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The Shades of grey over blue: a maritime delimitation dogma

Article in Ocean & Coastal Management · March 2018

DOI: 10.1016/j.ocecoaman.2018.03.027

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 DOI: 10.1016/j.ocecoaman.2018.03.027 ACCEPTED MANUSCRIPT

THE SHADES OF GREY OVER BLUE: A MARITIME DELIMITATION DOGMA

Prerna R.* and Dhananjai K Pandey

National Centre for Antarctic and Ocean Research,
Ministry of Earth Sciences, Government of India,
Headland Sada, Vasco-da-Gama, Goa 403 804, India
Tel: 0832-2525569, Fax: 0832-2520877

E-mail address: [email protected]; [email protected]

Abstract

Since the advent of the United Nations Convention on the Law of the Sea (UNCLOS), coastal

countries have recognised the opportunity of extending their jurisdiction along the natural

prolongation of their continental landmass – granting them an unprecedented thrust of

economic empowerment. States that ratify UNCLOS are mandated to scientifically establish

the continuity of their continental margins, beyond 200 nautical miles (nm). As a prelude to

this, coastal states are required to demarcate their maritime boundaries – an exercise often

complex and seldom free from disputes with adjoining or opposite states. Two noteworthy

decisions in the case of India-Bangladesh and Bangladesh-Myanmar maritime delimitation

resulted in the inception of a new terminology in maritime history - the ‘grey area’, a state of

ambiguity that continues to exist even after three years of adjudication. This article draws

attention to the causative circumstances that led to the development of such a scenario; its

ramifications in terms of overlapping rights; while suggesting possible propositions for conflict

resolution.

Keywords

Grey area; overlapping rights; United Nations Convention on the Law of the Sea (UNCLOS);

Extended Continental Shelf (ECS); Exclusive Economic Zone (EEZ)

*Corresponding author
1. Introduction

The abysmal depths of our oceans covering a magnanimous proportion of our planet offer a

myriad of resources for all mankind. Millions of tonnes of fish in its waters; a lifeline for

navigation; and a preserver of minerals and hydrocarbons are just some miniscule examples of

what our oceans provide. Our blue sphere with close to 70% area under oceans accentuates the

need for judicious management and cooperation in order to proficiently utilize what our

surrounding waters have bestowed upon us.

Up till the 1960s, a manifold rise in resource exploration and exploitation – without any

protocol or governance – was starkly evident. The doctrine of freedom-of-the-seas, wherein the

‘high seas’ were meant for all without being under any state’s sovereignty, was active on full

momentum. All states, holding adequate competency and infrastructure, were rampantly

extruding coastal and marine resources.

The Third United Nations Convention on the Law of the Sea (UNCLOS), was a result

of a few decades’ long initiative taken by representatives of numerous sovereign states in order

to assess the need for monitoring the international waters and seabed along with the conception

of a new mechanism to systematically govern the world’s oceans and resources. Beginning with

a conference in 1958 followed by others in 1960 and 1973; UNCLOS finally amalgamated as

a constitution for the sea in 19821. The mandate of the Convention was to establish legal order

for the seas and oceans to facilitate peaceful and equitable international utilization of their

resources, protection and preservation of the marine environment and realization of a just

economic order2. Resulting from these, the convention stipulated certain principles to establish

the outer limits of the continental margin which is the submerged prolongation of the land mass

of the coastal state; consisting of the seabed and subsoil of the shelf, slope and the rise3.

UNCLOS, 1982 also defines the concept of Exclusive Economic Zone (EEZ), whereby a

coastal state assumes jurisdiction over the exploration and exploitation of marine resources of
the waters superjacent to the seabed and of the seabed and its subsoil, not extending beyond

200 nautical miles from the baselines from which the breadth of the territorial sea is measured4.

