Myanmar drilling and the sovereign rights of Bangladesh
Saturday, 22 November 2008
Barrister M. A. Muid Khan
DESPITE Bangladesh's constitution-bound commitment to international peace and co-operation, the recent efforts to set up drilling by a Korean company engaged by Myanmar government, in the disputed territorial water of the Bay of Bengal, have flagrantly violated its sovereign rights in its territorial waters. This article seeks to show how Myanmar's unilateral action to explore oil and gas in the disputed territorial water has violated the UN Charter and what actions should be taken to prevent the neighbouring countries from taking such unilateral aggressive action in future to explore oil and gas in the territorial water of Bangladesh.
Early in November 2008, Myanmar started offshore oil and gas exploration activities in the disputed water of the Bay of Bengal, despite Bangladesh's repeated protests. The disputed water, believed to hold huge reserves of natural gas, lies some 50 nautical miles off the Saint Martin's Island, is claimed by both Bangladesh and Myanmar. Media reports stated that four Korean drilling ships, escorted by two Myanmar naval ships, started exploration of oil and gas in the disputed water. Bangladesh also moved BNS Abu Bakar, BNS Madhumati and BNS Nirbhoy to the spot. The Commander of the Bangladesh Navy deployment reportedly engaged the Myanmar counterpart in dialogue. They were sent to the disputed Bay water to compel Myanmar to remove its structures and equipment for gas exploration from the area. The government of Bangladesh conveyed its deep concern to government of Myanmar through its Ambassador twice. The Foreign Secretary of Bangladesh flew to Yangon to persuade the Myanmar government to resolve the matter through discussion and defuse tension. Further bilateral talks have been held in Dhaka, besides discussions that Chief Adviser Dr. Fakhruddin Ahmed had with his Myanmar counterpart during the recent BIMSTEC summit in New Delhi. But no solution is yet in sight, and Myanmar is reportedly holding onto its earlier stand.
Last year also Myanmar engaged Indian companies to explore some offshore blocks in co-operation with India in Bangladesh waters. The two countries have been holding talks for years to demarcate their sea boundary in the Bay of Bengal. Bangladesh wanted a diplomatic solution to the latest dispute to avoid any confrontation. Thus, a technical team from Myanmar, headed by a deputy minister, arrived in Dhaka in mid-November to resume the sea boundary talks. Additional foreign secretary M A K Mahmood, who led the Bangladesh side at the maritime border delimitation talks in Dhaka, said, "We hope the problem can be resolved through dialogue." Meanwhile, the latest round of bilateral talks in Dhaka between the two sides have been inconclusive and the government of Myanmar remains yet inflexible on its earlier position.
Burma cannot unilaterally go ahead with the exploration in the disputed sea blocks. Bangladesh's Foreign Adviser Iftekhar Ahmed Chowdhury said his government would do everything needed to protect Bangladesh's sovereignty and rightful claims in the Bay of Bengal.
According to an agreement reached at maritime boundary talks earlier this year in Dhaka, Bangladesh and Myanmar expressed their commitment not to carry out oil and gas exploration until the two countries demarcated their sea boundary. Myanmar is under an obligation not to embark on any drilling in the disputed water of Bay of the Bengal and to resolve the boundary dispute through bilateral discussions as per the UN guidelines.
Myanmar's unilateral action to go ahead with the exploration of gas and oil in the sea blocks, within the Bangladeshi territorial water, before arriving at a bilateral agreement, violates the provisions of the United Nations Convention on the Law of the Sea 1982. The convention that came into force on July 28, 1996, stipulates a comprehensive legal framework to regulate all ocean space, its uses and resources. It defines territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone and the high seas. The law also provides for the protection and preservation of the marine environment, marine scientific research and for the development and transfer of marine technology.
One of the most important provisions of the convention concerns the exploration for, and exploitation of, the resources of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction. It describes seabed and ocean floor and the subsoil outside national jurisdiction as "the Area". The convention declares the Area and its resources as "the common heritage of mankind". The International Seabed Authority, established by the convention, administers the resources of the Area.
The UN convention requires Myanmar to settle the dispute by peaceful means, as laid down in the UN Charter. Part XV of the convention stipulates a comprehensive system for the settlement of disputes that might arise with respect to the interpretation and application of the convention. It requires states or parties to settle their disputes concerning the interpretation or application of the convention by peaceful means, as indicated in the UN Charter. However, if the parties to a dispute fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to limitations and exceptions contained in the convention.
