[ALOCHONA] Protecting the sovereign rights of Bangladesh

Protecting the sovereign rights of Bangladesh Barrieter M. A. Muid khan We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through a historic war for national independence, established the independent, sovereign People's Republic of Bangladesh … affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind". (Preamble: Constitution of the People's Republic of Bangladesh) Despite having the keen interest of the people of Bangladesh to contribute in maintaining the international peace and co-operation, the recent maritime dispute due to offshore drilling by a Korean company engaged by Myanmar Government in the disputed territorial water areas of Bay of Bengal has flagrantly violated the sovereign rights of Bangladesh upon her territorial water. It also undermined the noble purpose of our brave sons and daughters who sacrificed their lives in the liberation war to establish an independent Bangladesh. Therefore, in this article an attempt will be made to establish how Burmese 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 neighboring countries (Burma and India) from taking any future unilateral aggressive action to explore oil and gas in the territorial water of Bangladesh. Myanmar last week started offshore oil and gas exploration activities in the disputed waters of the Bay of Bengal despite Bangladesh's repeated protests. The area, believed to hold huge reserves of natural gas, lies some 50 nautical miles off Saint Martin's Island, and is claimed by both Bangladesh and Myanmar. Media reports state that 4 Korean drilling ships escorted by two Myanmar Junta naval ships started exploration of oil and gas in this disputed water believed to be rich in gas. Bangladesh also moved BNS Abu Bakar, BNS Madhumati and BNS Nirbhoy to the spot. Commander of Bangladesh ship reportedly engaged in dialogue with Myanmar counterpart. They were sent to the disputed Bay waters from a safe range to compel Myanmar to remove its structures and equipment for gas exploration from the area. Bangladesh government conveyed its deep concern to Myanmar government summoning Myanmar envoy twice in Dhaka foreign office. Foreign Secretary of Bangladesh went to Yangon to discuss with Ruling military junta in an effort to pacify tension and resolve the matter through discussion. Even last year, Burma tried to explore some offshore blocks in co-operation with India were in Bangladesh's waters. The two have been holding talks for years to demarcate their border in the Bay of Bengal, and this week Bangladesh said it wanted a diplomatic solution to the dispute to avoid any confrontation. A technical team from Myanmar, headed by a deputy minister, will arrive in Dhaka to continue the sea boundary talks on Nov 16 and 17. Additional foreign secretary M A K Mahmood, who led the last Bangladesh-Myanmar maritime border delimitation talks in Dhaka, told "We hope the problem can be resolved through dialogue." Burma cannot unilaterally go ahead with the exploration of the disputed deep-sea blocks. Bangladesh's Foreign Adviser (minister) Iftekhar Ahmed Chowdhury said his government would do everything needed to protect its 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 committed not to carry out oil and gas exploration until the two countries demarcated their sea borders. Burma is also under an obligation not to embark on any drilling in disputed areas of Bay of Bengal and will resolve the boundary dispute through bilateral discussions as per UN guideline. Burma's unilateral step to go ahead with the exploration of gas and oil in the disputed deep-sea blocks within the Bangladeshi territorial water, without having any bilateral agreement also violates the provisions of the United Nations Convention on the Law of the Sea 1982. This convention entered into force on 28th July 1996, establishes a comprehensive legal framework to regulate all ocean space, its uses and resources. It contains, among other things, provisions relating to the territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone and the high seas. It also provides for the protection and preservation of the marine environment, for marine scientific research and for the development and transfer of marine technology. One of the most important parts of the Convention concerns the exploration for and exploitation of the resources of the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (the Area). The Convention declares the Area and its resources to be "the common heritage of mankind". The International Seabed Authority, established by the Convention, administers the resources of the Area. Under this Convention, Burma is under an UN obligation to settle its disputes regarding the territorial water of the By of Bengal by peaceful means indicated in the Charter of the United Nations. Part XV of the Convention lays down a comprehensive system for the settlement of disputes that might arise with respect to the interpretation and application of the Convention. It requires States Parties to settle their disputes concerning the interpretation or application of the Convention by peaceful means indicated in the Charter of the United Nations. However, if 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 4 Korean drilling ships escorted by two Myanmar Junta naval ships to explore oil and gas in the disputed territorial water of Bangladesh I clearly a violation of the UN Charter and United Nations Convention on the Law of the Sea. Instead of sending the war ships and 4 drilling ships in the disputed territorial water, Burma could have evoked the mechanism established by the Convention to resolve the dispute. The Convention provides four alternative means for the settlement of disputes: 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 undertaken any of the above mentioned four alternative means for the settlement of disputes. Under this Convention, a State Party is free to choose one or more of these means by a written declaration to be made under article 287 of the Convention and deposited with the Secretary-General of the United Nation. If the parties to a dispute have not accepted the same settlement procedure, the dispute may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree. In stead of resolving the dispute in a peaceful manner, Myanmar has sent two war ships to support 4 Korean Drilling ships to explore oil and gas in the territorial water claimed by Bangladesh. This unilateral action has clearly violated the sovereign rights of Bangladesh to protect her natural resources lying underneath the territorial water in the Bay of Bengal. Bangladeshi Law In 