had surprised India. As High Commissioner to Bangladesh during 2009, the author was summoned by Foreign Minister Dipu Moni who sprung the decision in this hurriedly arranged meeting. She insisted on speaking to Indian External Affairs Minister S.M. Krishna and the author had to call on his mobile and arrange the conversation. Dipu Moni kept pacing up and down the meeting room, clearly tense and nervous and wanted to convey the Bangladesh government’s decision personally to the Indian External Affairs Minister. The Sheikh Hasina government had assumed power after a period of political turmoil in Bangladesh and the Indian government, in a spirit of friendship and accommodation, accepted Bangladesh’s decision and agreed to international arbitration.Final award
It is note-worthy that the total area under question is about 3,66,854 sq km. India had claimed that this area should be divided in the ratio of 1: 3.44 in favour of India while Bangladesh had claimed that it should divided in the ratio of 1: 1.52. The award has finally split the area in question into 1 : 2.81 in favour of India which is clearly closer to India’s claim. A confusing aspect of the award is the concept of grey areas, wherein India enjoys rights over the water column and Bangladesh over the seabed and subsoil. This will merit closer examination and will require considerable cooperation between India and Bangladesh.After the decision
Bangladesh in 2010 decided to go for international arbitration in line with the provisions of United Nations Convention on the Law of the Sea (UNCLOS) as the ongoing discussions with India and Myanmar could not yield the expected results. The verdict of the Permanent Court of Arbitration (PCA) came two years after Bangladesh won a nearly identical maritime dispute with Myanmar at the German-based International Tribunal for the Law of the Sea (ITLOS). Dhaka kept options open for solving the disputes bilaterally though it sought the resolution in the international tribunal as the negotiations in the past several decades yielded no result. The arbitral tribunal award “cannot be appealed (and) is binding on both states.” It brought to an end in the arbitral process that was launched by Bangladesh in respect of Myanmar and India under the UNCLOS in 2009.In the same year, Bangladesh had also taken recourse to international arbitration in its dispute with Myanmar over the maritime delimitation dispute. That case was, however, shifted to the International Tribunal for the Law of the Sea (ITLOS) at Myanmar’s request. In 2012, Bangladesh was awarded over 110,000 sq-km area, including the disputed 25,000 square km in the Bay of Bengal, in this arbitration award.
Domestic political compulsion was the primary reason for the Sheikh Hasina-led Bangladesh government to opt for international arbitration. Any bilateral agreement would have been bitterly criticised as a sellout in the highly divisive and polarised domestic politics of Bangladesh. The reaction of the opposition Bangladesh Nationalist Party, led by arch-rival and bête noire Khaleda Zia, to the award in the India-Bangladesh case underscores this compulsion. The BNP has called the current award a defeat for Bangladesh because the full extent of Bangladesh’s claim was not accommodated. This is a typical glass-half-empty reaction of the BNP.
The technical and legal aspects of the dispute and the arbitration award recognised India’s claims that the Land Boundary Terminus is situated to the East of New Moore Island and the equidistance principal, as proposed by India, has been accepted for the demarcation. The angle bisector method proposed by Bangladesh has been rejected.
Adjusting the equidistance line
The award, however, accepted Bangladesh’s claim and the equidistance line has been adjusted to take into account the cut-off effect on Bangladesh due to the concavity of its coastline.
In such disputes contesting parties make claims and final awards are usually compromises that are a mixture of give and take. Thus, India has retained its claim on New Moore Island (South Talpatti), a critical factor, as it gives India access to the Haribhanga River (border between India and Bangladesh) in southern West Bengal and India’s rights in the extended Continental Shelf have been, by and large, protected. Both India and Bangladesh have received less than they asked for in their maximalist claim lines, both in the EEZ and the Continental Shelf.
