Bangladesh Myanmar Case/

Dispute Settlement

This paper seeks to review the pertinent Myanmar and Bangladesh history in overlapping
maritime territorial claims leading up to the September 2011 International Tribunal for the
Law of the Sea (ITLOS) case: Dispute Concerning Delimitation of the Maritime Boundary
Between Bangladesh and Myanmar in the Bay of Bengal. It will dissect the legal proceedings
as primary source documents and apply the relevant judgement findings to analyse the
implications for the respective countries and for South China Sea maritime boundary
disputes. While the judgements of this case set certain legal precedents that may be more
easily applied to bilateral disputes, the implications, nevertheless, impinge on multilateral
claims as well. To the extent that the Bangladesh-Myanmar ITLOS judgement provides a
pathway to third-party, independent, and peaceful resolution to the potentially explosive and
escalating tensions in the South China Sea, this paper argues that findings are relevant, but
limited.

Policy Implications
■
The Myanmar-Bangladesh dispute is the first maritime boundary case for ITLOS. It set
precedence for a peaceful and equitable resolution, allowing the countries to move forward
with natural resource extraction.

■
ITLOS is an independent and diverse body of 21 judges who are experts in maritime law.
They offer arbitration that is more suitable in maritime claims than the International Court of
Justice (ICJ). A lighter case docket also affords ITLOS a more timely case judgement.

■
The United Nations Convention on the Law of the Sea (UNCLOS) serves as the underlying
and most pertinent body of legislature that is most applicable in maritime boundary disputes.

■
Future maritime boundary case judgements should provide further clarification and definition
of “islands” and corresponding territorial seas, exclusive economic zones (EEZ), and
continental shelf areas.

■
While both Myanmar and Bangladesh claim victory in the dispute settlement, the Rohingya
indigenous people in both countries are most likely to suffer from the Tribunal decision. A
drastic change in the economy from fishing and farming to hydrocarbon gas extraction may
result in environmental concerns, land-rights issues, forced labour, increased numbers of
refugees and human rights abuses.
Introduction
Strict realists (Waltz 1988) espouse the nonexistence of international law and point to its
limited usefulness in international relations. Rather, in the absence of a supranational body of
enforcement, state actors behave according to national interests in an international system of
anarchy. However, in cases where parties jointly submit jurisdiction to an independent third
party to adjudicate a dispute, international law can provide a peaceful means to conflict
resolution.1

1
The views expressed in this article are those of the author and do not reflect the official
policy or position of the United States Army, Department of Defense, or the United States
Government

On 14 March 2012, the International Tribunal for the Law of the Sea (ITLOS) released its
case judgement for the Dispute Concerning Delimitation of the Maritime Boundary Between
Bangladesh and Myanmar in the Bay of Bengal (Judgement 2012). The 1982 United Nations
Convention on the Law of the Sea (UNCLOS) established ITLOS as an independent judiciary
to adjudicate maritime disputes and claims. The Tribunal is composed of 21 independent
elected members with maritime law expertise. In this specific case, both Bangladesh and
Myanmar also picked one member each to represent their respective countries as ad-hoc
judges. While ITLOS had previously adjudicated in 15 cases, this was the first case involving
ITLOS to concern maritime boundaries. Before this, precedence concerning maritime
boundary disputes derived from the case judgements of the International Court of Justice
(ICJ) (International Boundary Research Unit 2009). The advantage that ITLOS has over ICJ
in maritime claim arbitration is in the case expediency and the maritime technical expertise,
both of which ICJ lacks.

Historical Background
The first step in border delimitation between modern-day Bangladesh (before its
independence from Pakistan in 1971) and Myanmar2 occurred on 9 May 1966 with the Naaf
River Boundary Agreement. However, this established a border only along the Naaf River
delta, ending at the river's mouth onto to the Bay of Bengal. Between 1974 and 1986, a series
of eight rounds of bilateral negotiations convened to delimit the territorial waters, exclusive
economic zones (EEZ) and continental shelf boundaries. At the second round of talks on 23
November 1974, the respective delegates signed the Agreed Minutes between the Bangladesh
Delegation and the Burmese Delegation regarding the Delimitation of the Maritime Boundary
between the Two Countries (the ‘1974 Agreed Minutes’). Commodore Chit Hliang, Navy
Vice Chief-of-Staff, led the Myanmar delegation, while the Ambassador to Myanmar, Kwaja
Mohammad Kaiser, led the Bangladesh delegation. Special Chart 114 was attached to the
1974 Agreed Minutes and graphically illustrated the boundary, which followed a line parallel
to the Myanmar Rakhine state coast and equidistant between that coast and St. Martin's
Island, which belongs to Bangladesh (Judgement 2012: 25).
2
While “Burma” and “Myanmar” have been used officially and unofficially in written and
verbal forms throughout the country's history, the author uses “Myanmar” only for
consistency and simplification in this text. No political implications are intended. At the time
of the September 2011 ITLOS proceedings, the full name of the country was the Republic of
the Union of Myanmar.

