| Bangladesh, Myanmar and India Maritime Boundary : Drawing the line Mohiuddin Alamgir chronicles the long-standing dispute between Bangladesh, Myanmar and India over the demarcation of the maritime boundary on the Bay of Bengal, Bangladesh's weak diplomatic efforts in the last 35 years and the consequences of failing to emerge with a satisfactory resolution
In November 2008, the naval forces of Myanmar and Bangladesh were on the brink of a confrontation at the Bay of Bengal. The problem surfaced on November 2, when it was noted by Bangladesh that Myanmar had been conducting an oil and gas exploration project – with the aid of a South Korean company, Daewoo – in a disputed area of the sea. Nearly 50 men and four ships were employed in the exploration work in Block AD-7, escorted by two of Myanmar's naval warships. According to international law, countries are allowed to have and use 200 nautical miles of the sea from its coast. Should that law prevail, then Bangladesh is entitled to claim authority over the disputed waters. As an initial response to the exploration work, three Bangladeshi naval ships - BNS Abu Bakar, BNS Madhumati and BNS Nirvoy –were sent to the spot to challenge Myanmar's advancements but their navy in turn responded by alleging the Bangladeshi ships of trespassing. They also informed the Bangladesh Navy that they were acting under the instructions of their government. Consequently, Bangladesh have initiated multi-pronged diplomatic efforts in which, the issue was raised with China, a friend of both nations, while also urging Seoul to ask the South Korea-based company hired by Myanmar to stop their activities in the disputed waters. On October 9 of this year, Bangladesh served legal notices to India and Myanmar to settle the disputes over maritime boundary claims before a UN tribunal as it decided to take the issue to a compulsory arbitration under the UN Convention on the Law of the Sea. Indian high commissioner Pinak Ranjan Chakravarty and Myanmar ambassador U Phae Thann Oo were called in to the foreign ministry and foreign secretary Mijarul Quayes handed the notifications to them pass it on to their respective governments. Last year, the week-long standoff was diffused when Myanmar removed natural-gas exploration equipment from the disputed zone. But Myanmar also stated that the move was technical, as the South Korean company undertaking the exploration work had completed its seismic survey in Block AD-7 and shifted to another offshore block, A-3. The state-run New Light of Myanmar said South Korea's Daewoo International Corp had drilled an exploration well down to the targeted depth in Block AD-7 between October 17 and November 5, 2008 and the necessary surveys had been completed. Most importantly, it also stated that 'further tasks would be carried out according to the work programme'. On the other hand, expert delegations from Bangladesh and India also held a three-day meeting after a gap of 28 years in 2008 to settle unresolved maritime boundary issues. But these talks also failed to produce results and hovered around discussing the boundary in South Talpatty, an island still in formation, in the Bay of Bengal. Problems regarding the maritime boundaries are still up in the air, as the marine territory is yet to be selected by the neighbouring countries. The issue will now have to be settled by a United Nations body titled UN Convention on the Law of the Sea (UNCLOS). 'We need to delimit our maritime boundary to explore and exploit oil, gas and other natural resources in the Bay to meet our demands,' said Foreign Minister Dipu Moni after the government decision to serve legal notices to India and Myanmar. She said since no satisfactory outcome have resulted from the discussions over 35 long years, the government took the path of arbitration to settle the issue once and for all which 'will take four to five years'. The issue of great significance involved here is that of conducting the exploration of oil and gas from the offshore areas of the country. This heavily dependent upon a settlement of the marine territories. As signatories of the UNCLOS, India, Bangladesh and Myanmar need to resolve their maritime boundary disputes urgently. The ever-growing demand for energy in Bangladesh, India and Myanmar has led to extensive exploration of maritime zones for oil and gas in the Bay of Bengal by these countries. India, Bangladesh and Myanmar are conducting their offshore operations and allocating blocks for the exploration of oil and gas to foreign multinational companies and claims of overlapping territories have piled up with the three challenging each other's actions. Bangladesh had opposed to India's endeavours in the Bay in 2006 while India was opposed to Bangladesh's in June 2008. India and Myanmar claimed their respective maritime borders and have already filed their claims with the United Nations on June 29 and May 21, 2009 respectively, while Bangladesh has to do this before July 27, 2011. 'Since 1982, Bangladesh has failed in delimiting maritime boundaries in accordance with the provisions of UNCLOS 1982. Our neighbouring countries, India and Myanmar also did not complete demarcation of their maritime boundary with Bangladesh. As a result, on several occasions, these two countries kept on conducting aggressive exploration work for gas and oil in disputed areas adjacent to or even within our territorial waters. They also did not care to inform Bangladesh of their activities even though they were engaging IOCs to explore in disputed areas,' opines Barrister MA Muid Khan, advocate of the Supreme Court of Bangladesh. 