Monday, March 26, 2012

ITLOS decision opens up vast possibilities in the Bay

Daily Sun
25 March, 2012
M. Serajul islam

The decision of the International Tribunal for the Law of the Seas (ITLOS), Hamburg in the case on delimitation of maritime boundary between Bangladesh and Myanmar is indeed significant news for us. The ruling is also expected to have a positive impact on our case against India as both India and Myanmar in their on and off decades long negotiations always harped on the equidistant method as the only delineating principle against Bangladesh’s assertion on the use of equitable principle for achieving "equitable solution" as per Law of the Sea Convention (LOSC)) that both the neighbours of Bangladesh have ratified and ITLOS now has upheld. Our case against India is still under consideration at the UN’s Permanent Court of Arbitration at Hague.               

 In the case against Myanmar, 21 members of ITLOS plus two ad-hoc members from the contesting states heard the case. In The Hague, there will be three members of ITLOS and an ad-hoc member each from Bangladesh and India. Decision of the ITLOS is binding and final while at the Court of Arbitration, the contesting parties can appeal a verdict. 

By applying the equidistant method as the only deciding principle, Myanmar and India wanted to take away most of our legitimate claims on the extended maritime zone as ensured under the LOSC in the Bay of Bengal. At ITLOS, the judges also accepted the concave nature of Bangladesh’s coastline and called for the use of equitable principle a fortiori. Another feature of the ITLOS decision has been the acceptance of St. Martin as an island that allowed Bangladesh full 12 nautical mile territorial sea instead of the 6nm that Myanmar had been insisting that brought the two countries close to a conflict in 2008 over gas/oil exploration. 

The ITLOS judges gave Bangladesh 200 miles from the base line as our Exclusive Economic Zone (EEZ) opening up to the High Seas in a manner that Government of Bangladesh says allow us  fishing rights in the Bay over 111, 000 sq km in the EEZ that is significantly more than our land area  on Myanmar side only. The ITLOS judges also gave Bangladesh mineral and other resource  rights in the same area and beyond  the 200 miles continental shelf and beyond to be determined on scientific evidence later by the Commission on the Limits of the Continental Shelf of the UN, a right  that Myanmar never  accorded to Bangladesh in the past. A similar future decision in the on-going against India could give us a comparable area of the Bay of Bengal that India would not like as it has already showed the inclination to keep Bangladesh zone locked perpetually not to speak of exercise of Bangladesh's rights in the outer continental shelf. The fact that the Bay is rich in both hydro-carbons and marine resources makes the  cognizance of our legally due claims at ITLOS potentially the best news for Bangladesh since our independence.  

India had for decades spurned our legitimate claims on sea and common waters based on equity was quick to acknowledge the new realities based on Bangladesh's legitimate rights vis-à-vis its past attempts to impose its will on us. The new Indian High Commissioner in his first courtesy call on our Foreign Minister communicated his Government’s offer for the bilateral negotiation to resolve the issue, an option which we have been carrying out with them for decades without an iota of meaningful progress.   One would wish that the media had asked the High Commissioner when he gave the  interview  the reasons for this change of heart of  the Indian Government  when 38 years of our utmost friendly efforts could not budge them an inch from their negotiating position as if their opening shots were their bottom line. 

The decision on our case against Myanmar has opened up vast possibilities for this resource starved nation. We must be careful how we proceed from here onwards. The issues before the Government are not one shot affair by any calculation. It is definitely not an Awami League versus BNP issue. The verdict in Hamburg is also not a zero-sum victory for Bangladesh either.   Myanmar also received a substantial area in the Bay out of the verdict. In fact, against Bangladesh’s 111,000 sq km gain, it received nearly 200,000 sq km. Nevertheless, the Prime Minister must be given due credit and applause for her decision to take our case to ITLOS because she did so against the hitherto established trend to succumb to all Indian needs and demands without any quid quo pro. The Foreign Minister and her team led by Commodore Khurseedul Alam, Additional Foreign Secretary, must also be warmly felicitated for doing an excellent job for Bangladesh. The team of international lawyers was wisely chosen who we should not forget argued the case for us. 