The UNCLOS, hence facilitates coastal states to delineate outer limits of their

continental shelf (if it extends beyond EEZ) before the Commission on the Limits of the

Continental Shelf i.e. CLCS – established for the purpose of scrutinizing evidence of a coastal

state’s claim and provide recommendations on the final outer limits of the continental shelf5

[hereon described as Extended Continental Shelf (ECS)]. UNCLOS, 1982 details the rights of

a coastal state within the EEZ vis-à-vis the ECS in Part V6 and VI7 respectively. But to simply

ascertain the bottom-line difference in the two sets of rights, a given coastal state can exercise

complete jurisdiction on its resources from the water column, seabed and subsoil within its

EEZ; whereas; in the ECS, it can only explore resources from the seabed and subsoil.

At present 38 million square nm of ocean space lies within the EEZ of coastal states1.

Given that all coastal states were to maximize their ECS claim under the provisions of Article

76, UNCLOS3 or as per the Statement of Understanding8, (contained in the Final Act of

UNCLOS as Annex II), the percentage area of global ocean floor under sovereignty of coastal

states for resource exploration would increase phenomenally, thereby increasing the need for

mutual cooperation and management.

1.1 Maritime Arbitrations

Because the oceans and their seabed and subsoil are a massive reservoir of resources, and that

every coastal state under UNCLOS enjoys a rightful proportion of their marine expanse – it

becomes prerogative for countries sharing common waters to demarcate their limits equitably.

Most states arrive at unanimous decisions, either bilaterally or trilaterally as the case may be,

but on other occasions, countries may choose from the different mechanisms for settlement of

disputes, provided by Article 287, Part XV of the UNCLOS, 19829. International Tribunal for

the Law of the Sea (ITLOS), International Court of Justice (ICJ) and the Permanent Court of
Arbitration (PCA) are constituted especially to adjudicate over such disputes. To cite a recent

example regarding international maritime disputes, an Arbitral Tribunal registered to the PCA

declared a historic award in the matter of the South China Sea (SCS) Arbitration between

Philippines and China in July, 201610. Since China neither accepted nor participated in the

arbitration unilaterally initiated by the Philippines11, there still exists a deadlock of disputes in

the SCS. Although it is hoped that China along with other ASEAN (Association of South East

Asian Nations) countries might amicably adopt a code of conduct in the future, the arbitration

has drawn attention towards the critical necessity of maritime delimitation in the region.

Similarly in other parts of the world, maritime disputes have often led to novel and

unprecedented judgments. In the Bay of Bengal, maritime delimitation disputes rose amongst

the tri-states – India, Bangladesh and Myanmar and two judgements later12,13, the concept of

‘grey area’ became popularly affixed with this region. To define in simple terms, a grey area is

that territory of the continental shelf which lies in one state’s EEZ but falls in the potential ECS

of an adjacent or opposite state; and on the latter state’s side of the maritime boundary (in case

of adjacent coasts). Citing from the Arbitral Tribunal Award13, “The resulting “grey area” is

a practical consequence of the delimitation process. Such an area will arise whenever the

entitlements of two States to the continental shelf extend beyond 200 nm and relevant

circumstances call for a boundary at other than the equidistance line at or beyond the 200 nm

limit in order to provide an equitable delimitation”.

1.2 Chronology of events (Bay of Bengal maritime delimitation)

Bangladesh initiated arbitral proceedings with both her adjacent neighbours – Myanmar and

India on 08 Oct 2009 by submitting Notifications and Statements of Claim to the diplomatic

representatives of both States in Dhaka. These were pursuant to Article 287 and in accordance

with Annex VII of the UNCLOS, 198214, requesting the Tribunal to delimit its maritime

boundaries in the territorial sea, exclusive economic zone and continental shelf.
1.2.1 Bangladesh vs. Myanmar

In 1974, both parties signed an agreement for delimitation of maritime boundary in the

territorial sea, which although not ratified, was complied with. After 35 years of incessant and

extensive negotiations, the countries unanimously decided to follow provisions of UNCLOS

under Part XV for settlement of disputes15.

This long pending dispute culminated with the ITLOS judgment on 14 March 2012

wherein 11 delimitation points were decided extending from Point 11 at an azimuth of 215⁰

(Fig 1, yellow line)12.

