By Salah Uddin Shoaib Choudhury
October 9, 2009
On Thursday [October 8, 2009], Bangladesh has served legal notive on India and Myanmar to settle the disputes over maritime boundary claims before a United Nations [UN] tribunals as it decided to take the issue to a compulsory arbitration under the UN Convention on the Law of the Sea. Disputes over the territorial waters amongst the three countries are preventing Bangladesh from extracting marine resources and establishing its sovereignty in the Bay of Bengal.
Bangladesh is yet to delimit its maritime boundary with its neighbours in Bay of Bengal, that is Myanmar on eastern side and India on its western side. Myanmar and India agreed on maritime territory between themselves but they need to solve the maritime boundary issues with Bangladesh.
During the last quarter of 2008, this problem gained momentum in the area near 50 nautical miles southwest of the St. Martin Island when Myanmar sent four offshore exploration vessels [2 Bahamas registered and 2 Belize registered] escorted by 2 naval ships to facilitate the South Korean Daewoo Company to explore the oil and gas resources. The situation become complicated when the Bangladesh Navy also positioned three ships at the spot after the Myanmar side reportedly began oil and gas exploration in that area. Despite protests by Bangladesh, citing sovereignty issues, the Myanmar government said that it would continue exploration in the Bay of Bengal. It stopped the oil and gas exploration in deep-sea blocks in disputed waters, a day after Bangladesh asked China to mediate the issue. Myanmar however has claimed that withdrawal was not because of the Bangladesh request; apparently the South Korean company had completed its seismic survey in Block AD-7. Although the tension has slowed down, the crisis is yet to be solved.
According to the United Nations Convention on the Law of the Sea [UNCLOS] 1982, a nation can claims 12 nautical miles of territorial sea, 200 nautical miles of Exclusive Economic Zone, and 350 nautical miles of continental shelf. Generally a state's EEZ extends to a distance of 200 nautical miles [370kms] out from its coast. However, in the case of Bangladesh, India and Myanmar, the situation became difficult as coasts of these countries follow a curve which has led overaping of territory. Yet, neither party was interested to take it to UN, nor did they agree for joint survey mechanism, that India follows with Pakistan. Under the United Nations Convention on the Law of the Sea [UNCLOS] Bangladesh too has to file its claim by July 27, 2011.
Bangladesh's foreign minister Dr. Dipu Moni told newsmen on October 8, 2009 that Dhaka has decided to go to the United Nations arbitration as negotiations with India and Myanmar in past 35 years failed to resolve the issue. Indian high commissioner Pinak Ranjan Chakravarty and Myanmar ambassador U Phae Thann Oo were called in to the foreign ministry earlier in the day and foreign secretary Mijarul Quayes handed the notifications to them pass it on to their governments.The arbitration notifications were issued a day after prime minister Sheikh Hasina announced in the parliament her government's decisive move towards exploring gas in the Bay and with the state-owned petroleum corporation, Petrobangla, holding negotiations with two international oil companies to award contracts for exploration.Prime Minister Sheikh Hasina said in the parliament, 'We want to solve the problems with neighbouring countries without any quarrel. Problems can be solved through discussions.'
Briefing reporters, the foreign minister said that the arbitration would be initiated before a United Nations tribunal to be constituted in accordance with the principles and rules of the UN Convention on the Law of the Sea [UNCLOS].
Bangladesh appointed British jurist Vaughn Lowe QC as its arbitrator to plead the country's case at the world body. Bangladesh submitted the notifications of arbitration within weeks after agreeing to lease out three gas blocks in the Bay of Bengal to US company ConocoPhillips and Irish Tullow. ConocoPhillips, the third largest energy company in the US, will get deep-sea blocks 10 and 11 and shallow-sea block 5 will be awarded to Tullow. But India and Myanmar sent objections to ConocoPhillips asking the company not to explore the gas blocks 10 and 11, claiming that some parts of the blocks belonged to their respective territorial waters.
Foreign secretary Mijarul Quayes in a statement said the claims of Bangladesh's neighbours had 'unfairly cut off a significant portion of our maritime area in the Bay of Bengal and prevented us from exploring and exploiting our oil and natural gas resources'.
