As the hearing begins...

Bangladesh's equity principle is shown in red, while India's equidistance principle is in yellow.

THE hearing concerning the delimitation of the maritime boundary between Bangladesh and India is to take place today. It was Bangladesh that, on October 8, 2009, instituted arbitral proceedings concerning the delimitation of the maritime boundary between Bangladesh and the Republic of India pursuant to Article 287 and Annex VII, Article 1 of the United Nations Convention on the Law of the Sea (UNCLOS). As Bangladesh submitted its written arguments on May 31, 2011encompassing all maritime zones (territorial sea, exclusive economic zone, continental shelf and outer continental shelf) India made the counter move in 2012 by submitting its written arguments on behalf of their demand to Permanent Court of Arbitration (PCA) in The Hague.
After the settlement of the much disputed maritime boundary issue with Myanmar some of the technical issues seemed rather confusing, especially the terms 'equidistance' and 'equity.' In maritime boundary terms the 'equidistance principle' is a legal concept that a nation's maritime boundaries should conform to a median line equidistant from the shores of neighbouring nation-states. This concept was developed in the process of settling disputes where the borders of adjacent nations were located on a contiguous continental shelf.
'Equity principle' on the other hand may sound simple but in reality it is not, since the solution itself depends on a number of geographical factors. What needs to be understood clearly is that the equity principle does not necessarily mean equal share or distribution of resources and the sea by two countries proportionately. Normally, a boundary based on equity is the result of all equitable variables available in the delimitation area combined, then balanced to evaluate the relative weight of each factor.
In order to derive the maximum benefit through the equitable solution it's the geographical factors that should be in Bangladesh's side too. For instance, the length of a seacoast in resolving a dispute becomes a big geographical factor and India's seacoast is much bigger than Bangladesh's. The UNCLOS's proposal to apply the 'equidistance principal for the purpose of maritime boundary demarcation is supported by India, but rejected by Bangladesh due to the magnitude of associated losses.
In the recent past, while disposing of Bangladesh-Myanmar dispute, the International Tribunal for the Law of the Sea (ITLOS) used a mix of two established concepts -- equidistance approach and 'proportionality' approach. The first benchmark was used from the start of the delimitation boundary to the point beyond which the territorial seas of Bangladesh and Myanmar no longer overlap. Beyond that the proportionality approach was adopted for arbitration purposes only.
Technically, we have enough reason to believe that a twin approach like the one stated above will make the verdict go in India's favour. Experts point out that under the first approach, the breadth of the territorial sea of each of the two countries is measured in such a way that every point becomes equidistant from the nearest points of the coastal baselines. Likewise, under the proportionality approach, maritime delimitation factors the ratio between the water and continental shelf areas attributed to each party, and the length of their respective coastlines. On the other hand, Bangladesh deserves a special dispensation not only because it is a small littoral state in comparison with India but also because its coast is not a straight line but concave.
As per legal norms, Bangladesh's case has been prepared in the light of Articles 74 (delimitation of the exclusive economic zone between States with opposite or adjacent coasts) and 83 (delimitation of the continental shelf between States with opposite or adjacent coasts) of the United Nations Convention on the Law of the Sea, 1982.
If Bangladesh's method of determining the maritime boundary is accepted by the international forum then India is expected to lose control over around 2,905 sq km in the Exclusive Economic Zone (EEZ) and 1,018 sq km in the outer continental shelf. But at the same time, a verdict opposite to Bangladesh's expectations could be announced. According to an expert, over 85% of maritime disputes worldwide have been arbitrated by following the equidistance principle. The verdict could also turn Bangladesh into a 'zone-locked' country in the Bay of Bengal.
It needs to be known that application of equity principle also results in controversial outcomes as its standard can be vague and subjective also. The equity maritime zone proposed by Bangladesh is no exception as its boundary overlaps with India's and Myanmar's maritime zones, which are both recognised by the UN. So, have we thought in advance on how to face the plausible vague and subjective issues in this regard?
Ordinarily, conflicts over maritime boundaries address two issues: (1) a territorial or historical sovereignty; and (2) jurisdictional rights and interests in maritime boundaries. The latter aspect often stems from different understanding of the Law of the Sea. But here the situation is different as India recently discovered roughly 100 trillion cubic feet of hydrocarbon deposit in the deep oceanic creek, which was followed by Myanmar's discovery of another 7 trillion cubic feet of hydrocarbon deposit. These recent discoveries of large natural gas deposits have further escalated the significance of the delimitation of maritime borders. At the core of the dispute now is, who will gain uninterrupted economic use of sea bed resources?
It should be noted that India's and Bangladesh's growing demand for energy has led to offshore operation and allocation of maritime blocks for further exploitation of resources. Not too long ago such discoveries had created reason for Bangladesh to file a complaint against India's exploitation in 2006 while India counter-opposed Bangladesh in 2008. What seemed audacious at that time in this regard was that, with the boundary dispute unresolved, India declared its offshore blocks for the deep-sea natural resources, which clearly overlapped with Bangladesh's claimed EEZ. Both sides later agreed to cease any exploitation within the overlapping blocks.
Today's hearing will be crucial for future maritime boundary disputes, especially with regards to the adaptation of non-conventional demarcation of disputed maritime boundaries. Interestingly, good or bad, the verdict for the first time will help Bangladesh to have its own sea map. Beyond all -- in the age of climate change -- It also remains to be determined if the verdict of the maritime border dispute would be an apt solution to rectify ongoing damaging impacts of climate change. To end, the verdict is going be a complex one, and no early decision is expected as hearings will continue through 2013 and even early part of 2014.

The writer is Current Affairs Analyst, The Daily Star.