Fig 1: Delimitation lines demarcating maritime boundary within and beyond 200 nm between

Bangladesh – Myanmar (yellow) and Bangladesh – India (blue) respectively.

1.2.2 Bangladesh vs. India

In 1971, when Bangladesh declared its independence from Pakistan and succeeded to the

territory of the former East Pakistan and its boundaries; there remained an absence of agreement

regarding delimitations of maritime boundary in the territorial sea, EEZ, continental shelf

within and beyond 200 nm in the Bay of Bengal. The interpretation of the Radcliffe Award and

the location of the land boundary terminus determined by it were also contentious13.

The Arbitral Tribunal of the PCA on July 7, 2014, resolved this maritime delimitation

issue between Bangladesh and India by promulgating 03 points with an azimuthal extension of

177⁰ 30' from Point 3 (Fig 1, blue line). The line so created, truncated the ITLOS Award line

at the Tri-junction point 16⁰ 43' 28.77"N, 89⁰ 25' 54.39" E13.

1.2.3 Submissions to the Commission:

All three states have submitted their claims – Indian submission was made in 2009,16

Bangladesh’s in 201117 while Myanmar’s joint submission18 under Art 76 and Annex II of the

UNCLOS was made in 2008, with a minor revision in 201519. The current scenario of overlap

is denoted in Fig 2. India,20.21 Bangladesh22,23 and Myanmar,24,25 each have individually

objected to the claims of remainder states on grounds of ongoing unresolved arbitral

proceedings for maritime delimitations; difference in opinion about demarcation of basepoints

among several other contentions.

Fig 2: Overlapping claims as per current submissions made to CLCS in the outer continental

shelf of India, Bangladesh and Myanmar under Art 76 of the UNCLOS; extracted from

Executive Summary documents of India, Bangladesh and Myanmar16,17,19

1.3 Consequential outcomes of Settlement of disputes

It has been previously held that the mandates of CLCS and those of international

courts/tribunals established under Part XV of the UNCLOS are more complimentary to each

other rather than contrary. Although the Commission plays an indispensable role in providing

recommendations to a coastal state regarding its ECS claim; and the arbitral courts resolve

issues of maritime disputes, their decisions are mostly mutually exclusive and without prejudice

to one another.
 Here it is paraphrased, that, in the matter of Bangladesh vs. Myanmar12 and Bangladesh

vs. India13 respectively, the tribunals held that they did not see any reason to abstain their

adjudication to the delimitation of maritime boundary only up till 200 nm. Rather the tribunals

were of the opinion that unnecessary delay in the pending matters can be avoided if the judicial

bodies decide to delimit maritime boundary within and beyond 200 nm, such that, the

consequential delineation of ECS can also be achieved. To validate the above, following

paragraphs are presented ed verbatim from the operational parts of the concerned judgments:

• Bangladesh vs. Myanmar – ITLOS Judgement, March 201212

“391. A decision by the Tribunal not to exercise its jurisdiction over the dispute

relating to the continental shelf beyond 200 nm would not only fail to resolve a

long-standing dispute, but also would not be conducive to the efficient operation

of the Convention.

392. In the view of the Tribunal, it would be contrary to the object and purpose of

the Convention not to resolve the existing impasse. Inaction in the present case,

by the Commission and the Tribunal, two organs created by the Convention to

ensure the effective implementation of its provisions, would leave the Parties in a

position where they may be unable to benefit fully from their rights over the

continental shelf.

394. [t]he Tribunal concludes that, in order to fulfil 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. Such delimitation is without prejudice to the establishment of the

outer limits of the continental shelf in accordance with article 76, paragraph 8, of

the Convention.”
 • Bangladesh vs. India – PCA Judgement, July 201413

“82. [i]f the Tribunal were to decline to delimit the continental shelf beyond 200

nm, the outer limits of the continental shelf of each of the Parties would remain

unresolved, unless the Parties were able to reach an agreement. In light of the

many previous rounds of unsuccessful negotiations between them, the Tribunal

does not see that such an agreement is likely. Accordingly, far from enabling

action by the CLCS, inaction by this Tribunal would in practice leave the Parties

in a position in which they would likely be unable to benefit fully from their rights

over the continental shelf. The Tribunal does not consider that such an outcome

would be consistent with the object and purpose of the Convention.