The Bay of Bengal has become a lucrative territory for countries, especially after India's discovery of 100 trillion cubic feet of gas in 2005-06 and Myanmar's discovery of 7 trillion cubic feet of gas. According to British Petroleum, Myanmar has 21 Trillion Cubic Feet [TCF] of gas reserves, while Bangladesh has 13.77 TCF of gas. Most of them are located in the Bay of Bengali. However, except the discovery of Sangu gas field with about .848 TCF of recoverable gas, Bangladesh has not much of exploration on the five offshore blocks so farii. Bangladesh is very keen on utilizing its offshore reserves for the country's development after they realized that existing gas reserves were smaller than anticipated and predicted that abundant oil & gas reserves are most likely to be present in the offshore region.
In Bangladesh, oil and gas is an economic resource and is vital for the survival of 150 million people living in an area of 147,000 sq km. Gas is a major source of revenue and employment for expanding their industrial growth. Bangladesh has recently been facing shortage of gas, currently produces 1750 million cubic feet of gas a day and faces a shortage of nearly 200 million cubic feet in its daily domestic consumptioniii. This situation exists despite the existence of hydrocarbon in Bangladesh.
Generally wherever gas is found oil is also normally present in its lower strata provided certain geological conditions prevail. Thus, it is expected that the offshore area of Bangladesh may be rich in oil reserves.For several years after taking the lead in 1974 for offshore exploration, Bangladesh hibernated while India and Myanmar aggressively explored and discovered significant petroleum resources. Under the New Exploration Licensing Policy, India offered 55 blocks [24 deepwater blocks beyond 400m bathymetry] to the International Oil Companies [IOCs] in the Bay of Bengal during 2006, which is now under exploration phase. Bangladesh has claimed that the map published by the country clearly showed that blocks D-23 [8,706 square kilo meter] and D-22 [7790 square kilo meter] have overlapped Bangladesh's block 21 declared in 1991, which is technically very hard to prove.
On the other hand, Myanmar made significant gas discovery in the block A-1 and A-3 gas fields in the Bay of Bengal in Rakhaine Province, which is adjacent to Bangladesh. Disturbing part is, Bangladesh hardly knew that Myanmar has claimed certain blocks that are overlapping with their blocks in the Exclusive Economic Zone [EEZ] areas, which they have claimed in 1974. Bangladesh claimed in 2006, that Myanmar had encroached 18,000 square kilometers into Bangladesh waters and floated gas exploration tenders. The first round of talks between Myanmar and Bangladesh took place in April 2008, which was ended inconclusively without making any significant progress in resolving the issue. There seems to be a strong feeling that Bangladesh should have registered their strongest protest against Myanmar's exploration in A-1, A-3 and India's exploration in D-22 and 23, like India had done in 1974 and again in 2008 against Bangladesh.
In 1974, Bangladesh was the first country among the South Asian countries which declared its jurisdictions on territorial waters, economic zones, and continental shelf through a national legislation in the parliament, known as the Territorial and Maritime Zones Act 1974. Regarding the maritime boundary issue, Bangladesh had a negotiation with both India and Myanmar commenced in 1974 and since then, there were series of meetings with the representatives of both countries in the intervening years. Later, negotiations were held with India in 1982 and with Myanmar in 1986 and recently during 2008. However, negotiations remained inconclusive with both India and Myanmar.
In the case of Bangladesh, India and Myanmar, the problem arose when they have taken different approach to demarcate their maritime boundary; because of which, India and Bangladesh bilateral talk's became inconclusive. India offers the equidistant principle as the basis for demarcating maritime boundary, where on Bangladesh favours a principle based on equity, which actually resulted in an area of overlap between them. The same difference in arguments rendered Bangladesh-Myanmar talks inconclusive as well. But, India and Myanmar [opposite States] agreed upon equidistant boundary among themselves on 23rd December 1986 through an agreement, which came into force on 14th September 1987.