Sending four Korean drilling ships, escorted by two Myanmar naval ships to explore oil and gas in the block, claimed by both the countries as their territorial water, constituted a clear a violation of the UN Charter and the UN Convention on the Law of the Sea.
Instead of sending the war ships to escort four drilling ships in the disputed water, Myanmar could have revoked the mechanism established by the Convention to resolve the dispute. The convention provides for four alternative means for dispute settlement: the International Tribunal for the Law of the Sea, the International Court of Justice, an Arbitral Tribunal constituted in accordance with Annex VII to the Convention, and a Special Arbitral Tribunal constituted in accordance with Annex VIII to the Convention. Myanmar, instead of entering in the disputed territorial water to explore oil and gas, should have gone to any of the four tribunals for the settlement of the dispute.
The convention provides a State Party with the option to choose one or more of these tribunals making a written declaration, under article 287, to be deposited with the UN Secretary-General. If the parties to a dispute do not accept the settlement procedure, the dispute could be submitted only to arbitration in accordance with Annex VII, unless they (the parties) opt for other means. Instead of resolving the dispute in a peaceful manner, Myanmar sent two war ships to escort four Korean drilling ships, to explore for oil and gas in the disputed water, claimed by both the sides. This unilateral action has clearly violated the rights of Bangladesh to protect its natural resources lying underneath its territorial water in the Bay of Bengal.
In 1974, Bangladesh enacted the Territorial Water and Maritime Zones Act. Bangladesh had, at that time, following the international law, declared 12 nautical miles of as its territorial water, 18 nautical miles of contiguous zone, 24 nautical miles allowed under the UN convention on the Law of the Sea 1982, 200 nautical miles of Economic Zone amounting to about 40,000 square miles of sea and the continental shelf, 350 nautical miles allowed under the UN Convention Law of the sea 1982.
The Bangladesh water covers a "square", whose lateral limits were the meridians of longitude projected from the termini of the land boundaries. Bangladesh had awarded offshore blocks on this basis and drawn its sea boundary.
Due to geomorphologic and geographical peculiarities of its concave coastline, Bangladesh followed the equidistance method of delimitation in drawing its sea boundary.
Till 1971, 22 exploration wells were drilled by the then East Pakistan, leading to discovering of eight on the shore gas fields. In 1989, Bangladesh opened 23 blocks, including five off-shore blocks to the international oil companies (IOCs) for competitive bidding. And out of 23 blocks eight were given, in the first round bidding, to the IOCs in 1994 on production sharing basis. And some of the remaining prospective blocks were leased out, during 2000-2001, in the second round of bidding. During 1991-1996, five blocks and, during 1996-2001, six blocks were given to IOCs and production sharing contracts (PSCs) were signed. Although re-evaluation of the seismic, drilling and geo-chemical data of the Bangladesh offshore areas indicates the considerable possibility of finding several economic gas accumulations, not much of exploration has so far been undertaken by it in the five offshore blocks - 7, 18, 19, 20, 21 -- and in three other blocks - 15, 16, 17 -- situated partially at sea and in the partially coastal waters.
It is notable here that the Bangladesh proposal seeking to justify the 1974 straight baseline is not consistent with the UN Convention on the "Territorial Sea and Contiguous Zone", Convention on the High Seas, on "Fishing and Living Resources of the High Seas" and Convention on the "Continental shelf" which were all in force during that time (in force since 20th March 1966). This is so because the new Law of the Sea and other international law gives Bangladesh the rights to claim sea areas more than the total land area of Bangladesh in the Bay of Bengal with all its living and non-living resources.
The Bangladesh proposals seeking to justify the 1974 straight baseline, from the beginning of the discussion on the Third UN Convention on Law of the Sea (UNCLOS), encountered opposition. India's unvarying position on the question was that the boundary must be delimited on the rigid application of the equidistance method ignoring the physical features of our coast. The last round of formal talks with India took place in 1980.
At the maritime negotiations between India and Bangladesh in September 1974, the Government of India protested that Bangladesh's proclaimed baseline protrudes 21 nautical miles into the Indian water. India also questioned the basic legitimacy of the baseline and the maritime boundary Bangladesh drew in 1974. The protest was in response to the award of one off-shore block for oil and gas exploration under production sharing contract. India claimed that the western most of the six blocks, which was awarded to Ashland, encroached upon the Indian water. Some of the IOCs left exploration because of the objections raised by India directly to their head offices about the consequences of striking oil and gas find, with the maritime boundary between two countries not having been delimited yet.
