Legal Analysis and Probable Outcomes of Bangladesh v. Myanmar (ITLOS, case no: 16):

Bangladesh Seeks Equitable Maritime Delimitation for Sustainable Energy Development

Tafsir Matin Johansson

November, 2010

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TABLE OF CONTENTS Introduction............................................................................................................................3

Chapter 1

1. Brief Analysis of Maritime Domestic Legislations (Bangladesh and Myanmar)....4

1.1 Constant Geomorphologic Peculiarities of the coastline of Bangladesh.......................4

1.2 Territorial Waters and Maritime Zones Act, 1974 (Bangladesh)....................................4

1.3 Territorial Sea and Maritime Zones Law, 1977 (Myanmar)...........................................5

1.4 Shortcomings of the Territorial Waters and Maritime Zones Act, 1974......................5

Chapter 2

2. Bangladesh v. Myanmar...............................................................................................6

2.1 Contradicting Claims.......................................................................................................6

2.2 Unauthorized Drilling by Daewoo: An Act Provocation? ..............................................7

2.3 Under the ITLOS authority..............................................................................................8

Chapter 3

3. Theory v. Reality: Implementing LOSC to Determine Validity of Maritime

Claims....................................................................................................................................10

3.1 Straight Baseline Determined........................................................................................10

3.2 Territorial Sea: An implicit acceptance by Myanmar....................................................11

3.3 Exclusive Economic Zone: Point of friction..................................................................12

3.4 Extended Continental Shelf Claims: Justification of Natural Prolongation...................13

Chapter 4

4. Incentives and Catalysts: Under Troubled Waters.................................................16

4.1 Catalysts of Dispute......................................................................................................16

4.2 Prospective Gas Reserves in Offshore Portions of Bangladesh....................................18

4.3 Sustainable Energy Development v. Foreign Exchange...............................................19

4.4 What if? ....................................................................................................................21

Conclusion..............................................................................................................................23

References...............................................................................................................................24

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Introduction

Among the other maritime boundary disputes of Asia where economic and

development incentives play a major role, the recent dispute between Bangladesh

and Myanmar/Burma (referred to as Myanmar hereafter) has gained noteworthy

attention. Ambiguity and uncertainty roams around the coastal areas of these adjacent

states and results in deprivation for Bangladesh, which even after achieving national

sovereignty is in a continuous struggle with Myanmar to gain sovereignty in its

maritime boundary. A frustrating overlapping claim in the Bay of Bengal has

decreased the possibility of bi-lateral negotiations which ultimately narrows down

Bangladeshs right to peaceful exploitation and utilization of natural gas which may

be the answer to the existing energy crisis. Entered through separate declarations by

Union of Myanmar (4 November, 2009) and Government of Bangladesh (12

December 2009) a case (no: 16) is pending at the kind disposal of International

Tribunal for the Law of the Sea (referred to as ITLOS hereafter). The key objectives

of this paper is to analyze the maritime domestic legislations, trace back to the

question of facts of the pending case, scrutinize the reasons for invoking the

jurisdiction of ITLOS, examine the pertinent United Nations Convention on Law of

the Sea, 1982 (referred to as LOSC hereafter) apparatus suited to elucidate the

demarcation controversies, unveil strong prospects of the natural gas in offshore

blocks, address the energy and economic catalysts working behind it all and finally

conclude with a forecast of ordeals Bangladesh might face after adjudication of the

case.

In every chapter (where relevant) an endeavor has been made to achieve these

objectives by answering the following questions; (a) Was engaging the licensees in

exploratory activities in disputed territories on 1 November, 2008 by Myanmar an act

of provocation and a breach of International obligation? (b) Can the Extended

Continental Shelf claimed by Bangladesh be held to be valid and justified under

International Law? (c) Can equitable delimitation fill in the gaps of the existing

energy crisis dominant in Bangladesh? (d) What are the options Bangladesh can

depend on if for any case the final judgment of ITLOS does not adhere to equitable

delimitation?

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Chapter 1

1. Brief Analysis of Maritime Domestic Legislations (Bangladesh and Myanmar)

1.1 Constant Geomorphologic Peculiarities of the coastline of Bangladesh

Bangladesh emerged as a new state on 16 December, 1971. It sits in the north-eastern

part under South Asian geographical juxtaposition with Myanmar to its extreme

Southeast and the Bay of Bengal as its southern boundary.1 It embraces the flow of

the Ganges, the Brahmaputra and the Meghna rivers as joint delta, and compared

to other international coastlines it is different because, (a) no stable water line or

demarcation or landward and seaward area exists, (b) continual process of alluvion

and sedimentation creates shallow non-navigable areas and (c) the navigable channels

formed from such process change their courses at a rapid pace requiring soundings

and demarcation in order to pertain to the character of river mouths and inland

waters.2 Due to these geo-morphological peculiarities it was difficult to define the

coastal baseline and hence depth method was adopted to fix the uncertainty of the

situation.

1.2 Territorial Waters and Maritime Zones Act, 1974 (Bangladesh)

With a view to establishing its maritime boundaries, shortly after independence

Bangladesh introduced Territorial Waters and Maritime Zones Act3 in 1974 which

entered into force on 13 April, 1974. It is a primary Act with respect to maritime

boundary claims. The entire act is divided into 9 sections. Succinct as it may seem,

this Act briefly states the rights and duties of coastal and non-coastal state in

Territorial waters (section 3), Contiguous Zone (section 4), Economic Zone (section

5), Conservative Zone (section 6) and Continental Shelf (Section 7). Section 8 and 9

embodies the actions that maybe exercised by the Government in controlling pollution

1 SK Noim Uddin and Ros Taplin, Paper on A Sustainable Energy Future in Bangladesh: Current Situation and Need for Effective Strategies presented at The 2nd Joint International Conference on Sustainable Energy and Environment (SEE 2006), (21-23 November 2006, Bangkok, Thailand). 2 Kriangshak Kittichaisaree, The Law Of The Sea and Maritime Boundary in Southeast Asia, Printed in Singapore, Published by Oxford University Press, 1987, pp -29-30. 3 See Act XXVI of 1974.

