Bottom Line
Resolving the Bangladesh-India sea boundary issue
THE three-day Bangladesh-India maritime boundary talks ended in Dhaka on September 17 without any concrete progress on the pending issues, although officials of both the countries claimed to have had "fruitful discussions."
The Indian team leader, Rear Admiral B.R. Rao, said that it was a technical meeting and more discussions would follow. "We had a wonderful discussion. We discussed various options and methodologies (of delimitation of the maritime boundary)," he said.
Incidentally, this is the first time India's team was led by a Rear Admiral. In previous discussions, India's technical team was led by the Legal Adviser of the External Affairs Ministry, and later by Secretaries.
1982 UN Convention on the Law of the Sea
Bangladesh ratified the UNCLOS in 2001 and, accordingly, Bangladesh's law, the Territorial Waters and Maritimes Zones Act of 1974, which was enacted long before the UNCLOS, needs to be updated in line with the provisions of UNCLOS. It is argued that Bangladesh's case is much stronger under the 1982 UNCLOS than that of India (see Articles 74 and 83 related to the delimitation of economic zone and continental shelf). What the issues are
There are four issues involved in the maritime boundary talks:The first session at official level took place in 1974 in Dhaka. Later, several meetings took place at the foreign secretary level. (The writer was a member of the Bangladesh delegation at all the sessions from 1974 to 1978.)
When the foreign secretaries couldn't resolve the differences, the talks were elevated to the foreign ministers level in 1975, and the ministers from Bangladesh and India considerably narrowed down the differences.
Meanwhile, there was a change of government in August 1975 in Dhaka and, within two years, in New Delhi. Janata Party replaced the Congress government in 1977.
Another session took place in 1978, but India said that the decisions taken by the ministers in 1975 would not stand, which disappointed Bangladesh. The last talks taking place in 1982 were inconclusive.
Hariabhanga River
On the Hariabhanga River boundary issue, it is suggested that the mid-flow (deepest channel) of the river should be made a fixed boundary -- delineated in geographical coordinates -- as is the case between Bangladesh and Myanmar on the Naaf River. If a fixed boundary is determined, it will not change with alteration of mid-flow of the river. River navigation of both countries will be allowed on the mid-river flow. It is suggested that all river-boundaries between India and Bangladesh (such as Muhuri River in the east) should also be fixed boundaries delineated by geographical coordinates so that disputes don't arise if a river changes its course. South Talpatty
The disputed South Talpatti island, located about 4 kilometres south of the Hariabhanga River, is supposed to have emerged after the 1970 cyclone. The ownership of the island depends on the direction the mid-flow passes by the island. If the mid-flow goes west of the island, it will belong to Bangladesh. The direction of the mid-flow of the Hariabhanga River can be easily determined if a joint survey is conducted. Bangladesh proposed a joint survey in 1974, but no positive response came from India. Three suggestions
Experience shows that the matter cannot be resolved legally or technically because, at the political level, government leaders look at the problem from a broader view of bilateral relations, not at mere legal and technical niceties. India's leaders must decide whether Bangladesh would get an equitable share of the economic zone and continental shelf of the Bay of Bengal, given the unique characteristics of the coastline, such as:
If bilateral negotiations fail to resolve the issue, it should be referred to an International Tribunal for arbitration. Bangladesh asked India in 1975 to resolve the issue through international arbitration, but India didn't respond. Bangladesh may again propose the same, given the urgent need to explore the maritime areas for oil and gas. Joint development
Ordinarily, the delimitation of a maritime boundary takes a long time, and if there are over-lapping maritime areas that are disputed and unresolved, there should be a provisional agreement for joint development and exploration of resources in offshore areas. The idea of joint development of offshore oil and gas dates back to the judgment of the International Court of Justice in the North Sea Continental Shelf case of 1969. The Court referred to the possibility of parties deciding on "a regime of joint jurisdiction, use or exploitation of the zones of overlap or any part thereof." Examples of joint development agreements
Saudi Arabia-Bahrain Agreement of 1958, Kuwait-Saudi Arabia Agreement of 1965, Iran-Sharjah Agreement of 1971, Japan-South Korea Agreement of 1974, France-Spain Agreement of 1974, Iceland-Norway Agreement of 1974, Saudi Arabia-Sudan Agreement of 1974, Australia-Papua New Guinea Agreement of 1978, Malaysia-Thailand Agreement of 1990 and Thailand-Vietnam Agreement of 1992 on Joint Development Zones, are some of the instances in point. In 2006, China and Vietnam agreed to increase joint oil and gas exploration in the Gulf of Tonkin. Japan and China struck a landmark deal recently to jointly develop gas fields in the East China Sea, resolving a spat that had been a thorn in ties between the two major energy importers. It is felt that all the measures enumerated in the foregoing paragraphs need to be considered by both countries on a priority basis. Bangladesh and India are neighbours and friendly countries. There is no reason why the maritime boundary issue cannot be resolved between them, as other neighbouring countries have done.