It is note-worthy that the total area under question is about 3,66,854 sq km. India had claimed that this area should be divided in the ratio of 1: 3.44 in favour of India, while Bangladesh had claimed that it should divided in the ration of 1: 1.52. The award has finally split the area in question into 1 : 2.81 in favour of India, which is clearly closer to India’s claim. A confusing aspect of the award is the concept of grey areas, wherein India enjoys rights over the water column and Bangladesh over the seabed and subsoil. This will merit closer examination and will require considerable cooperation between India and Bangladesh.
The Indian nominee to the Tribunal, Dr PS Rao, gave a partially dissenting opinion to the award, pointing out that the adjustment made to the provisional equidistance line has been done arbitrarily, that the identification of the relevant area based on which the adjustment has been supposedly made is equally arbitrary and that it is contrary to law and practice. One Indian negotiator called the award irrational and the procedure adopted absurd.
The frustration of the Indian negotiator is understandable, in the background of India’s historical experience with international mediation and arbitration, beginning with the Kashmir issue, the overly generous terms to Pakistan in the Indus water Treaty and the boundary award in Kutch, Gujarat in which India lost some territory to Pakistan.
Western bias
In all these arbitrations and mediations, representatives of Western countries played a prominent role. In all cases, there remains a strong feeling that India has been given an unfair deal because it is the bigger neighbour and has borne the brunt of latent Western bias and prejudice, resulting from historical baggage.
In a mature and statesmanlike reaction, Bangladesh Foreign Minister A.H. Mahmood Ali welcomed the award and said, “According to the verdict, Bangladesh has finally won more than 1,18,813 square kilometres of waters comprising territorial sea, exclusive economic zone extending out to 200 nautical mile (NM) across sizable area”. Calling the award a victory of friendship for both sides since it finally resolves a long-pending dispute between the two countries. He added that the award would strengthen bilateral relations.
Earlier, during External Affairs Minister Sushma Swaraj’s recent visit to Dhaka, India had declared that it would accept the arbitration award since it was India’s sovereign decision to accept arbitration. Following the arbitration award, India has announced that it respected the verdict of the tribunal that awarded 19,467 sq km out of 25,000 sq km of the disputed area to Bangladesh in the Bay of Bengal and was studying its full implications. The spokesperson of the Indian External Affairs Ministry said, “We believe that the settlement of the maritime boundary will further enhance mutual understanding and goodwill between India and Bangladesh by bringing to closure a long pending issue. This paves the way for the economic development of this part of the Bay of Bengal, which will be beneficial to both countries." India’s approach to this issue bears the stamp of a thoughtful and far-sighted political handling by External Affairs Minister Sushma Swaraj.
Bangladesh should be happy with the award and has attempted to publicly portray the ruling as being in its favour. Clearly, Bangladesh is trying to contain any euphoric upsurge, though some quarters are indulging in triumphalism. In effect, the award falls short of both India's and Bangladesh's expectations. The moot point is that a long--standing dispute that was hampering the ability of both countries to move ahead on full exploration of the affected part of the Bay of Bengal and its resources has finally been put to rest.
Both India and Bangladesh should be looking to the future, rather than examining how many square kilometres of sea each side may or may not have gained. The real significance of the award lies in its finality, because it would provide clarity and legal certainty on the exact location of the maritime boundary between India and Bangladesh and promote coastal and maritime security. The areas where India and Bangladesh clearly enjoy sovereign rights would be clearly identified and India and Bangladesh would be able to undertake exploration and exploitation of the natural resources including fishing rights without doubt or interference.
Exploration for gas and oil can take place with either side protesting about ownership of the EEZ. The award also opens up avenues of India-Bangladesh cooperation without which Bangladesh may find it difficult to exploit resources that it expects from its EEZ. The Land Boundary Agreement remains the last item on the boundary-related issue between India and Bangladesh. This should also be brought to its logical conclusion by ensuring that the Parliament passes the Constitutional Amendment Bill. The slate will then be wiped clean on boundary-related issues between India and Bangladesh.
— The author is a former Secretary in the Ministry of External Affairs and former High Commissioner of India to Bangladesh.
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