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and taking necessary measures for exploring, exploiting, managing and conserving

resources in the EEZ and Continental Shelf. A subsequent gazette notification by the

ministry of foreign affairs on April 13, 1974 highlights the measurements of territorial

sea and EEZ respectively.

1.3 Territorial Sea and Maritime Zones Law, 1977 (Myanmar)

This law enacted by Myanmar entered into force on 9 April, 1977. It includes a

preamble and is divided into 7 chapters with an annex and a schedule which gives a

detailed indication as to the fixed points between which the straight baselines are

drawn. Myanmar based (a) a 12 Nautical Miles (referred to as nm hereafter) claim as

territorial sea with a right of innocent passage intended to serve the purpose of non-

coastal state, (b) a 24 nm contiguous zone from the baseline with a view to

safeguarding the security of Myanmar with punishments for infringement of custom,

fiscal, immigration or sanitary regulations, (c) a 200 nm EEZ from the baseline for

exploration, exploitation, conservation and management of its natural resources and

(d) and a 200 nm continental shelf reserving exclusive sovereign rights for itself.

1.4 Shortcomings of the Territorial Waters and Maritime Zones Act, 1974

Since UNCLOS 1 had already laid down the set rules of International Law prior to

the implementation of the Act of 1974, it would have been wise for Bangladesh to

enact this domestic legislation keeping the model of UNCLOS 1 in focus. The

insufficiencies of this act may be drawn on the basis that the proposition of baseline

lacks separate and distinct definition and has been conjoined with the proposition of

territorial sea. Since baselines are essential to locate the starting point of the maritime

boundary, there is a dearth of an individual paragraph in the Act of 1974 which should

have portrayed the geographical complexities in determining the baseline which

apparently is the primary reason of delimitation difficulties for Bangladesh.

Furthermore, there is an absence of further explanation as to which baseline i.e.

straight or normal has been used to fix the starting point of the territorial sea,

although a gazette notification of Ministry of foreign Affairs published in 1974,

highlights this idea with legal explanations. But from a legal perspective this

explanation ought to have been incorporated in the primary act itself so as to eliminate

any further questions in this matter. Under section 4(1) of the Act of 1974

Contiguous Zone has been demarcated from the outer limits of the territorial sea to a

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distance of 6 nm whereas UNCLOS 1 (although Bangladesh was not a party to this

convention) has enabled the parties to claim a distance of 12 nm. Despite the effort to

launch the idea of EEZ under section 5(1) of the Act of 1974, the term any zones of

the high seas remains ambiguous and contradicts with the location of conservative

zones under section 6 which states such areas of the sea adjacent to the territorial

waters. Although Bangladesh has advocated an extension in the continental shelf

beyond 200 nm at a very later stage, article 7(1) of Act of 1974 indicates a tailored

definition of continental shelf that lacks interpretation of geographical proportions

unlike the Act of 1958 which depicts a strict measurement of 200 meters. The

supposition of a separate article on High seas remains absent in the Act of 1974

without which the act is incomplete rendering the entire act to some extent

incompetent to meet the standards of UNCLOS 1. Nevertheless, the Act of 1974

reflects a very primary will yet absolute intention to delimit its maritime boundary

which is the inherent right of every sovereign state.

Chapter 2

2. Bangladesh v. Myanmar

2.1 Contradicting Claims

Bangladesh and Myanmar are parties to the UNCLOS. Bangladesh ratified the

convention on 27 July, 2001 and Myanmar ratified the convention on 21 May, 1996.

The coastal formation of Bangladesh is concave unlike Myanmar, which has a long

convex coastline. After the promulgation of the Act of 1974, Bangladesh had three

rounds of talks with Myanmar, the first in November 1985, the second in February

1986 and the third one in May 1986.4 In trying to settle the maritime dispute

Myanmar proposed the equidistance principle from Oyster Island (Myanmar) to St.

Martins Island (Bangladesh), the implementation of which would draw the line of

boundary towards the concaved coast slashing the legitimate sea area and halving the

exclusive economic zone of Bangladesh.5

4 Shiabur Rahman, Maritime Boundary yet to be demarcated, Bitter disputes with India, Myanmar feared, News from Bangladesh, Friday 21 April, 2006, , visited on 9 October 2010. 5 Dr. Badrul Imam, Why Bangladesh should win the arbitration?, The Daily Star, 28 October 2009, , visited on 11 October 2010.

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The equidistance principle in such case is not acceptable and goes against the

spirit of article 74 and 83 of UNCLOS where it is clearly stated that states with

adjacent or opposite coasts must form an agreement also termed as equitable

solution.

Although article 74 and 83 of UNCLOS does not set any perimeter as regards

to equitable delimitation, it is presumed that considerations are given, inter alia, to

geomorphologic peculiarities, indented coastlines, overlapping claims between

adjacent states, dependence of the inhabitants of the coast on living and non-living

resource.

2.2 Unauthorised Drilling by Daewoo: An Act of Provocation?

Although the 1974 Agreed Minutes Between Bangladesh Delegation and Burmese

Delegation regarding the Delimitation of Maritime Boundary failed to see the light of

ratification, a Friendship line was drawn via bilateral negotiations in 1979 between

both the contending states. But this so-called Friendship line was shattered on 5

November, 2008 when Myanmars Junta chartered a Korean Company, Daewoo

(which subcontracted four ships of which two were registered in Bahamas, one in

Belize and one in India) under the watchful eye of three Burmese (Myanmar)

warships approximately 50 nm southwest of Saint Martins Island.6 In response to this

illegal act three Bangladeshi naval ships (Abu Bakar, BNS Madhumita and BNS

Nirvoy) were dispatched to hinder the illegal drilling in the Bay but were denunciated

by the Burmese navels of trespassing.7 Myanmar subsequently stopped the

expedition after diplomatic palavers between the two countries, but it was claimed by

Myanmars government that the expedition was successful. Chapter 3, Article 12 of

the statute of International Law Commission8 reiterates that, There is a breach of an International Obligation by a state when an act of that

state is not in conformity with what is required of it by that obligation, regardless of its origin or character.

