CHARU SUDAN KASTURI
New Delhi, July 8: India has lost to Bangladesh a swathe of sea larger than the area of Bengal in a landmark ruling by a UN tribunal after decades of tug-of-war rooted in the Partition of 1947.
The UN’s Permanent Court of Arbitration has awarded Bangladesh 106,613sqkm of a total of 172, 220sqkm that according to New Delhi was under dispute but should belong to India. The award prompted a dissenting signature from New Delhi’s representative on the tribunal but the emissary was outvoted.
The ruling at The Hague settles a maritime boundary India has haggled over with Pakistan from 1947 to 1971, and then with Bangladesh.
Officially, both nations welcomed the settlement.
“We respect the verdict of the tribunal and are in the process of studying the award and its full implications,” Indian foreign ministry spokesperson Syed Akbaruddin said today. He addedd that the settlement would “enhance mutual understanding and goodwill” by bringing to a closure “a long-pending issue.”
The verdict denies Indian fishermen access to the part of the sea lost to Bangladesh. It also means India cannot tap natural gas and oil reserves predicted in that region by the Oil and Natural Gas Corporation.
The contentions used by the five-member bench that heard the case have also upset Indian negotiators, apart from leaving sections of the foreign policy establishment worried about opposition from state governments on the eastern coast.
“This is very honestly a ruling that is not good for India,” a senior Indian official involved in the negotiations told The Telegraph. “The award of the area to Bangladesh is irrational in our view, and the arguments used to justify the decision quite frankly border on the absurd.”
The ruling was delivered to the governments of India and Bangladesh on Monday, with the strict orders that it could not be made public for another day. Today, the court published its 168-page verdict online, allowing the two governments to discuss the ruling publicly.
The dispute involves the demarcation of a maritime boundary between India and Bangladesh, which was East Pakistan before its independence in 1971.
Delineating the boundary was important because it defines both the sovereign maritime territory of each of the two neighbours — extending 12 nautical miles off the coast — and an Exclusive Economic Zone (EEZ) that continues till 200 nautical miles into the sea.
Although a nation does not have territorial sovereignty over the EEZ — ships from other countries can enter those waters freely — that particular country alone can exploit the zone for economic gains. In the Bay of Bengal, India’s state-owned ONGC has been exploring for oil and gas since 2005.
After multiple rounds of unsuccessful negotiations, the government of current Bangladesh Prime Minister Sheikh Hasina approached the UN arbitration court in 2009.
India agreed to join the tribunal’s proceedings and nominated Pemmaraja Srinivasa Rao as its member to the five-judge bench hearing the case. Bangladesh’s nominee on the panel was Ghana’s Thomas A. Mensah. German international law veteran Rudiger Wolfrum headed the bench.
New Delhi’s arguments were made, among others, by the then attorney general, G.E. Vahanvati.
India insisted that only the area just south of Bangladesh and Bengal ought to be considered while demarcating the maritime boundary. This area amounted to 172,220sqkm — just under twice Bengal’s area of 88,752sqkm.
But Bangladesh demanded that parts of the sea close to the Odisha and Andhra Pradesh border, too, must be considered as disputed territory.
The UN bench not only agreed to Bangladesh’s demand but added even more area, defining the disputed region as a whopping 406,833sqkm — around the combined area of Uttar Pradesh, Bengal and Assam.
This definition extended the dispute to coastal waters running all the way down Odisha’s coast till Sandy Point near Vishakhapatnam in Andhra Pradesh. Rao dissented, but was outvoted 4-to-1, the verdict report shows.
India then won a small battle against Bangladesh in the hearings — convincing the bench to accept a point on the map in the shallow seas just south of the Sunderbans that New Delhi insisted should mark the start of the boundary delineation. This victory allowed India to win a tiny island known as New Moore or South Talpatti that some satellite images suggest may have drowned in recent years.
But New Delhi soon lost a bigger battle, over the geographic method the arbitration court would use to mark out the boundary.
Dhaka had suggested that the judges take a compass and pencil, and mark the maritime boundary by dividing the angle created by the abutting Indian and Bangladesh coasts equally.
In effect, this “180-degree principle” meant drawing a straight line down from the starting point of the demarcation, to a point where both nations accept that their EEZ ends.
India contended that the equal-angle principle could not be adopted because curves further down its neighbour’s coast would effectively give Bangladesh greater sea territory than was fair.
India suggested an “equidistant-line” principle, under which the boundary marker at each point in the sea would be the spot equidistant from the nearest point on the Indian and Bangladesh coasts. This line, unlike the one proposed by Bangladesh, would twist and turn with the curves on the two coasts.
The arbitration tribunal initially accepted India’s equidistant principle but applied it only to the part of the sea very close to the coast. For the rest of the disputed area, it tweaked Bangladesh’s suggestion, only tilting the straight boundary line Bangladesh had proposed slightly to the east, at an angle of 177 degrees — or three degrees from the vertical.
The maritime boundary defined by the UN court justified its order by calculating the ratio of the total areas it awarded to India and Bangladesh.
But the ratio — India was awarded 300,220sqkm of the area, almost thrice Bangladesh’s 106,613sqkm — is misleading, according to Indian officials. They said the maritime territory demarcated to New Delhi included a large chunk along its eastern seaboard that was never really under dispute.
For Bangladesh, the victory is the second of its kind in quick succession — it won a UN arbitration battle against Myanmar in 2012, also over the demarcation of its maritime boundary with that nation.
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