According to the UNCLOS- Part V, any such dispute between any two countries should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. Article 15 says, Delimitation of the territorial sea between States with opposite or adjacent coastsiv are:“Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”
It is clarified that if no treaty exists otherwise [as in case of India-Bangladesh], the equidistant line should be considered as boundary. There is no historic title, nor special circumstances that exist between these two countries. No official stay order was also issued from ICJ [International Court of Justice] on this dispute. Hence, technically Indian claim gets priority over the Bangladesh claim since the former follows the equidistant principle. Assuming that India does not intrude beyond the equidistant line, it is difficult to find technical fault from Indian perspective. There has been no official complain against India lodged in ICJ as well. A similar action by Myanmar few months back sparked enmity between the nations. It should be noted that Bangladesh needs to file the claim to UN by July 27, 2011, a failure of which would enable India and Myanmar to go ahead with their lines of demarcation.
However, the Articles 76 and 82 of the 1982 UNCLOS lay down the methods of delimitation of sea boundary between adjacent states [distinct from opposite states, such as Sri Lanka and India]. According to these articles, first the states shall settle the boundary through negotiations.
If negotiations fail, the principle of equity will apply, implying that justice and fairness must be the hallmark of settlement. Main argument is, delimitation of sea boundary between two adjacent states, such as Bangladesh and India, is different from that of opposite states such as India and Sri Lanka or Australia and Indonesia. The "equidistant method" that is applicable between the opposite countries in respect of delimitation of Exclusive Economic Zone [EEZ] and Continental Shelf cannot be invoked to draw the sea boundary between adjacent countries as it disregards the physical features of coastal areas and does not achieve "an equitable solution" as mandated by the UN Convention. If this method is applied, the boundary between adjacent countries will be unfair, distorted and inequitable. Therefore, sea boundary of Bangladesh with its adjacent neighbours requires to be drawn in terms of the provisions of the UN Convention so as to achieve "an equitable solution”.
The unresolved martime boundary issue has surely put Dhaka, New Delhi and Yangoon in a kind of 'cold war' situation. Sensing Dhaka's initiatives in knocking the doors of United Nations in seeing resolution to the decade-old dispute, both New Delhi and Yangoon have started mobilizing all out diplomatic efforts in raising their voice in favor of their claim on the maritime boundary in Bay of Bengal. In this case, New Delhi will also be able to mobilize its friendly allies in the West as well take the support from Western media, as it enjoys a reputation of being a secular democratic nation in South Asia. On the other hand, Myanmar is considered to be a country ruled by autocratic military junta and Bangladesh a country, till now failing to combat rise of Islamist militancy. Naturally, the entire situation puts New Delhi rather in an advantageous situation. Now it is very important to watch the final fate of Dhaka's efforts in settling the long-dtanding dispute. Surely, this may either end in a all party acceptable conclusion, or may further generate tension amongst the three South Asian nations.
The Bangladesh-Myanmar Maritime Boundary Dispute
The 3rd World Review
On the 1st of November four drilling ships from Myanmar started exploration for oil and gas reserves within 50 nautical miles south west of St. Martins Island, in Bangladesh. A South Korean company was awarded the oil and gas exploration contract in that place and two Myanmar naval ships escorted the drilling ships. Three naval ships of Bangladesh went to challenge them but the Myanmar Navy responded by alleging that the Bangladesh Navy ships are trespassing.
This escalated the maritime boundary disputes between Bangladesh and Mayanmar. Mayanmar vowed to continue with the exploration despite the territorial dispute with Bangladesh. Bangladesh Government warned the Myanmar envoy in Bangladesh to immediately suspend all activities within the declared maritime zones of Bangladesh in accordance with the Territorial Waters and Maritime Zones Act 1974 of Bangladesh and sent a high level delegation to Myanmar.
Adding fuel to the fire four Bangladeshi woodcutters were shot dead by the Burmese Nasaka (border force) alleging trespassing into Burmese territory.
But what is the background of this dispute? The Bay of Bengal has become a lucrative territory for the adjacent countries especially after India's discovery of 100 trillion cubic feet of gas in 2005-06 and Burma's discovery of 7 trillion cubic feet of gas. India also discovered oil.
None of the countries in this region so far claimed their marine boundaries before the United Nations (UN). India and Myanmar agreed territory between themselves but they need to solve the maritime boundary issues with Bangladesh as they are set to file their claim to the United Nations on June 29 and May 21, 2009, respectively. Under the U.N. Convention on the Law of the Sea (UNCLOS), Bangladesh too has to file its claim within July 27, 2011.