Note that, The Daily Star is the largest English Newspaper and has been circulating since 14 January 1991. 6 Sayed Zain Al Mahmood, Troubled Waters, The Daily Star Weekend Magazine, Volume 8, Issue 94, 13 November 2009, < www.thedailystar.net/magazine/2009/11/02/current_affairs.htm>, visited on 9 October 2010. 7 See Myanmar brings warships to explore Bangladesh waters, The Daily Star, published on 3 November, 2008, < www.bangladesh-web.com/view.php?hidRecord=229280>, visited on 11 October 2010. 8 , visited on 31 October 2010.

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A careful analysis would further elaborate that the Bay of Bengal being a

disputed zone for both Bangladesh and Myanmar, it is apparent that unauthorized

exploration of resources by Myanmar was a violation of Article 74(3) of LOSC which

conveys the message not to jeopardize or hamper the reaching of the final

agreement. Under the legal regime, this could be termed as a deliberate act by

Myanmar as it had cognizance of the Act of 1974 implemented by Bangladesh. Then

again, the further declaration made by the Myanmar government to reiterate the same

act is seen as a gesture of threat and manifests transgression. A legal argument can be

drawn from the fact that the exact location of Daewoos exploration was to the east of

friendship line that Bangladesh put forward in 1975 as a possible boundary.9

Although it is claimed as a possible boundary, in the absence of a legitimate

agreement, confusions arose as to the exact status of the EEZ for Bangladesh as it was

poorly defined in the Act of 1974. But considering the fact that three naval ships

escorted the respective drilling rig brings forth the notion that Myanmar was prepared

to protect the drilling rig from being ceased and detained by Bangladesh government,

at the occurrence of which Myanmar government would have been attributed under

international law for breach of international obligation i.e. liability for breach of

article 74 and 83 of ITLOS. Owing to the fact that the Act of 1974 was still in force

and bi-lateral negotiations were previously established within 1979-2005, Myanmars

attempt to employ a drilling rig for carrying out unlawful exploration is seen as

prejudiced to Bangladeshs right to equitable delimitation and a clear sign of

provocation, to the peril of Bangladesh.

2.3 Under the ITLOS Authority

The urgency to define its Maritime boundary and disappointing bilateral negotiations

led Bangladesh to submit its claims to Arbitral proceedings pursuant to articles 286

and 287 of UNCLOS and in accordance with the requirements of annex XV

(Arbitration). The letter of notification was duly communicated to Myanmar

government on 8 October, 2009. Immediately after notification, an antagonistic spark

ignited between the bordering states. Owing to the fact that both the parties could not

9 Jared Bissinger, The Maritime Boundary Dispute between Bangladesh and Myanmar: Motivations, Potential Solutions, and Implications, (Research Note), Asia policy, Number 10, July 2010, , visited on 11 October, 2010.

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reach a consensus on nominating the arbitrators to the Tribunal by mutual consent, a

case was logged into the ITLOS registry on the 14 December, 2009 and was entered

into the list of cases that very day (Case number 16). It is a fact that the mentioned

case is first of its kind to enter into the ITLOS registry and hence, exemplified the

broad jurisdiction of the Tribunal itself. The following table gives us an understanding

of important dates prior to the proceeding and the schedule as fixed by representatives

integral to the proceeding,

8 October, 2009 Notification of Arbitration proceedings

forwarded by Bangladesh.

4 November, 2009 Declaration by Myanmar of acceptance of

ITLOS jurisdiction

12 December, 2009 Declaration by Bangladesh of acceptance

of ITLOS jurisdiction.

13 December, 2009 Letter forwarded to the Tribunal referring

to declarations made by both parties.

14 December, 2009 (a)Filing of declarations in ITLOS

registry of declarations made by both

parties.

(b) Certified copy of notification

communicated to Myanmar.

25 and 26 January, 2010 Consultations held by president of the

Tribunal with representatives of both

countries regarding questions of

procedures.

1 July, 2010 Memorial submitted by Bangladesh.

1 December, 2010 Time-limit for filing counter-memorial by

Myanmar.

15 March, 2011 Time-limit for filing reply by Bangladesh

1 July, 2011 Time-limit for filing reply by Myanmar.

Source: http://www.itlos.org

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With the respective case pending, Bangladesh has also left the option of bi-

lateral negotiations open in order to achieve an amicable settlement with the opposing

state. This is evident from the two rounds of talks in 2010, the first in which Myanmar

shifted from its obstinate position to equity and equidistance of resources and the

second one in which Myanmar itself proposed to a friendship line which is an

imaginary line down to St. Martins Island in the north-east part of the Bay.10 The

Dhaka officials held that such a proposal was a deliberate excuse of wasting time to

bring forth a resolution by means of bi-lateral negotiations.11 A more logical

explanation would be that, Myanmar is making effort to cover-up the showdown

immediately after the institution of arbitral proceedings by Bangladesh which was a

display of animosity and wreaked violation of international obligation. Not only has

Myanmar succeeded in having total disregard for domestic laws12 but also portrayed

as being inconsistent in fulfilling international requirements13.

