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Maritime Boundary of Bangladesh: Is Our Sea Lost?

Abu Syed Muhammad Belal

Introduction
The oceans are without doubt the most important resources on the planet and only maritime
states can boast of their fortune, having economic, political, strategic and social advantages
over other states in reaping benefit from those resources while their interests are manifest in a
variety of activities including shipping of goods, fishing, hydrocarbon and mineral extraction,
naval mission and scientific research. Bangladesh is, too, bestowed with the same geographic
endowment with 720-kilometre coastline. However, questions remain whether the country
has been successful in valurising the magnitude of its maritime interests so as to establish its
rights as a maritime state in the Bay of Bengal and pursuing a process conducive to fruitful
resolution of the wrangles with its neighbours. This paper attempts to articulate a focus upon
the maritime issues of Bangladesh and critically examine its undertakings regarding the issue,
demystifying the possible consequences for Bangladesh if the end-result is other wise.

The Legal Regime of Maritime Zones

The sovereignty of a coastal state, as accorded by the United Nations Law of the Sea Convention
1982, Article 2(1), extends beyond its land territory and internal waters to an adjacent belt of Sea,
which is typically referred as Territorial Sea, defined up to a limit of 12 nautical miles, subject to be
measured from baseline, the low water line of a low -tide elevation. Under the convention, as per
Article 55, the littoral countries are entitled to enjoy 200 nautical miles Exclusive Economic Zone
(EEZ), from the base line from which the territorial sea is measured.
Beyond that, if the area of the continental shelf is more than the area of the economic zone, the
coastal state can establish the outer edge of the continental margin wherever the margin extends
beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is
measured [Article 76(1, 4)]. Thus, the whole area over which a maritime state should have
jurisdiction in the sea include12 nm. territorial sea plus 188 nm. of economic zone plus150nm. of
continental shelf=350 nautical miles.

The coastal state enjoys three-dimensional jurisdiction on the territorial sea, full sovereignty on
surface water, air and seabed, apart from the “innocent passage” of ships. The jurisdiction on the EEZ
that includes sea bed is resources-oriented. This delegates rights to the coastal state over all the living
and non-living resources in the economic zone, with sovereign rights to manage and conserve the
resources within this area. The jurisdiction on the continental shelf is also resources-oriented.
Bangladesh’s Law for Maritime Zones
In Pursuant to Article 143(3) of the Constitution, Bangladesh enacted laws, Territorial Waters &
Maritime zones Act on 14 February, 1974i, with regard to the law of the sea in the Bay of Bengal
while ratifying 1982 Convention on the Law of the Sea (UNCLOS-III) in 2001.The coastal marine
areas of Bangladesh in the Bay of Bengal are divided into three zones under the (UNCLOS-III):
territorial waters of 12 nautical miles, another 200nm of EEZ and 350 nm of sea bed, continental
shelf from Bangladesh baseline. For the unique deltaic characteristics of its coast, Bangladesh
determined the baseline in 1974 with a length of 222 nm which is 8 points fixed at 10 fathoms
(60ft) extending to 10-30 miles from the coastline. However, the total sea area of Bangladesh in
accordance with the UNCLOS-III is approximately 2, 07,000 square kilometers, 1.4 times greater
than its total land area.

Maritime Differences with Neighbours

The issues involved in the maritime boundary demarcation with India revolve around four inter-
woven questions. 1. The determination of the Hariabhanga river boundary along the border, especially
the ownership of South Talpatty Island. 2. the determination of boundary of territorial waters up to 12
miles. 3. determination of the boundary of the EEZ of another 188 miles from the end of territorial
waters.) 4.and boundary demarcation of the continental shelf up to another 150 miles from the edge of
the EEZ (200 +150 miles=350 miles of continental shelf).Similarly, with regard to delimitation of
maritime boundary with Myanmar, three issues require to be settled: 1.Territorial Sea.2. EEZ and
3.Continental Shelf (sea bed).In September 1974, India had protested that Bangladesh’s baseline
extended beyond 21 nm into Indian waters and Myanmar also protested Bangladesh’s baseline later
on. The real problem lies in the complex configuration of Bangladesh’s coastline. The nature of
coastline is concave, similar to the shape of a semi-circular arch while two neighbours enjoy a
convex shape of shore, inward to the sea.

