| The situation has now come to a point where some of our diplomats earlier involved in negotiations on the issue with other countries feel that not only we may be denied our right to the sea to the south but we may even be reduced to a sea-locked state. Moreover, experts on oil exploration of the deep sea are of the opinion that the claims by both India and Myanmar of the sea fall within the limits of our boundary, writes Professor M Maniruzzaman Miah The minister for foreign affairs, Dipu Mani, revealed in a press conference the government's decision to go for arbitration to settle our dispute with both India and Myanmar in regard to the delimitation of our maritime boundary. It would be interesting for the general readers to know as to how international law in this regard has evolved and why and how this problem has arisen. In the course of the discussion naturally the issue involved will be brought to the fore. First, the evolution of the law of the sea. Several conferences on the law of the sea were held to formulate and define the rights and obligations of each littoral state. The first conference was held in Geneva in 1958 with the participation of 86 member states. This conference adopted four conventions in regard to the territorial sea, the high seas, the continental shelf and fishing and conservation of living resources. The second conference met in 1960 but ended up in disagreements on some vital issues. This was followed by three other conferences successively held in 1967, 1968 and in 1970. Having held very important deliberations the one in 1970 agreed to declare the sea-bed and ocean floor and the sub-soil thereof as the common heritage of mankind beyond the national jurisdiction of any one country. It was also decided to hold another conference to formulate laws governing the peaceful uses of the seas.
The next conference met in ten long sessions between 1973 and 1981 either in Geneva or in New York. On the conclusion of the last session, the text of the draft convention (UNCLOS III) was issued though the final decision-making session was held in 1982. On December 10, 1982 the draft was opened for signature at Montego Bay, Jamaica. Bangladesh was among the 119 countries that became a signatory on the same day. As is evident from the above, the UNCLOS III document is the product of work of specialists spread over a long time. This is so for the simple reason that the shape and location of each country in relation to the adjacent one is different. Therefore the peculiarity of each had necessarily to be taken into consideration. Summarily speaking the document sets out the principles for delimitation of maritime boundary of all countries each one of which may have a coastline with its own peculiarity. In any case, UNCLOS-III defines the maritime zones in the following manner. From a well-defined line called the baseline each country may claim an area stretching up to 12 nautical miles known as the territorial sea. Adjacent to the territorial sea and up to a limit of 24 nautical miles is a country's contiguous zone, beyond which is the EEZ stretching up to 200 nautical miles. The continental shelf of a coastal state comprising the seabed and the subsoil thereof may under certain circumstances stretch up to 350 nautical miles. The UNCLOS document has precisely explained as to how these boundaries have to be fixed and the rights and obligations of each coastal state within each zone so defined. How have we acted in this respect so far and why has the conflict arisen with the neighbouring country in this regard? As early as in 1974, the baseline from where the boundaries of each maritime zone have to be drawn was defined by an act of parliament in terms of geographical co-ordinates. However, India has not agreed to the western reference point of the baseline and Myanmar has also disputed the eastern one. From 1974 to 1982 several meetings were held between India and Bangladesh but without any positive result. With India, we have yet another unsettled maritime issue, namely, the one in respect of the Talpatti island (also known as Purbasha or New Moore island).
At one point of time during the negotiations, the two countries agreed to a joint survey to determine the mid-channel of the Hariabhanga river to finally settle as to which country the sand bar should belong. This has never taken place, reportedly due to the dilly-dally tactics of our big neighbour. While we have not been able to put our claim to the vast maritime area on our south, now we seem to be within the jaws of a vice. Let us explain. India has settled its maritime boundary with each one of its neighbouring countries sharing the sea, not only surrounding the Bay of Bengal but beyond, with Indonesia in 1974 and 1977, with Myanmar in 1987 the tri-junction of India, Thailand and Indonesia in 1978 and Sri Lanka, with some concession in 1974 and 1976. The situation has now come to a point where some of our diplomats earlier involved in negotiations on the issue with other countries feel that not only may we be denied our right to the sea to the south but we may even be reduced to a sea-locked state. Moreover, experts on oil exploration of the deep sea are of the opinion that the claims by both India and Myanmar of the sea fall within the limits of our boundary. Meanwhile we came to know, much to our horror, at a very sensitive time in our national life just days before the last parliamentary elections, of military manoeuvres in our Bay by both India and Myanmar. Do all these mean pre-figuration of more similar things to come? What course is open to us now? It was rightly envisaged by those who drafted the UNCLOS documents that there would be disputes between states in regard to the interpretation and application of the law. More so, in our case. Because the Bangladesh coastline is an indented one and that both the Indian and Myanmar coastlines are perpendicular to ours. Naturally, delimitation by applying the normal principle of equidistance is out of the question. In any case, settlement of disputes constitutes an important part of UNCLOS. While we have wasted too much time in realising the importance of the issue we may not procrastinate any further. At the same time, however, one should understand that the matter is a complex one, albeit, the part on settlement of disputes in UNCLOS is quite comprehensive and an elaborate one leaving no room for misinterpretation. More so, because, the panel of arbitrators from where a state party will choose its arbitrators consists of people selected by various organs of the UN like the FAO, UNEP, IOC and the IMO.
The arbitrators to be nominated by parties to the dispute must be known for their experience in maritime matters, enjoying at the same time highest reputation for fairness, competence and integrity. The flipside of the whole thing is that the decision of the tribunal shall be final (art. 11, Annex II: Arbitration) unless the parties to the dispute earlier agreed otherwise. This enjoins on us extreme caution to prepare our case flawlessly. We can't really have the luxury of making any faux pas. People who have some interest in the problem know that we need to undertake surveys to put forward our claim of the continental shelf beyond the 200 we mark, measure the thickness of the sediment all over the EEZ up to the 200 we and clearly formulate our claim to the extended shelf.
The point we are trying to make is that the matter cannot be handled by a charlatan, but really needs someone with impeccable record of experience and expertise in dealing with it. The ministry of foreign affairs will do well to appoint a real expert known to have a thorough knowledge of the UNCLOS and its application, an expert who can work out the different phases of the task to be undertaken and advise the government as to what should be done to begin with and what would be the sequence of tasks to be undertaken. With whatever little knowledge we have of the problem, we are at a loss to understand as to why we have asked for 'arbitration'. Have we exhausted the very preliminary option of settling disputes by 'peaceful means'? Do we have all the data and information in hand to argue our case skilfully and exhaustively? Let us hope the foreign ministry is well prepared to face the situation competently. The writer is a former vice-chancellor of Dhaka University. He can be reached at
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