Chapter 3

3. Theory v. Reality: Implementing LOSC to Determine Validity of Maritime

Claims

3.1 Straight Baseline Determined

Proposal of a separate paragraph by Bangladesh as regards to delta and other natural

conditions to article 4(1) of the 1958 Territorial Sea Convention appears in an

amalgamated form in article 7(2) of the LOSC which determines use of straight

baseline for concaved coastlines,

Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this convention.14

10 Rezaul Karim, Daily Star (Bangladesh): Dhaka readies for long legal battle, Burmanet news Tuesday, 22 June 2010, < www.burmanet.org/news/2010/06/22/daily-star-bangladesh-dhaka-readies-for-long-legal-battle-%E2%80%93-rezaul-karim/>, visited on 14 Oct 2010. 11 Ibid. 12 Act of 1974. 13 Not accepting to reach a bi-lateral negotiation or any other peaceful means prior to the proceeding under article 279 of UNCLOS. (emphasis mine). 14 Kriangshak Kittichaisaree, Supra note 3, p. 30.

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It is vibrant that the theory of delta advocated by Bangladesh is tailor made to

suit its purpose and that Bangladesh opted to implement this provision to meet

international standards and to bring harmony in the delimitation procedure. Prior to

the commencement of LOSC, Bangladesh declared its straight baselines on depth

criteria in a subsequent gazette notification of Ministry of Foreign Affairs in 1974.15

The depth method does not fall within the purview of normal nor straight baseline

but corresponds to the latter in some aspects.16 This declaration of the use of depth

method is not explicitly mentioned in article 7(2) of LOSC but is consistent with the

term other natural prolongation which establishes the validity of the use of straight

baselines. It is argued that Bangladesh can use the straight baseline approach by

selecting appropriate points along the furthest sea-ward extent of the low water line

and this must be done (a) to suit different conditions17 and (b) with due regards to the

maritime boundary of the adjacent state. The judgment of Anglo-Norwegian fisheries

Case (1951) is considered to be a pioneer in this theory which ultimately achieved a

place in LOSC in a reshaped form. Then again, the judgment in Qatar vs. Bahrain

(1991) expresses the view that straight baseline is an exception to the normal rules

and can qualify if conditions are met i.e. if the coastline is deeply indented and cut

into or there is a fringe of islands along the coast in its immediate vicinity. 18

In practice Bangladesh has failed to get its baselines agreed upon by Myanmar but

is continuing its use of the sea zones upto 200 nm without any objection or hindrance.

Since the determination of baseline is the fundamental issue of maritime delimitation

without which the continuing regimes cannot be established, Bangladesh has

apparently drawn the line by the Act of 1974 and long-standing practice of exploiting

the living resources by the inhabitants of St. Martins Island.

3.2 Territorial Sea: An implicit Acceptance by Myanmar

15 Mohammed Nazmul Hoque (UN-The Nippon Foundation Fellow, 2005-2006), The Legal and Scientific assessment of Bangladeshs Baseline in the Context of Article 76 of the United Nations Convention on the Law of the Sea, 16 S.M Masum Billah, Delimiting Sea Boundaries by Applying Equitable Principles, The Daily Star, Law and our rights, Issue no: 140, 17 October 2009, < www.thedailystar.net/law/2009/10/03/>, visited on 14 October 2010. 17 See LOSC article 14 which states that the coastal State may determine baselines in turn by any of the methods provided for in the foregoing articles to suit different conditions. 18 See Malcolm N. Shaw, International Law, 6th edition, (Cambridge University Press, United States of America, 2008) p. 562.

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Territorial sea has been claimed under section 3 (2)19 of the Act of 1974. A

subsequent gazette notification20 via Ministry of Foreign Affairs, this claim has been

developed to 12 nm from the baseline. However, Article 15 of LOSC infers that

where the coast of two states are opposite or adjacent to each other neither of those

opposite or adjacent states is entitled to extend their territorial sea beyond the median

line every point of which is equidistant from the nearest points on the baselines from

which the breadth of the territorial sea is measured. However, it is also stated that

historic title and other special circumstances can be an exception to the provision of

median line which leads to identify the conformity of the Act of 1974 with the LOSC.

The claim for a 12 nm territorial sea by Bangladesh is rational. In 1974, Bangladesh

and Myanmar signed the Agreed Minutes Between the Bangladesh Delegation and the

Burmese Delegation Regarding the Delimitation of the Maritime Boundary Between

the Two Countries which is said to have delimited the maritime boundary in the

territorial sea guided by the Act of 1974.21 Talks occurred sporadically between the

signatories and a communication gap seemed to exist resulting in non-ratification of

the agreement. But the non-ratification frustrations and dearth of bi-lateral

agreements did not act as an obstacle in the exploiting of straddling fish or other

natural resources within the territorial boundary. It seemed Myanmar had implicitly

accepted the 12 nm claim made by Bangladesh in the Act of 1974.

3.3 Exclusive Economic Zone: Point of friction The subsequent notification made after the Act of 1974 specifies the 200 nm EEZ

asserted by Bangladesh.22 In practice the EEZ is inadequately defined as they consist

of two parallel lines extending southward on the meridians of longitude, from

19 Act 0f 1974, section 3 (2) provides that, [w]here a single island, rock or a composite group thereof constituting the part of the territory of Bangladesh is situated seawards from the main coast or baseline, territorial waters shall extend to the limits declared by notification under sub-section (1) measured from the low waterline along the coast of such island, rock or composite group. 20 Gazette notification by Ministry of Foreign Affairs, No. LT-1/3/74 (paragraph 2) states that, [t]he limits of the sea referred to in paragraph 1 shall be 12 nautical miles measured seaward and the baselines set out in paragraph 3 so that each point of the outer limit of the sea to the nearest point inward on the baselines is twelve nautical miles. 21 Re: Delimitations of the Maritime Boundaries among Bangladesh, India and Myanmar in the Bay of Bengal, Government of the Peoples Republic of Bangladesh, 13 December 2009, , visited on 14 October 2010. 22 Gazette notification by Ministry if Foreign Affairs, No. LT-1/3/74 (Final paragraph) states that, In exercise of the powers conferred by subsection (1) of section 5 of the Territorial Waters and Maritime Zones Act, 1974 (Act no. 16 of 1974), the Government is pleased to declare that the Zone of the high seas extending to 200 nautical miles measured from the baselines shall be the economic zone of Bangladesh.