Over 30 years later, the dispute re-emerged. Jared Bissinger, a research fellow at the National
Bureau of Asian Research, trail-blazed the field in terms of theorizing the issue of causality in
the re-emergence. He argues that the dispute resurfaced because of two primary factors: new
discoveries of hydrocarbon gas reserves in the Bay of Bengal and increased demand for
natural gas in both countries. The majority of the hydrocarbon gas reserves in the Bay of
Bengal were discovered between 2002 and 2007 (Bissinger 2010: 113). While Bangladesh,
which is plagued by frequent power outages, is sourcing energy sources to alleviate its
domestic power shortage, Myanmar is more likely to export the natural gas to both China and
India.

The second period of six rounds of negotiations, from 2008 to 2010, were characterized by
rising tensions (Judgement 2012: 21). In April 2008, the parties jointly signed a document
similar to the 1974 Agreed Minutes: the Agreed Minutes of the Meeting held between the
Bangladesh Delegation and the Myanmar Delegation regarding the Delimitation of the
Maritime Boundaries between the two countries [April 2008]. This document, referred to
subsequently as ‘the 2008 Agreed Minutes’, was signed on the Myanmar side by Commodore
Maung Oo Lwin, commander of the Irrawaddy Navy Regional Command, and on the
Bangladesh side by the Additional Foreign Secretary Mr. A. K. Mahmood. The salient points
of the 2008 Agreed Minutes concern the classification of islands, in accordance with Article
121 of UNCLOS, and further reaffirmed and clarified the line proposed in the 1974 Agreed
Minutes, by assigning a series of specific latitudinal and longitudinal points (Judgement
2012: 27). Additionally, it was proposed that the area of land known as St. Martin's Island be
considered as an island, in accordance with Article 121 of UNCLOS (UNCLOS 1982).
However, Oyster Island off the coast of Myanmar would not be considered an island, because
it was deemed uninhabitable due to its lack of fresh water and its inability to sustain
economic life or any permanent population. According to Article 121 UNCLOS, only islands
as noted above, that are able to sustain human habitation or economic life of their own would
be subject to the Convention in considerations dealing with EEZ and continental shelf
(UNCLOS 1982; Judgement 2012: 27).

Bissinger's identification of the prospect of natural gas exploration as the proximate cause
leading to the concomitant second period of bilateral negotiations in 2008 has similarities
with the most recent April 2012 standoff between Chinese and Philippine vessels over the
disputed Spratly Islands in the South China Sea. On 17 October 2008, two Myanmar Navy
vessels escorted four survey ships to begin exploratory drilling approximately 50 nautical
miles southwest of St. Martin's Island in the contested area. Bangladesh responded by calling
for a suspension of Myanmar's exploratory drilling until the delimitation of maritime
boundaries had been determined, and also threatened the use of force against Myanmar with
the dispatch of three Bangladesh Naval vessels (Moe 2008; Daily Star 2008). Although the
week-long stand-off did not result in any direct conflict, the lack of any resolution led
Bangladesh to pursue third-party arbitration in accordance with Annex VII UNCLOS (Islam
2009), in October 2009.

Unlike cases dealt with by ITLOS, Annex VII arbitration involves only five members. Three
members are jointly selected by the convening parties of the dispute. The remaining two are
unilaterally appointed by each party. However, Myanmar chose not to settle the dispute under
Annex VII, but opted rather for arbitration through ITLOS and concurrent bilateral
negotiations. It is worth noting that in unrelated Annex VII arbitration between India and
Bangladesh in 2010, both parties failed to agree on the three joint-members, but bilateral
negotiations still ensued (Bissinger 2010: 130).

Nevertheless, Myanmar and Bangladesh decided to pursue a settlement through ITLOS in the
process discussed below.

Legal Proceedings
To initiate the legal proceedings under ITLOS, both countries had to submit by declaration,
according to Article 287 paragraph 1, UNCLOS,

that it accepts the jurisdiction of the International Tribunal for the Law of the Sea for the
settlement of the dispute between the Union of Myanmar and the People's Republic of
Bangladesh relating to the delimitation of maritime boundary between the two countries in
the Bay of Bengal (Judgement 2012: 10).

The Joint Declaration of ITLOS Judges Nelson, Chandrarekhara Rao, and Cot states that the
International Court of Justice set the jurisprudence in case law in referencing the Maritime
Delimitation in the Black Sea (Romania versus Ukraine) 2009. That case specifically upheld
the previous 25-year legal precedence of demarcation as a three-step process: first,
equidistant lines are drawn based on any relevant circumstances and are taken into
consideration in accordance with Article 15 of UNCLOS. While the first step is more
objective, the second step involves taking into consideration the concavity of coasts, island
presence, relative coastal length and “considerations relating to economic resources, fisheries,
security concerns and navigation” (Cot, Nelson, and Rao 2012: 2). This second step considers
those relevant factors in making adjustments to ensure an equitable solution. Lastly, a test for
disproportionality is made to reaffirm the equitable solution.