'Bangladesh did not even protest until engineer Mahmudur Rahman did, in 2005. In contrast, India protested against Bangladesh's actions in 1974 and along with Myanmar, they also protested when Bangladesh at long last, took the initiative of conducting deep-water exploration recently. 'Our actions have also raised more questions than answers in the last 38 years. We have taken 19 years to ratify our laws according to the UNCLOS, in 2001. It would not be acceptable in any other state to take so much time in dealing with significant issues related to establishing the country's sovereign rights,' adds Muid. Under the 1982 UNCLOS, which came into effect in 1994, a state is entitled to claim 200 nautical miles within its jurisdiction. The first 12 miles are known as territorial sea and the next adjoining 188 miles as its exclusive economic zone (EEZ). The sea-bed (continental shelf) of a state can go further (up to 350-miles) depending on the geo-physical characteristics of the sea-bed. Bangladesh has also enacted its own law to demarcate its maritime zones. 'In 1974 Bangladesh passed a law, titled the "Territorial and Maritime Zones Act (Act no. XXV)" which allowed the government to declare its maritime zones through gazetted notification,' informs Imtiaz Ahmed, professor of international relations, Dhaka University. Md Shamsuddoha, a marine science specialist and CEO of Participatory Research and Development Initiatives, is among the many experts in the country who believe that it is important that Bangladesh settles into a sea-boundary agreement with both India and Myanmar with the aim of securing its marine resources. According to him, it is a matter that needs to be addressed urgently by Bangladesh to ensure proper rights over the colossal marine resources, the sea-area around the country provides. 'A total of 490 species of fish belonging to 133 families that include 19 species of shrimps/prawns and six species of lobsters are commonly found along these waters, making these areas of great commercial importance,' he says. Exclusive economical zones in the Bay of Bengal that are a part of Bangladeshi territory are amongst the better places for breeding and feeding Hilsha and other marine fishes. Shamsuddoha explains that the most well-equipped fishermen from Thailand, India and Myanmar are regularly trespassing into the territories of Bangladesh to boost their respective fishing industries. 'We will lose our fisheries rapidly if we do not set our rights quickly,' he adds. 'In the absence of any resolution regarding the maritime dispute with India and Myanmar, Bangladesh is not able to explore oil and gas from the offshore blocks within the country's territorial waters,' says Muid. With a view towards the future, the three governments are keeping in mind that scientists have reported that resources in the sea are likely to be much more bountiful than those on land. With the depletion of land resources and increase in populations, Bangladesh, India and Myanmar will depend increasingly on sea-resources. Delimitation of EEZs and continental shelves have therefore, become very important, especially after India's discovery of 100 trillion cubic feet (TCF) of gas in 2005-06 and Myanmar's discovery of seven TCF of gas at about the same time. India has also discovered oil in the Bay of Bengal. Bangladesh divided its water territories into 28 blocks and auctioned off the area to international oil companies as part of its initiative to end chronic gas shortages. This decision of Bangladesh was subjected to heavy protest by both Myanmar and India. 'In the context of international politics, maritime boundary issues are important for our country. We are land-locked country, but we have around 710 km long maritime boundary which can be crucial to us. Gases and all other resources available to the country have to be used if we are to progress as a nation which is why, we have to rely more on our water-based resources,' says Imtiaz. Bangladesh has been preparing its case for extraction of marine resources, especially for gas exploration, in the Bay of Bengal but has not been able to invite tenders for block- bidding as its maritime boundary is yet to be demarcated. 'We are making preparations to put forward our claims and objections regarding the maritime boundaries to the UN within the time allotted to us,' tells an official involved in the process, seeking anonymity. 'Myanmar and India have already submitted its claims on maritime delimitations to the UN within the limits of the continental shelf,' he adds. According to UN provisions, claims submitted by any country will not be taken under final consideration until a settlement is reached with any neighbouring country with overlapping claims, raising objections to it. 