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baselines corresponding to Bangladeshs coastline up to the outer limits of the

continental margin23. This reality has brought frictions as to the use of resources in

the EEZ between the adjacent countries whereas article 74 of LOSC announces an

equitable solution on the basis of agreements under International law. Although the

equidistant proposal was rejected by Bangladesh, Myanmars conduct was congruous

with what Bangladesh proposed as a friendship line which was considered an

honesty boundary, but the fact that no bi-lateral agreement was agreed upon by both

states paved the way for a confrontation in 2008 where Bangladesh with a view to

establishing sovereign rights interfered with drilling activities and Myanmar with the

same view threatened the interference as trespassing. Rest is assured; the claim for a

200 nm EEZ is previously established by the norms of International law and the Act

of 1974 maxims the chances of Bangladeshs rightful claim in the respective zone.

3.4 Extended Continental Shelf Claims: Justification of Natural Prolongation Till date the extended Continental Shelf claim by Bangladesh remains the centre of

attention among the other territorial regimes that need International intervention. Two

important principles have been laid down in article 7624 of LOSC, (a) the natural

prolongation of seabed and subsoil of the submarine areas to the outer edge of the

continental margin or (b) a distance of 200 nm from the baseline in cases where the

outer edge does not extend upto that distance.

Bangladesh has claimed a Continental Shelf till the last point of the

continental margin i.e. Bengal fan, which exceeds 200 nm. In such case it is entitled

to an additional 150 nm or more area beyond 200 nm of the extended Continental

Shelf of the central Bay of Bengal. The extended claims by Myanmar in the EEZ and

Continental Shelf is intersecting with Bangladesh and those additional claims have

made Bangladesh a zone locked state.25 Moreover, Myanmars claim which denies

Bangladesh any portion of its extended Continental claim beyond 200 nm is

23 Re: Delimitations of the Maritime Boundaries among Bangladesh, India and Myanmar in the Bay of Bengal, Supra note 21. 24 Article 76 of LOSC states, [t]he sea bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. 25 Sam bateman in Simon Roughneed, Burma, Bangladesh Border Buildup, 21 October 2009, , visited on 16 October 2010.

14

inconsistent with Part VI, article 76 of LOSC. Bangladesh has sent a diplomatic protest note to the United Nations against the claims of Myanmar over the extended

continental shelf in the Bay of Bengal.26 Myanmar and India made their submissions

to UN commission on the Limits of the Continental Shelf (referred to as CLCS

hereafter) on December 16, 2008 and May 11, 2009, where the extended demand falls

within Bangladeshs EEZ.27 Bangladesh is preparing to submit its contentions of

broadening its Continental Shelf horizon to CLCS over 150 nm (277 kilometers) or

more area beyond 200 nm by July 27, 2011.28 In the Continental Shelf Case29 the

criteria of natural prolongation were examined and endorsed by the International

Court of Justice (referred to as ICJ hereafter) and an arbitral tribunal. Denmark and

Netherlands intended to delimit the prolongation of the shallow waters of North-Sea

to be effected on equidistance principle the implementation of which would unduly

curtail the share of Federal Republic of Germany on the basis of proportionality to the

length of its North-Sea concaved coastline. Then again, both Denmark and

Netherlands contended that the whole matter was governed by Article 6 of the Geneva

Convention of the Continental Shelf of 29 April, 1958, designated by them as being

equidistance-special circumstances.30 In the opinion of the court article 6 of the

1958 convention represented the rule of binding customary International law on states

and that equidistance clearly could not be identified with the notion of natural

prolongation because it would frequently cause the areas of the territory of one state

to be attributed to the other.31 The basic principles in the matter of delimitation were

derived by the Truman Proclamation (28 September, 1945) by the court, which infers

that the object of agreement between the states concerned must be in accordance with

equitable principles.32 As may be observed, the principle of equity is germane to

claims where by reason of natural prolongation respective claims overlap and that rule

of law calls for an equitable solution as opposed to equidistance delimitation which

may lead to inequity and cut off a coastal state from its inherent right. The

26 Staff Correspondent, Dhaka protests at UN against Yangon claim, The Daily Star, 11 September 2009, , visited on 16 October, 2009. 27 Ibid. 28 Ibid. 29 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), 20 February 1969, ICJ, Advisory opinion. 30 Ibid., Summaries of Judgments, Advisory Opinions and orders of the International Court of Justice, p.73, paras. 1-2, , visited on 17 October 2010. 31 Ibid., p. 74, para. 4. 32 Ibid., p. 75, para. 4.

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opportunity to review the scope of special circumstances and to consider its

relationship with equitable principles arose in The Anglo-French Continental Shelf

case (1977-78) where the Court of Arbitration was of the view that both features were

serving the same object.33 Ultimately the Court of Arbitration was drawn to illuminate

the ICJ judgment that, There is no legal limit to the considerations which States may

take into account for the purpose of making sure that they apply equitable

procedures...., and made a significant contribution on the developing jurisprudence

on continental shelf by putting a moderate gloss on many of the dictums in the North

Sea cases.34 In the Libya-Malta case35, Libya was of the view that natural

prolongation involving geographical as well as geological and geomorphologic

remains the fundamental basis to legal title of Continental Shelf areas. Malta had a

dissenting opinion and relied on spatial concept i.e. distance principle (article 76 of

LOSC) independent of all mentioned characteristics. The ICJ incurred that, Neither is there any reason why a factor has no part to play in the establishment of title

should be taken into account as a relevant circumstance for the purposes of delimitation. It is true that in the past the Court has recognised the relevance of geophysical characteristics of the area of delimitation if they assist in identifying a line of separation between the continental shelves of the parties.36