According to ITLOS, the maritime area in dispute was 283,471 square kilometres (Judgement
2012: 142). Appendix Figure 1: Submission of Territorial Sea Delimitation shows the initial
respective proposed demarcations from Bangladesh and Myanmar. Clearly, Myanmar's
proposed demarcation attempted to secure the natural gas deposits where the October 2008
exploratory drilling and subsequent stand-off occurred southwest of Bangladesh's St. Martin's
Island. In oral arguments during the September 2011 hearing, the Bangladesh delegation
argued that points 1 to 7 submitted to ITLOS coincided with both the 1974 and 2008 Agreed
Minutes. Furthermore, the Bangladesh delegation saw those documents as binding.
While it is true, that Bangladesh ratified the 1974 Agreed Minutes to serve as a maritime
boundary and drafted a treaty to Myanmar in 1974, Myanmar claims that the signatories to
the 1974 and 2008 Agreed Minutes did not have the authority to ratify a joint boundary.
Furthermore, it refused to sign the treaty drafted by Bangladesh in 1974. Rather than seeing
them as binding agreements, Myanmar stated that the 1974 and 2008 Agreed Minutes served
only as a record of issues discussed, rather than a finalized resolution. Bangladesh submitted
affidavits from Bangladeshi fishermen and naval officers as evidence of the informal
boundary that they believed had existed since 1974. Despite, Bangladesh's argument that
Myanmar and Bangladesh have jointly behaved in accordance with the boundary stated in
Special Chart 114 attached to the 1974 Agreed Minutes, ITLOS ruled that this failed to meet
the requirements of a tacit or de facto agreement because the submitted affidavits reflect
fishermen's opinions and naval officers’ bias.

The test for historical tacit or de facto agreement in Article 15 UNCLOS states:

Where the coasts of two States are opposite or adjacent to each other, neither of the two
States is entitled, failing agreement between them to the contrary, to extend its territorial sea
beyond the median line every point of which is equidistant from the nearest points on the
baselines from which the breadth of the territorial seas of each of the two States is measured.
The above provision does not apply, however, where it is necessary by reason of historic title
or other special circumstances to delimit the territorial seas of the two States in a way which
is at variance therewith (UNCLOS 1982: Art. 15).

In the absence of a pre-existing and legally-binding agreement, the Tribunal then looked to
determine if any “historic title or other special circumstances” were relevant to this specific
case. The Tribunal determined, with no contest from either party, that no historical titles were
relevant to this case. However, Myanmar claimed that St. Martin's Island was a special
circumstance in that it was located directly in front of the Myanmar coast and within the
traditional 12 nautical mile territorial sea limit of Bangladesh. Therefore, Myanmar
contended that the island should not warrant full consideration in terms of having its own
relative territorial sea, EEZ and continental shelf. Essential to Bangladesh's argument was
that St. Martin's Island, which lies approximately six nautical miles south of Bangladesh, has
a sustainable fishing economy, permanent population of approximately 7,000 people and a
tourism industry that draws in over 360,000 tourists a year (Judgement 2012: 49, para. 143).
In this contention, the Tribunal opted for the middle ground. It awarded St. Martin's Island its
own 12 nautical mile territorial sea, but did not allow for its own relative EEZ or continental
shelf.

Having reviewed historical titles and all relevant and special circumstances, the Tribunal
made a judgement on the delimitation of the territorial waters (see Appendix Figure 2:
International Tribunal Final Delimitation of Territorial Sea). The Tribunal further judged that
the EEZ would follow the natural prolongation of the demarcation line (see Appendix Figure
2) on a 215 degree angle (relatively perpendicular to the Myanmar coast) and extending to
200 nautical miles

Lastly, the Tribunal considered continental shelf claims beyond 200 nautical miles. Myanmar
contested that the Tribunal did not have the jurisdiction to make the stated judgement.
However, the Tribunal referred to Articles 76 and 83 of UNCLOS, which explicitly define
“continental shelf” and specifically denote clauses for entitlement beyond 200 nautical miles.
While both countries argued that the other should not have entitlements beyond the EEZ, the
Tribunal continued the natural 215 degree angle prolongation of the demarcation line beyond
200 nautical miles. In the end, both Myanmar and Bangladesh willingly accepted the
Tribunal's decision and both have proceeded with oil and gas exploration partnerships.

Implications
This apparent win-win situation, however, also had a loser. The Rohingya indigenous people
who straddle the Bangladesh-Myanmar coastal border are likely to suffer from the future
implications of industrial growth and transformation in their villages. Already subjugated by
the Myanmar government, the Rohingya are not even recognized as ethnic-minorities or
citizens of the state. Stateless and impoverished, they have no entitlements and limited
opportunities for upward mobility (Bissinger 2010: 139).

The outcome of the case only exacerbates several human rights issues. The Rohingya's
subsistence fishing and farming villages are likely to be erased by the large footprint of oil
and natural gas multinational corporations. While this may create some opportunities for
legal employment, forced labour may also result. Furthermore, the infrastructure
development associated with resource extraction may create roads, ports, and other means of
transportation, but it is also likely to produce property rights and environmental issues that
could displace the Rohingya. Ultimately, Rohingya refugees who have fled to Bangladesh
may have nowhere to turn to for survival. One hopes that corporate responsibility programs
might try to mitigate this ethnic group's suffering, but this is by no means guaranteed in
Bangladesh and Myanmar, where the rule of law is not fully embraced.

