Bangladesh vs Myanmar Maritime Boundary Dispute Verdict: A Brief Summary

The initial public reaction to the verdict of the Bangladesh vs Myanmar maritime boundary dispute delivered by the International Tribunal for the Law of the Sea (ITLOS) on March 12, 2012 was unanimously celebratory. The triumph of Bangladesh in the legal battle against Myanmar was hailed at both the print and broadcast media as one of the greatest achievements of our international diplomacy after the independence. Nevertheless, the social and online media reaction to the verdict was a mixed one. While most were busy celebrating the feat, the alternative voice challenging the claim of an all-out victory began to appear instantly. Like many others, I was also confused by the conflicting claims and decided to read the verdict (found in http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/1-C16_Judgment_14_02_2012.pdf ) myself to understand the essence of the decisions delivered by the tribunal. This article is a layman’s take on the verdict, looking beyond the legal jargons and political rhetoric, to assess its real implication.

To summarize the verdict, the tribunal delivered decisions regarding delimitation of boundary of the following sea zones: 
1. Territorial Sea of Bangladesh and Myanmar,
2. Exclusive Economic Zone (EEZ) of the two countries,
3. Continental Shelf beyond the 200 Nautical Miles (nm).
 
For starters, territorial sea of a country is roughly 12 nm area from its coast. However, if the 12 nm area overlaps with the territorial sea of another country, the boundary is usually demarcated by the median points between the two coastlines.  A country has the sovereign power to set any law on its territorial sea. Foreign vessels are generally allowed to make 'innocent passage' through the territorial sea but are not allowed to stop, pollute or conduct fishing or spying activities.
 
The Exclusive Economic Zone (EEZ) comprises of the sea area starting at the edge of the territorial sea to 200 nm from the coastline. A country has exclusive exploitation rights on all natural resources, both living (e.g. fish and marine creatures) and non-living (e.g. rocks and minerals).
 
The continental shelf is the area located about 200 - 350 nm from the coastline where the ocean floor is made of the extension of the continental land instead of the oceanic crust. Basically it is the extension of the continents that is submerged in the sea. A country does not have exclusive rights on the water or the creatures living in the water, but has exclusive rights on the minerals and living objects attached to the sea floor. From the economic perspective, the exact demarcation of the EEZ and continental shelf is of utmost importance; because the exclusive right on mineral exploration is granted on the basis of the demarcation. 
 
I will briefly illustrate the positions of the two countries, as presented during the tribunal hearing, regarding the demarcation of the three zones and the decisions rendered by the tribunal on each zone.
 
1. Territorial Sea: 
Positions of the two countries:
Bangladesh defined the territorial sea as per the agreement reached on 1974 and reiterated in 2008 between the two countries. "The boundary will be formed by a line extending seaward from Boundary Point No. 1 in the Naaf River to the point of intersection of arcs of 12  [nm] from the southernmost tip of St. Martin’s Island and the nearest point on the coast of the Burmese mainland, connecting the intermediate points, which are the mid-points between the nearest points on the coast of St. Martin’s Island and the coast of the Burmese mainland." 
 
Myanmar, on the other hand, argued, "the 1974 Agreed Minutes were nothing more than a conditional agreement reached at the level of the negotiators."  They pointed out that none of the parties had taken measures to approve the agreed minutes internally by forming laws and so, it cannot be considered equivalent to a treaty. Thus, there is no legal binding for either country to enact the agreements reached. Besides, they also argued that the Burmese delegation that signed the so-called agreement did not have the authority to sign a treaty with a legal effect and neither of the 1974 or 2008 agreements were registered at the UN. 
 
Myanmar instead took the stance that St Martin Island should be not be given a 'full-effect' for defining the territorial sea, as “small or middle-size islands are usually totally ignored” and that the 'predominant tendency' is to give no or little effect to such maritime formations." As St Martin is a small island, they argued, the 12 nm limit should be defined from Bangladesh mainland instead of the island. 
 
Tribunal Decision:
The tribunal supported Myanmar's claim that the agreements reached in 1974 and 2008 are not legally binding for the reasons cited. It also disregarded affidavits submitted by Bangladeshi fishermen and the Navy claiming that Myanmar has historically agreed to the 1974 agreement-defined-boundary. However, they also rejected Myanmar's plea of not giving a full-effect to the St. Martin Island, considering its size and permanent population. The tribunal-defined territorial sea boundary closely resembles the one submitted by Bangladesh. Therefore, although the 1974 and 2008 agreements did not gain a legal status, the decisions taken there regarding territorial sea boundary were principally upheld. It was a good achievement for Bangladesh. 
 
2. Exclusive Economic Zone (EEZ):
a) Coast Length: 
Positions of the two countries:
As the coast length is a major factor in defining the fairness of EEZ and continental shelf demarcation, both the countries presented arguments to minimize the effective coast length of the opponent. Myanmar excluded two Meghna estuary segments from calculation, on the ground that they face each other, to show that Bangladesh's relevant coast length is 364 kilometers whereas Bangladesh claimed that Myanmar's relevant coast length is 370 kilometers. Myanmar, however, claimed that their effective coast length is 740 kilometer. 
 
 
Tribunal Decision: The tribunal rejected both parties’ calculation. For Bangladesh, it considered the Meghna mouth segments to fix the coast length for Bangladesh at 413 kilometer. The coast length of Myanmar was fixed at 587 kilometer. 
 
b) Boundary Delimitation:
Positions of the two countries:
Myanmar wanted the tribunal to apply the 'equidistance principle': which draws the border at equal distance from the coasts of the two countries. Bangladesh instead advocated for 'angle-bisector method', which would consider the concave shape of Bangladesh coast, especially at the Meghna estuary.
 