Since the area of the Continental Shelf does not extend more than 200 miles

from the coast of the parties concerned, the principle of natural prolongation was

considered impertinent by the Court and finally the general configuration of the

coasts of the parties, their oppositeness, and their relationship to each other within the

general geographical context was taken in account.37

Hence, it can be estimated that natural prolongation is a vital factor only in

overlapping continental shelf areas beyond 200 nm or the outer limits of the

continental shelf. However, much of the Continental Shelf of Bangladesh is the result

of silt deposits channeling through her and it is not considered to be steep as it runs in

a steady and gradual slope from the coast of Bangladesh which ultimately leads it to

be a natural prolongation in the southward direction.38 This natural prolongation, in

33 E.D. Brown, The International Law of the Sea; Volume 1, Introductory Manual, Printed and Bound by Hartnolls Limited, Published (1994) by Dartmouth Publishing Company Limited (England), p. 173, paras. 1-3. 34 Ibid. 35 Continental Shelf (Libiyan Arab Jamahiriya/ Malta), ICJ reports, 1985, (Judgment of 3 June 1985). 36 Ibid., p. 26, para. 40. 37 Ibid., p. 48 [A(2), B(1)]. 38 Barrister Harun ur Rashid, Law of Maritime Delimitation, The Daily Star, published on 10 May, 2008, < www.thedailystar.net/pf_story.php?nid=35825>, visited on 18 October, 2010

16

case of Bangladesh if calculated from the breadth of the territorial sea to the outer

edge of continental margin, exceeds 200 nm. The outer edge of the margin is

calculated with reference to the foot of the continental slope, this being the point

where the continental slope gives way to the continental rise.39 From this point, a

state might either exercise jurisdiction for a further 60 nm seawards, or as far as a

point where the depth of the sedimentary rock overlying the Continental rise is more

than 1% of the distance of that point and is subject to on the two alternative

limitations: it cannot exceed 350 nm from the baseline, or more than 100 miles from a

point at which the depth of the water is 2,500 meters.40 So, an extended claim by

means of natural prolongation on behalf of Bangladesh is self-explanatory and that

Bangladesh can also claim another 150 mile or more from the limit of the EEZ based

on the geo-physical characteristics of the extended Continental Shelf.

Although the International Courts and Tribunals seek to solve the conundrums

of claims brought forth by the contending parties via International legal apparatus, the

pressure dramatically increases when geographical features are complex in nature and

the parties are obstinate in their claims and do not intend to come to a common

platform. The broadened claims based on natural prolongation by both Bangladesh

and Myanmar is sui generis in nature, but in order to reach an unbiased settlement

the place of contradiction should be taken up for joint-development by both countries.

But any communications in this regard made by Bangladesh has been disregarded by

the Government of Myanmar.

Chapter 4

4. Incentives and Catalysts: Under Troubled Waters

4.1 Catalysts of Dispute An issue that has been unattended by both disputing countries for approximately 3

decades, a swift and dramatic increase in assiduity draws a question as to why this

disputed territory has become a debated issue. From the November 2008 antagonistic

stand-off over Daewoos unlawful operation to Myanmars submission of the

39 Malcolm D Evans, International Law, 2nd Edition, 2006, Published by Oxford University Press (U.S.A), p. 642, para. 3. 40 Ibid.

17

extended Continental Shelf and no further intention in drawing a conclusion to end

this rivalry by means of bi-lateral negotiation have highlighted its intriguing interest

in what remains under troubled waters. The presence of thick sequences of reservoir-

quality sandstones together with organic-rich shales including anticlinical structures

makes basins highly prospective for natural gas and hydrocarbon exploration.41

Basins bearing oil, gas and mineral resources sometimes extend in areas of

overlapping claims and the Bengal Basin, a major part of which is occupied by

Bangladesh is reportedly abundant with straddling fish stocks and mineral resources

including Hydrocarbon. An increasing energy demand coupled with decreasing

energy supplies has raised the desperation to define the legal status of maritime

boundaries between Bangladesh and Myanmar. The claim for extended continental

shelf rises from the pursuit of prospective energy resources that remain hidden

beneath the troubled waters of Bengal Basin. Advances in offshore drilling

technologies have apparently fuelled the urgency in the action of both the countries.

The only sentiment that may echo from these contradicting claims is to delimit the

boundaries so that the oil and gas explorations may commence for each state without

any objections from the other. For the year 2009, Myanmar has confirmed reserves of

natural gas of 10 Trillion Cubic Feet (referred to as tcf hereafter) and ranked 36 in the

world.42 On the other hand the confirmed reserves for Bangladesh for the same year

are 5 tcf and ranked 43 in the world. 43 The given table depicts that the proven

reserves of natural gas for Bangladesh is 50% less than that of Myanmar.

Proven Natural Gas Reserves in Bangladesh and Myanmar (2009) [Billion Cubic

Feet = bcf]

Country Production

(bcf)

Consumption

(bcf)

Net

Export/Imports

(bcf)

Proven

Reserves

(bcf)

World

Rank

Burma

(Myanmar)

438 136 302 10 36

41 M Badrul Imam; Hussain, M, A review of Hydrocarbon Habitats of Bangladesh, 2002, Volume 25, Issue 1, Scientific Press Limited, Journal of Petroleum Geology (King Fahd University of Petroleum and Minerals), p. summary, , visited on 23 October 2010. 42 Data appears in Proven Reserves, U.S Energy Information Administration, , visited on 23 October 2010. 43 Ibid., , visited on 23 October, 2010.

18

Bangladesh 632 632 0 5 43

Source: U.S. Energy Information Administration

Although prospective gas reserves in the offshore area are difficult to assess,

United States Geological Survey has estimated the probability without disclosing as

to how the gas resources are allocated between both the countries.