It is strange that from 1974 to 1982, when the Un convention on the Law of the Sea was adopted, the "astute diplomacy" of Bangladesh proved useless in convincing neighbouring India and Myanmar, or for that matter, any other country, to support the system of drawing baselines followed by Bangladesh. It failed to convince the world community participating in the drafting of UNCLOS 1982. The final UNCLOS was adopted by the UN General Assembly in 1982 without incorporating the method of drawing straight baselines. Both India and Myanmar through separate letters to the president of the conference protested and rejected the Bangladesh baseline claim as unacceptable.
Since 1982, Bangladesh failed to delimit its maritime boundary in accordance with the provisions of UNCLOS 1982. As neighbouring India and Myanmar also did not complete demarcation of their maritime boundary, on several occasions the two countries undertook aggressive exploration of gas and oil in disputed areas adjacent to, or even within, Bangladesh territorial water. They also did not care to inform Bangladesh while engaging IOCs to explore in the disputed water. Bangladesh did not even protest until engineer Mahmudur Rahman did it in 2005. India protested Bangladesh action in 1974. Both India and Myanmar protested when Bangladesh, at long last, took the initiative recently for deep water exploration.
Our actions have also raised more questions than these have answered in the last 36 years. Bangladesh took 19 years to ratify the UNCLOS in 2001. It is yet to update its laws in line with the UNCLOS. As its 1974 baselines and base points are not consistent with the UNCLOS 1982, hence it might have to redraw the baselines. Bangladesh grossly neglected to redraw its baselines in accordance with the provisions of UNCLOS 1982. Bangladesh cannot expect to get indefinite time to deal with such an important issue involving its sovereign rights for which the valiant freedom fighters sacrificed their lives in the 1971 Liberation War.
Bangladesh cannot leave its sovereign rights to protect and preserve its natural resources in its territorial water at the mercy of others. Without any bilateral agreement, Myanmar cannot enter the disputed water for the exploration of gas and oil. Similarly, India too cannot get into Bangladesh's Block 21. Bangladesh should take diplomatic initiative to resolve the territorial water disputes with Myanmar and India.
If these initiatives fail, Bangladesh should move the International Court of Justice to resolve the maritime disputes. Bangladesh should immediately engage IOCs to commence exploration in its water, and engage experts to devise ways to draw its maritime boundary.
(The writer, a Barrister of the Society of Lincoln's Inn, a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm and an advocate of the Supreme Court of Bangladesh, can be reached at barristermuid@yahoo.co.uk ).
DESPITE Bangladesh's constitution-bound commitment to international peace and co-operation, the recent efforts to set up drilling by a Korean company engaged by Myanmar government, in the disputed territorial water of the Bay of Bengal, have flagrantly violated its sovereign rights in its territorial waters. This article seeks to show how Myanmar's unilateral action to explore oil and gas in the disputed territorial water has violated the UN Charter and what actions should be taken to prevent the neighbouring countries from taking such unilateral aggressive action in future to explore oil and gas in the territorial water of Bangladesh.
Early in November 2008, Myanmar started offshore oil and gas exploration activities in the disputed water of the Bay of Bengal, despite Bangladesh's repeated protests. The disputed water, believed to hold huge reserves of natural gas, lies some 50 nautical miles off the Saint Martin's Island, is claimed by both Bangladesh and Myanmar. Media reports stated that four Korean drilling ships, escorted by two Myanmar naval ships, started exploration of oil and gas in the disputed water. Bangladesh also moved BNS Abu Bakar, BNS Madhumati and BNS Nirbhoy to the spot. The Commander of the Bangladesh Navy deployment reportedly engaged the Myanmar counterpart in dialogue. They were sent to the disputed Bay water to compel Myanmar to remove its structures and equipment for gas exploration from the area. The government of Bangladesh conveyed its deep concern to government of Myanmar through its Ambassador twice. The Foreign Secretary of Bangladesh flew to Yangon to persuade the Myanmar government to resolve the matter through discussion and defuse tension. Further bilateral talks have been held in Dhaka, besides discussions that Chief Adviser Dr. Fakhruddin Ahmed had with his Myanmar counterpart during the recent BIMSTEC summit in New Delhi. But no solution is yet in sight, and Myanmar is reportedly holding onto its earlier stand.
Last year also Myanmar engaged Indian companies to explore some offshore blocks in co-operation with India in Bangladesh waters. The two countries have been holding talks for years to demarcate their sea boundary in the Bay of Bengal. Bangladesh wanted a diplomatic solution to the latest dispute to avoid any confrontation. Thus, a technical team from Myanmar, headed by a deputy minister, arrived in Dhaka in mid-November to resume the sea boundary talks. Additional foreign secretary M A K Mahmood, who led the Bangladesh side at the maritime border delimitation talks in Dhaka, said, "We hope the problem can be resolved through dialogue." Meanwhile, the latest round of bilateral talks in Dhaka between the two sides have been inconclusive and the government of Myanmar remains yet inflexible on its earlier position.