83. For the foregoing reasons, the Tribunal finds that it has jurisdiction to

adjudicate the present case, to identify the land boundary terminus and to delimit

the territorial sea, the exclusive economic zone, and the continental shelf between

the Parties within and beyond 200 nm in the areas where the claims of the Parties

overlap.”

From the above, it can be ascertained that the ITLOS judgment and the Arbitral Tribunal

Award resultantly delineated the outer limits of the ECS of Bangladesh extending from its 200

nm converging conically till the tri-junction point of India-Bangladesh-Myanmar as shown in

Fig 1.

2. The Grey Area

Coinage of a new term – the ‘grey area’ was one of the most highly speculated outcomes of the

2014 Bangladesh-India Award. The final verdict in the matter undoubtedly brought significant

clarity in the demarcation of maritime boundary between the two states, albeit, led to the
inception of a “not so clear” territory that has become a popular candidate for inclusion in

maritime dictionary.

India and Bangladesh ratified the UNCLOS in 1995 and 2001 respectively, and

thereafter submitted their individual claims in 2009 and 2011. In her claim17, Bangladesh

exhibited 120 outer limits’ points for its ECS, out of which 119 points were based on 100 nm

line principle drawn from the 2500 meter isobath as per Art 76 (5)3 while a single point adhered

to 1% sediment thickness rule of the shortest distance from the foot of the slope as per Art 76

(4) (a) (i)3. India in her claim16 submitted 452 outer limit points in the Bay of Bengal Sector

with 66 points from Western Andaman Sector invoking multiple provisions of Article 763. India

also adhered to a provisional equidistance line with Bangladesh and Myanmar beyond 200

nm16.

During the arbitral proceedings of the Arbitral Tribunal, the legitimacy of this

provisional equidistance line was much deliberated in contrast with the 180⁰ bisector line

proposed by Bangladesh for delineation of maritime boundary between the two countries. As

is known, the tribunal opined that an adjustment be made in the equidistance lines proposed by

the opposing parties and hence came about the 177⁰30' azimuth line extending from the last

delimitation point up till it met the ITLOS line. On constructing an eastward extension of the

Indian 200 nm limit line beyond the delimitation line; and with the assumption that the ECS of

Bangladesh extends in the conical section created between its 200 nm limit line bound by the

Arbitral Tribunal/ITLOS Award lines – there exists an overlap area which is the grey area (Fig

3). A similar situation arises between Bangladesh and Myanmar as well.

Fig 3: Grey area between India-Bangladesh, Bangladesh-Myanmar and India-Bangladesh-

Myanmar modified from Map 10, Arbitral Tribunal Award13

The concept of grey area is not limited to adjacent states alone. Such a scenario can very

well arise between opposite states, albeit, till date there is no legally documented instance in

maritime history (because the Bay of Bengal adjudications are the only precedents concerning

the matter of grey area). In the case of Nicaragua vs. Columbia, because the Nicaraguan

submission made to CLCS is yet to be examined which overlaps with Columbia’s projected

EEZ and Columbia is not party to the UNCLOS yet; the International Court of Justice (ICJ)

refrained from delimiting the alleged overlap between Nicaragua’s ECS claim and Columbia’s

EEZ extending beyond 200 nm from Nicaragua26. Although the ICJ has delimited a maritime
boundary between the continental shelf and exclusive economic zone of Nicaragua and

Columbia (Fig 4),27 which could help in resolution of the matter, this area serves as a suitable

example for assessing grey area development between opposite coastal states.

