James Harrison :
On Wednesday 14 March, the International Tribunal for the Law of the Sea issued its judgment in the Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar. The dispute concerned the delimitation of the territorial seas, exclusive economic zones and continental shelves of these two states in the Bay of Bengal.
The Judgment is important in a number of respects. Firstly, it is the first dispute concerning maritime boundary delimitation decided by the International Tribunal for the Law of the Sea. It therefore gives an indication of the approach of the Tribunal to maritime boundary delimitation compared to other international courts and tribunals. Secondly, it is the first judgment of an international court or tribunal which directly addresses the delimitation of the continental shelf beyond 200 nautical miles. The tribunal therefore had to deal with some novel legal issues in its judgment. The judgment will also be an important point of reference in the on-going dispute between Bangladesh and India concerning their maritime boundaries on the other side of the Bay of Bengal. The tribunal dealt with the delimitation of the maritime boundary in three different parts: the territorial sea; the exclusive economic zone and continental shelf within 200 nautical miles; and the continental shelf beyond 200 nautical miles.
In relation to the territorial sea, the Tribunal drew an equidistance line from baselines identified by the parties in accordance with Article 15 of the 1982 United Nations Convention on the Law of the Sea. It found there were no special circumstances which called for moving this equidistance line.
In relation to the exclusive economic zone and continental shelf within 200 nautical miles, the tribunal had been asked to draw a single maritime boundary by the parties. The Tribunal identified that it was required to draw the maritime boundary in order to achieve an equitable result in accordance with Articles 74 and 83 of the 1982 United Nations Convention on the Law of the Sea. The Tribunal decided to draw a provisional equidistance line but it then adjusted this line to take into account the concavity of the Bangladeshi coast.
The Tribunal also decided that “the delimitation method to be employed in the present case for the continental shelf beyond 200 [nautical miles] should not differ from that within [200 nautical miles].” (Para. 455 of the Judgment) As the concavity of the coast continued to have an effect beyond 200 nautical miles, the Tribunal held that the adjusted equidistance line should continue in the same direction beyond the 200 nautical mile limit of Bangladesh until it reaches as area where the rights of third States may be affected. (see Para. 462 of the Judgment)
So who won the case? There have already been claims of “victory” in the case. However, in the context of maritime boundary delimitation disputes, this is probably not an appropriate question to ask. Throughout its judgment, the Tribunal stressed that the goal of maritime boundary delimitation (beyond the territorial sea) was an “equitable solution.” Thus, the outcome of any decision is unlikely to be a “winner takes all” scenario.
This is perhaps clearest in relation to the single maritime boundary drawn for the exclusive economic zone and continental shelf within 200 nautical miles. Bangladesh had argued that the Tribunal should use the angle-bisector method in drawing the boundary, as the equidistance line would, in its opinion, lead to inequitable result. This argument was rejected by the Tribunal which accepted that the equidistance/relevant circumstances method was appropriate in this case, as had been argued by Myanmar. Yet, the Tribunal did not fully accept all of the arguments of Myanmar put forward by Myanmar on this point. The Tribunal stressed that it was not bound by the base points suggested by Myanmar in its proposed equidistance line and the Tribunal added its own base point to lead to a more equitable provisional equidistance line. Moreover, the Tribunal also rejected the argument of Myanmar that there were no relevant circumstances. Bangladesh had identified several possible relevant circumstances. The Tribunal accepted that it was necessary to adjust the equidistance line to take into account the concavity of the coast. But it did denied the relevance of the other circumstances, put forward by Bangladesh, including the position of St. Martins Island (subject to the sovereignty of Bangladesh) which was given no effect in the delimitation. (Para. 319 of the Judgment) The adjustment of the line is largely done at the discretion of the Tribunal, with the Tribunal itself noting that “there are no magic formulas.” (Para. 327 of the Judgment) Arguably, the final delimitation line for this part of the boundary gives something to both parties.
The equitable nature of the solution is also apparent in relation to the settlement of the boundary beyond 200 nautical miles. On this point, Myanmar had argued that the Tribunal should not exercise its jurisdiction, but the Tribunal was clear that it had the right to decide on the delimitation, regardless of whether the extension of the outer continental shelf had been approved by the Commission on the Outer Limits of the Continental Shelf. The tribunal also rejected Myanmar’s argument that Bangladesh has no continental shelf beyond 200 nautical miles. At the same time, the tribunal rejected the argument of Bangladesh that there was no natural prolongation from the coast of Myanmar because of the geological discontinuity where the Indian tectonic plate meets the Burma tectonic plate about 50 nautical miles from the coast of Myanmar. In an important clarification of the law, the Tribunal held that natural prolongation refers to the extension of the continental margin and there was therefore no need for geological continuity. (See Para. 437 of Judgment; see also Para. 460) Nor did the Tribunal accept that the geographic origin of the sedimentary rocks had any relevance for the delimitation of the outer continental shelf. (Para. 447 of the Judgment) In the end, the Tribunal simply extends the adjusted equidistance line that it had already drawn for the exclusive economic zone and continental shelf within 200 nautical miles. Again, this solution can be seen as giving something to both parties, but it certainly does not give either of them everything they had asked for.
(James Harrison is a legal expert on Oceanic and Maritime Laws)