The Arbitral Tribunal in The Hague, dealing with the Bay of Bengal Maritime boundary Arbitration between Bangladesh and India, sustained Bangladesh’s claims of equitable solution to a full 200 nautical mile (NM) exclusive economic zone in the Bay of Bengal and to a substantial share of the extended continental shelf beyond 200 NM. The five member tribunal agreed with Bangladesh that the “equidistance” method proposed for dividing the disputed waters between the two neighboring States was not equitable to Bangladesh.
Importance of the Bay of Bengal and the resources lying therein was first realized by the Father of the Nation Bangabandhu Sheikh Mujibur Rahman, soon after the independence of Bangladesh. Accordingly, to establish legal entitlements of the people of Bangladesh to the apportionment of maritime areas and exploitation of marine resources therein, in 1974, under the guidance of Bangabandhu, the Bangladesh Parliament passed the “Territorial Waters and Maritime Zones Act-1974” which was the first maritime legislation enacted by any country in the region. Bangladesh declared 12 NM of territorial sea and 200 NM Economic Zone well before such concept was even developed widely in the international arena. Bangabandhu also initiated maritime boundary negotiations with India and Myanmar and even settled the 12 NM territorial sea boundary with Myanmar in Nov 1974.
After the brutal assassination of Bangabandhu and most of his family members on the black night of 15 August 1975, the importance of the sea resources for Bangladesh have not been evaluated appropriately. The post –75 Governments paid the least, if not, no attention to the importance of sea and its much valued resources for the economic development of the country. While the Government of Bangladesh signed the UN Convention on the Law of the Sea (UNCLOS),it remained unratified since its adoption in 1982. Again, it is the Government of Prime Minister Sheikh Hasina (1996-2001) that ratified the UNCLOS in the last cabinet meeting (9 July 2001) of her government and thus Bangladesh became full member of the convention in July 2001.
After ratification of the UNCLOS in 2001, Bangladesh needed to submit scientific and technical data (seismic and bathymetric) to United Nations Commission on the Limits of the Continental Shelf (CLCS) within 10 years i.e. July 2011 for establishment of its extended continental shelf in the Bay of Bengal beyond 200 NM.
Again, Bangabandhu’s daughter, Prime Minister Sheikh Hasina after taking over the responsibilities of the government in 2009, conducted the first ever dedicated seismic survey of the Bay of Bengal in March 2010 in the history of Bangladesh. Thus, after completing the most crucial task of the collection of geophysical and bathymetric data of the seabed, Bangladesh finally submitted its claim on the extended continental shelf to the UN with all supporting data on 25 February 2011, five months prior to the deadline.
With this submission, the Government of Prime Minister Sheikh Hasina not only fulfilled one of its declared roles of protecting the sovereign rights following international rules and regulations but also opened up new opportunities of protection, preservation and utilization of economic resources of the Bay of Bengal both within and beyond 200 NM.
Further, during her second term as Prime Minister (2009-2013), Hon’ble Prime Minister Sheikh Hasina considering the issue of maritime affairs of the country to be of crucial importance, accorded the highest priority to it and took substantive, practical and time- bound initiatives to resolve maritime boundary disputes with the neighboring coastal states through negotiations. The unresolved maritime boundary continued to create severe obstacles to exploration and exploitation of natural resources, affected deep sea fishing and the Bangladesh Navy and the Coast Guard experienced severe problems in exercising sovereign rights in the maritime areas claimed by Bangladesh and in safeguarding our resources like fishes from being plundered by others due to absence of maritime boundary.
Under the leadership of Prime Minister Sheikh Hasina, Bangladesh took a bold, visionary and timely decision for settlement of this issue through peaceful means i.e. compulsory dispute settlement procedure under the UNCLOS. On 08 October, 2009 Notice of Arbitration was issued against Myanmar and India under Part XV of the UNCLOS for delimitation of territorial sea, the exclusive economic zone and the continental shelf in accordance with international Law. Bangladesh won a similar judgment in a companion case against Myanmar in 2012. The 2012 judgment was issued by the 21-member International Tribunal for the Law of the Sea (ITLOS) in Hamburg rejecting “equidistance” boundaries (as proposed by Myanmar in that case) and awarded Bangladesh a sizable share of the disputed waters in the eastern part of the Bay of the Bengal, including the continental shelf beyond 200 NM.
The award of 2014 by the arbitral tribunal which cannot be appealed, is binding on both states. It brings to an end in the arbitral process that was commenced by Bangladesh in respect of Myanmar and India under the UNCLOS in 2009.
Foreign Minister Mr. Abul Hassan Mahmood Ali, MP, after reviewing the tribunal’s award declared that it is a victory for both States, it is the victory of friendship and a win-win situation for the peoples of Bangladesh and India because it finally resolves peacefully and according to international law- a problem that had hampered the economic development of both states for more than three decades. We commend India for its willingness to resolve this matter peacefully by legal means and for its acceptance of the tribunal’s judgment.
At the same time, the Foreign Minister underscored that the judgment was a step forward for Bangladesh as well as for India. He observed that by finally resolving a problem that had been an issue in the side of bilateral relations for so long and by doing so peacefully and according to international law, the award enables both sides to move forward confidently into a new future and to build a new era of understanding and cooperation in the maritime sector.
The Foreign Minister emphasized that Bangladesh’s full access to high seas out to 200 NM and beyond is now guaranteed as are our undisputed rights to fishing in our waters and the natural resources beneath our seabed. The people of Bangladesh are deeply connected to and dependent on the Bay of Bengal both as a source of nutrition, resource and for employment. The clarity and legal certainty afforded by this ruling will ensure that we will be able to maximize the benefit of this important resource for the people of Bangladesh while at the same time ensuring long term sustainability. He stated that the Ministry is also organizing a workshop on Ocean/Blue Economy on 1-2 Sept 2014 to generate more awareness, broaden our horizons towards utilizing resources of the sea and thus bring about socio economic changes in the lives of our people.
Bangladesh finally won more than 1,18,813 square kilometers of waters comprising territorial sea, exclusive economic zone extending out to 200 NM across sizable area, and also have undeniable sovereign rights in the sea bed extending as far as 354 NM from Chittagong coast in the Bay of Bengal with all the living and non living resources. To achive an equitable result, the tribunal awarded Bangladesh 19,467 sq km of area out of total disputed area of 25,602 sq km (approx).
The Bangladesh Legal Team during the Oral Hearing on 9 December 2013 in the Peace Palace in The Hague, The Netherlands, was headed by Foreign Minister Mr Abul Hassan Mahmood Ali, MP, Dr Dipu Moni, MP (as Agent), Mr Md. Shahidul Haque, Foreign Secretary, and Rear Admiral (retd.) Md Khurshed Alam, Secretary, Maritime Affairs Unit (as Deputy Agent) of the Ministry of Foreign Affairs.
Bangladesh’s external counsels were: Mr. Paul Reichler and Mr. Lawrence Martin of the United States, Professor James Crawford, Mr. Philippe Sands and Mr. Alan Boyle of the United Kingdom and Professor Payam Akhavan of Canada.
The Arbitral Tribunal was presided over by Judge Rudiger Wolfrum of Germany and included Mr. Jean-Pierre Cot (France), Judge Thomas A Mensah (Ghana), Professor Ivan Shearer (Australia) and Dr Pemmaraju Sreenivasa Rao (India).