ARTICLE TEXT

For almost four decades after independence, Bangladesh’s rights in the Bay of Bengal were uncertain. Its neighbours, Myanmar to the east and India to the west, both claimed maritime boundaries based on equidistance lines that, because of the shape of Bangladesh’s coast, would have boxed the country into a small triangle of sea. On 14 March 2012, the International Tribunal for the Law of the Sea (ITLOS) gave judgment in the first maritime boundary case in its history. The decision gave Bangladesh access to the wider Bay and remains one of the most significant legal victories in the country’s history.

The Background

Bangladesh’s coastline is sharply concave: it curves inwards between Myanmar and India. Where a coast is concave, a strict equidistance line, drawn at an equal distance from the nearest points on each state’s coast, tends to cut off the middle state’s access to the open sea. Negotiations with Myanmar since the 1970s had produced no agreed boundary, and disputes over offshore gas blocks intensified in the 2000s.

In October 2009, Bangladesh started arbitral proceedings against both neighbours under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). In the case against Myanmar, both states then made declarations accepting the jurisdiction of ITLOS, and in December 2009 the case was transferred to the Tribunal in Hamburg. The case against India continued before an arbitral tribunal.

The Issues

The Tribunal had to delimit three zones: the territorial sea (up to 12 nautical miles from the coast), the exclusive economic zone (EEZ, up to 200 nautical miles) and the continental shelf, including the part extending beyond 200 nautical miles. Important questions included whether earlier minutes of negotiations amounted to an agreed territorial sea boundary, what effect should be given to Bangladesh’s St Martin’s Island near the coast of Myanmar, and whether the Tribunal could delimit the continental shelf beyond 200 nautical miles while both states’ submissions were pending before the UN Commission on the Limits of the Continental Shelf.

The Decision

By twenty-one votes to one, the Tribunal drew the boundary. In the territorial sea, it held that the 1974 and 2008 minutes did not amount to a binding agreement and drew an equidistance line, giving St Martin’s Island its full 12-nautical-mile territorial sea.

For the EEZ and continental shelf, the Tribunal applied the now-standard three-stage method: draw a provisional equidistance line, adjust it for relevant circumstances, and check the result for disproportionality. It gave St Martin’s Island no effect beyond the territorial sea, because doing so would have distorted the line. Crucially, it accepted that the concavity of Bangladesh’s coast was a relevant circumstance, because the equidistance line would cut off Bangladesh’s maritime entitlement. It therefore adjusted the line, which from the point of adjustment runs along a geodetic azimuth of 215° until it reaches the area where the rights of third states may be affected.

The Tribunal also delimited the continental shelf beyond 200 nautical miles, the first time an international court or tribunal had done so. The result left a small “grey area” lying beyond 200 nautical miles from Bangladesh but within 200 nautical miles of Myanmar, on Bangladesh’s side of the line: there, Bangladesh has rights over the seabed and Myanmar over the water column above it. The Tribunal encouraged cooperation in that area.

The Sequel: Bangladesh v India (2014)

The case against India was decided by an Annex VII arbitral tribunal, administered by the Permanent Court of Arbitration, on 7 July 2014. It too adjusted the equidistance line to take account of the concave coast. According to reports in Dhaka, the award gave Bangladesh about 19,467 of the 25,602 square kilometres of sea in dispute. Together, the two decisions settled all of Bangladesh’s maritime boundaries.

Why It Matters

For Bangladesh, the judgment opened a large area of sea for fishing, offshore energy and what is now called the blue economy. It also showed a small, developing state using international law, not power, to secure its interests. For students of the law of the sea, it is a leading authority on the three-stage method, on concavity and cut-off as relevant circumstances, on the treatment of islands, and on the delimitation of the outer continental shelf. And for Bangladeshi lawyers, it is a reminder that the country’s own legal history includes some of the most important decisions in modern international law.

Sources

1. ITLOS, Case No. 16 (Bangladesh/Myanmar): https://www.itlos.org/en/main/cases/list-of-cases/case-no-16/
2. Judgment of 14 March 2012 (PDF, WorldCourts): https://www.worldcourts.com/itlos/eng/decisions/2012.03.14_Bangladesh_v_Myanmar.pdf
3. Herbert Smith Freehills, ITLOS issues judgment in Bangladesh/Myanmar: https://www.hsfkramer.com/notes/arbitration/2012-03/international-tribunal-for-the-law-of-the-sea-issues-judgment-in-bangladeshmyanmar
4. The Daily Star, Bangladesh gets 19,467 sq km area in Bay (July 2014): https://www.thedailystar.net/bangladesh-gets-19-467sq-km-area-in-bay-32400
5. Permanent Court of Arbitration, Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India): https://pca-cpa.org/en/cases/18/