Burma cannot unilaterally go ahead with the exploration in the disputed sea blocks. Bangladesh's Foreign Adviser Iftekhar Ahmed Chowdhury said his government would do everything needed to protect Bangladesh's sovereignty and rightful claims in the Bay of Bengal.
According to an agreement reached at maritime boundary talks earlier this year in Dhaka, Bangladesh and Myanmar expressed their commitment not to carry out oil and gas exploration until the two countries demarcated their sea boundary. Myanmar is under an obligation not to embark on any drilling in the disputed water of Bay of the Bengal and to resolve the boundary dispute through bilateral discussions as per the UN guidelines.
Myanmar's unilateral action to go ahead with the exploration of gas and oil in the sea blocks, within the Bangladeshi territorial water, before arriving at a bilateral agreement, violates the provisions of the United Nations Convention on the Law of the Sea 1982. The convention that came into force on July 28, 1996, stipulates a comprehensive legal framework to regulate all ocean space, its uses and resources. It defines territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone and the high seas. The law also provides for the protection and preservation of the marine environment, marine scientific research and for the development and transfer of marine technology.
One of the most important provisions of the convention concerns the exploration for, and exploitation of, the resources of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction. It describes seabed and ocean floor and the subsoil outside national jurisdiction as "the Area". The convention declares the Area and its resources as "the common heritage of mankind". The International Seabed Authority, established by the convention, administers the resources of the Area.
The UN convention requires Myanmar to settle the dispute by peaceful means, as laid down in the UN Charter. Part XV of the convention stipulates a comprehensive system for the settlement of disputes that might arise with respect to the interpretation and application of the convention. It requires states or parties to settle their disputes concerning the interpretation or application of the convention by peaceful means, as indicated in the UN Charter. However, if the parties to a dispute fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to limitations and exceptions contained in the convention.
Sending four Korean drilling ships, escorted by two Myanmar naval ships to explore oil and gas in the block, claimed by both the countries as their territorial water, constituted a clear a violation of the UN Charter and the UN Convention on the Law of the Sea.
Instead of sending the war ships to escort four drilling ships in the disputed water, Myanmar could have revoked the mechanism established by the Convention to resolve the dispute. The convention provides for four alternative means for dispute settlement: the International Tribunal for the Law of the Sea, the International Court of Justice, an Arbitral Tribunal constituted in accordance with Annex VII to the Convention, and a Special Arbitral Tribunal constituted in accordance with Annex VIII to the Convention. Myanmar, instead of entering in the disputed territorial water to explore oil and gas, should have gone to any of the four tribunals for the settlement of the dispute.
The convention provides a State Party with the option to choose one or more of these tribunals making a written declaration, under article 287, to be deposited with the UN Secretary-General. If the parties to a dispute do not accept the settlement procedure, the dispute could be submitted only to arbitration in accordance with Annex VII, unless they (the parties) opt for other means. Instead of resolving the dispute in a peaceful manner, Myanmar sent two war ships to escort four Korean drilling ships, to explore for oil and gas in the disputed water, claimed by both the sides. This unilateral action has clearly violated the rights of Bangladesh to protect its natural resources lying underneath its territorial water in the Bay of Bengal.
In 1974, Bangladesh enacted the Territorial Water and Maritime Zones Act. Bangladesh had, at that time, following the international law, declared 12 nautical miles of as its territorial water, 18 nautical miles of contiguous zone, 24 nautical miles allowed under the UN convention on the Law of the Sea 1982, 200 nautical miles of Economic Zone amounting to about 40,000 square miles of sea and the continental shelf, 350 nautical miles allowed under the UN Convention Law of the sea 1982.
The Bangladesh water covers a "square", whose lateral limits were the meridians of longitude projected from the termini of the land boundaries. Bangladesh had awarded offshore blocks on this basis and drawn its sea boundary.
Due to geomorphologic and geographical peculiarities of its concave coastline, Bangladesh followed the equidistance method of delimitation in drawing its sea boundary.