The basic principle Bangladesh stuck with governing delimitation of the Maritime Boundary was
reaching mutual agreement on the basis of ‘equity’ posing a rationale of stance based on the
geomorphologic and geographical peculiarities and the concave nature of the coast. Bangladesh
strives to determine the sea boundary from the North to the South whereas Myanmar and India seek
to draw from the East to the West and from the West to the East respectively. Bangladesh argues
that ‘equidistant’ method is applicable only to boundaries between states like India and Sri-Lanka
and not between adjacent states like Bangladesh and India. Moreover, UNCLOS-III (article 15)
stipulates the equidistant method for delimitation of the territorial sea, unless the states concerned
agree otherwise whereas, with regard to the delimitation of economic zone and continental shelf,
UNCLOS in its Articles 74 and 83 does not provide equidistant method as the basis of agreement.
Both articles, instead, premised the delimitation agreement on economic zone and continental shelf
upon ‘equitable solution’ on the basis of international law, the provisions of UNCLOS and customary
international law.

In the equidistant method, it is claimed that, approximately 48,025 sq. kilometres area of
Bangladesh will go to Myanmar and another 31,743 sq. kilometres to India resting Bangladesh upon
a situation depriving it of a passage toward the high seas. However, India-Myanmar remains
inflexible to ‘equidistance method’ while Bangladesh retains its stand ‘equitable solution’.

India-Myanmar’s Claim at the UN & Implication for Bangladesh

Myanmar and India filed their claims to the Commission on the Limits of the Continental Shelf
(CLCS) respectively on 16 December, and 11 May of last year. In submission of documents Myanmar
stated that “the area of continental shelf that is the subject of this submission is not subject to any
dispute between Myanmar and other states” and… “Delimitation negotiations between Myanmar and
Bangladesh are ongoing and consistent with article 76, paragraph 10...”ii .On the other hand, India
stated that “delimitation of maritime zones of India’s adjacent or opposite countries shall not extend
beyond the line every point of which is equidistant from the nearest point from which the breadth of
the territorial waters of India and such state are measured unless there is any provisional agreement
about maritime demarcation between India and other state” iii.

Their claims in fact encompassed undersea basins that fall within Bangladesh's EEZ. India’s claim in
the Bay of Bengal constitutes about three per cent of its total economic zone and continental shelf
while for Bangladesh its entire economic zone is at stake. It has been reported that, the claimed sea
areas of Myanmar include 29,000 sq. nautical miles of Bangladesh and another 22,000 sq. nautical
miles are claimed by India. The ‘diplomatic protest notes’iv to the United Nations against the claims
of Myanmar and India have been issued recently over the extended 'continental shelf' in the Bay of
Bengal. Bangladesh would have to lodge its claims to the UNCLCS over 150 nautical miles (277km)
or more area of the extended continental shelf in the Bay of Bengal by July 27, 2011.

Map: the Maritime Zones with Present Conflicting Claims

Figure: by Engr. M. Inamul Haque, Strategic Issues page, The Daily Star, November 14, 2009

India-Myanmar’s Convergence of Interest

The coincidence of claims of Bangladesh’s Western and Eastern neighbour regarding maritime
demarcation, even with Indian claims that “…Myanmar’s submission for an extended continental
shelf is without prejudice to the question of delimitation of the continental shelf between India and
Myanmar…”v, a protest submitted to UNCLCS by India, awards them strategic advantage that
stems from the shared analogous interest on the issue; the documents submitted to UNCLCS debunk
such proposition. The ‘National Centre for Antarctic and Ocean Research (NCAOR), India’ extended
hands of cooperation in quality control for both bathymetry and geophysical surveys and ‘National
Geophysical Research Institute (NGRI), India’ – collaborated in Seismic Data Processing and
interpretation of acquired geophysical data in preparation of submission of Myanmar with Myanmar
Scientistsvi. With abundant resources available to support their moves and the rapid submission of
claims, both countries have already got an upper hand. Such circumstance requires a pragmatic,
intelligent and timely endeavour from Bangladesh to sustain and establish its rights in the Bay of
Bengal.