Bangladesh ratified the UNCLOS in 2001 and, accordingly, Bangladesh's law, the Territorial Waters and Maritimes Zones Act of 1974, which was enacted long before the UNCLOS, needs to be updated in line with the provisions of UNCLOS. It is argued that Bangladesh's case is much stronger under the 1982 UNCLOS than that of India (see Articles 74 and 83 related to the delimitation of economic zone and continental shelf). What the issues are
There are four issues involved in the maritime boundary talks:
- Determination of the Hariabhanga border river boundary (South Talpatty Island is to be taken into account in delimiting the boundary).
- Determination of boundary of territorial waters up to 12 miles.
- Determination of boundary of exclusive economic zone of another 188 miles from the end of territorial waters.
- Determination of boundary of continental shelf (sea bed) up to approximately 350 miles from the coast.
On the Hariabhanga River boundary issue, it is suggested that the mid-flow (deepest channel) of the river should be made a fixed boundary -- delineated in geographical coordinates -- as is the case between Bangladesh and Myanmar on the Naaf River. If a fixed boundary is determined, it will not change with alteration of mid-flow of the river. River navigation of both countries will be allowed on the mid-river flow. It is suggested that all river-boundaries between India and Bangladesh (such as Muhuri River in the east) should also be fixed boundaries delineated by geographical coordinates so that disputes don't arise if a river changes its course. South Talpatty
The disputed South Talpatti island, located about 4 kilometres south of the Hariabhanga River, is supposed to have emerged after the 1970 cyclone. The ownership of the island depends on the direction the mid-flow passes by the island. If the mid-flow goes west of the island, it will belong to Bangladesh. The direction of the mid-flow of the Hariabhanga River can be easily determined if a joint survey is conducted. Bangladesh proposed a joint survey in 1974, but no positive response came from India. Three suggestions
- Commencing political level discussions.
- Referring the matter to International Arbitration Tribunal.
- Joint development of offshore areas until the agreement is concluded.
Experience shows that the matter cannot be resolved legally or technically because, at the political level, government leaders look at the problem from a broader view of bilateral relations, not at mere legal and technical niceties. India's leaders must decide whether Bangladesh would get an equitable share of the economic zone and continental shelf of the Bay of Bengal, given the unique characteristics of the coastline, such as:
- Its concavity and indention.
- Unstable waters of the coastal zones because of flows of the Ganges. Brahmaputra and Meghna, carrying 2.4 billion tons of silt to the Bay of Bengal every year, particularly during monsoon season.
- Scanty natural resources in proportion to the huge population.
- The general orientation of Bangladesh's topography facing the Bay of Bengal.
If bilateral negotiations fail to resolve the issue, it should be referred to an International Tribunal for arbitration. Bangladesh asked India in 1975 to resolve the issue through international arbitration, but India didn't respond. Bangladesh may again propose the same, given the urgent need to explore the maritime areas for oil and gas. Joint development
Ordinarily, the delimitation of a maritime boundary takes a long time, and if there are over-lapping maritime areas that are disputed and unresolved, there should be a provisional agreement for joint development and exploration of resources in offshore areas. The idea of joint development of offshore oil and gas dates back to the judgment of the International Court of Justice in the North Sea Continental Shelf case of 1969. The Court referred to the possibility of parties deciding on "a regime of joint jurisdiction, use or exploitation of the zones of overlap or any part thereof." Examples of joint development agreements
Saudi Arabia-Bahrain Agreement of 1958, Kuwait-Saudi Arabia Agreement of 1965, Iran-Sharjah Agreement of 1971, Japan-South Korea Agreement of 1974, France-Spain Agreement of 1974, Iceland-Norway Agreement of 1974, Saudi Arabia-Sudan Agreement of 1974, Australia-Papua New Guinea Agreement of 1978, Malaysia-Thailand Agreement of 1990 and Thailand-Vietnam Agreement of 1992 on Joint Development Zones, are some of the instances in point. In 2006, China and Vietnam agreed to increase joint oil and gas exploration in the Gulf of Tonkin. Japan and China struck a landmark deal recently to jointly develop gas fields in the East China Sea, resolving a spat that had been a thorn in ties between the two major energy importers. It is felt that all the measures enumerated in the foregoing paragraphs need to be considered by both countries on a priority basis. Bangladesh and India are neighbours and friendly countries. There is no reason why the maritime boundary issue cannot be resolved between them, as other neighbouring countries have done.
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