Deriving maximum benefit from newly acquired maritime territories

It has taken forty years.  What started in 1974 through the initiative of the then Prime Minister Bangabandhu Sheikh Mujibur Rahman (who recognised for the first time the importance of maritime areas being able to provide us with additional resources) has finally concluded in 2014 because of the unstinted efforts and commitment of his daughter, our current Prime Minister Sheikh Hasina.
One needs to recall here that what was initiated in 1974 with a bang slowed to a whimper in the years that followed the brutal assassination of Bangabandhu. We had signed the UN Convention on the Law of the Sea (which was adopted in 1982) but ratification (Bangladesh became a full member of the Convention in July 2001) was undertaken much later only after the necessary steps were taken by the Awami League government during 1996-2001.
Subsequently, Bangladesh needed to submit scientific and technical data (seismic and bathymetric) to the UN Commission on Limits of the Continental Shelf within 10 years - by July 2011. This measure was required to establish its claims over the extended continental shelf in the Bay of Bengal beyond 200 nautical miles. We eventually managed to complete this crucial task and the relevant data was submitted to the competent authorities on February 25, 2011, five months prior to the expiry of the deadline. This was a significant step towards protection of our sovereign rights.   
In the meantime on October 08, 2009 (during Sheikh Hasina's tenure as Prime Minister from 2009-2014) Bangladesh took the bold step for settlement of the maritime issue through compulsory dispute settlement procedure under the UN Convention on the Law of the Sea (UNCLOS). On that date Notice of Arbitration was issued against Myanmar and India under Part XV of UNCLOS for delimitation of the various aspects of our territorial sea. In 2012, in a judgment issued by the 21-member International Tribunal for the Law of the Sea in Hamburg, rejected 'equidistance' boundaries (as proposed by Myanmar in that case) and Bangladesh was awarded a sizeable share of the disputed waters in the eastern part of the Bay of Bengal, including the continental shelf beyond 200 nautical miles.
This moved us forward and created a new dimension within the scope and potential of our future economic development. The nation waited after this for a suitable result to emerge from the adjudication process undertaken with India.
The Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea in the matter of the Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India issued its Award on  July 07, 2014 from its headquarters in The Hague. The Award was made public on  July 08. This process was undertaken by the Tribunal on the basis of its unanimous decision that it had jurisdiction to identify the land boundary terminus and to delimit the territorial sea, the exclusive economic zone and the continental shelf between the two Parties, within and beyond 200 nautical miles in the areas where the claims of the Parties overlap.  The Tribunal was also unanimous in identifying the location of the land boundary terminus between Bangladesh and India and in determining the course of the maritime boundary in the territorial sea. The arbitral tribunal award cannot be appealed and is binding on both States. By a majority of four votes to one, the Tribunal also determined the course of the maritime boundary line between Bangladesh and India in the exclusive economic zone and the continental shelf within and beyond 200 nautical miles.
It was important that the Tribunal acknowledged that both countries were Parties to the relevant Convention and that Bangladesh had complied with the requirements for submission of the dispute to arbitration under Annex VII. This assumed significance given the rumour that was circulating in certain quarters that Bangladesh's efforts were not consistent with existing legal requirements.
It was adjudged by the Court in The Hague that Bangladesh was entitled to 19,467 square kilometres of area out of the disputed 25,602 square kilometers. This meant that the relevant International Tribunals, after legal consideration in the cases with Myanmar and India had decided that Bangladesh was entitled to sovereign authority over more than 118,813 square kilometres of the adjoining Bay of Bengal (comprising territorial sea and an exclusive economic zone extending to 354 nautical miles from Chittagong coast with all the living and non-living resources within these water areas). This was agreed to on the basis of Bangladesh's insistence on the principle of equity rather than that of equidistance stressed on by India and Myanmar.
It would be pertinent at this juncture to also refer to two points that have been stressed upon by some political parties within Bangladesh who have been critical of the latest arbitration award with India and tried to give it a political colouring. The first deals with Bangladesh not having been given sovereign jurisdiction over the waters that now cover South Talpatti Island (which surfaced in 1970-71 and again went under the sea line in the 1980s) on the extreme south-western fringe of the Bangladesh coastline. The second relates to the 'grey area' within the award.
It would be fitting to point out here that the Arbitration Tribunal decided on the first issue by determining that the midstream of the main channel of the Haribhanga River must be located as it was in 1947, the date of the Radcliffe Award. It would also be important to point out here that the Tribunal observed that it 'did not consider the instability of the coast of the Bay of Bengal to be a relevant circumstance that would justify adjustment of the provisional equidistance line'. It also emphasised that what matters is the coastline at the time of delimitation and that 'future changes in the coast cannot alter the maritime boundary'. It concluded that 'the concavity of the Bay of Bengal was a relevant circumstance and that, as a result of such concavity, the provisional equidistance line produced a cut-off effect on the seaward projections of the coast of Bangladesh'. It is this feature that persuaded the Tribunal to consider that 'the cut-off required an adjustment to the provisional equidistance line in order to produce an equitable result'.
With reference to the 'grey area', the Tribunal noted that 'the delimitation line it had adopted' had given 'rise to an area that lies beyond 200 nautical miles from the coast of Bangladesh and within 200 miles from the coast of India' and yet lay 'to the east of the Tribunal's delimitation line'. In this context it noted 'Bangladesh has a potential entitlement with respect to the continental shelf, but not an exclusive economic zone, while India is potentially entitled to both zones'. Accordingly, the Tribunal decided that, "within the grey area, the boundary line delimits only the Parties' sovereign rights with respect to the continental shelf, and also does not otherwise limit India's sovereign rights to the exclusive economic zone in the superjacent waters". It is understood that a Member of the Tribunal, Dr. P.S. Rao, sponsored by India, disagreed with the majority, both as a matter of law and policy with the creation of a 'grey area' as a result of the adjustment the majority of the Members of the Arbitral Tribunal had made to the provisional equidistance line. His opinion was taken note of by the Tribunal but was set aside because the majority disagreed with him. As such, one needs to understand the subtle connotation within the broader picture and also the consequent greater potential that is now available for our country.
The Secretary of the Maritime Affairs Unit in our Ministry of Foreign Affairs has clarified in this context that this grey area is about 50 square kilometre and the water resources of this area would be enjoyed by India while Bangladesh would enjoy the resources under the seabed.
India has accepted the verdict given by the Tribunal and Bangladesh has welcomed it. This has reflected the desire of the people of both countries to move forward confidently into a new era of cooperation in the maritime sector. This verdict has removed the obstacles for Bangladesh with regard to exploitation of natural resources in this area. This will also encourage deep sea fishing.
The government will now have to strengthen our Naval and Coast Guard presence in this area. The government has already suggested that they will initiate a new bidding round for oil and gas exploration.  However, one feels that, before taking that step, the country should get up-to-date data on the maritime sea bed through a fresh survey. This would help Petrobangla to launch its new bidding process with greater confidence. We should also try to build a sea-based scientist community and enhance the capacity of our existing workforce. This would be considerably helped through the setting up of the proposed National Oceanography Research Centre. A functional national maritime policy will be essential to derive maximum benefit from our newly acquired maritime territories.
Muhammad Zamir, a former Ambassador, is specialised in foreign affairs, right to information and good governance.
 mzamir@dhaka.net