Arbitration Gamble for Bangladesh

The UN charter urges the states to pursue settlement of disputes by means of negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or
other peaceful means of their choicevii. The adjustment of settlement with arbitration, which in fact
comes in later stages, without an assiduous and exhaustive effort for negotiated settlement portends a
complicated venture at least for the states with claims not placed by available scientific data and
propped up by diplomatic might. According to UNCLOS, a panel of five arbitrators will institute the
proceedings and in disputes involving more than two parties, they will appoint one arbitrator each and
the remainder by agreement between the partiesviii. At the same time, while Bangladesh has appointed
a British national, both India and Myanmar appointed Indian nationals as arbitrators with one member
in UNCLCS from India who assisted India in the preparation of the submissionix. In view of the fact
that, India and Myanmar have outlined common strategy in preparing their claims and reportedly
similar strategy in arbitration, things seem to be in shambles for Bangladesh and it has to move alone
in this risky gamble. More over, arbitration in the hands of third party is too dicey as India has
maneuvering skills and weights with international connection to sway the award of the arbitration or it
at least can uphold Myanmar’s cause underneath of which lies its own cause. The entire process
requires an adroit acumen from Bangladesh government; in other respect it will turn out to be a damp
squib.

Potential Consequences for Bangladesh

As already mentioned, according to the UNCLOS-III, the total sea area of Bangladesh is
approximately 2, 07,000 square kilometers, 1.4 times greater than its total land area. If Myanmar
and India’s claims are established, it has been reported that, the claim of Myanmar will likely to grab
29,000 sq. nautical miles of Bangladesh and another 22,000 sq. nautical miles will be seized by Indiax.
Such a postulation carries a significant and profound implication for a weak and least-developed state
like Bangladesh:

1. Bangladesh is a resource-deficit country with a small land territory, replete with

bourgeoning population, disproportionate to its land resources. The only resource prospect
remains for this country is in the Bay of Bengal. But the failure in wining the case and
retaining its maritime boundary will jeopradise the destiny of more than 162 million
peoplexi. The vital fact about the continental shelves and the EEZ is that they are rich in oil
and gas resources and most importantly, precious Poly-metallic nodules, which lie on the
seabed at 4,000 to 6,000 metres deep and quite often, are host to abundant stock of mineral
resources, fish, and renewable energies.

2. Having been choked up from three sides, Bangladesh gets hold only of a bit of strip in the
Bay of Bengal for the passage to the rest of the world. By harnessing and advancing trade
and investment, definitely, this sea line of communication (SLOC) pays enormous
contribution to its struggling economy. However, the encroachment of its maritime borders
 will certainly leave it zone-locked and perforce, it will be denied its recognition as a
maritime state.

3. The politics in this uncertain world appears with different façades in different historical
junctures. Today’s ally is foe of tomorrow and vice versa. For that reason, the maritime
areas and passages of Bangladesh bear both war and peace-time significance. A zone-
locked Bangladesh will likely to be petrified and vulnerable should a crisis erupt.
4. It is not only her economic future but also her sovereignty that are being challenged. To
survive as a sovereign state, an assertive mode for the state is crucial. Bangladesh will lose its
‘position of strength’ in relation to bargaining with regional and global powers and among
international community.

5. As predicted by climate scientists, an imminent climate disaster will likely pose human
catastrophe in Bangladesh that will displace millions of people across the country. To adapt
to such a situation, the maritime areas of Bangladesh in the Bay of Bengal carry a potential
in terms of deposition of land through the process of sediment gathering somewhere across
Bangladesh coast and in terms of resources available to feed this huge human turnout.

Conclusion
Clearly, a more pragmatic discussion on what Bangladesh should have done and what it should focus
upon immediately deserves consideration. The move of Bangladesh to deal with maritime issues from
the very inception has been insufficient to back its stand with available data with persistent insistence
and engagement. Almost 35 years passed since it enacted ‘Territorial Waters & Maritime zones Act’
on 14 February, 1974, to define its maritime areas, but there has not yet been any maritime survey to
demarcate its sea boundary and to check whether its current boundaries with India and Myanmar are
accurate. While the Government of India has established an Indian Maritime University under an Act
of Parliament, namely, the Indian Maritime University Act 2008 with existing seven maritime
academic institutionsxii , the overall state of Bangladesh still remains fumbling. It has, unlike its
neighbours, no hydrographic and oceanographic study centre and vessels to contribute in research of
maritime border. Any pretext, likely to be premised on the lack of resources of the country, conveys
little relevance in this regard.