In fact, the ITLOS verdict is the outcome of policy continuity of a very rare type in Bangladesh’s politics from one government to another. Bangladesh acceded to the UNCLOS in the last stages of the last AL term. The BNP Government followed this up and did the bulk of the groundwork in preparing the case upon which Bangladesh went to Hamburg. It fought very hard and succeeded in making the Ministry of Foreign Affairs the focal point of the Government to pursue our case. The Ministry developed a separate wing and expertise under the direct supervision of then Legal Adviser AKH Morshed and a retired Foreign Secretary and an international expert of the subject. State Minister Reaz Rahman also played a major role in developing the wing in the Ministry and fought and succeeded with the other Ministries for adequate funding. The AL Government wisely picked up the threads from where the BNP had left making the case perhaps one of the very rare examples where the AL and the BNP have followed each other for the cause of the nation. In this context, the felicitations extended by the Leader of the opposition to the Hamburg verdict also augurs well for the case of bipartisanship concerning this extremely important national issue. 

Nevertheless, before we go ahead and implement the Hamburg decision and look at the Indian offer, Bangladesh Government must get down to very serious introspection. There is also a need to look at the decision of ITLOS by putting it under the scanner. It is true that compared to what Myanmar had threatened to take away from us, we have recovered a substantial portion of that but not all that we aspired to, once again legitimately.  Therefore we have to ascertain how much we have failed to gain and why by the set legal standards and jurisprudence of judgments and awards to-date on other maritime boundary cases.  We need these answers to argue ur case at The Hague against India. Although the Hamburg decision may likely help us against India, nothing can be taken for granted. 

Foreign Minister Dipu Moni ruled out the possibility of withdrawing our case against India from the UN Permanent Court at The Hague. She nevertheless held out the possibility of bilateral negotiations if Indian proposal are favourable or acceptable in the light of ITLOS decision. Once again this is an extremely friendly gesture to the Indians given their behavior pattern on record. Let us put it in this way that the time is on our side and we need not hurry in any way to respond to the Indian request officially.   

In deciding on the Indian offer, we should keep in mind that India has not only attempted to impose the equidistant method as the only delineating principle on use  for determining the adjacent maritime boundary, it reportedly encouraged Myanmar to do the same as evidenced by the engagements of Indian law of the sea experts in the panel of lawyers of Myanmar initially.. Then there is of course the history of Bangladesh-India negotiations on the issues of water, trade, land boundary and killings at the borders interlaced by un kept and broken promises and assurances deliberate or otherwise. That history alone should be the single most important factor to be cautious of the Indian offer especially when we have very good reasons that the Arbitration Court would give us a far better binding decision than we can hope to receive from India.. 

Teesta, Tippaimukh, the river linking projects and the non-stop killings of our innocent and un-armed citizens on Bangladesh-India border are but a few of the real life empirical evidences that cannot but remind and haunt our policy makers of the perils of taking Indian proposals and even agreements signed at the highest political level  seriously in any kind of outcome through bilateral discussions as opposed to definitive international judicial pronouncements. There is no harm in asking the Pakistanis on how India is upholding the spirit and words of the specific provisions of the Indus Basin Treaty Agreement sponsored by no less than an authoritative international actor like the World Bank in their inter-se relations.  

We are totally inexperienced in benefitting from the vast prospects that the Hamburg decision has opened up for us and if we receive a fair judgment from Hague in 2014 as we expect to. This is where we would need to take two important decisions as soon as possible on a bipartisan and national basis. First, we must create a national authority of experts and professionals with whatever resources needed to deal with the prospects of exploiting and managing our rights and obligations in the Bay of Bengal.  Second, we must also have the vision of acknowledging that whatever we get eventually after the 2014 verdict, we will have a part of the Bay of Bengal that we will share with Myanmar, India and regional countries where there would be no legal disputes over exercise of rights.

India and Myanmar would need us as much we would need them to develop the resources of the outer continental shelf over which we might have common rights based on the ITLOS and possibly the Hague verdicts. In fact, the ITLOS judgment and the expected one from Hague should encourage us for a regional approach over a bilateral one not just in the Bay of Bengal but also for issues of regional concerns such as our water rights over the international rivers and regional connectivity keeping in mind that on maritime issues and other issues of importance to us, we have had unproductive experience with both India and Myanmar bilaterally. The ITLOS judgment should give us the confidence as a nation to deal with these countries.  

However, to achieve our best national interests, the prime need of the moment is national unity. We wasted the rich prospects that came our way in 1971 because of lack of unity after that had given us our cherished and blood- earned independence. This is Bangladesh’s critical and perhaps the last chance to emerge as one of the success stories among modern nations. It is unity alone that can bring home the real benefits for the masses that ITLOS verdict has opened up and the one from The Hague may add to.

The writer is a retired career diplomat and former Ambassador to Japan and Egypt.

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