'Bangladesh is well on its way in terms of preparing and submitting its claims to the United Nations before its deadline,' adds the official. For Bangladesh, identifying a 'starting point' from which to mark the coastlines from the exclusive economic zones, which have resulted in overlapping claims with Myanmar and India, has been a major problem, mainly due to the funnel-like shape of the Bay of Bengal. It has been learned from the foreign affairs ministry that Myanmar is reportedly claiming 14 blocks within Bangladeshi territory. The total area of these blocks is about 48,025 square kilometres. These include blocks 11, 12, 13, 15, 16, 17, 19, 20, 21, 22, 24, 25, 26 and 27, according to the ministry. On the other hand, India has claimed about 31,743 square kilometres of Bangladeshi waters as its own area. These are the areas covered by blocks 5, 9, 14, 15, 19, 20, 24 and 25. A major conflict has emerged between the three neighbours as all three have laid claims for blocks 19, 20, 24 & 25 as their own. 'Myanmar is a difficult proposition as we have evidenced in the past when the military junta governing the country did not even grant permission to United Nation's chief Ban Ki Moon, to meet with Aung San Suu Kyi. There is no parliament, no accountability and although we have a better understanding with India than Myanmar, we have historical problems with India regarding south Talpatty, which could not be resolved through discussions,' says Imtiaz, regarding the notion of solving the dispute through bilateral discussions. 'Perhaps all three countries are waiting for arbitration from the UN. I hope Bangladesh puts in a strong effort to claim its territories and we reach a satisfactory outcome,' he adds. The differing methods implemented to demarcate maritime borders between the three neighbouring countries have also been a major stumbling block for Bangladesh towards settling these disputes. India and Myanmar both use the 'equidistant principle' to claim its maritime borders while Bangladesh claims its sea lying territories based on the 'equity principle' whereby, countries along the Bay of Bengal would be allocated areas based on proportionality. 'The "equidistance method" that is being applied by India and Myanmar in respect of delimitation of the EEZ and continental shelf cannot be invoked to draw the sea-boundaries between neighbouring 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, the sea-boundary of Bangladesh with its neighbours requires to be drawn in terms of the provisions of the UN Convention so as to achieve an equitable solution,' says Barrister Muid. 'Delimitation of EEZs and continental shelves of adjacent countries should be in accordance with the principles of equity in terms of Articles 73 and 84 of the UN Convention. These articles of the Convention emphasise that any agreement must seek to achieve an equitable solution. Principle of equity is embedded in notions of fairness in the context of the shape of the coastal land. This equitable principle found recognition in the World Court, in North Sea Continental Shelf Cases (1969: ICJ: general list: no 51 &52),' adds Muid. Meanwhile many experts and former government secretaries believe that the maritime boundary crisis has culminated from the lack of priority placed on the issue. 'It is unfortunate that the maritime border dispute of Bangladesh with Myanmar and India has not been solved in 38 long years and is only because the Bangladesh government has not placed adequate attention to the problem,' says Mohammad Asafuddowla, former secretary of the Bangladesh government. 'I do not think the six secretaries at the foreign ministry are capably performing their duties.' 'Personally, I have not seen any significant success over any of the diplomatic issues which have gone in favour of Bangladesh. Rather, this government has taken some decisions which have gone against preserving the best interests of the country,' says Shamsher Mobin Chowdhury, former foreign secretary and foreign affairs advisor to the Bangladesh Nationalist Party chairperson. 'During our tenure, a special building and cell was established in 2002, for the desktop study of the maritime boundary issue with Kaiser Mahmud, appointed specifically to strengthen the preparations,' he adds. 'We know that the United Nations will ultimately decide the boundaries but our claims need to be presented in a manner which is both politically and scientifically cohesive.' 'Bangladesh does not have much option but it has to secure her maritime boundary as it is a constitutional obligation. The problem we have with India and Myanmar is really an unfortunate failure of the diplomacy,' says a professor of the history department, Dhaka University who also takes classes in the Foreign Service Academy. 'India and Myanmar are at a much more advanced stage in their claims as they have already filed their arguments to the UNCLOS. Bangladesh is still in the process of lodging their argument and this might prove to be a problem for the country when the arbitration gets under way,' fears Asafuddowla. However, Professor Imtiaz does not believe that filing its dispute after the other two countries will stand Bangladesh in a weaker stead. 'I do not think filing dispute after the two neighbouring countries will be much of an issue. We are not a diplomatically weak country as we have been playing a leading role amongst the less-developed countries in terms of our strong participation in the UNGA, OIC and other international organizations,' Imtiaz opines. 'In the UNCLOS discussions, greater significance will be placed on scientific data rather than political might,' he concludes. |
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