On 14 March 2012, the International Tribunal for the Law of the Sea (the “Tribunal”) handed down its long-awaited judgment in the Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) (the “Judgment”). It is the first dispute concerning maritime boundary delimitation decided by the Tribunal. The Tribunal delimited the maritime boundary throughout each of its three elements in the Bay of Bengal: the territorial sea; the exclusive economic zone; and the continental shelf. This is now the second judgment of an international court or tribunal to address the question of delimitation of the continental shelf beyond 200 nautical miles between two States.
Bangladesh and Myanmar are States with adjacent coasts in the Bay of Bengal. Each has ratified the United Nations Convention on the Law of the Sea (“UNCLOS”). In 1979, following bilateral negotiations, Bangladesh proposed a line of delimitation in the exclusive economic zone and continental shelf. Despite the fact that there was no official agreement between 1978 and 2005, according to Bangladesh, Myanmar’s conduct was in accordance with this proposed boundary, referred to as the Friendship Line. From 2005, Myanmar changed its practice, offering a number of concessions blocks for oil and gas exploration in the area between the so called Friendship Line and the equidistance line as defined by Myanmar. Bangladesh considered that these activities seriously prejudiced its rights to equitable delimitation and its sovereign rights for the purpose of exploring and exploiting natural resources in the exclusive economic zone and continental shelf.
Bangladesh decided to submit the delimitation dispute to an arbitral procedure, in accordance with Annex VII to UNCLOS. Myanmar responded proposing that the matter should instead be submitted to the Tribunal. Bangladesh accepted Myanmar’s proposal.
Meanwhile, Myanmar submitted to the Commission on the Limits of the Continental Shelf (the “CLCS”) an application claiming areas of continental shelf beyond 200 nautical miles in the disputed area. Bangladesh insisted that Myanmar’s claims were not in accordance with UNCLOS. On 25 February 2011, Bangladesh made its own submission to the CLCS claiming entitlement to continental shelf beyond 200 nautical miles in the area.
In relation to the territorial sea, the Tribunal first addressed the issue of whether the Parties had in fact delimited their territorial sea, either by signing the Agreed Minutes of 1974 and 2008 or by way of a tacit agreement. Bangladesh advocated that the maritime boundary between Bangladesh and Myanmar in the territorial sea should be the line first agreed between them in 1974 and reaffirmed in 2008. However, Myanmar was of the view that the 1974 Agreed Minutes were nothing more than a conditional agreement. It emphasised that it had made clear repeatedly that its government would not sign and ratify a treaty unless it resolved the entire delimitation dispute (i.e., throughout the territorial sea, exclusive economic zone and continental shelf).
The Tribunal concluded that there were no grounds to consider that the Parties had entered into a legally binding agreement by signing the Agreed Minutes of 1974 and 2008 or by way of a tacit agreement. It thus proceeded to delimit the territorial sea on the basis of Article 15 of UNCLOS. The Tribunal first examined whether there was any historic titles or special circumstances. It considered whether St. Martin’s Island (falling under the sovereignty of Bangladesh) constituted a special circumstance for the purposes of the delimitation of the territorial sea. The Tribunal determined that it was not and thus delimited an equidistance line boundary in the territorial sea, giving “full effect” to St. Martins Island.
In relation to the exclusive economic zone and the continental shelf, the Tribunal had been asked by the Parties to draw a single maritime boundary. The Tribunal was required, of course, by the express terms of Articles 74 and 83 of UNCLOS to delimit the maritime boundary in a way that would achieve an “equitable result” between the Parties.
Consistent with the recent jurisprudence of international courts and tribunals, the Tribunal adopted a three stage-approach to the delimitation. As a first stage, it constructed a provisional equidistance line; as a second stage, it determined whether there were any “relevant circumstances” requiring adjustment of the provisional equidistance line; and at the third stage, the Tribunal checked whether the line, as adjusted, resulted in any “significant disproportion” between the ratio of the respective coastal lengths and the ratio of the relevant maritime areas allocated to each party.
Bangladesh argued that there were three relevant circumstances in the delimitation: the concave shape of Bangladesh’s coastline, St. Martins Island and the Bengal depositional system, which comprises “both the landmass of Bangladesh and its uninterrupted geological prolongation into and throughout the Bay of Bengal”. Myanmar, by contrast, argued that there were no relevant circumstances in the delimitation and that the boundary should therefore follow an unadjusted equidistance line. While rejecting St. Martins Island and the Bengal depositional system as relevant circumstances, the Tribunal agreed with Bangladesh that the concavity of its coast constituted a relevant circumstance. This was because an equidistance line boundary would produce a so-called “cut-off” effect to the prejudice of Bangladesh. Accordingly, the Tribunal determined that an adjustment of the provisional equidistance line was required in favour of Bangladesh in order to safeguard its maritime entitlement.