Furthermore, this method of demarcation is far from perfect. While the procedures have
combined both scientific principles of measurement with legal principles based on
jurisprudence and goals of equitable solutions, grey areas can be a by-product (see Appendix
3: Tribunal Delimited Grey Area). Clearly, ITLOS served as an expedient means of solution
with proceedings commencing much faster than they would have with the ICJ. Furthermore,
ITLOS judges were field experts in both the maritime scientific and legal aspects necessary to
adjudicate this maritime boundary demarcation case. It would not be a surprise for ITLOS to
continue to develop case law in maritime boundary disputes and for disputing parties to seek
rapid, equitable, and peaceful third-party resolution through this Tribunal. Therefore, this
case could set a precedent for other Asian maritime disputes, such as the disputes over the
territoriality of the Spratly and Paracel islands in the South China Sea.
Unlike the Myanmar-Bangladesh Bay of Bengal ITLOS dispute, the South China Sea issue is
inherently more complex in that China, Taiwan, Vietnam, Malaysia, Brunei, and the
Philippines have overlapping claims. Even the naming of the body of water creates
contention and controversy. While the family of Malay language-speaking countries of
Malaysia, Brunei, and Indonesia call it the “South China Sea” (Laut Cina Selatan), China and
Taiwan call it the “South Sea” ( or Nánhăi) and Vietnam uses the “East Sea” (Biên Ðông)
(Vietnam News 2012) as its preferred name. Most recently, in 2011, the Philippines began
using the neologism “West Philippine Sea” (Kanlurang Dagat ng Pilipinas) to protest at
perceived aggression from Beijing against its claims (Pacpaco 2011). However, all parties to
the South China Sea dispute are ratified signatory members to UNCLOS (though Taiwan falls
under China's membership). Challenges arise in that, although the relevant countries are all
members of UNCLOS, according to Article 287 UNCLOS, they must each declare ITLOS
jurisdiction in settlement of the dispute. China, which has a great deference for bilateral
negotiations, may be averse to this third-party settlement, especially if it is multilateral.
However, as with the Myanmar-Bangladesh case, bilateral negotiations could also continue in
parallel to Tribunal proceedings.

Regardless of whether this case was heard by ITLOS or the ICJ, the basic procedures in
resolving the South China Sea claims would very likely be similar to the
Myanmar-Bangladesh case. Cot, Nelson, and Rao justified the three-step procedure as the
foundation for the resolution of further maritime boundary claims:

One should not try to reintroduce other methods of delimitation when implementing the
equidistance/relevant circumstances rule. It would amount to reintroducing the very elements
of subjectivity progressively reduced over the years (Cot, Nelson, and Rao 2012: 2).

While experts in the field of maritime law largely agree on the procedures of delimitation,
what constitutes “relevant” or “special circumstances” remains highly debated. For example,
Judge Wolfrum in speaking about the special circumstances of St. Martin's Island notes,

The Tribunal should have spelled out which consideration it took into account and which it
did not. If it had done so it would have provided for the development of the general rule,
which is missing (Wolfrum 2012: 3).

Wolfrum contends that, in addition to ability to sustain life, degree of economic

independence, and accessibility of fresh water, the Tribunal should also consider other
relevant factors such as a given island's freedom of access to the sea and island size relative
to maritime area in dispute. Furthermore, the Tribunal should have been more explicit in
refining the island definition based in Article 121 UNCLOS.

Article 15 UNCLOS would also be relevant to South China Sea resolution in that, unlike in
the Myanmar-Bangladesh case, which did not have historical ties nor special circumstances,
the South China Sea dispute likely will. The People's Republic of China has referenced its
historical maritime charts that show the 1947 Republic of China's territory in an
eleven-dashed line that extends into the EEZ of multiple countries and includes both the
Paracel and Spratly Islands. It is peculiar to note that this issue also increases in complexity
as the PRC references only a nine-dashed line in its current claims, omitting two dashes in the
Gulf of Tonkin. It is likely, that other countries may also submit evidence to support historical
claims to islands in the South China Sea. Wolfrum's recommendation for clarifying special
circumstances in regards to the definition and classification of islands will be of particular
importance in the Spratly Islands claims. However, this case does add legal precedence in the
Tribunal's conclusion that Oyster Island should not be considered an Island, according to
Article 121 UNCLOS, because it has no permanent population, cannot sustain life, and has
no economic activities. Certain rocks and reefs in the South China Sea, most likely, also
would not classify as “islands” under Article 121 UNCLOS. This has significant implication
in dealing with the EEZs of the various claimants.

