July 28, 2014
The recent Indo-Bangladesh Maritime Delimitation award contributes substantially to international law. But will it lead to greater cooperation in South Asia or revive tensions?
Asia is a hotbed of maritime disputes and The Bay of Bengal is no exception. On July 7 this year, a panel of five jurists of the Permanent Court of Arbitration delivered the long-awaited award concerning the maritime delimitation of Bangladesh and India. Bangladesh/India cements the boundary of the four maritime zones that the U.N. Convention on the Law of Sea (UNCLOS) entitles states to: the territorial sea, the exclusive economic zone (EEZ), the ‘inner’ continental shelf extending up to 200 nautical miles from the coasts of the states as well as the ‘outer’ continental shelf extending beyond 200 nautical miles from the coasts of the states. The award is undoubtedly historic but raises more questions than delivers answers.
To quickly recapitulate, under the UNCLOS, the territorial sea of adjoining coasts (like those of India and Bangladesh) must be delimited using an equidistance line drawn from each coast. However, no guidelines are provided for the delimitation of the continental shelf or EEZ. The only caveat provided by treaty is that the delimitation conforms to ‘equity’. Prior delimitation awards have generated a three-step analysis for dividing the continental shelf and EEZ. The first step is the establishment of a provisional equidistance line between the states, the second, consideration of relevant circumstances for the adjustment of this line and, finally, an ex post facto correction of any disproportionality in the final result.
The Bangladesh/India tribunal contributes to greater certainty in EEZ and inner continental shelf delimitation by explicitly stating that the three-step test now constitutes international law.
Unfortunately, while reiterating emerging norms, the Tribunal also perpetuates their attendant disadvantages by entangling itself in the redundant rhetoric of ‘equity’. The three-step test emerged from equitable considerations in the UNCLOS. Questions have already been raised about the value of the ‘disproportionality’ stage in the three-step test as it appears to be merely a synonym for equity. It is alleged that discretion to correct for ‘disproportionality’ adds unnecessary subjectivity to a test already predicated on personal discretion. Bangladesh/India complicates this further by subjecting the ‘relevant circumstances’ to equity considerations as well. The court is overtly cautious and is enlarging the scope for arbitral discretion in maritime delimitation.
Outer continental shelf rights
The UNCLOS provides for the extension of the continental shelf beyond 200 nautical miles where a natural prolongation of the continental shelf exists. The UNCLOS states that all outer continental shelf claims must be submitted to the Commission on the Limits of the Continental Shelf (CLCS) that is created by the UNCLOS itself whose recommendations are “final and binding.” The Bangladesh/India tribunal acknowledges that claims forwarded by India and Bangladesh are pending before the CLCS but states that it has the authority to delimit these territories anyway. If the UNCLOS suggests that outer continental shelf rights can only arise from CLCS approval, can the Tribunal suo moto create a boundary where no right exists? It is unlikely that a Tribunal would have the necessary expertise to make this determination. Moreover, such a jurisdictional conflict might cast doubt on the finality of the award if the CLCS was to make recommendations contrary to the order. Perhaps it is these issues that caused the Nicaragua/Honduras tribunal in 2007 to steer clear of outer continental shelf delimitation. In the words of that tribunal: “Any claim of continental shelf beyond 200 miles must be in accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf established thereunder”.