Till 1971, 22 exploration wells were drilled by the then East Pakistan, leading to discovering of eight on the shore gas fields. In 1989, Bangladesh opened 23 blocks, including five off-shore blocks to the international oil companies (IOCs) for competitive bidding. And out of 23 blocks eight were given, in the first round bidding, to the IOCs in 1994 on production sharing basis. And some of the remaining prospective blocks were leased out, during 2000-2001, in the second round of bidding. During 1991-1996, five blocks and, during 1996-2001, six blocks were given to IOCs and production sharing contracts (PSCs) were signed. Although re-evaluation of the seismic, drilling and geo-chemical data of the Bangladesh offshore areas indicates the considerable possibility of finding several economic gas accumulations, not much of exploration has so far been undertaken by it in the five offshore blocks - 7, 18, 19, 20, 21 -- and in three other blocks - 15, 16, 17 -- situated partially at sea and in the partially coastal waters.
It is notable here that the Bangladesh proposal seeking to justify the 1974 straight baseline is not consistent with the UN Convention on the "Territorial Sea and Contiguous Zone", Convention on the High Seas, on "Fishing and Living Resources of the High Seas" and Convention on the "Continental shelf" which were all in force during that time (in force since 20th March 1966). This is so because the new Law of the Sea and other international law gives Bangladesh the rights to claim sea areas more than the total land area of Bangladesh in the Bay of Bengal with all its living and non-living resources.
The Bangladesh proposals seeking to justify the 1974 straight baseline, from the beginning of the discussion on the Third UN Convention on Law of the Sea (UNCLOS), encountered opposition. India's unvarying position on the question was that the boundary must be delimited on the rigid application of the equidistance method ignoring the physical features of our coast. The last round of formal talks with India took place in 1980.
At the maritime negotiations between India and Bangladesh in September 1974, the Government of India protested that Bangladesh's proclaimed baseline protrudes 21 nautical miles into the Indian water. India also questioned the basic legitimacy of the baseline and the maritime boundary Bangladesh drew in 1974. The protest was in response to the award of one off-shore block for oil and gas exploration under production sharing contract. India claimed that the western most of the six blocks, which was awarded to Ashland, encroached upon the Indian water. Some of the IOCs left exploration because of the objections raised by India directly to their head offices about the consequences of striking oil and gas find, with the maritime boundary between two countries not having been delimited yet.
It is strange that from 1974 to 1982, when the Un convention on the Law of the Sea was adopted, the "astute diplomacy" of Bangladesh proved useless in convincing neighbouring India and Myanmar, or for that matter, any other country, to support the system of drawing baselines followed by Bangladesh. It failed to convince the world community participating in the drafting of UNCLOS 1982. The final UNCLOS was adopted by the UN General Assembly in 1982 without incorporating the method of drawing straight baselines. Both India and Myanmar through separate letters to the president of the conference protested and rejected the Bangladesh baseline claim as unacceptable.
Since 1982, Bangladesh failed to delimit its maritime boundary in accordance with the provisions of UNCLOS 1982. As neighbouring India and Myanmar also did not complete demarcation of their maritime boundary, on several occasions the two countries undertook aggressive exploration of gas and oil in disputed areas adjacent to, or even within, Bangladesh territorial water. They also did not care to inform Bangladesh while engaging IOCs to explore in the disputed water. Bangladesh did not even protest until engineer Mahmudur Rahman did it in 2005. India protested Bangladesh action in 1974. Both India and Myanmar protested when Bangladesh, at long last, took the initiative recently for deep water exploration.
Our actions have also raised more questions than these have answered in the last 36 years. Bangladesh took 19 years to ratify the UNCLOS in 2001. It is yet to update its laws in line with the UNCLOS. As its 1974 baselines and base points are not consistent with the UNCLOS 1982, hence it might have to redraw the baselines. Bangladesh grossly neglected to redraw its baselines in accordance with the provisions of UNCLOS 1982. Bangladesh cannot expect to get indefinite time to deal with such an important issue involving its sovereign rights for which the valiant freedom fighters sacrificed their lives in the 1971 Liberation War.
Bangladesh cannot leave its sovereign rights to protect and preserve its natural resources in its territorial water at the mercy of others. Without any bilateral agreement, Myanmar cannot enter the disputed water for the exploration of gas and oil. Similarly, India too cannot get into Bangladesh's Block 21. Bangladesh should take diplomatic initiative to resolve the territorial water disputes with Myanmar and India.
If these initiatives fail, Bangladesh should move the International Court of Justice to resolve the maritime disputes. Bangladesh should immediately engage IOCs to commence exploration in its water, and engage experts to devise ways to draw its maritime boundary.
(The writer, a Barrister of the Society of Lincoln's Inn, a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm and an advocate of the Supreme Court of Bangladesh, can be reached at barristermuid@yahoo.co.uk ).