The Parties disagreed as to whether the Tribunal had jurisdiction to delimit the continental shelf beyond 200 nautical miles and whether the Tribunal, if it determined that it had jurisdiction to do so, should exercise such jurisdiction.
Myanmar stated that the question of the jurisdiction of the Tribunal with regard to the delimitation of the continental shelf beyond 200 nautical miles should not arise in this case. In the view of Myanmar, any judicial pronouncement on these issues might prejudice the rights of third parties and also those relating to the international seabed area. Myanmar also argued that, since the outer limit of the continental shelf had not yet been established on the basis of the recommendations of the CLCS, the Tribunal could not determine the line of delimitation over that area.
Bangladesh claimed that the Tribunal was empowered by the Convention to adjudicate disputes between States arising under Articles 76 and 83 of UNCLOS. As the Convention does not distinguish between jurisdiction over the inner and the outer part of the continental shelf, the Tribunal had jurisdiction to carry out delimitation beyond 200 nautical miles.
On this issue, and of particular note, the Tribunal expressly followed the decision of the tribunal in the Arbitration between Barbados and Trinidad and Tobago1 an UNCLOS Annex VII case. In that case, the tribunal concluded that “the dispute to be dealt with by the Tribunal includes the outer continental shelf, since […] it either forms part of, or is sufficiently closely related to, the dispute […] and […] in any event there is in law only a single ‘continental shelf’ rather than an inner continental shelf and a separate extended or outer continental shelf”. The Annex VII tribunal rejected Trinidad and Tobago’s claim to have had an outer continental shelf; the single maritime boundary delimited by the tribunal constrains Trinidad and Tobago’s maritime territory to an area that falls entirely within Barbados’s 200 nautical line limit.
With regard to the rights of third parties, the Tribunal in the present case observed that, as provided for in Article 33, paragraph 2, of the Statute of the ITLOS, its decision “shall have no binding force except between the parties in respect of that particular dispute”. Accordingly, the delimitation of the continental shelf by the Tribunal could not prejudice the rights of third parties. The Tribunal concluded that it had jurisdiction to delimit the continental shelf in its entirety.
The Tribunal further noted that there is a clear distinction between the delimitation of the continental shelf under Article 83 and the delineation of its outer limits under Article 76. Under the latter article, the CLCS has the function to make recommendations to Coastal States on matters relating to the establishment of the outer limits of the continental shelf, but it does so expressly without prejudice to delimitation of maritime boundaries. By contrast, the settlement of disputes relating to the delimitation of maritime boundaries is entrusted to the dispute settlement procedures set out at Part XV of UNCLOS.
The Tribunal declared that the delimitation method to be employed over the continental shelf beyond 200 nautical miles should not differ from that within 200 nautical miles. Accordingly, it applied the equidistance/relevant circumstances method. Having considered the concavity of the Bangladesh coast to be a relevant circumstance for the purpose of delimiting the exclusive economic zone and the continental shelf within 200 nautical miles, the Tribunal found that this relevant circumstance had a continuing effect beyond 200 nautical miles. The Tribunal thus extended the adjusted equidistance line that it had already delimited for the exclusive economic zone and continental shelf within 200 nautical miles.
The maritime boundary as delimited by the Tribunal is illustrated on the map below, which is taken from the Tribunal’s judgment.
The judgment of the Tribunal constitutes an important contribution to the law of maritime boundary delimitation. With regard to the delimitation of the territorial sea, the exclusive economic zone and the continental shelf within 200 nautical miles, the Tribunal followed the three-stage approach established by other international courts and tribunals over recent decades.
As regards the delimitation of the continental shelf beyond 200 nautical miles, the Tribunal followed the decision of the Annex VII tribunal in the Barbados v Trinidad and Tobago case. Furthermore, in declaring that the principles used for the delimitation of the continental shelf up to 200 nautical miles should apply also to that part of the continental shelf beyond 200 nautical miles, the Tribunal rejected the notion that the physical geology or geomorphology of the seabed in such areas should be determinative to delimitation.
The judgment will undoubtedly be an important point of reference in future maritime delimitation cases, not least the on-going dispute between Bangladesh and India concerning their maritime boundaries in the Bay of Bengal.
Observers of international boundary litigation will note that, yet again, the party whose team was led by a law firm has prevailed over the party whose team did not include a law firm. This confirms the trend of the increasing professionalisation of public international law adjudication over the past decade or more.
1 Robert Volterra and Stephen Fietta acted as counsel for Barbados in the Arbitration between Barbados and Trinidad and Tobago, which was the first ever maritime delimitation arbitration conducted pursuant to the UNCLOS Annex VII procedures.