Tribunal Position:
The tribunal agreed to Myanmar that the equidistance principle should be applied, but it also agreed to Bangladesh's claim of inequitable distribution when the concavity is not considered. Therefore, it proposed that the equidistance principle should be applied only as a provisional step, and then the boundary will be adjusted to consider the issues like concavity raised by Bangladesh to make the delimitation fair. The drawn boundary thus provides much more area to Bangladesh than stipulated in Myanmar's claim. However, Bangladesh's position on the angle-bisector method was not sustained. 

This is where some of our media reports may have been misleading. According to these media reports, the tribunal has accepted Bangladesh proposed equity based method instead of Myanmar proposed equidistance principle. However, while Bangladesh has, in the past, argued in favor of the equity based method, which takes into consideration the relative population size of the relevant countries, there is no mention of Bangladesh proposing the equity based method during the tribunal hearing was found in the verdict. Bangladesh was a proponent of the angle-bisector method during the whole tribunal proceedings to ensure an equitable distribution of the EEZ and the continental shelf. 

3. Continental Shelf:
Position of the two countries:
Myanmar claimed that the tribunal does not hold the jurisprudence over deciding on the continental shelf beyond 200 nm. Besides, it claimed that the continental shelf of Bangladesh does not extend beyond 200 nm, so Bangladesh is not entitled to the continental shelf. Bangladesh, on the other hand, submitted materials claiming that Myanmar's continental shelf is less than 200 nm.
 
Tribunal Position: 
Disregarding Myanmar’s objection, the tribunal asserted that it has full jurisdiction over deciding the continental shelf beyond 200 nm from the coast and decided to exercise the jurisdiction to demarcate the continental shelf. "the Tribunal finds that it has jurisdiction to delimit the continental shelf in its entirety." (Paragraph 363)... "the Tribunal concludes that, in order to fulfill its responsibilities under Part XV, Section 2, of the Convention in the present case, it has an obligation to adjudicate the dispute and to delimit the continental shelf between the Parties beyond 200 nm." (Paragraph 394).  

The tribunal, however, rejected each party's claim that the other party is not entitled to the continental shelf. The materials submitted by Bangladesh, and not contested by Myanmar, did not establish our claim. The tribunal proposed a demarcation line to define the continental shelf. The delimited Bangladeshi and Burmese shelves are mostly non-overlapping, although there is a small grey-area where both the countries' zones overlap. Overall, approximately 111,631 square kilometers of the relevant area was assigned to Bangladesh and approximately 171,832 square kilometers to Myanmar, which is closely in proportion to the total coast lengths of the countries.
 
Now the obvious question, did Bangladesh win? Unfortunately, there is no straightforward answer. For territorial sea demarcation, Bangladesh can be considered a clear winner because of the tribunal’s decision to give a full effect to the St. Martin’s Island. But things are much complicated for the EEZ and continental shelf delimitation. For EEZ, Bangladesh could not make the tribunal agree with its proposal to employ the angle-bisector method. Nevertheless, Bangladesh achieved much of its goal by getting the tribunal recognize the unique concave nature of its coast and revise the for EEZ boundary, drawn by more widely accepted equidistance method proposed by Myanmar, in Bangladesh's favor. The decision of the tribunal to decide upon the continental shelf of Bangladesh and Myanmar despite significant objection from Myanmar, in itself, is a victory for Bangladesh although Bangladesh’s argument to deny the continental shelf right to Myanmar was not sustained. Altogether, the decisions rendered were fair and largely in favour of Bangladesh.

Some online activists raised concern about losing quite a few sea blocks, defined by Bangladesh for exploration of minerals, to Myanmar as a result of the verdict. Out of the 28 exploration blocks, Myanmar raised objection to 17 blocks. According to the map drawn by these activists, at least 4 of them fall completely and 5-6 more blocks fall partially within the declared boundary of Myanmar. However, it is not clear as to what exact process was followed when Bangladesh defined the exploration blocks at the first place. Observing the maps included in the verdict, it seems that even if the tribunal had fully accepted the Bangladesh proposed angle bisector method, still some blocks would have gone to Myanmar. We should understand that the verdict was given in accordance with the existing international law, regulations and conventions and both the parties have their respective claims which may not all be fulfilled by the tribunal.

A few in the social media are criticising Bangladesh’s policy shift to the purely geographical angle bisector method from the equity based method that would have taken into account the population of the countries. While experts in maritime jurisprudence will perhaps be able to enlighten us more about the validity of the equity method in this context, my conjecture is that this policy shift may have been instigated by the fact that we have another boundary dispute arbitration due in 2014 with India. If population size is established as one of the key factors in determination of maritime boundary against Myanmar, the same principle could be applied in India’s favour during the next dispute resolution.

Overall, the verdict is a milestone in the history of Bangladesh. Despite sincere efforts by Bangladesh to resolve the dispute since 1973, and after 2 agreements and 13 bilateral meetings since then, there was little progress in finding an equitable solution to the problem. With the technology to extract minerals from the deep-sea in hand and the acute energy crisis looming over the nation, the exploration of the deep-sea blocks is one of the top priority tasks that remained pending due to the failure to reach a bilateral settlement. The decision to take this long-standing dispute to the tribunal was a very prudent move by the government of Bangladesh and the tribunal delivered a fair verdict in quick time that unambiguously defines the sea boundary between Bangladesh and Myanmar. While the demarcation of the whole maritime boundary of Bangladesh will not be completed before the arbitration between Bangladesh and India, the verdict should equip us with strategic tools to win our next legal battle against India in 2014.

Faiyaz Zamal