China's foreign policy, traditionally, is characteristic of direct bilateral negotiation. It often

uses its comparative economic advantage as leverage in disputes. When China joined
UNCLOS in 1996, it explicitly rejected all four forms of adjudication explicitly stated in
Article 298 UNCLOS, including ITLOS, ICJ, ad hoc arbitration, and “special arbitral
tribunal” (International Crisis Group 2012: 31). This certainly poses obstacles for third-party
resolution. Moreover, China will lose face domestically and fears the loss of national, popular
support if it loses its claims, or parts thereof, in third-party courts that are perceived to be
controlled by the West (International Crisis Group 2012: 31). Perhaps, however, the fact that
the United States has yet to ratify UNCLOS may lend legitimacy to ITLOS from the Chinese
perspective. According to Yun Sun, a Chinese scholar working for the Brookings Institution,
Chinese are taught from a very young age that China's territory includes much of this
disputed area in the South China Sea (Sun 2012). Yet, promise for multilateral negotiation is
still possible. In arguably a political manoeuvre with little ramification in enforcement, China
nevertheless joined all the ASEAN countries in signing the Declaration on the Conduct of
Parties in the South China Sea in 2002.3

3
Declaration of Conduct of Parties in the South China Sea in 2002 (4 November 2002), online:
www.aseansec.org/13163.htm.

Judge Zhiguo Gao, who is an elected member of the ITLOS from China, produced a separate
opinion on the Myanmar-Bangladesh case judgement. While Judge Gao voted with the
majority of members in the case findings concerning jurisdiction and demarcation within 200
nautical miles, he voted against the operational clause concerning the maritime claims
beyond 200 nautical miles (Gao 2012: 33). His dissent revolved around the methodology in
demarcation and the effect of St. Martin's Island on the EEZ and continental shelf claims.
Judge Gao declared that the angle-bisector method would have been more appropriate to the
case in question as it would represent the coastal concavity of Myanmar and Bangladesh.
According to Judges Cot, Rao, and Nelson, the Tribunal used the equidistance method (Cot,
Nelson, and Rao 2012: 1), however. Judge Gao argues that the resultant 215 degree angle
extending beyond 200 nautical miles is not truly reflective of the coastal concavity of
Bangladesh and Myanmar. Judge Gao's calculations result in a 218 degree angle, which
would have reduced Bangladesh's territorial claim and simultaneously reduced the
con-testable Grey Area (see Appendix Figures 3 and 4).

figure

Figure 3 Tribunal Delimited Grey Area

Source: Judgement 2012.

figure

Figure 4 Recommended Delimitation from Judge Zhiguo Gao

Source: Judgement 2012.

Furthermore, Judge Gao argued that effect should be given to St. Martin's Island in the
delimitation of Bangladesh's territorial sea, EEZ, and continental shelf “by reason of its size,
its large permanent population, its important economic life, its strategic importance and, most
importantly, its geographical location only 4.547 nautical miles from Bangladesh's mainland
territory” (Gao 2012: 33). Judge Gao agrees with the Tribunal that St. Martin's Island should
have a 12 nautical mile EEZ. However, while the Tribunal concluded that St. Martin's Island
would have no effect on the EEZ and continental shelf claims of Bangladesh, Judge Gao
contends that the island should still partially effect the EEZ and continental shelf. The
full-effect in Bangladesh's claim would block the outward-projection of Myanmar's sea
territory because of the island's proximity to the Myanmar coast. Thus, Judge Gao proposes a
more equitable solution, in which, only a half-effect of the island is accounted for (see
Appendix Figure 5: Recommended Effect of St. Martin's Island from Judge Zhiguo Gao).

figure

Figure 5 Recommended Effect of St. Martin's Island from Judge Zhiguo Gao

Source: Judgement 2012.

Critics, like Sam Bateman, contend “[Gao's] separate opinion shows views that are more or
less in line with China's position on its disputes in the East and South China seas” (Bateman
2012: 2). The most applicable issues concerning Gao's opinion on the South China Sea are in
the definition and characteristic of islands that entitle full-effect and entitlement in EEZ and
continental shelf claims. It is interesting to note that the vice governor of China's Hainan
Island is attempting to initiate tourist activities on the contested Paracel Islands (China Post
2012). Perhaps, this is part of both Article 121 UNCLOS and Judge Gao's reaffirmation that
the full-effect of islands includes a distinct economic life. By developing a tourism industry
in the Paracels, China may be attempting to position itself for the eventual adjudication of the
dispute.

In addition to tourism, China, along with many of the other disputing countries, has begun a
military build-up in the contested areas, including such activities as armed patrols,
reconnaissance outposts, lighthouse construction and buoy marking to stake sovereign claims
(International Crisis Group 2012: 8). A complicating factor in the dispute is the fact that the
United States’ Navy also has a presence in the South China Sea. US policy for the past
decade has continued to be to remain neutral in the dispute and to seek freedom of navigation
and peaceful resolution (Storey 2012). But, the US also has a mutual defence treaty with the
Philippines, cemented by the Southeast Asia Collective Defense Treaty, or Manila Pact, of
1954.

Conclusion
The 14 March 2012 ITLOS judgement is significant for both Myanmar and Bangladesh. It is
a peaceful resolution that allows both countries to begin exploration and infrastructure
development necessary for the extraction of potentially highly profitable hydrocarbon gas
reserves in the Bay of Bengal. Both sides are claiming victory in the dispute (The Financial
Express 2012; Bhulyan 2012).