Fig 4: Map showing overlap of ECS claim (Nicaragua) and 200 nm delimitation line

(Columbia) between two opposite states with a proposed equal delimitation line by Nicaragua

(modified from Map No. 227)

2.1 EEZ and ECS rights of costal states

To legally understand the difference in sovereignty exercised by a coastal state on its EEZ and

ECS, the following articles must be considered:

 Article 56, Rights, jurisdiction and duties of the coastal State in the exclusive economic

zone, Part V: Exclusive Economic Zone, UNCLOS, 1982 states6:

 “1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting,

conserving and managing the natural resources, whether living or non-

living, of the waters superjacent to the seabed and of the seabed and its

subsoil, and with regard to other activities for the economic exploitation

and exploration of the zone, such as the production of energy from the

water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of this

Convention with regard to:

(i) the establishment and use of artificial islands, installations

and structures;

(ii) marine scientific research;

(iii) the protection and preservation of the marine environment;

(c) other rights and duties provided for in this Convention.”

 Article 77, Rights of the coastal state over the continental Shelf, Part VI: Continental

Shelf, UNCLOS, 1982, states7:

“1. The coastal State exercises over the continental shelf sovereign

rights for the purpose of exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 are exclusive in the sense that

if the coastal State does not explore the continental shelf or exploit its

natural resources, no one may undertake these activities without the

express consent of the coastal State

…4. The natural resources referred to in this Part consist of the mineral

and other non-living resources of the seabed and subsoil together with

living organisms belonging to sedentary species, that is to say, organisms

 which, at the harvestable stage, either are immobile on or under the

seabed or are unable to move except in constant physical contact with the

seabed or the subsoil.”

It hence becomes quite clear that in a grey area with two states having overlapping

rights, the coastal state exercising EEZ rights would overpower the state exercising ECS rights,

and given the scenario of the Bay of Bengal, the grey area poses significant ramifications as it

jeopardizes the rights of one state by the other.

2.2 Consequences of the Grey Area

To illustratively exhibit the overlapping rights through different vertical components of grey

areas, the following diagram is presented. In Fig 5, let us assume two opposite states - State A

and State B to be sharing a grey area which is that section of State B’s ECS that falls into EEZ

of State A, assuming that the latter has not claimed any area beyond 200 nm. The ECS of State

B (marked as green seabed and subsoil) would be undisputed till State A’s 200 nm line.

Fig 5: Illustration showing grey area and its vertical subdivisions (not to scale)
The grey area is subdivided vertically into 4 zones – GA 1, GA 2, GA 3 and GA 4, to explain

the difference between each zone with respect to UNCLOS provisions:

• GA 1 – refers to air space above the superjacent waters

• GA 2 – refers to the water column – its currents, winds, living and non-living resources

• GA 3 – refers to the seabed – its natural (living and non-living) resources

• GA 4 – refers to the subsoil – its natural (living and non-living) resources

Now, several debatable situations arise:

 State A can exercise full control throughout the grey area i.e. from GA 1 to GA 4 by virtue

of its EEZ rights; while State B can only utilize resources from GA 3/GA 4. Under ideal

conditions, a state with continental shelf rights has full sovereignty of exploring and

exploiting resources from GA 3/GA 4 underlying GA 2 which has the “high seas” status.

However in the grey area, the situation gets complicated because activities within GA 2 are

controlled by State A. Does this jeopardize the sovereignty of State B as given in para 1,

Article 77, UNCLOS7?

 As per para 2, Article 77, UNCLOS25, in case State B does not wish to explore the resources

of the continental shelf, would that restrict State A from exploring them, even though it lies

in its EEZ?

 Exploration activities to be conducted by State B, especially those which cannot be executed

exclusive of superjacent waters or airspace, could be problematic. Article 81, UNCLOS,

states that “the coastal State shall have the exclusive right to authorize and regulate drilling

on the continental shelf for all purposes”. So for instance if State A wishes to perform

drilling in the grey area for scientific purposes, it would require agreement/permissions from

State B. This highlights the need for mutual agreement for smooth functioning of marine

activities for either state.

 If both states lack cooperation, State B’s rights over GA 3/GA 4 would invariably be periled

by State A – invalidating the very essence of the provisions of UNCLOS.

