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February 29, 2004

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Sea boundary of Bangladesh: A legal view

Barrister Harun ur Rashid

Bangladesh with its popula-tion of about 140 million in a land territory of 55,598 thousand square miles (147,570 sq.km) needs to explore and exploit the living and non-living resources of the adjacent sea. The full extent of marine resources is yet unknown to us. Considering that humans have smashed the atom, climbed the Mount Everest and landed on the Moon, our ignorance about the resources of the sea is a breath-taking gap in science.
Besides the traditional non-living resources of sea, such as oil or gas, we could be amazed at the life forms that could live in deep sea on the continental shelf (ocean floor). Continental Shelf could become in future one of the sources of food for our massive population.
Some experts consider that mineral deposits are greater in sea than those in land. The sea-bed covers 71% of the world's area and it contains approximately 293 chemical elements. As the resources of the land gradually diminish, there would be scramble for resources on the sea-bed.

UN Law of the Sea Convention
The 1982 UN Convention on the Law of the Sea came into force in 1994 and Bangladesh ratified in 2001. Under the UN Convention, Bangladesh's maritime areas, besides inland waters, are as follows:
Territorial Sea
Contiguous Zone
Exclusive Economic Zone
Continental Shelf
In 1974 Bangladesh passed a law, "The Territorial & Maritime Zones Act (Act no. XXV). This law has allowed the government to declare its extent of maritime zones through gazette notification.
Bangladesh claimed 200 miles of Exclusive Economic Zone under the 1974 notification of April 16 of Section 5 of the Act and could claim 350 miles of Continental shelf under the UN Convention.
In this context, it is important that Bangladesh needs to settle sea boundary agreement with both India and Myanmar (Burma). Negotiations with both countries commenced in 1974 and there were series of meetings with the representatives of both countries in the intervening years. If I recall correctly, the last negotiations were held with India in 1982 and with Myanmar in 1986.
However, negotiations remained inconclusive both with India and Myanmar. The negotiations were held before the UN Convention on the Law of the Sea came into force. The Convention will have an impact not only on the extent of the claim of the areas in the Bay of Bengal but also on the applicable legal principles in delimiting sea boundary.

Bangladesh's coastal characteristics
Bangladesh is an adjacent country to its neighbours as distinct from opposite country
( geographically India and Sri Lanka are opposite to each other while Bangladesh is not). This distinction is very significant and has considerable ramifications in delimitation of the sea boundary with India and Burma
Another fact is that Bangladesh is a geographically disadvantaged country because its 720-km coastal line is concave in shape (not convex) and highly indented. Bangladesh has to ensure that its frontal opening to the sea does not become blocked in the competing claims from India in the West and Myanmar in the East. Bangladesh must have an open wide front to the high seas in the Bay of Bengal.
Bangladesh is a deltaic country and three of the biggest rivers of South Asia flow through this country. As a result, its waters of the estuary are unstable. Furthermore monsoon rains carry silt through rivers of Bangladesh from upper catchment areas. The silt gives formation of innumerable coastal new small islets almost every year replacing earlier ones. The waters are in a constant flux.
There exists an underground river or canyon, known as the Swatch of No Ground, within the territorial waters of Bangladesh in the western sector. The canyon is believed to be 12 miles long, 1 and half a mile width and remains active and very deep. It is further believed that much of the silt carried by Bangladesh rivers is passed on through this canyon to the sea bed of Bay of Bengal as far as Sri Lanka.

Legal principles involved in sea boundary
One has to acknowledge that jurisdiction on the sea emanates from the sovereignty over its land domain. If there is no land territory bordering the sea, no jurisdiction could be claimed on the sea. I would argue that the shape of the land domain has a direct bearing on its jurisdiction on the sea.
If one takes an aerial view of Bangladesh, its physical contours would look roughly rectangular in shape. There is an inherent connection between the shape of the land domain and its claim on the boundary on the sea. Following this principle, Bangladesh's boundary on the sea would be rectangular in shape.
The boundary on the territorial waters is to be governed by Article 15 of the UN Convention and the equidistant method can only be departed by reason of "historic title or special circumstances" on the seas.
However delimitation of Exclusive Economic Zone (EEZ) and Continental Shelf of adjacent countries will be guided by the principles of equity in terms of Articles 73 and 84 of the Convention. These Articles of the Convention emphasise that any agreement arrived at must achieve "an equitable solution". Principle of equity is ingrained in notions of fairness in the context of shape of the coastal land. This equitable principle found recognition by the World Court in North Sea Continental Shelf Cases (1969:ICJ:general list : nos 51 &52).
The geographical location of countries is very important in drawing a sea boundary. This means whether a country is opposite or adjacent to the other country. For example, Sri Lanka is opposite to India while Bangladesh is adjacent to it or to Myanmar.
The "equidistance method" that is applicable between the opposite countries in respect of delimitation of EEZ and Continental Shelf cannot be invoked to draw the sea boundary between adjacent countries as it disregards the physical features of coastal areas and does not achieve "an equitable solution" as mandated by the UN Convention.
If this method is applied, the boundary between adjacent countries will be unfair, distorted and inequitable. Therefore, sea boundary of Bangladesh with its adjacent neighbours requires to be drawn in terms of the provisions of the UN Convention so as to achieve "an equitable solution."
The territorial sea would cover 12 nautical miles from Bangladesh baseline, the EEZ another 188 miles ( total 12+188=200 miles) and finally the Continental Shelf would cover another 150 miles from the end of EEZ jurisdiction ( total 200+150=350 miles).
I would suggest that sea boundary could be drawn by stages -first on the territorial sea, followed by EEZ and thereafter the Continental shelf. Each has a jurisdiction of different length.

Strategy pending the outcome of negotiations
Pending the conclusion of sea boundary agreements with India and Myanmar, one strategy for consideration is to examine the possibility of sharing resources of the alleged overlapping or disputed areas on the sea. Many countries have been able to conclude such interim agreements of sharing maritime resources. For instance, Thailand and Malaysia agreed in 1979 and in 1990 to jointly exploit sea resources of the continental shelf pending a final agreement. In 1989 Indonesia and Australia concluded an interim agreement to share resources of the Timor Sea.
The advantage of such interim agreement of sharing resources is two fold: first sea resources do not remain unexploited and second, neighbouring countries share the resources (living and non-living) for benefit of their people. Such agreement puts neighbouring countries in "win-win" situation prior to arriving at a final agreement.

Barrister Harun ur Rashid is former Bangladesh Ambassador to the UN in Geneva.


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