Yet, the unresolved issue of the stateless Rohingya indigenous people is likely to get worse.
Violence protests are likely to continue as this disenfranchised ethnic group fights for its
rights. For the first time since the Saffron Revolution of 2007, Burmese monks in Mandalay
have recently protested against the favourable treatment of and for the deportation of
Rohingya people to Bangladesh. Bangladesh has its own share of desecration against
Buddhist temples (New York Times 2012). Aside from the issues of statelessness and
religious ethno-linguistic tensions, the Rohinya are likely to be displaced as subsistence
farming and fishing economies along the Bay of Bengal are transformed to hydrocarbon
extraction industries. The fact that the issue of Rohingya displacement was not even
addressed in the ITLOS Tribunal, perhaps, shows the limitations of this resolution, which
focuses on the technicalities of maritime geography and legal precedence. It was not in the
national interest of either Myanmar or Bangladesh to call attention to a problem, which is far
more complex than maritime delimitation and lacks the immediate economic benefits.

As for the case's implications for future maritime disputes, ITLOS has set precedence in
adjudicating its first maritime boundary claim. Its relatively light docket and concomitant
expediency in adjudication, as well as expertise in maritime law, are hallmarks for its value as
an international legal body for resolving disputes of this nature. The April 2012 formal
diplomatic message from the Philippines to China requesting that the current South China
Sea dispute be settled by ITLOS portends a future means of resolution. However, it is
unfortunate that this specific case failed to further address the proper characteristics of islands
and the requirements for respective exclusive economic zones and continental shelf.
Nevertheless, the case built on the ICJ precedence for maritime territorial claims. As best
captured by Judges Cot, Nelson and Rao:
By reaffirming and respecting these basic principles, the Tribunal will hopefully bring a
significant and positive contribution to the development of the law of maritime delimitation
in the years to come (Cot, Nelson, and Rao 2012: 2).

Appendix
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Immediately after the delivery of the judgment by the International Tribunal for the Law of
the Sea (ITLOS/Tribunal) in the Bangladesh/Myanmar maritime delimitation case on March
14, there were claims by AL of a complete victory over Myanmar. These claims were
complemented by casting blame on BNP for its failure to have the maritime boundary dispute
resolved. BNP, on the other hand, has taken the position that the government's campaign over
winning the case is a trick to deceive people and urged the government not to confuse people
by telling lies.

Bangladesh won on some points in the case, and lost in others. Likewise, Myanmar won on
some points and lost in others. The outcome, thus, is one where neither party had a complete
victory or a total defeat. ITLOS delimited the maritime boundary between Bangladesh and
Myanmar in three maritime zones, which are, the territorial sea, the Exclusive Economic
Zone (EEZ) and the continental shelf.

Relevant provisions of UNCLOS

The law that is applied in respect of maritime delimitation is set out in the United Nations
Convention on the Law of Sea of 1982 (UNCLOS). According to Articles 3, 4 and 5 of
UNCLOS, territorial sea extends to 12 nautical miles (nm) from the low-water line along the
coast, referred to as the baseline. The coastal state has full sovereign rights over the territorial
sea, similar to rights that a state has over its land territory. According to Articles 55 and 57,
the exclusive economic zone is an area beyond and adjacent to the territorial sea, which
extends to 200 nm from the baseline. In the EEZ, coastal states have sovereign rights for
exploring, exploiting, conserving and managing natural resources. According to Article 76,
continental shelf is the seabed and the subsoil that extends from the coast throughout the
natural prolongation of the land territory. The outer limit of the continental shelf is either the
outer edge of the continental margin, or to a distance of 200 nm from the baseline where the
outer edge does not extend up to that distance. Thus, while EEZ extends up to a maximum of
200 nm, the continental shelf can extend much further, depending on the location of the outer
edge of the continental margin. According to Article 77, coastal states have sovereign rights
of exploring and exploiting natural resources of the continental shelf. These rights extend to
natural resources of the seabed and the subsoil and, unlike EEZ, do not extend to the waters
or to the air space above the waters. Under the applicable provisions of UNCLOS,
delimitation of the territorial sea, where the coasts of two states are adjacent to each other
(like the coasts of Bangladesh and Myanmar), must be made on the basis of the equidistance
principle while delimitation of the EEZ and the continental shelf must be made with the aim
to achieve an "equitable solution." Equidistance line being the median line, every point of
which is equidistant from the nearest points on the baselines of the adjacent states, its
application in delimiting the territorial sea does not pose any problems. However, equity
being an abstract notion, in delimiting the EEZ and the continental shelf, this abstract notion
needs to be given a more concrete meaning.
Case law and state practice
Over many years, the International Court of Justice and a number of international arbitration
tribunals, which adjudicated disputes on maritime boundary, have sought to provide a
concrete understanding to the notion of "equity" in delimiting the EEZ and the continental
shelf. According to these decisions and practice, the delimitation process should begin by
first establishing a provisional equidistance line, which may be adjusted in the light of
"relevant circumstances" for achieving an equitable solution.
In the Bangladesh/Myanmar case, ITLOS strictly followed the UNCLOS and the aforesaid
case law and state practice. Thus, ITLOS delimited the territorial sea boundary by applying
the equidistance principle and the EEZ and the continental shelf boundary by applying
"equidistance/relevant circumstances" principle.