1974, Bangladesh enacted the Territorial Water and Maritime Zones Act through the Parliament. Bangladesh declared straight baselines selecting eight imaginary base points following the 10-fathom line or over 60 ft deep water except west of Elephant Point/St. Martins Island. Bangladesh also claimed 12 nm Territorial water, 18nm Contiguous Zone (24nm allowed under UNCLOS 1982) 200 nm Economic Zone amounting to about 40,000 sq miles of sea area and Continental shelf, (350nm allowed under UNCLOS 1982). Bangladesh claimed an area covering a "square" whose lateral limits were the meridians of longitude projected from the termini of the land boundaries. The award of offshore blocks was made on the basis of that claim. The basic rationale of our stance was that because of the geomorphologic and geographical peculiarities of our coastline and the concave nature of our coast, the equidistance method of delimitation would result in a cut-off effect introducing distortion in the case of lateral frontier and stressed on the basis of equity. Till 1971, 22 exploration wells were drilled in the then East Pakistan, of which eight gas fields were discovered, but all on-shore. In 1989, the entire country was again divided into 23 blocks, of which, 19 blocks including five off-shore blocks were offered to the IOCs for competitive bidding. With the passage of time, 1988 model PSC was followed and out of 23 blocks eight blocks in the first round bidding were given to the IOCs in 1994 and some of the rest most prospective blocks were leased out during 2000-2001 in the second round bidding. During 1991-1996 five blocks and during 1996-2001 six blocks were given to IOCs and PSC was signed. Although re-evaluation of the seismic, drilling and geo-chemical data of the offshore areas of Bangladesh indicates that there is considerable possibility of finding several economic gas accumulations, not much of exploration works on the 5 offshore blocks -- 7.18, 19, 20, 21 -- and 3 other blocks, which are situated partially at sea and in coastal waters -- 15, 16, 17 -- have so far been undertaken by Bangladesh. 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). The new law of the Sea and other international law have given us 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 talk across the table with India, appears to have taken place in 1980. The maritime negotiations between India and Bangladesh commenced when the Government of India in September 1974 protested the proclaimed Bangladesh baseline protruding 21 nm into Indian waters. India also questioned the basic legitimacy of our 1974 baseline and other maritime areas. The protest was in response to award one off shore blocks for oil and gas exploration under production sharing contracts. India claimed that the western most of the six blocks, which had been awarded to Ashland, encroached upon Indian waters. Some of the IOCs left exploration because of the objections raised by India directly to the head offices of such companies about the consequences of oil and gas find as the maritime boundary between two countries has not been delimited. Since 1974 till UNCLOS 1982, in the corridors of the UN, our astute diplomacy could not convince our neighbouring countries i.e., India and Myanmar or for that matter any country in the world to support our system of drawing baselines other than Vietnam. Finally all our efforts failed to convince the world community participating in the drafting of UNCLOS 1982.The final UNCLOS was approved by the UN General Assembly in 1982 without incorporating our method of drawing straight baselines. Both India and Myanmar took a swipe to our letter and through separate letters to the President of the Conference protested and rejected the Bangladesh baseline claim as unacceptable. Since 1982, Bangladesh has failed in delimiting maritime boundary in accordance with the provisions of UNCLOS 1982. Our neighbouring countries, India and Myanmar also did not complete demarcation of their maritime boundary. As a result, on several occasions, these two countries, kept on doing aggressive exploration of gas and oil in disputed areas adjacent to or even within our territorial water. They also did not care about informing Bangladesh while engaging IOCs to explore even in disputed areas. Bangladesh did not even protest till Engr Mahmudur Rahman did it in 2005. India protested Bangladesh action in 1974. India and Myanmar also protested when Bangladesh at long last took initiative for deep water exploration recently. Our actions have also raised more questions than these have answered in the last 36 years. We have taken 19 years to ratify the UNCLOS in 2001, and have not yet started to update our laws of the country in line with the UNCLOS. Our 1974 baselines and base points are not consistent with the UNCLOS 1982, and hence we may have to redraw the baseline. We have grossly neglected to redraw the baseline in accordance with the provisions of UNCLOS 1982. No sovereign state would allow us indefinite time to deal with such important issue which is related with our sovereign rights to establish which our great martyrs sacrificed their lives in the 1971 liberation war. We should not leave our sovereign rights to protect and preserve natural resources lying underneath the Bay of Bengal within our territorial water at the mercy of Burma and India in the new geopolitical scenario. Without having any bilateral agreement regarding the disputed territorial water, Burma cannot enter into the disputed territorial water for the exploration of gas and oil. Also, India cannot get to the area of our Block 21. Burma's unilateral actions to explore oil and gas in the Bangladeshi territorial water without having any bilateral agreement is a clear violation of UN Charter and Convention on the Law of Seas. We should start to resolve the problem regarding the disputed territorial water in the Bay of Bengal through proper diplomatic initiatives with Myanmar and India. If these initiatives become ineffective, then we should take resort to UN Convention and move to international court of justice to resolve maritime dispute. We should immediately engage IOCs to commence exploration in our own water and engage experts to device ways to mark our maritime boundary. We must defend our territorial integrity with all we have. It is a national issue and the entire nation must stand beside government initiative. We must stand firm and be united to defend our hard earned independence and not spare even an inch of our sovereign soil. http://nation.ittefaq.com/issues/2008/11/12/news0741.htm

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