4.2 Prospective Gas Reserves in Offshore Portions of Bangladesh: With the exception of Daewoos exploration in 2008, no recent surveys or

seismographic work has been done leaving both countries uncertain about potential

energy resources.44 However gas discoveries in proximate waters and a promising

geological make-up have led the governments to consider the clandestine gas reserves

explored to their benefits.45 Evidence may be deduced from NEC-25 block in the

Bengal Basin which is approximately 300 km from the overlapping claims and holds

approximately 3-5 tcf.46 Then again, the Dhirubhai fields as well as well as other

discoveries in the Indian deep-sea blocks D-4 and D-6 have drastically changed the

perspectives of International oil companies Significant regarding the Bay of Bengal.47

Significant gas discoveries estimated around 5-6 tcf were made by Myanmar in A-1

and A-3 gas block in Rakhain coast, offshore from Myanmar town of Sittwe and

100 km from the Teknaf coast of Bangladesh.48 China has proposed to construct a

pipeline from A-1 and A-3 gas fields in the Bay of Bengal to the Chinese borders and

signed contracts with Myanmar to explore oil and gas in three blocks which is a

distance of 900 Kilometres (referred to as km hereafter).49 Not so much exploration

work has been undertaken on the five offshore blocks by Bangladesh except

discovery of Sangu gas field with about .848 tcf of recoverable gas. Although

prospective gas reserves in the offshore area are difficult to assess, United States

Geological Survey has estimated the probability without disclosing as to how the gas

resources are allocated between both the countries. The probability (95%) of

prospective offshore gas reserves for Bangladesh is 4,776 tcf while the the number for

44 Supra note 9. p. 113. 45 Ibid. 46 Ibid., p. 114. 47 Ibid., p. 114. 48 Khurshed Alam, Maritime Boundary Dispute and Oil and Gas Exploration in the Bay of Bengal, The Daily Star, 2 August 2008, < www.thedailystar.net/story.php?nid=48489>, visited on 24 October 2010. 49 Ibid.

19

Myanmar is 3,883 tcf.50 With minimum proven gas reserves and an augmenting

economic growth of Bangladesh, deep-sea exploration and gas reserves in offshore

portions has added a new dimension in alternative gas supply.

The startling point to be noted here is that these respective offshore blocks

declared by Myanmar overlaps our claimed boundary in the EEZ and surveys

commenced by Bangladesh in this area was previously inhibited by Myanmar

Government. Moreover, in a transitional period of gas shortage Bangladesh requested

Myanmar for importing gas from the off-shore gas blocks to which Myanmar

appeared to have regretted with the excuse that Myanmar was already committed in

supplying gas to India and China although the pipeline for importing gas to

Bangladesh would have been shorter compared to India and China.51 On 7 May 2008,

in Bangladesh, seven oil and gas companies submitted their bids for 15 offshore

bocks, but due to vehement opposition from neighbouring countries including

Myanmar this bidding was postponed.52 Over the years none of the major

International Oil Companies (referred to as IOC hereafter) such as, Chevron, Exxon-

Mobil, Shell have responded to Bangladeshs bid in developing minerals in the off-

shore blocks. A significant reason for postponing the bid is that IOCs seek a

certainty of legal rights for gas extraction and mineral resource development in

maritime zones they wish to explore and in view of the explorations conducted by

Myanmar it has become imperious for Bangladesh to do the same to strengthen her

claims over the disputed territories.

4.3 Sustainable Energy Development v. Foreign Exchange As Sean Turnell53 once stated that as regards to Bangladesh, its all about getting a

source of cheap and reliable energy so as to power its developing industrialization

amd for Myanmars regime, on the other hand, the motivation is to sell the gas.54 For

Bangladesh, the odyssey of natural gas production began in 1960 and three decades

into independence, natural gas is its significant source of commercial energy. Energy,

50 Supra note 9, USGS, Bangladesh: Assessment Results Summary-Allocated Resources; and USGS, Burma: Assessment Results Summary-Allocated Resources. 51 Ibid. 52 Staff Correspondent, Sea Border Talks Start Today, The Daily Star, 15 September 2009, , visited on 25 October 2010. 53 A Myanmar expert and Economist at Macquarie University, Australia 54 See Maritime Dispute between Bangladesh and Myanmar, Narinjara News, 18 July 2010, , visited on 25 October 2010.

20

to be more precise electricity is a pre-requisite for industrial development and it is a

fact that Bangladesh has never enjoyed 100% electrification. The national

Government is finding it hard to address these issues because the current gas wells are

already running at full capacity. More than 80% of natural gas are developed by

foreign energy companies and subsidiary companies and are allocated in satisfying

the growing domestic needs for electricity. The resultant growth of electricity demand

has largely been met by domestic natural gas resources which generates 85% of the

countrys electricity.55 As the older fields of these domestic natural gas resources

become exhausted, the incentives to exploit more technically challenged resources

have paved its way. But if the maritime boundaries are properly defined, the just

and equitable delimitation will ensure Bangladesh with abundant supply of natural

gas. Since Bangladesh is acquainted with Sustainable Energy Development and

Renewable Energy Projects, viable approaches need to be amplified and a

transparent strategy needs to be formulated to preserve and transform these future

abundant supplies into renewable energy and ultimately pave the way for

sustainable energy development (See Flowchart).

Increasing Demand of Natural Gas

Present Natural Gas Reserves Being Drained from Over Usage

Need For Energy Security

Incentives to Exploit Technically Challenged Resources

Extracting Natural Gas from Offshore Blocks

Transforming Natural Gas into Renewable Energy

Enhancement of Energy Security

Sustainable Energy Development

Flowchart: Towards Sustainable Energy Development

55 Supra note 9. p. 117.

21

On the other hand, Myanmars need for natural gas is seen as a major

foreign currency lifeline of the government. Over the last couple of years 10%-15%

of Yadana and Yetagun fields served the domestic purpose and as more power

production comes online from Shwe and Zawtika fields, even less gas is planned

for use in power generation.56 According to Myanmar Government electricity

generation will drop from 39.8% in 2005 to 4.3% of total production in 2030 due to

the fact that large hydropower projects are being undertaken.57 Hence, it is quite clear

that any new development of natural gas or mineral reserves in offshore regions will

exclusively be used in export purpose and diversify the destinations of gas exports.