Moreover, Bangladesh’s persistence on demarcation on the basis of ‘equitable principle’ is replete

with ambiguities and lacks an agreed perspective on this among the stakeholders. In negotiating
with Myanmar and India, it failed to have any meaningful negotiation and provide any acceptable
framework to resolve the dispute and was inconsistent in concentrating on negotiation; and in
effect, the neighbours resorted to unilateral move in delimitation as well as exploring natural
resources. The Education and research on maritime delimitation is a prerequisite to a good
appreciation of the technical aspects, related to this issue, for effective bargaining; for whatever
reason, Bangladesh has been deficient in meeting those two requirements. Instead, it waits for the
deadline of July 2011, to file its claims to the UNCLCS, whereas it could take a strategic leap
forward by submitting earlier, an advantage obviously reaped by India and Myanmar. A strong and
brave effort from Bangladesh side is required to win in the wrestling of arbitration. However, the
choice of negotiation still remains as the best solution in parallel with arbitration process.

Abu Syed Muhammad Belal, a graduate from the Department of International Relations (IR),
University of Dhaka, is working as a Research Associate at the Bangladesh Institute of Peace
& Security Studies (BIPSS).His research at BIPSS mainly focuses on Indo-Bangla Relations
and Maritime Security of Bangladesh.
End Notes
i
The Territorial Waters and Maritime Zones Act, 1974. 1. THE. BANGLADESH CODE, volume XIX. Act
no.xxvi of 1974. < http://bdlaws.gov.bd/pdf/467___.pdf.>. Accessed on November 19, 2009
ii
‘Continental Shelf Submission of Union of Myanmar’, Executive Summary, December, 2008.<
http://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/mmr_es.pdf>. Accessed on November
20,2009
iii
‘The Indian Continental Shelf’.
<http://www.un.org/Depts/los/clcs_new/submissions_files/ind48_09/ind2009executive_summary.pdf>.
Accessed on November 20, 2009.
iv
‘Note Verbale’ (against Continental Shelf notification of India), The Permanent Mission of Peoples
Republic of Bangladesh to the United Nations.
<http://www.un.org/Depts/los/clcs_new/submissions_files/ind48_09/bgd_re_ind_clcs48_2009e.pdf>. Accessed
on November 20, 2009.

‘Note Verbale’ (against Continental Shelf notification of Myanmar), The Permanent Mission of Peoples
Republic of Bangladesh to the United Nations.
<http://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/clcs16_2008_mmr_bgd_e.pdf>. Accessed on
November 20, 2009.
v
‘Note Verbale’, The Permanent Mission of India to the United Nations.
<http://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/clcs16_2008_ind_e.pdf>. Accessed on
December 9, 2009.
vi
‘Continental Shelf Submission of Union of Myanmar’, Executive Summary, December, 2008. <
http://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/mmr_es.pdf>. Accessed on November
20,2009.

vii
The UN Charter, Article 2.paragraph-3 and Article 33, paragraph-1. <
http://www.un.org/en/documents/charter/index.shtml>. Accessed on November 20, 2009.

viii
United Nations Convention on the Law of the Sea (UNCLOS-III) 1982, ANNEX VII. ARBITRATION,
Article 3, subparagraph ((a) - (h)..<
http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf> . Accessed on November 20,
2009

ix
Rahid Ejaz “Jatishonge Shomudro Sheemar Nishpotti:Tin Arbitratorere Dujon Indian Bakider Bishoye
Shotorkota Bangladesh .” The Daily Prothom Alo. 09, p-1, column-6-8.
http://www.eprothomalo.com/index.php?opt=view&page=1&date=2009-11-14. Accessed on November14,2009
x
Diplomatic Correspondent. “Dhkar Jatishonge Jawa pry Roddho kore Felechilo India.”Daily Naya Diganta.
October 10, , p-1, column-2\3.
http://www.dailynayadiganta.com/2009/10/10/fullnews.asp?News_ID=172063&sec=1. Accessed on October15,
2009

xi
Mamoon, Dr. SN. “Population boom.” The Daily Star. October 5, 2009..
http://www.thedailystar.net/newDesign/news-details.php?nid=108258. Accessed on December 26, 2009

xii
Indian Maritime University, the Beacon of knowledge. < http://www.nipm.tn.nic.in/aboutus.html.>.
Accessed on December 17, 2009