Bangladesh claimed in 2006 that Burma had encroached 18,000 square kilometers into Bangladesh waters and floated gas exploration tenders. The first round of talks between Myanmar and Bangladesh was in April this year but ended inconclusively in Dhaka. Both the sides then agreed to continue with the dialogue to reach a conclusion and meanwhile refrain from intruding into the disputed area for exploration.
Bangladesh has so far refrained from energy exploration in disputed waters. But Myanmar did not. So the country has the right to protect its sovereignty and has demanded the Burmese ships withdraw until a maritime boundary can be established through talks.
The Guardian reports:
The senior official from Burma's foreign ministry told Reuters: "We have no reason to stop the exploration activities since these blocks are located in our exclusive economic zone. We will go ahead with it."
Only a couple of months ago the Vice Chairman of Myanmar Ruling Government during his visit assured Bangladesh that Myanmar will not embark on any drilling in disputed areas of Bay of Bengal and will resolve the boundary dispute through bilateral discussions as per UN guideline. Bangladesh also pressed for early finalization of the demarcation. The next meeting between the parties is due in November 16-17th. Now why Myanmar is going into the offensive?According to the Law of the Sea, Bangladesh can claims 12 nautical miles of territorial sea, 200 nautical miles of Exclusive Economic Zone, and 350 nautical miles of continental shelf in the Bay of Bengal and so does Myanmar.India/Myanmar claim:Bangladesh claim:Images courtesy India Speaks.
The main dispute on maritime boundary delimitation between Bangladesh and Myanmar centres around Bangladeshi views to demarcate in equity basis North to South while Myanmar wants it for eco–distance system in East to West boundary.The issue is not so simple as there are many legal issues and international negotiations at stake. A famous case ruling by International Court of Justice on 'North Sea Continental Shelf' concerning maritime boundaries Federal Republic of Germany, Denmark, Federal Republic of Germany and Netherlands describes the equity method (Page 7):
(1) delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other;Barrister Harunur Rashid has a legal view of Bangladesh's claims.
Engr. Khondkar Abdus Saleque writes in Energy Bangla:
If we fail to stop aggression of neighbours to encroach our maritime boundary through proper diplomatic initiatives we must take resort to UN Convention and move to international court of justice to resolve maritime dispute. We can not afford to compromise our sovereign right on resources. [..] For several months Bangladesh is discussing with Myanmar ruling junta for bilateral cooperation. Trade, energy, communication came under discussions. (But) Bangladesh did not make strong enough protests when ruling junta unleashed cruel actions against freedom loving Myanmar people were struggling for democratic rights.
In this situation it will not be unwise to consider Myanmar unilateral action as a fragrant violation of Bangladesh’s territorial integrity. If we fail to get the required response Bangladesh government must leave nothing unturned to protect our territorial integrity.
Myanmar earned $2.6bn from selling gas last year and these revues keep the country protected from western sanctions.
According to latest reports Myanmar stopped oil and gas exploration in deep-sea blocks in disputed waters in the Bay of Bengal on Thursday, a day after Bangladesh asked China for help over the row. But they are yet to remove vessels and equipment from Bangladesh territory.
Energy Bangla discusses Bangladesh's unresolved maritime boundary dispute with India. India is alleged to have encroached 19,000 square kilometers into Bangladesh waters.
India Speaks defends the case for India:
India and Bangladesh started their bilateral talks way back in 1974, which was inconclusive. India was looking for equidistant border where Bangladesh was for equity based boundary. The same difference in arguments rendered Bangladesh-Myanmar talks inconclusive as well. But, India and Myanmar (opposite States) agreed upon equidistant boundary.
It cannot be denied that Bangladesh is now exposed to international oil and gas politics. We will see more such conflicts between India and Myanmar before 2011 when the maritime boundary is scheduled to be fixed by UN. The government should give more focus to the demarcation issue and employ proper experts and resources to bolster Bangladesh's case.A Daily Star editorial says:
It is important that we make persistent and determined efforts to protect our interests. Bangladesh cannot afford to lose in the bargain for its legitimate share of the oil and gas rich Bay, which will only weaken our case for retaining the territorial waters that belong to us as per international laws.