Then again, the sales of natural gas to Thailand makes up almost the entirety of

Myanmars natural gas exports (See Income from Burmas Natural Gas Exports)

leaving the remaining earnings to add to an economy that has already plateaud to a

developed platform.

Income from Burmas Natural Gas Exports58

Fiscal Year Income (Billion Dollars)

2007-2008 2.53

2008-2009 2.38

2009-2010 (first five months) 1.2 +

4.4 What if? With a case hanging in the balance with ITLOS, there are two sides to be considered

by Bangladesh, (a) if the pleaded equitable claims are adjudicated, (b) if the

adjudication is made on the principles of equidistance. With regards to the first

possibility, it can be assumed that the war will not be over even if Bangladesh wins.

The Government of Bangladesh has to rise to the occasion to invite bids all over

again where it has to consider the pros and cons of every agreement entered into with

IOCs for its own benefit, which may be time consuming and not be able to meet the

increasing demand at the right time. Time is a luxury that the Government cannot

afford owing to the fact that there are chances that the delimited territories (after

56 Supra note 9. p. 123, para. 2. 57 Ibid. 58 See Burmas August gas exports to Thailand earn 588 million dollar, Democracy for Burma, , visited on 26 October 2010.

22

adjudication) may be unattended by the Government for years to come. Previous

actions of the Government brings forth the notion that, it failed miserably to amend

the Act of 1974 for the last two decades, after the LOSC came into force in 1982.

Then again, there were opportunities to claim the extended continental shelf from

1982 till 2005, before Myanmar approached the CLCS for extended claims.

Moreover, the Government must bear in mind that the natural gas extracted from the

sea-bed must be used to address the prevailing energy-crisis and if imported, the

money should be utilised in developing Sustainable Energy Projects. Equitable

delimitation just might be the answer taking into account proper time-management,

proper usage of the exploited natural gas, and development of energy sectors and last

but not least to expand and modernise the Renewable Energy Projects.

The other side of the coin lets us investigate some of the tribulations Bangladesh may

undergo. The existing gas reserves of Bangladesh can support domestic demands for

the next 50 years. Although it is believed that Bangladesh is financially incapable of

importing gas, no further statements have been given by the Government as to

alternative sources of energy if for any case the domestic gas wells run dry. Then

again, if Myanmar enacts the same 50 km restriction around the overlapping claims

as it did around the Shwe fields then the consequences could be devastating for

livelihood of the Bangladeshi coastal fishermen.59 Less employment in the coastal

areas of Bangladesh could lead to more refugees and increased vulnerability among

the Muslim Rohingya could foster a more fertile recruiting ground for transitional

Islamic groups that span the Bangladesh-Myanmar border60. Moreover, Bangladesh

would have to improve her diplomatic relations with Myanmar and plead to sign a

Memorandum of Understanding (referred to as MOU hereafter) so that it can jointly

develop any blocks given by Myanmar and only then extract the natural gas required

to satisfy domestic needs. But in view of the previous failed attempts by Bangladesh

to reach a bi-lateral agreement may not shed light on joint-development and even if

Myanmar shows signs of sympathy towards Bangladesh and establishes a MOU, it

cannot be estimated as to what conditions Myanmar may impose on Bangladesh in

return of the approval given to develop blocks within its territory. Only time can tell

what lies in the wake of this so-called developing third-world country.

59 Supra note 9. p. 139. 60 Ibid.

23

Conclusion

(a) Any act in the disputed zone that takes place without the knowledge of the

opposite state may not be supported under International Law. Since the 1974 Agreed

Minutes Between Bangladesh Delegation and Burmese Delegation regarding the

Delimitation of Maritime Boundary were neither ratified, nor domestically enforced,

Myanmar may establish the alibi that the exploration took place within their

respective boundary. As previously stated, the frustration arose from the lack of a

geographical definition of maritime borders. In order to prove the illegality of

Myanmars contentions, Bangladesh may have to resort to the intimidating messages

conveyed from the Myanmar Naval ships. Hence, a proper analysis of the facts of the

incident coupled with the transmitted messages concretely establishes the fact that

engaging Daewoo to carry out a drilling operation (on 1 November, 2008) in the

disputed waters was an illegal act rendering Myanmar responsible for breach of

International obligation. (b) By applying the apparatus of LOSC, it is quite clear that

Bangladesh can claim a Continental Shelf to the outer edge of the Continental

Margin. Since the Continental Shelf itself is a natural prolongation, an extended claim

of 150 nm is held to be valid under International Law, but in order to place any claim

before CLCS, Bangladesh needs to adduce proper documents and survey reports to

establish the claim as required by CLCS. Considering the paradigm of landmark

judgments prior to and after LOSC, it is easily apprehended that the extended claim of

Continental Shelf is valid and a justified claim under the doctrine of International

Law. (c) Equitable delimitation may in a certain way fill in the gaps of the existing

energy crisis of Bangladesh. With the equitable share of the sea-bed, Bangladesh

can extract the necessary resources but if careful considerations are not given to

developing the sustainable energy projects, then the gaps may widen and place the

energy crisis in a degrading position in the long run. (d) If the final judgment

corresponds to equidistance delimitation, Bangladesh will have to explore the given

territories and utilize the full potential that certain territory has to offer. It can be

assumed that, sharpening the diplomatic strategies and approaches may bring

flexibility among the states for a joint-development project. From a legal

justification, Bangladesh seems to hold a strong case in its support, and maybe one

day this continuous combat may cease and the resources under troubled waters may

be the answer to the ongoing energy crisis.

24

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