 Another example – if State A decides to install an establishment within its EEZ in accordance

with Article 60, UNCLOS, it would indeed cause cohesion with rights of State B under

Article 80. Relevant excerpts from UNCLOS Treaty are given below:

“Article 60 – Artificial islands, installations and structures in the

exclusive economic zone, Part V: Exclusive Economic Zone:

1. In the exclusive economic zone, the coastal State shall have the

exclusive right to construct and to authorize and regulate the construction,

operation and use of:

(a) artificial islands;

(b) installations and structures for the purposes provided for in article

56 and other economic purposes;

(c) installations and structures which may interfere with the exercise of

the rights of the coastal State in the zone.

Article 80 – Artificial islands, installations and structures on the

continental shelf, Part VI: Continental Shelf:

Article 60 applies mutatis mutandis to artificial islands, installations and

structures on the continental shelf.”

Conclusively, two kinds of situations emerge in a grey area:

 Situation 1: State A and B exercise overlapping rights in the common area i.e. GA 3/GA 4

 Situation 2: State B exercises greater rights on the continental shelf than State A inside its

own EEZ
Situation 1 gives a strong reason for implementing an equitable division of territory, while

situation 2 indirectly jeopardizes the very foundation of UNCLOS because it creates a

dichotomy in rights between two effectively anti-states. This effectively means that if both

states do not decide unanimously, either state would be disadvantaged and coerced from

exercising respective rights.

2.3 The way forward

Several propositions can be developed to deal with the complexities rising out of maritime

delimitations – bilateral agreements, arbitrations, negotiations – which could efficiently aid in

arriving at a judicious settlement. The need for equitable distribution of territories was well

realized by coastal states even before the initiation of UNCLOS. There are numerous examples

of agreements between states regarding maritime delimitations and equitable division of

continental shelves across the globe28. For instance the agreement between the Australia and

Indonesia establishing certain seabed boundaries (1971)29 aimed to achieve cooperation in a

common territory wherein both countries could respectively exercise sovereign rights for the

exploration and exploitation of natural resources. This particular marine region has been at the

vortex of maritime dispute for the past four decades attributable to massive hydrocarbon

reserves and the political strife over sovereignty of East Timor. Nevertheless, the Zone of

Cooperation (1991)30 between Australia and East Timor (then the Indonesia Province)

established a landmark resolution for equitable and orderly division for resource exploitation.

Although the agreement was repealed in 199331, it provided a foundation for establishing

constructive neighbourly cooperation between the newly formed East Timor and Australia

resulting into the Timor Sea Treaty (2002)32. The Joint Petroleum Development Area - JPDA

(product of the Timor Sea Treaty) and the latest Greater Sunrise Joint Venture33 (from the on-

going arbitration between Timor-Leste and Australia for maritime delimitation, 2017) are great
steps towards resolving disputes in areas of overlapping rights. Similarly, another positive

maritime resolution between Norway and Russia ended a four decade long spat of negotiations34

by defining a single maritime boundary dividing the continental shelves and exclusive

economic zones in the Barents Sea and the Arctic Ocean while obliging the states to continue

their cooperation in the sphere of fisheries; and coordinated exploitation of trans-boundary

hydrocarbon resources35.

Hence, a grey area must be perceived as a tool for developing a new conflict resolution

policy instead of as an antagonist of maritime peace. A few such possibilities are discussed

herein which are without prejudice to the claims/interests of any coastal state. In the following

cases – State A and State B exercise EEZ and ECS rights respectively in the grey area; GA 1 to

GA 4 refer to the previously mentioned vertical subdivisions of the grey area.

2.3.1 Type I - Equitable Approach:

State A may facilitate State B to perform exploratory activities in the underlying subsoil and

seabed up to the capacity it deems fit. These understandings could be either mutual (joint areas

for development) or contractual (time-oriented) through which State B may judiciously exercise

continental shelf rights in GA 3/GA 4. The JPDA between East Timor and Australia32 or the

Special Area between Norway and Russia35 allow states to jointly operate in the overlap region.

For such an approach to be inducted, the paramount motive of mutual development must

overpower the fight for sovereignty.

