By Azhar Ahmad
Nov 27, 2014
On July 7, 2014, the Permanent Court of Arbitration based in The Hague, handed over its much-awaited verdict on the maritime dispute between Bangladesh and India. Bangladesh, like Pakistan, is a country heavily dependent on the sea. The country had serious differences with India and Myanmar on maritime boundary issues. Having failed to resolve the issues bilaterally, it opted for third-party arbitration. The final decisions on both the cases are generally considered favourable to Bangladesh. How did Bangladesh manage to get favourable decisions on both cases from different arbiters?
According to the existing law of the sea, countries have three options to address any dispute under the United Nations Convention on the Law of the Sea (UNCLOS) 1982, which are as follows:
- The International Court of Justice at The Hague, the Netherlands.
- The International Tribunal for the Law of the Sea (ITLOS) at Hamburg, Germany.
- The Permanent Court of Arbitration (PCA) at The Hague, the Netherlands.
The controversy began when, in 2008, Bangladesh claimed a sizable block of sea for oil exploration deep in the Bay of Bengal. The area announced by Bangladesh overlapped the claimed Exclusive Economic Zones (EEZs) of both the neighbouring countries, and therefore, attracted opposition from India and Myanmar.
Bangladesh, realizing the importance of the issue for its future maritime endeavours, and aware of the hiccups involved in bilateral dispute resolution, decided to opt for international mechanisms available under the existing laws and submitted its case for resolution of its maritime boundary with India in PCA on October 8, 2009. A little later, in December, it decided to take on Myanmar in ITLOS. On March 14, 2012, Bangladesh won its case in the ITLOS in which it was awarded an area of 111,000 sq. km. of EEZ against the original claim of 107,000 sq. km. Having won its case against Myanmar strengthened Bangladesh’s position and, finally, on July 7, 2014, the PCA also declared its verdict, in which the tribunal awarded almost 4/5th of the disputed waters, i.e., 19,467 sq. km. out of the total of 25,602 sq. km. (an area equal to the size of Indian state of Bengal) to Bangladesh.
It may be noted that India has always emphasized on bilateral mechanisms for resolution of problems with its smaller neighbours. It has always stood against international/third-party involvement, particularly in the case of Pakistan. However, Bangladesh not only managed to convince India to accept third-party arbitration, but also won its case favourably. The acceptance of arbitration by both the parties means that the verdict is final and binding. It cannot be challenged in any other forum; however, the parties may refer to the tribunal for clarification in interpretation of the verdict. Bangladesh managed to achieve this success only because it took the task seriously and did its homework correctly. The Bangladeshi team was headed by its foreign minister herself and a retired admiral from the navy who was appointed as an Additional Secretary in the ministry solely for this purpose, besides a team of more than two dozen experts.
After resolution of this issue, India has now resolved its maritime boundary with six out of seven neighbours, Pakistan being the only exception. The resolution of maritime boundary issue with Pakistan has been delayed so far due to lack of agreement on land boundary terminus in Sir Creek. Ironically, while India used historical records (Radcliffe Award) to fight its case against Bangladesh, in the case of Pakistan, it has refused to accept previous verdicts.
According to historical evidence, land boundary dispute in Sir Creek areas was settled between the then state of Kutch and the Commissionerate of Sindh through a resolution dated February 24, 1914. The boundary on the maps is shown by a green line from the mouth of the Creek running along the eastern edge of the Creek. However, at the time of demarcation of the land boundary in this segment during 1969, the Indian authorities reneged on the agreement and claimed the boundary to be running along the western border (Pakistani side). During later talks, the Indian delegation changed their stance and asserted that the boundary ran in the middle of the Creek. Since then, the Indian position has fluctuated between the two claims. However, of late, the two sides have submitted their proposals for extension of continental shelf despite the pending issue of Sir Creek. This means that only a small portion of the Creek and the adjacent sea will remain to be resolved later.
In 2012, when news leaked that the Sir Creek issue is about to be resolved, Narendera Modi, the then Chief Minister of Gujarat threw a spanner in the talks by protesting against it. Since Mr. Modi has now become the Prime Minister of India, the fate of the issue has become doubtful. Maritime or land boundaries are not the only issues. Pakistan has also suffered at the hands of India on other issues, most prominent of them being construction of dams by India on rivers allocated to Pakistan through the Indus Basin Waters Treaty.
Some observers are of the view, the treaty provides a mechanism for third-party resolution, Pakistan has always delayed taking the issues to the international arbiters losing precious time and the verdicts have generally not been favourable. Why Pakistan is reluctant to opt for third party arbitration. While the Simla Accord between Pakistan and India is one reason, it is believed that the Pakistani bureaucracy is reluctant also because they know they will lose the case. It was obvious in both the Baghliar and Kishinganga cases that Pakistan could have achieved more favourable results only if the cases were moved in time and with due preparations.
The recent success of Bangladesh has been heralded internationally as a sign of peaceful resolution of disputes. It also shows that even weaker nations, with lesser international clout, can achieve victory in international fora, if they are serious in protecting their national interests and do their homework religiously and honestly.