Delimitation of the territorial sea

Bangladesh argued that the Agreed Minutes of discussions between the parties in 1974 and
2008 constituted an agreement regarding territorial sea boundary, while Myanmar denied any
such agreement. ITLOS decided that those Minutes did not constitute an agreement and
accordingly proceeded to delimit the territorial sea. In the end, by 21 votes to 1, an
equidistance line from the base points of Bangladesh and Myanmar was drawn by ITLOS as
the territorial sea boundary. Likewise, an equidistance line formed the boundary between St.
Martin's Island and Myanmar, but where the territorial sea of the St. Martin's Island no longer
overlapped with the territorial sea of Myanmar, Bangladesh was allowed to extend the
territorial sea of the island to 12 nm.

Delimitation of the EEZ and the continental shelf

With respect to the EEZ and the continental shelf, Bangladesh argued that "equidistance" was
not an appropriate method, as it did not produce an equitable result. Bangladesh argued that
in view of the configuration and concavity of its coast, ITLOS should apply the
"angle-bisector method" in delimiting the EEZ and the continental shelf. "Angle-bisector
method" is an alternative to the equidistance method and is used much less frequently than
the equidistance method. Myanmar, on the other hand, opted for the "equidistance/relevant
circumstances" method.
ITLOS decided in favour of the "equidistance/relevant circumstances" method and
accordingly established a provisional equidistance line and then adjusted that line taking into
account the "relevant circumstances." The first step in drawing an equidistance line is
selection of base points from which the line is to be drawn. Since we opposed the
equidistance method, we did not identify any base points. ITLOS, therefore, relied on the five
base points identified by Myanmar and selected a sixth base point itself. A provisional
equidistance line was drawn relying on those six base points.
Having drawn the provisional equidistance line, the Tribunal considered the relevant
circumstances. In this context, Bangladesh argued that there were three main relevant
circumstances, which should be taken into account. These were the concave shape of
Bangladesh's coastline, the St Martin's Island and the "Bengal depositional system," which
connected the landmass of Bangladesh with the seafloor of the Bay of Bengal. Myanmar,
however, argued that there did not exist any "relevant circumstance" that might lead to an
adjustment of the provisional equidistance line. The Tribunal accepted the concavity of the
coast as the only "relevant circumstance" and declined to find the St. Martin's Island or the
depositional system as being relevant. Accordingly, the Tribunal decided that the provisional
equidistance line should be adjusted so that, due to the concavity of the coast, the delimitation
line did not cut off the seaward projection of Bangladesh's EEZ and continental shelf. The
Tribunal emphasised that this adjustment had to be done in a balanced way so as to avoid
drawing a line having a converse distorting effect on the seaward projection of Myanmar's
maritime zones. In the end, by 21 votes to 1, the Tribunal drew an adjusted equidistance line
as the boundary in the EEZ and the continental shelf.

Delimitation of the continental shelf beyond 200 nautical miles

Every state that claims a continental shelf beyond 200 nm (often referred to as "outer
continental shelf"), is required to limit its outer edge in accordance with Article 76. Such a
limit could be, for instance, 350 nm from the coast. Upon delimiting the outer limit, every
state is required to submit information about the limit to the Commission on the Limits of the
Continental Shelf ("Commission"), which is a body under the UNCLOS. The final and
binding outer limit of the shelf must be established by a coastal state on the basis of the
recommendations of the Commission.
There could be an issue of delimiting the lateral boundary (as opposed to outer boundary) of
the outer continental shelf between two adjacent states such as, Bangladesh and Myanmar. In
addition to the delimitation of the territorial sea, the EEZ and the continental shelf,
Bangladesh submitted to ITLOS the issue of the delimitation of the lateral boundary of the
outer continental shelf. Myanmar, however, argued that the Tribunal either lacked jurisdiction
or, if it had jurisdiction, it should decline to exercise its jurisdiction in respect of lateral
boundary until the outer limits of the shelf had been established on the basis of
recommendations of the Commission. The Tribunal decided that the fact that the outer limits
had not been established did not preclude the Tribunal from discharging its obligation to
adjudicate the matter.
Bangladesh argued that it alone was entitled to the entire continental shelf beyond 200 nm
because the outer continental shelf was the natural prolongation of Bangladesh's land
territory. Myanmar argued that the controlling concept was not "natural prolongation" but the
"outer edge of the continental margin." The Tribunal rejected Bangladesh's claim that
Myanmar was not entitled to a continental shelf beyond 200 nm.
In the end the Tribunal held that the adjusted equidistance line delimiting the EEZ and the
inner continental shelf would continue in the same direction delimiting the outer continental
shelf of the two states until the line reached a point where the rights of third states might be
affected.