 Pros – it would facilitate mutual agreement allowing both states to cooperate; perform

exploration together leading to economic growth for both parties with increased

interdependence and strengthened economic ties. Leasing of platforms for resource

exploration on land has been a very common method for facilitating collaborative

efforts for resource use; such an initiative could be mechanized for marine resource

platforms as well.
  Cons – it may be difficult to arrive at unanimous decisions, leading to creation of rigid

laws further dampening international ties. Equitable distribution of resources may be

problematic owing to the inherent nature of economic resources. Also, the country with

greater technological/research infrastructure may overshadow the rights’ of the other

state.

2.3.2 Type II - Stratified Approach:

State A and State B divide their rights for sharing the grey area with State A exercising

sovereign rights in the superjacent waters; and State B exercising sovereign rights over the

resources of the seabed and subsoil. The treaty between Australia and Indonesia in 199736

identified areas of overlapping jurisdiction and proposed a vertical distinction of rights in the

region. Although this treaty is not yet into force37, it demonstrates the idea of a stratified

approach for cooperated development.

 Pros – as the grey area would be vertically divided, it would allow both states to exercise

their respective rights, leaving no scope for dispute, given that State A extends full co-

operation to State B for exercising ECS rights. Such an approach functions on mutual

consensus with a soft demarcation of rights.

 Cons – State B may not be able to efficiently perform exploratory activities in the

subsoil or seabed if State A imposes strict regulations within the superjacent waters.

2.3.3 Type III – Bilateral Approach:

State A and State B bilaterally demarcate their continental shelves to arrive at a joint

understanding for optimum utilization of resources, benefitting both states. Because the

scientific criteria satisfied by State A for extending its continental shelf may be equally

applicable for State B, given common geological conditions, both States may mutually divide

the overlapping territory. The United States of America, Mexico and Cuba had witnessed lack
of unanimity in the Gulf of Mexico for several years without resolution. Popularly known as

doughnut holes, there were two polygons in the Gulf that lay beyond the 200 nm limit of any

state and were not delimited until the treaty between USA and Mexico, 200038 and the latest

treaty between USA and Cuba, 201739 – which have peacefully settled the long-pending issue

in the region. These treaties help in exemplifying the significance of following a bilateral

approach for delimiting territories beyond 200 nm, which could be effectively induced to

resolve grey areas as well.

 Pros – both states receive equal opportunity to divide their overlapping region. The grey

area can be considered as a singular entity and equitably divided.

 Cons – spatial division of overlapping continental shelf may be very difficult to achieve

especially among states with a history of arbitration. It could invariably lead to further

arbitrations or even escalate to deadlocks.

2.3.4 Type IV - Unified Approach:

ECS claim of State B is limited to State A’s 200 nm, such that the grey area is absolved

completely. It may result in the abdication of State B’s continental shelf rights, but would ensure

complete harmony and healthy neighbourly ties. Close examples are those of Joint Submissions

by France, Ireland, Spain, UK, Northern Ireland40; countries on the coast of West Africa41;

Mauritius and Seychelles on the Mascarenes Plateau42; Micronesia, Papua New Guinea and the

Solomon Islands on the Ontong Java Plateau43 etc. Such states condemn infighting and

showcase mutual collaboration for strengthening regional growth.

 Pros – a harmonious situation can be created as both/all states would have full

sovereignty over their EEZ (with a common ECS) and no grey area at all. States could

together exercise complete access to seabed and subsoil resources of their continental

margin with equitable shares and honour the EEZ rights of adjacent/opposite states.
  Cons – States with potential ECS rights would have to completely abstain from claiming

any territory inside the 200 nm line of adjoining/opposite states.

Table 1: SWOT* matrix summarizing the basic tenets of different partnership types

Description Type I: Type II: Type III: Type IV:

Equitable Stratified Bilateral Unified

Approach Approach Approach Approach

Basic tenet A facilitates B to A and B divide rights A and B B does not

utilize resources of into GA 2 and GA bilaterally claim any
GA 3/GA 4 3/GA 4 respectively divide the grey territory
area within 200 nm
of A

Mutual Vertical division; Scientific and No grey area at

cooperation; joint limited scope of equitable all
STRENGTH
development dispute delimitation of
the ECS

Can be a joint area A would have Both states get States achieve
for mutual exclusive rights over an equal mutual
development with living/non-living opportunity to harmony by
or without time resources of the scientifically respecting
bounds water column while establish the each other’s
OPPORTUNITY B would have extent of their EEZ rights
authority over continental
seabed/subsoil margins and
resources divide among
themselves

Difficult to resolve; A would have to Time An unlikely

could demand relinquish its right consuming; settlement if B
compromise by on the resources of could lead to has a strong
WEAKNESS
either party seabed and subsoil strained scientific
neighbourhood claim inside
lies the EEZ of A

May result in A could impede May result in Could result in

hampering smooth rights of B in freely further economic
economic exercising ECS arbitration if imbalance or
THREAT functioning rights either party fails overpowering
to conform to
the decision,
could result in
 inequitable
division

Examples JPDA between East Treaty between Treaties Joint

Timor and Australia and between the submission of
Australia; Special Indonesia (1997)36 USA - Mexico38 several
Area between and USA - adjacent
Norway and Cuba39 states40-43
Russia32,35

* Strength, Weakness, Opportunity, Threat - SWOT

3. Summary and Conclusions

The ITLOS judgment and the Arbitral Tribunal’s Award, both offer a phenomenal resolution

to the incessant discord involving the three parties, especially by not limiting their jurisdiction

in the continental shelf up till 200 nm only. The recommendation to extend the delimitation

lines in a manner such that they meet at a promulgated tri-junction point, has conclusively

demarcated the maritime boundaries in the tri-state area. The adjudicators perhaps foresaw that

a concrete delimitation is required in the area if they sought to truly serve the purpose of their

conduct.

However, despite the impartial thinking behind the Bangladesh-India Award, it still has

incepted the grey area that leaves the states in a position of ambiguity. There exists a cloud of

questions regarding the division of rights within the grey area and the tri-party is yet to see any

resolution so far. It is thus, far from sketchy, that the grey area is a consequential outcome of

maritime delimitation which comes with a series of unresolved speculations. Its ramifications

further demand urgent attention because the frequency of such cases can only be expected to

rise – given the growing number of countries ratifying the UNCLOS, which may also pose

more complicating scenarios than the ones in hand. Till date 168 countries have ratified

UNCLOS, 198244 and in order to avoid the creation of more grey areas, mutually exclusive

rights between party states and permissions to act thereon must be established at the earliest to
serve as precedents for future issues. Hypothetically, if one state exercises EEZ rights in the

grey area, and the other ECS rights, would the latter have an upper hand in terms of utilizing

the subsoil and seabed resources or the former? Is it even possible to vertically divide our

oceans? Such predicaments need to be pondered upon to help curtail the rising maritime

disputes across the globe.

Now the fact that the grey area is here to stay, the aim of this contribution is to discuss

what exists now and what could be done in the future to help overcome the obscurity of the

grey area. With only a few scenarios contemplated here, the possibility of growing strife

between opposing states could be greater or lesser than the ones discussed here, and the

propositions may also lack in some or the other way. But these discussions must invigorate the

countries to spearhead new and open ways of arriving at a harmonious outcome. The authors

are, in no manner, critical of the factors that led to the formation of the grey area. In fact, a case

like this not only drives the involved states to dissolve the cacophony amidst them, but also

helps to contemplate the possible outcomes resulting from maritime arbitrations. In a nutshell,

will there be a definite answer to clear the grey over blue – only times to come can tell.

Acknowledgments

The authors would like to thank Director, NCAOR, Goa for his support to undertake research

and publish this contribution. This is NCAOR Contribution No. xxxx.

Conflict of Interest statement

The authors report no potential conflict of interest with any organization or entity regarding the

subject matter discussed in this manuscript. The discussions made in this paper are true

reflections of the authors’ scientific opinion and have no bearing on state policies whatsoever.
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