Disproportionality test
Having established the maritime boundary line, the Tribunal checked whether the line had
caused any significant disproportion by reference to the ratio of the length of the coastlines of
the two states and the ratio of the maritime area allocated to each state. It noted that the
length of the relevant coast of Bangladesh was 413 kilometres, while that of Myanmar was
587 kilometres. The ratio of the length of the coasts was 1:1.42 in favour of Myanmar. The
adjusted equidistance line allocated approximately 1,11,631 square kilometres of sea area to
Bangladesh and approximately 1,71,832 square kilometres to Myanmar. The ratio of the
allocated maritime areas was approximately 1:1.54 in favour of Myanmar. The Tribunal
concluded that this ratio did not lead to any significant disproportion in the allocation of
maritime areas to Bangladesh and Myanmar relative to the respective lengths of their coasts.

Conclusion
The preceding discussion clearly demonstrates that the outcome in the case was a balanced
one, where neither party won or lost completely. Of course, all of us in Bangladesh
congratulate our government for its bold decision to refer the maritime delimitation to
ITLOS, which has resulted in a clearly defined maritime boundary between the two
neighbouring states. We also thank the government for selecting a team of distinguished
counsel and experts who ably represented Bangladesh in the case, leading to a fair result.
However, claims of a total victory by Bangladesh over Myanmar are nothing but a distortion.
We should, instead, celebrate the success of both countries and, above all, celebrate the
victory of international law, which provided a precisely defined maritime boundary between
the two friendly neighbours and by doing so allowed both countries the opportunity to use the
resources of the sea for the benefit of their people.

Conclusion
These two cases show that the domain of law is distinct from that of politics. Cases of
mar-itime delimitation are purely technical in nature. The change of methodology adopted by
Bangladesh underscores this. Such application of legal rules may result in a party winning a
certain issue but losing on another. It is difficult to assert in these proceedings that one party
has won and the other has lost, even if the practical effect might well be better for one party
than the other. International adjudication, in a sense, removes the outcome of the controversy
from the paradigm of success or loss.

Far more importantly, these cases also represent the willingness of states to under-take
mandatory dispute-resolution after a failure to reach a peaceful settlement through
negotiations. States prefer to leave complicated questions to be decided by an indepen-dent
judicial body that commands respect. It is thus better to resolve disputes on purely legal
grounds than by seeking political solutions. This shows the willingness of states to leave
certain complex and politically difficult questions to an international court or tri-bunal. Also,
it is easier for states to comply with such decisions, on the grounds that the state wants to be
seen as a responsible entity willing to comply with international law.

These cases involved states with asymmetrical power. India was and remains a geopo-litically
strong and an influential player in the SAARC region. Bangladesh was and, argu-ably,
remains less powerful in comparison to India. A similar asymmetry of power is to be seen
between Bangladesh and Myanmar. Although Bangladesh and Myanmar are more
comparable in terms of comprehensive national power, at the time of the dispute under
reference, Myanmar had only recently emerged from a protracted period of political turmoil
and uncertainty. Economically as well as geopolitically it was – and remains – weaker than
Bangladesh (Bangladesh has a Gross Development Product (GDP) of $221.4 billion,75 while
that of Myanmar is $67.4 billion.76 Further, the value of Bangla-desh's exports is around $36
billion, and imports are worth around $48 billion,77 com-pared to $11.7 billion and $16
billion, respectively, for Myanmar78). Yet the asymmetry of power did not stop these states
from taking their disputes to international adjudication, participating in and complying with
the judicial process. These are excellent and laudable examples of compliance with a
rule-based order. The stronger party lost to the weaker party. In the India-Bangladesh case,
India did not get all the area it claimed since Bangla¬desh was awarded a total area of 19,467
km2 out of 25,602 km2 of the disputed area.79 In the Bangladesh-Myanmar case, of a total
relevant area of 283,471 km2,80 Bangladesh was awarded 111,631 km2, while 171,832 km2
were awarded to Myanmar.81 The size of the disputed area should not undermine the value
and importance of the decision. Indeed, if the issue between the states had been trivial and
one state was willing to throw it away in favour of another, they would have simply
negotiated and agreed to a settlement to that effect. The states concerned had attempted
negotiations several times. Between 1974 and 2010, India and Bangladesh held 11 rounds of
negotiations, while Bangladesh and Myanmar held 14 rounds.82 The parties could not agree
on a solution and chose to refer the matter to arbitration, and one of the parties invoked the
binding dispute-resol-ution provision under UNCLOS. This demonstration of respect for the
rule of law is in sharp contrast with some other states that have been at loggerheads on trivial
issues but have declined to participate in or comply with international law. Indeed, the role of
impor-tant and influential powers in upholding the rule of international law is crucial. If they
comply with their obligations, they set a powerful precedent for others to follow.

These decisions are very important for stable long-term international relations. In the words
of the Bangladesh-India tribunal: “The Tribunal notes that maritime delimitations, like land
boundaries, must be stable and definitive to ensure a peaceful relationship between the States
concerned in the long term”.83

International law is sometimes decried as being ineffective. What is forgotten is that a law is
effective only if its users want it to be. It is necessary for rising powers such as India and
China, which intend to assume a significant and perhaps determining role in international
relations and global institutions, to demonstrate their commitment towards international law
and particularly the Law of the Sea. It is only if they lead the way that the rest will follow
and, in the process, make international law and particularly UNCLOS an effective instrument
for stability in the future world order and value-based international relations.